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



                                           ENTRY ORDER

                            SUPREME COURT DOCKET NO. 2013-417

                                        MARCH TERM, 2014

 In re C.L., M.L., D.L. & C.L., Juveniles              }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NOS. 37/38/39/40-3-12 Frjv

                                                            Trial Judge: Martin A. Maley

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

       Mother and father separately appeal an order terminating their respective parental rights
concerning their four children, C.L., M.L., D.L., and C.L. We affirm.

       The record reveals the following facts. The four children who are the subject of these
proceedings were born to mother and father in June 2003, September 2004, October 2009, and
July 2011, respectively. The Department for Children and Families (DCF) has been involved
with the family since 2007 as the result of reports concerning domestic violence in the presence
of the children, abuse of the children, the parents’ substance abuse, and the inability of the
parents to meet the children’s medical, physical, emotional, and developmental needs. In August
2009, DCF opened a family case in response to further reports of unsafe and unsanitary
conditions in the home, the children’s poor personal hygiene, and the parents’ failure to
supervise the children. Since 2009, DCF has provided the family with various services,
including Intensive Family Based Services, Children Integrated Services, individual counseling,
and support both at home and in school.

        In the fall of 2009, shortly after his birth, D.L. was readmitted to the hospital because of a
failure to gain weight. There was a domestic altercation at the hospital and father did not live
with the family again until the fall of 2011. Father has an extensive criminal history and was
incarcerated at times during the instant proceedings.

       On March 19, 2012, father was arraigned on charges of driving while intoxicated,
reckless endangerment, careless and negligent driving, driving with a suspended license,
domestic assault, and interfering with emergency services. Conditions of release included no
contact with mother. Father was eventually acquitted of the domestic assault charge.

        On March 21, 2012, DCF filed a petition alleging that the children were in need of care
or supervision (CHINS) following an incident four days earlier in which the youngest child, then
an infant, was injured during a domestic altercation between mother and father. Mother reported
to police that father pushed her while she was holding the infant, causing her to fall and the child

        
            The record does not provide the disposition of the other charges.
to strike her head. When police arrived, father had left, but the police observed garbage piled
knee-to-waist high on the back porch and rooms so cluttered that some doors could not be
opened. Decaying garbage and diapers were found in the driveway and on the front porch, and
the kitchen floor was covered with dirt and dried food. Choking hazards littered the floors, and
D.L. was seen placing objects in his mouth and eating food off of the floor.

        On March 22, 2012, the family division of the superior court issued a temporary care
order placing the children in DCF custody. The order included factual findings stating that the
family home posed health hazards, and that the parents were unable to keep the children safe. In
May 2012, mother moved to the Lund Home with the youngest child, while the other children
remained in foster care. Mother was discharged from the Lund Home in August 2012 under a
safety plan that included her agreement that she stay away from father.

        At a merits hearing in June 2012, the parties submitted stipulated findings, upon which
the court based its CHINS adjudication. At the August 30, 2012 disposition hearing, the court
approved DCF’s plan of services with concurrent goals of reunification or adoption. The parties
understood that DCF would attempt to facilitate reunification first with mother, and if
unsuccessful, with father. The parties agreed to the disposition and the plan of services, but
father filed specific written objections to factual findings in the disposition report. Father did not
request a hearing to contest any of the facts stated in the report but rather wanted a record of his
objections, particularly to findings of his abusive conduct and need to engage in a batterer’s
intervention program.

         Due to concerns about mother’s mental health issues, which affected her ability to
maintain her own stability and meet the needs of her children, DCF had a psychologist evaluate
her in September 2012 to provide some clarity as to her mental status and its impact on her
ability to parent her children. The psychologist diagnosed mother with borderline personality
disorder, observing a persuasive pattern of interpersonal instability, reactive and cycling mood
disturbances, periods of crisis of self-image, reckless substance abuse, gross affective instability
and anxiety, an unstable temper marked by anger and impulsivity, and numerous efforts to avoid
real or imagined abandonment. The psychologist noted mother’s highly unstable emotional
presentation, opining that it was unlikely she could achieve the stability required to meet the
extreme needs of her children.

        In December 2012, DCF removed the youngest child from mother’s care because mother
had been in contact with father. In January 2013, mother filed a motion to modify the
disposition order, and the following month, DCF filed a petition to terminate mother’s and
father’s parental rights with respect to all four children. DCF’s petition was heard over four days
between July and September of 2013. The court denied mother’s motion and granted DCF’s
petition, concluding that both parents’ ability to care for the children had stagnated, and that the
best interests of their children required terminating their rights.

        Both mother and father appeal the termination order. Mother argues that the evidence
does not support the court’s conclusion that her contact with the children is, on balance, a
negative in the children’s lives and may be terminated in the children’s best interests. For his
part, father argues that: (1) the evidence was not sufficient to support the findings that the court
identified as warranting the termination of his parental rights; (2) the court erred as a matter of
law in concluding that a reasonable period of time had passed for reunification; and (3) the court


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erred by not fully analyzing the family relationships involved, and the impact of termination on
the relationships among the siblings.

