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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-400

                                        MARCH TERM, 2017

In re I.K. and J.K., Juveniles                         }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windsor Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 4/5-1-13 Wrjv

                                                            Trial Judge: M. Kathleen Manley

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

        Father appeals termination of his parental rights to his two children I.K. and J.K., born in
December 2010 and January 2012 respectively. On appeal, father argues that the evidence does
not support the court’s finding of changed circumstances, that the case plan failed to have specific
goals for father, and that the evidence did not support a finding by clear and convincing evidence
that father would not be able to resume parenting in a reasonable period of time. We affirm.

        The Department for Children and Families (DCF) began working with this family in 2011.
This case began in January 2013 when the children were removed from parents’ care based on
concerns over parents’ untreated mental health needs, domestic violence, and substance abuse.
Parents stipulated that I.K. and J.K. were children in need of care or supervision (CHINS) in March
2013. A disposition order was entered in May 2013 and returned the children to parents’ care
pursuant to a conditional custody order. The conditional custody order was amended in October
2013 to vest custody solely with father. In July 2014, the children were removed from father’s
care based on a finding that his actions jeopardized the children’s safety. An amended case plan
was filed in September 2014 recommending concurrent goals of reunification or adoption. Parents
objected to the plan and a contested hearing was set for December 2014. The hearing was canceled
after DCF indicated it was filing a new plan recommending adoption.

        DCF filed a petition to terminate parental rights in January 2015. Hearings were held in
January and March 2016. Based on the evidence, the court found the following. The goals for
parents have remained the same throughout the case—obtain mental-health stability with adequate
and ongoing treatment, address violence in the home, and address substance abuse. Mother’s
compliance has been sporadic. Mother failed to adequately address her substance-abuse issues,
did not recognize the impact of her behavior on the children, would not execute releases for DCF,
and by the time of the final hearing had not had contact with the children since October 2014. She
did not attend the termination hearing and did not appeal the termination order.

        The parties had a volatile relationship, which required police intervention. Father was
arrested for assaulting mother, but he denied harming her. He refused to attend a batterer’s
intervention program. He did acknowledge that the relationship was contentious and required
police intervention many times. After the children were removed from his care in July 2014,
father’s mood deteriorated, and he voluntarily admitted himself to the Brattleboro Retreat for
psychiatric stabilization. After discharge, he initially had visits with the children at their daycare,
a relative’s home, and a visitation center. In the fall of 2014, he became aggressive, and the
daycare asked him to leave, removing this as a possible place for contact. He also displayed
aggressive behavior at his father’s house in March 2015 and could no longer visit the children
there. Father signed only limited releases, preventing DCF from fully determining the extent of
his treatment to ensure that his mental health was stabilized. Father’s last contact with the children
was in May 2015. He was provided with the possibility of supervised contact, but declined.
Father’s condition further declined, and in August 2015, he went to Valley Vista for detox and
treatment. He expressed frustration at DCF’s failure to return his calls and said he would “pull a
Barre on them,” a reference to a DCF caseworker shot and killed in that city. By the time of the
final hearing, father had been living with his father and had maintained employment. He was on
a maintenance suboxone and had tested positive twice.

       The children are in a preadoptive home. J.K. had some serious behavioral issues. He was
so aggressive at daycare that he required a full-time aide. By the time of the final hearing, he had
made enough progress toward being able to join other children. I.K. has adjusted well to her foster
home, and her foster parents have met all her needs.

         The court found that there was a change of circumstances due to stagnation. Even though
it appears father is beginning to stabilize his life, he was still in the early stages of obtaining
counseling and addressing his substance abuse and continued to lack understanding of how his
behaviors had impacted the children. The court further found that termination was in the children’s
best interests. Father did not currently play a role in their lives. In light of the children’s young
age, length of time out of the home, and their need for stability, the court found that there was no
likelihood that he would be able to resume parenting within a reasonable period of time. Father
filed this appeal from the termination order.

        To terminate parental rights where there is a prior disposition order, “the court must find
that there has been a substantial change in material circumstances since the disposition order, and
that termination is in the best interest of the children.” In re A.F., 160 Vt. 175, 177 (1993); see 33
V.S.A. §§ 5113(b) (allowing modification of order upon showing of changed circumstances),
5114(a) (listing best-interests factors). The court’s findings of fact “will stand unless clearly
erroneous, and conclusions of law will be upheld if supported by the findings.” In re A.F., 160 Vt.
at 177.

        On appeal, father first argues that the court erred in concluding that there had a been a
change of circumstances. A change of circumstances is demonstrated where “a parent’s ability to
care for a child has either stagnated or deteriorated over time.” In re D.S., 2016 VT 130, ¶ 6
(quotation omitted). Father asserts that there was no change in circumstances between July 22,
2014, which he states was the date of the most recent disposition order, and January 2, 2015, when
the petition to terminate parental rights was filed.

       We conclude that father’s narrow date range for considering whether a change of
circumstances has occurred is unsupported by fact. The most recent disposition order was issued


                                                  2
May 2013. The July 2014 order changed the children’s custody status, but it was not a new
disposition order. Therefore, the critical period would be since May 2013.

