Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-074

                                          JULY TERM, 2013

In re A.M. and A.M., Juveniles                        }     APPEALED FROM:
                                                      }
                                                      }     Superior Court, Washington Unit,
                                                      }     Family Division
                                                      }
                                                      }     DOCKET NO. 111/112-7-11 Wnjv

                                                            Trial Judge: Walter M. Morris, Jr., (Ret.)

                          In the above-entitled cause, the Clerk will enter:

        Mother and father appeal the court’s order terminating their parental rights to their
daughters As.M. and Ay.M., born in June 2007 and June 2010, respectively. On appeal, mother
and father argue that the court lacked sufficient evidence regarding the qualities of the parent-
child bonds and the constructiveness of the parents’ roles in the children’s lives. We affirm.

        In December 2010, the State filed petitions alleging that the children were without proper
parental care due to chronic neglect from the instability of their parents’ lifestyle. Because of
parents’ failure to follow through with recommended services and supports, they were living in
unsanitary conditions and subject to eviction. The court transferred custody of the children to the
Department for Children and Families (DCF), and DCF placed the children with their maternal
great aunt and uncle. Based on the parents’ stipulation, the court found that the girls were
children in need of care or supervision (CHINS) in April 2011. The initial case plan goal was
reunification. The primary concerns were addressing parents’ mental health issues and chronic
homelessness.

        In December 2011, the case plan goal changed from reunification to adoption, and
petitions for termination were filed. During the intervening period, parents had trouble securing
and maintaining housing. The longest period they succeeded in having adequate shelter was
seven to eight months, but the rest of the time they were in temporary living situations primarily
in the apartment of one friend with whom they had a contentious relationship. Father suffers
from traumatic brain injury and post-traumatic stress disorder as well as serious depression and
anxiety. He takes medication, but engages in no counseling. Father has a poor work history and
has demonstrated an inability to maintain employment for any length of time. Father has
exercised poor judgment in parenting. He blames others for his family’s chronic homelessness.
He does not accept responsibility for the family’s circumstances, or for the children being
removed from his care.


         As.M. was previously in DCF custody. She was removed from her parents’ care at 3
1/2 months old and lived with her great aunt and uncle for fifteen months until being reunified
with parents.
        Mother has bi-polar and anxiety disorders. She previously was engaged in counseling,
but her participation lapsed in the summer of 2012. She has been employed, but did not have a
job at the time of the final hearing. Mother does not accept responsibility for the circumstances
that have resulted in the children being removed from her care.

      Neither parent completed a parent education program as recommended in the initial April
2011 case plan. Father failed to participate in a mental health assessment or counseling as
recommended.

        Following a termination hearing, the court found a change of circumstances based on
parents’ stagnation. Although the court noted that parents have a relationship with the children
and continue to visit them, the parents have not made progress. Parents have not engaged in the
case-plan goals. They have unresolved mental health issues and have failed to engage in services
to address their chronic inability to maintain housing. Their inability to address personal issues
has resulted in no improvement in the underlying circumstances that caused the children to be
taken into custody.

        As to the children’s best interests, the court found that the children have a loving and
beneficial bond with their foster parents, who wish to adopt them. The children are well adjusted
in their foster home and have “flourished” in the care of the foster parents. The court explained
that while the children visit regularly with parents, parents do not function as parents. The court
also acknowledged that during the visits, parents play a constructive role in the children’s lives.
Nonetheless, the court found that the role was limited and parents were not making efforts to
progress in their assumption of parental duties. Parents deny any responsibility for the
circumstances that resulted in the children’s removal and have not made progress to address
those circumstances. The children have been in custody for over two years and are in need of a
permanent, stable loving caretaker. The court found there was no likelihood that parents would
be able to resume parenting within reasonable period of time, and that this outweighed any
constructive role parents had in the children’s lives. The court granted the petitions to terminate
parents’ residual rights. Both parents appeal.

         Termination of parental rights involves a two-step analysis. As a threshold to altering the
prior disposition, the court must consider whether there has been a substantial change in material
circumstances. 33 V.S.A. § 5113(b). A change of circumstance occurs “when a parent’s ability
to care for a child has either stagnated or deteriorated over the passage of time.” In re S.W.,
2003 VT 90, ¶ 4, 176 Vt. 517 (mem.) (quotation omitted). If this threshold is satisfied, the court
must then consider whether termination is in the child’s best interests. 33 V.S.A. § 5114(a)
(listing statutory best-interests factors).

       The statutory factors guide the court’s determination of the children’s best interests.
These factors include: (1) the child’s interaction and interrelationship with her parents and foster
parents; (2) the child’s adjustment to her home, school and community; (3) the likelihood the
parents will be able to resume parental duties within a reasonable period of time; and (4) whether
the parent plays a constructive role in the child’s welfare. 33 V.S.A. § 5114(a). The most
important factor is whether a parent can resume parenting in a reasonable period of time. In re
B.M., 165 Vt. 331, 336 (1996). “On appeal, we will affirm the trial court’s findings in support of
changed circumstances unless they are clearly erroneous, and we will affirm its conclusion if
supported by the findings.” In re S.W., 2003 VT 90, ¶ 4.


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        On appeal, parents argue that the court lacked evidence regarding the quality of the
parent-child bonds and the constructiveness of the parents’ roles in the children’s lives as
relevant to the best-interests analysis. Parents assert that there was insufficient evidence for the
court to determine the nature of parents’ bond with the children, and that this undermined the
court’s conclusion that the value of maintaining parent-child contact was outweighed by the
parents’ inability to resume parenting within a reasonable period of time.

        We find no merit to this argument. The court considered each of the statutory factors,
including factors (2) and (4) relating to the children’s interaction and interrelationships with
others, particularly the parents, and the nature of the role of the parents in the children’s lives.
The evidence showed a relationship existed between parents and the children, but also
demonstrated that parents did not function as parents and had not progressed in their ability to
care for the children. The evidence of parents’ lack of engagement in services and failure to
follow recommendations for counseling is evidence of this lack of progress and continued
instability. The evidence supports the court’s conclusion that parents had a very limited role in
the children’s lives, and were not making efforts to expand their role in the children’s lives.
They took no responsibility for the circumstances that led to the children being taken into
custody, such as addressing their mental health issues and chronic homelessness. While they
visited their children, they had not addressed their personal issues and thus were unable to
provide the children with a safe and stable living environment. See In re M.B., 162 Vt. 229, 238
(1994) (explaining that demonstrated inability to provide stability relevant to determination of
whether to terminate parental rights). This is not an evidentiary “vacuum” as parents describe. It
was sufficient evidence for the court to ascertain the nature of the parent-child relationships and
the constructiveness of the parents’ roles in the children’s lives. Most importantly, the evidence
supports the court’s finding that parents would not be able to resume parental responsibilities in a
reasonable period of time, and that this factor outweighed any beneficial role parents had in the
children’s lives. See id. (noting that a parent-child bond must not be maintained “regardless of
the cost to the child” and severance may be in the child’s best interests).

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Brian L. Burgess, Associate Justice




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