        We first address mother’s argument, which relies upon the statutory best-interest factors
concerning, among other things, the parent-child relationship. See 33 V.S.A. § 5114(a)(1), (4)
(requiring court to consider child’s relationship with parents and others and whether parents play
constructive role in child’s life). Citing the court’s findings that she and the children love each
other, mother notes the absence of any evidence that the termination of that relationship will not
harm the children. She acknowledges certain findings undercutting the significance of her
relationship with the children—the children have not sought more contact with mother; they
appear stressed by visits with her; they have struggled before and after those visits; and mother
engages in adult conversations about father with the children—but contends that the evidence
does not support those findings.

        As mother points out, the court found that she cares very deeply for the children, that the
children express love and affection for the parents, and that, in turn, the parents are able to
express love and affection for the children. The court also found that mother had made slow but
consistent progress in addressing her substance abuse, housing issues, and mental health
problems. Nevertheless, the court terminated mother’s parental rights, finding that she had not
demonstrated an ability to apply, beyond a basic level, parenting skills that she had learned, and
that she had not progressed to the point where she would be able to care independently for the
children, who have specialized needs, and provide them with a safe, stable, and permanent home
environment. The court found that mother was still unable to focus and provide individual
attention to the children, and thus placed them at risk, even in a structured setting, to the extent
that DCF was not able to increase the length or frequency of the visits over time. Mother does
not address these findings and conclusions, which are supported by the record, but rather
challenges specific findings that the court made concerning her supervised visits with the
children. We find support in the record for each of those findings.

        Mother first challenges the court’s finding that the children have not sought more contact
with her. She contends that the finding is undercut by the testimony of one of the foster parents
that the children go “back and forth” regarding whether they want to live with their mother. The
comment mother relies upon was made in the context of testimony in which the foster parent
noted that one of the children in particular fears that she would not be safe if she were placed in
mother’s care. The fact that the children have expressed ambivalence about living with their
mother does not necessarily undercut that court’s finding that they have not sought increased
contact with her.

         Next, mother challenges the court’s finding that the children “appear stressed by the
visits.” According to mother, the testimony at the termination hearing shows only that the
children are stressed at visits and does not link their stress to their best interests or to her role in
their lives. As mother acknowledges, there was testimony that the oldest child gets upset and
acts out before and after visits, that M.L. can become reserved before visits and is tearful after
visits, that the two older children use baby voices before and after visits with mother, that D.L.
does not want to go to visits, and that it can be hard to redirect his misbehavior following visits.
This testimony supports the court’s finding that the children “appear stressed by the visits.”

       Finally, mother argues that although the evidence supports the court’s findings that she
continues to engage the children in adult conversations during visits, there was no evidence that

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this problem affected visits generally or negated the happiness that the children derived from her
company. There are several examples in the record of testimony concerning mother discussing
inappropriate topics with the children. The court’s finding on this point serves as an example of
how mother has been unable to apply learned parenting skills in visits. In short, it is supported
by the record and is only a small part of the court’s larger point that mother has not been able to
develop the parenting skills necessary to provide the children with a safe and stable environment.
We find no basis to overturn the court’s termination order with respect to mother. See In re C.P.,
2012 VT 100, ¶ 30, 193 Vt. 29 (stating that conclusions of law will be upheld if supported by
factual findings that are not clearly erroneous).

        Father first argues that the evidence was insufficient to support the findings that the court
identified as warranting a termination of his parental rights—father’s domestic violence and
failure to engage in a batterer’s intervention program, his lack of an automobile and his car
accidents, and his relationship with a new partner. Upon review of the record, we conclude that
the evidence supports the court’s findings and termination order.

        In terminating father’s parental rights, the court found that father had not been willing to
engage and participate in some of the services necessary for him to meet the needs of the
children. Specifically, the court noted father’s failure to participate in team meetings and
adequately address domestic violence issues. With respect to domestic violence, the court
acknowledged that father had objected to the disposition requirement that he participate in a
batterer’s intervention program—in part based on the fact that he had not been convicted of
domestic violence and would not admit that he had physically abused mother—but nevertheless
concluded that father could have benefitted from domestic abuse counseling irrespective of the
dismissal of the domestic abuse charges stemming from the March 2012 incident. There is
ample evidence in the record supporting this finding and demonstrating that domestic violence
was an important issue that father had to address to place himself in a position to reunite with his
children.

