2013 VT 78


In re R.M., R.M., and C.M.
(2013-086)
 
2013 VT 78
 
[Filed 30-Aug-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 78

 

No. 2013-086

 

In re R.M., R.M. and C.M.,
  Juveniles


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Washington
  Unit,


 


Family Division


 


 


 


June Term, 2013


 


 


 


 


Thomas
  J. Devine, J.


 

Michael Rose, St. Albans, for Appellant.
 
Kristin G. Wood, Washington County Deputy State’s Attorney,
Barre, for Appellee State.
 
Matthew F. Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier,
  for Appellee Juveniles.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.   Following a permanency review hearing, the
superior court, family division amended its initial disposition order from a
goal of reunification to a concurrent plan for either reunification or
adoption.  Mother appealed, claiming that the court erred in modifying the
disposition order and finding that a reasonable period of time for her to complete
needed services under the new plan was six months.  While the appeal was
pending, we requested supplemental briefing on whether the order in question is
an appealable final order.  We now conclude that it is and affirm the
judgment. 
¶ 2.            
The three children involved in this appeal, R.M., R.M. and C.M., have
been the subject of various juvenile proceedings since 2004, when they lived
with their parents in the City of Winooski.  CHINS petitions were filed in
2009 alleging neglect based on habitual truancy. While the petitions were
pending, mother moved with the children to Pennsylvania, and the matter was
placed on inactive status.  Father later moved to New York, and has since
maintained limited contact with the children.  
¶ 3.            
In August 2011, mother sent the children back to Vermont to live with
her older son in Winooski while she remained in Pennsylvania. This followed an
investigation in Pennsylvania which disclosed that the family was being evicted
from their apartment and that the family home was replete with dirty laundry,
garbage, spoiled food, and insects.  In September 2011, DCF became aware
of the children’s return to Vermont and took them into custody.  They were
later placed in foster care, where they have since remained.  Mother and
father stipulated to an adjudication of CHINS in February 2012.  
¶ 4.            
Following a disposition hearing in April 2012, the court issued a
written order adopting the case plan goal of reunification together with the
requirements that mother obtain adequate housing and maintain it in a safe and
sanitary condition, maintain consistent and successful visitation, engage in
parent-education services, and participate in mental health counseling. 
In October 2012, however, DCF filed a follow-up case plan recommending that the
goal be amended to a concurrent one of reunification or adoption.  The
court held an evidentiary hearing in January 2013 and issued a written decision
shortly thereafter in which it “adopt[ed] the proposed amendments to the case
plan based on changed circumstances in the best interest of the
children.”  The court found in this regard that mother had “not made
substantial progress toward the goal of obtaining safe and appropriate
housing,” that her progress in mental health treatment was uncertain, and that
additional parenting education was needed.  Thus, the court found that,
after eighteen months in DCF custody, “the children are [still] not able to go
home to mother’s care today, nor is that likely to happen in the immediate
future.” “The slow pace of [mother’s] progress and the children’s need for
permanency,” the court further concluded, represented a substantial change of
circumstances, and determined that “a modification of the disposition order to
reflect a concurrent plan [was] now in the best interest of the
children.”  The court explained that while it was not “abandoning
reunification” as the primary goal, “concurrent planning [would] enable DCF to
prepare for an alternative should [mother] become unable to complete needed
services within a reasonable period of time,” which it projected as “six more
months.”  Mother has appealed from this decision.[1]
¶ 5.            
As noted, a threshold issue is whether the trial court decision modifying
the initial disposition order is appealable under the statutory scheme
governing permanency proceedings.  Under that scheme, once a child has
been adjudicated CHINS, DCF is required to file a disposition case plan which
must include: a permanency goal; assessments of the child’s needs, living
situation, and family circumstances; a recommendation with respect to custody;
and a plan of services to achieve the permanency goal.  33 V.S.A. §
