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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-096

                                          JULY TERM, 2016

 In re O.C., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
                                                       }    Family Division
                                                       }
                                                       }
                                                       }    DOCKET NO. 76-4-13 Frjv

                                                            Trial Judge: Alison S. Arms

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

       Mother and father separately appeal from a family court judgment terminating their
parental rights to the minor O.C. Mother contends the court failed to apply the requisite clear-
and-convincing evidence standard. Father joins in the claim. We reverse and remand.

       For purposes of resolving this appeal, the facts may be succinctly summarized. O.C. was
born in December 2012. Mother’s parental rights to five of O.C.’s six older siblings had been
previously terminated. Father separately has three older children, one of whom was living in a
residential care program and two with their biological mother at the time of the hearing. He had
not seen any of the older children in eight years.

        In April 2013, a CHINS (child in need of care and supervision) petition was filed as to
O.C., alleging that parents had allowed a registered sex offender to have unsupervised contact
with O.C. and an older sibling, and that feces and urine from a number of dogs covered the floor
of the family’s residence. In May 2013, parents stipulated to an adjudication of CHINS, and
O.C. was placed with parents under a conditional care order. In July 2013, the conditional care
order was revoked due to parents’ violations of the order, and O.C. was placed with a foster
family, where she has since remained.

        A case plan with concurrent goals of reunification by February 14, 2014 or adoption was
approved in December 2013. The plan called for both parents to protect O.C. from physical,
sexual, and emotional abuse, to provide a safe and stable home environment, to refrain from
associating with known sex offenders, and to participate in counseling and parent education
services. Petitions to terminate parental rights were filed in June 2014, but were later withdrawn
to afford parents additional time to engage in services. The petitions were refiled in January
2015, and an evidentiary hearing was held over two days in November and December 2015.

        The court issued a written decision in March 2016. In brief, the court found that, over the
course of two-and-a-half years, parents’ progress in meeting the case plan goals had stagnated;
that neither had developed sufficient parenting skills to recognize and address O.C.’s needs; that
mother had made no progress in counseling; and that father had made little effort to address his
anger-management issues. O.C. had since been thriving in his foster home, where he was well
integrated and well cared for. The court concluded that neither parent could resume parental
responsibilities within a reasonable time, and that termination of parental rights was in O.C.’s
best interests. This appeal followed.

         Mother’s sole claim, which father has joined, is that the trial court failed to state
explicitly or implicitly that it had applied the requisite clear-and-convincing evidentiary standard.
See In re R.W., 2011 VT 124, ¶ 14, 191 Vt. 108 (reaffirming rule that State must meet its burden
of proof at both stages of termination proceeding by clear and convincing evidence). Mother
suggests that, in fact, the findings imply that a lower standard was employed. The latter claim is
unconvincing. She asserts that the court improperly relied on a “substantiation” by DCF that
father had sexually abused O.C.’s older sibling, a finding based on a lower threshold of proof.
The record shows, however, that the trial court expressly declined to “consider the alleged sexual
abuse in making its determination,” and there is nothing to support mother’s claim that the court
criticized or otherwise penalized her for not crediting the abuse allegation. Nor does the court’s
statement that the evidence raised the “possibility that [mother’s] visits [were] having a negative
impact” on the child imply that it applied a preponderance standard to the evidence as a whole.

         We do agree, however, that the decision does not contain language sufficient to provide
reasonable assurance that the court’s findings were based on a clear-and-convincing evidentiary
standard. Cf. In re C.L., 151 Vt. 480, 488 (1989) (noting that we may examine decision as whole
to determine if court applied proper standard, and holding that court’s finding that it was
“convinced” of mother’s inability to resume parental responsibilities was sufficient).
Accordingly, we conclude that the case must be remanded to the trial court to indicate whether
its findings are made by clear and convincing evidence. No further hearing is required. See In re
R.W., 2011 VT 124, ¶ 18 (remanding to trial court to elaborate on whether finding of stagnation
was based on clear and convincing evidence).*

       Remanded for further proceedings consistent with the views expressed herein.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




       *
         Our conclusion renders moot the State’s motion, filed while the appeal was pending, to
remand to the trial court for additional findings on whether its decision was based on clear and
convincing evidence.
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