        Domestic violence was a central concern from the time DCF opened a case on this
family. Indeed, father himself signed a stipulation in the CHINS proceeding stating that he and
mother “had engaged in a verbal and physical argument” in the presence of the children, and that
both mother and the parties’ infant daughter were injured during the course of this “physical
argument.” The stipulation he signed also stated that DCF had provided a number of services
over the years “to address ongoing issues of violence in the home,” among other things. The
Court admitted a copy of a final relief from abuse order secured against father by mother, giving
substance to the generalized concerns about domestic violence that appear frequently throughout
the record. Although father emphasizes his disagreement with findings in the disposition report
concerning his abusive conduct and with the report’s requirement that he participate in a
batterer’s intervention program, he elected to file written objections rather than challenge the
report’s findings or the programming requirement at a contested disposition hearing. In any
event, notwithstanding father’s continuing denial of his role in domestic violence in the family
home, the evidence supports the court’s finding that father could have benefitted from, but failed
to participate in, a program addressing domestic violence. In re A.F., 160 Vt. 175, 178 (1993)
(stating that when findings are attacked on appeal in termination case, “our role is limited to
determining whether they are supported by credible evidence,” leaving “it to the sound discretion
of the family court to determine the credibility of the witnesses and to weigh the evidence”).



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        Regarding automobiles, the court found that father had struggled with transportation
issues due to his lack of a reliable vehicle and a driver’s license, but that he had regained his
license in April 2013. The court also found that father had been involved in two automobile
accidents within the previous year, resulting in memory loss and other physical ailments. Each
of these findings is supported by the evidence. Although the court noted DCF’s concerns that
father had been consuming alcohol prior to the accidents, as well as father’s denial that he had
been drinking, its conclusions did not rest on any finding that father had, in fact, been drinking
and driving on those occasions. In fact, transportation issues were not even mentioned in the
court’s conclusions concerning a change of circumstances and the children’s best interests.

         Finally, the court noted DCF’s contention that father’s moving in with a new partner and
her children demonstrated a lack of commitment to having his children returned to his care.
Father finds fault with the following court finding: “This suggests to the court that father is
resolved that the children will not be placed in his custody and so he is moving on with his life.”
It is not surprising that the court believed this to be the case, insofar as father himself testified at
the termination hearing that he did not expect to get his children back because of his criminal
record and that he was not “really set up for” it. Moreover, the trial court found, based on
competent evidence, that father had failed to attend important DCF team meetings for a number
of months. Given this evidence, we find no error in the trial court’s inference that father was
resolved that the children would not be placed with him, and was moving on with his life.

         Next, father argues that the court failed to make the required forward-looking analysis by
first evaluating the children’s needs and then determining at what point in the future the parents
would be in a position to parent the children. See In re B.M., 165 Vt. 331, 337 (1996) (stating
that critical inquiry as to whether parent will be able to resume parental duties within reasonable
period of time is “forward-looking”). Again, we find no basis to overturn the termination order.
The court noted father’s failure to engage in DCF services to address the issues that resulted in
the children being placed in state custody. In particular, father remained in denial regarding the
role that he played in the domestic violence that led to state intervention. Meanwhile, as the
court noted, the children had made substantial progress in foster care over what is a significant
period of time considering their ages and special needs. As the court stated, given the children’s
need for permanency, it was not reasonable to delay freeing them for adoption in the hope that
their parents would show signs of attaining the skills necessary to address the children’s
specialized needs. This is not a situation where father made substantial progress toward
reunification since the filing of the termination but the court “conclude[ed] that a reasonable
period of time ended years before the termination-of-parental-rights hearing.” Id. Rather, this is
a situation where father made little if any progress toward reunification as anticipated in the
disposition case plan, and the children, who have been in foster care for a lengthy period of time,
are in need of stability and permanency in their lives. See In re C.P., 2012 VT 100, ¶ 30 (stating
that reasonableness of time period is “measured from the perspective of the child’s needs, and
may take account of the child’s young age or special needs”).

        Lastly, father argues that the court erred by ignoring the fact that the children were split
among three foster families. According to father, the court was bound to consider that DCF’s
proposed disposition would not only end the children’s relationships with their parents, but also
would place them in separate homes. In father’s view, had the court done so, the first of the best-
interest factors would have weighed in favor of rejecting DCF’s motion to modify the current
disposition.    See 33 V.S.A. § 5114(a)(1) (requiring consideration of “interaction and
interrelationship of the child with his or her parents, siblings, foster parents, if any, and any other
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person who may significantly affect the child’s best interests”). We do not find this argument
persuasive. The court terminated the parents’ parental rights without limitation to adoption, but
did not set forth an adoption plan. While the court found the children to have benefitted
significantly from their current placements, and further noted the foster families’ willingness to
adopt the children, the termination order was based primarily on the unlikelihood that the parents
would be able to resume their parental duties within a reasonable period of time, given the
parents’ limited progress toward achieving that goal and the children’s special needs. In any
event, the court found that: (1) the children’s paternal aunt had demonstrated an ability to meet
the emotional, physical, and developmental needs of M.L. and C.L., was committed to adopting
them, and was willing to adopt their oldest sibling if she did not remain in her current foster
placement; and (2) D.L., who had been diagnosed with autism and had special medical needs,
was thriving in the home of his foster family, with whom he had formed an attachment and who
was committed to adopting him. D.L.’s foster mother testified that D.L. had had regular visits
with his three siblings and would continue to have contact with them after adoption.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




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