5316(b).  The trial court must then conduct a disposition hearing and
issue an order “related to legal custody . . . as the court determines are in
the best interest of the child.”  Id. § 5318(a).  If the order
provides for a transfer of custody with a goal of reunification, the court is
directed to schedule “regular review hearings to evaluate progress,” id.
§ 5318(a)(2), the first to occur within 60 days of the disposition order, id.
§ 5320(a).  Where custody is transferred to the Commissioner of the
Department of Children and Families, pursuant to § 5318(a)(4), the disposition
order is also  “subject to periodic review at a permanency hearing.” 
Id. § 5321(a).
¶ 6.            
The disposition order is the foundation for the various review
proceedings.  It is  “a final order which may only be
modified based on the stipulation of the parties or pursuant to a motion to
modify brought under section 5113 of this title.”  Id. § 5318(d)
(emphasis added).  The latter provision authorizes the trial court—after
notice and a hearing—to amend, modify, set aside or vacate an order “on the
grounds that a change in circumstances requires such action to serve the best
interests of the child.”  Id. § 5113(b).  
¶ 7.            
We do not read the various avenues for review of the circumstances and
expectations of the parents and children to create independent opportunities to
modify a disposition order without a showing of changed circumstances under §
5113(b).  Instead they reflect that circumstances must change within
relatively short periods of time to reflect the goals of the case plan and
achieve permanency for the children.  Thus, one result of a permanency
hearing is to produce an estimate of when the permanency goal will be
achieved.  Id. § 5321(a). The court recognized the standard in this
case and, where the result of the permanency hearing was to modify the
disposition order, the court found that the modification was based on changed
circumstances as defined in § 5113(b).[2] 
This new order—with its modified permanency goal, parental requirements, and
timeframes—essentially replaced the original disposition order.
¶ 8.            
Because a disposition order is a “final order,” id. § 5318(d),
and thus meets the standard for an appealable order, see In re Burlington
Bagel Bakery, 150 Vt. 20, 21, 549 A.2d 1044, 1045 (1988) (to be final and
appealable, an order must “end litigation on the merits or conclusively
determine the rights of the parties, leaving nothing for the court to do but
execute the judgment” (quotation omitted)), the parties can appeal a
disposition order whether original or as a result of modification. 
Because the order mother has appealed is an amended disposition order, we have
jurisdiction over the appeal.  Although we have not previously considered
the issue, we note that this conclusion is consistent with a number of our
prior decisions.  See, e.g., In re D.G., 2006 VT 60, ¶¶ 1-4, 180
Vt. 577, 904 A.2d 1206 (mem.) (affirming permanency planning order modifying
custody from DCF to child’s aunt and uncle and holding that evidence supported
finding of changed circumstances); In re A.G., 2004 VT 125, ¶¶ 16-27,
178 Vt. 7, 868 A.2d 692 (affirming decision modifying permanency goal from
reunification to long-term foster care and concluding that evidence supported
finding of changed circumstances); In re L.S., 172 Vt. 549, 549-50, 772
A.2d 1077, 1078 (2001) (mem.) (appeal from order modifying initial disposition
goal from reunification to long-term foster care); cf. Titus v. Titus,
128 Vt. 444, 444, 266 A.2d 432, 433 (1970) (order modifying a divorce decree is
a final judgment that can be appealed).     
¶ 9.            
Turning to the merits, mother’s sole claim is that the trial court erred
in finding six months to be a reasonable period of time to achieve the
permanency goal of reunification.  She contends the finding was factually
unsupported, and that its effect was to improperly “predetermine” issues that
may arise in a future termination proceeding, such as the “future date on which
changed circumstances will be deemed to have occurred” and whether a
“reasonable period of time” to resume parental responsibilities has
expired.  The DCF case plan presented to the court for disposition is
required to include “a permanency goal and an estimated date for achieving the
permanency goal.” 33 V.S.A. § 5316(b)(1).  DCF complied with this
requirement, and the court approved the case plan.  The estimated date had
expired when DCF sought a new permanency hearing to establish a new
order.  Again, at the permanency hearing, the court was required to
establish a new “estimated time for achieving that goal.”  Id. at §
5321(a).  The court did so by setting a new six-month period for the
children to achieve permanency.
¶ 10.        
The court’s order was fully supported by the record.  The court
went back to the four requirements mother had to meet to achieve reunification
and evaluated her progress as to each.  The first was to obtain safe and
appropriate housing.  The court found little or no progress on this
requirement.  Mother remained unemployed and was living with an adult son
in a small apartment in Pennsylvania that she acknowledged was insufficient to
accommodate the children.  Mother suggested that the children could live
with her brother, who lives nearby, and the court ordered a home study of this
potential residence.
¶ 11.        
The second was to maintain consistent and successful visitation. 
Mother’s visits with the children had become more regular, but her last
visitation had gone poorly because she had slapped and hit her son and brought
an adult son, who had been substantiated for sexual abuse of mother’s daughter,
to the visitation.  The court found that mother continued to show a “lack
of insight” and “underscore[d] the need for [mother] to have further parent education.”   
Parent education was also a requirement of the disposition order.  Mother
had participated in some parental education services, but the court found that
additional services were necessary.   Finally the disposition order
required that mother obtain mental health treatment.  The court found that
mother had obtained treatment but was unwilling to find, because of lack of
evidence other than mother’s self-report, that mother had made any progress as
a result of the treatment she had received.   
¶ 12.        
As for the children, the court found that, although they had adjusted
well to their foster home, they had “many unresolved issues” and were not
performing to their potential, and it was “critical that any future move be
the[ir] last move.”    
¶ 13.        
Mother has challenged none of these specific findings, which together
amply support the trial court’s conclusion that six months was a reasonable
period of time to achieve reunification, given the relatively slow pace of
mother’s progress and the children’s need for permanency.  See In re
R.W., 2011 VT 124, ¶ 15, 191 Vt. 108, 39 A.3d 682 (on appeal we will affirm
trial court’s findings unless clearly erroneous and its conclusions if
reasonably supported by findings).   
¶ 14.        
The superior court’s finding that an additional six months appeared to
be a reasonable period of time for mother to accomplish the necessary steps for
reunification was simply that, an estimate based on her past performance,
progress to date, and the children’s continued need for permanency. 
Mother’s main concern is that specification of the six-month  period will
make termination of parental rights automatic if the period is not met. 
See 33 V.S.A. § 5114(a)(3) (factor in determining best interests of a child
where termination of parental rights is sought is the “likelihood that the
parent will be able to resume or assume parental duties within a reasonable
period of time”).  We do not believe a specific estimate of the time
necessary to achieve permanency has the binding effect that mother fears. 
If the State seeks to terminate her rights, mother is not foreclosed from
challenging the time-period as unreasonable in hindsight, and the trial court
must determine independently based on the evidence before it whether the State
has carried its burden of proving that a substantial change in material
circumstances has occurred and that there is no likelihood of mother resuming
her parental responsibilities within a reasonable period of time.  See In
re R.W., 2011 VT 124, ¶ 15 (reaffirming principle that State has burden of
proof at both stages of termination-of-parental-rights proceeding).  At
the same time, we note that it is clearly the intent of the permanency planning
aspects of the juvenile statutes that parents be given expectancies of time
necessary to achieve child permanency, and the parents’ performance with
respect to those expectancies is a factor for the court to consider if the case
moves to termination of parental rights.  Accordingly, we find no basis to
disturb the judgment.
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]
 Father has not joined in this appeal.  He appeared by telephone and
was represented by counsel.  He opposed reunification of the children with
the mother and urged that the children remain in foster care.  


[2]
Mother has not argued that the circumstances were not changed. Changed
circumstances were clearly present because the original time expectation for
reunification, approved in the disposition order, had passed without
reunification.