       Moreover, father’s assertion that the trial court may look only at the factual circumstances
between the most recent disposition order and the filing of the termination petition is not supported
by our law. Modification of a disposition order can occur only “on the grounds that a change in
circumstances requires such action to serve the best interests of the child.” 33 V.S.A. § 5113(b).
We have explained that this means determining whether a parent has shown “improvement
substantially conformed with the expectations at the time of the CHINS adjudication and with
[DCF’s] case plan.”1 In re S.W., 2003 VT 90, ¶ 6, 176 Vt. 517 (quotation omitted). For this
reason, this Court has looked at the totality of facts continuing until the time of the termination
hearing.2 See id. ¶ 7 (considering facts from time of CHINS adjudication until final hearing).

         This approach is wholly consistent with the purposes of the juvenile protection statutes to
separate a child “only when necessary to protect the child from serious harm or in the interests of
public safety” and to “ensure that safety and timely permanency for children are the paramount
concerns in the administration and conduct of proceedings.” 33 V.S.A. § 5101(a)(3), (4). As this
Court has explained, “[t]he essential point of requiring that a parent progress in meeting his or her
goals toward reunification within a reasonable period of time is to provide permanence and
stability in the life of a child.” In re J.G., 2010 VT 61, ¶ 11, 188 Vt. 562 (mem.). Therefore, to
determine whether there is indeed a change of circumstances, the court must consider at the time
of the final hearing whether the evidence demonstrates a lack of improvement in the parent’s
parenting skills over time. This is consistent with the overall purpose of protecting children and
working towards stability for children. It ensures that children are protected if new evidence comes
to light and can benefit parents where improvement is made after the filing of the petition, but
prior to the hearing. Parents often offer evidence at the final hearing concerning improvements
that have occurred subsequent to the time the termination petition was filed. See In re A.F., 160
Vt. 175, 181 (1993) (considering mother’s argument that she had made progress in parenting skills
between time of disposition order and termination hearing). It also avoids unnecessary delays that
could be occasioned by the need for DCF to file a new petition and the court to hold an additional
hearing so that evidence arising after the initial petition was filed could be considered.3



       1
          Many cases refer to the time period since the CHINS adjudication presumably because
the disposition was close in time to the CHINS order. The statute refers to change circumstances
to modify an existing order, therefore if there is a subsequent disposition order, the change of
circumstances would have to occur subsequent to that disposition order.
       2
         Certainly, the petition to terminate must be based on sufficient facts to support changed
circumstances when it is filed.
       3
         We also note that the statute allows the court to make a finding of changed circumstances
on its own motion. 33 V.S.A. § 5113(b). Therefore, even if the court was limited to looking at
the evidence as it existed at the time DCF filed its motion, if there was important evidence that
developed after the time DCF’s motion was filed, the court could base the changed circumstances
conclusion on its own motion.


                                                 3
       Here, even if the evidence is considered as of January 2015, when DCF filed the
termination petition, that evidence supports the court’s finding that there was a change of
circumstances. At that time, mother had not engaged in treatment or counseling and had not had
contact with the children for two months. Father had displayed aggressive behavior and been
banned from the children’s day care. Father was not in substance-abuse or mental-health treatment
and had not signed any releases to confirm his treatment.

        Father next argues that DCF prematurely filed a petition to terminate and failed to provide
father with adequate notice of DCF’s expectations for father. The timing of the case plan is
important to father’s argument. The initial case plan was adopted in April 2013. In September
2014, DCF filed a revised case plan, which had a concurrent goal of reunification and adoption
and an estimated date for achieving the case plan of April 2015. Parents contested it, but before
the contested hearing could be held, DCF withdrew that plan and filed a motion to terminate
parental rights in January 2015. According to father, DCF was required to wait until after April
2015 to file a termination petition. Father relies on In re D.S., 2016 VT 130. In that case, the child
was adjudicated CHINS in September 2014, and the initial disposition, entered in October 2014,
had a case plan goal of reunification or adoption by March 2015. DCF amended the case plan in
December 2014 and filed to terminate in January 2015. This Court concluded that DCF’s decision
to move to an adoption-only goal several months before the timeframe contemplated in the
approved case plan was premature because there was inadequate time for mother to demonstrate
progress with the case plan and the change in goal staffing inhibited her progress. Id. ¶ 14.
Father’s situation in this case is very different from the mother in In re D.S.. Unlike in In re D.S.,
the September 2014 revised case plan was not the initial case plan in this case—the initial case
plan was approved in April 2013—and the plan was a proposal submitted by DCF and had not
been approved or adopted by the court. Most importantly, unlike the mother in In re D.S., father
had already had a significant period of time to work on reaching the goals set forth in the case plan,
and there was no change in the services he was provided due to staffing changes. The change in
the venue of father’s visits in the fall of 2014 arose due to father’s aggressive behaviors, both at
the daycare and in his father’s home, not because of DCF’s staffing decisions.

       Father also contends that due to the lack of an updated case plan he was unsure of DCF’s
expectations. The record demonstrates that father received notice of what DCF expected of him.
The evidence supports the trial court’s finding that throughout this case, the goals for parents “have
remained the same, essentially to obtain mental health stability with adequate and ongoing
treatment, address issues of violence in the home” and to address substance abuse.

        Finally, father argues that the State failed to establish by clear and convincing evidence
that father would not be able to resume parenting within a reasonable period of time. In
determining the best interests of the children, the court was required to consider all the statutory
factors, including “the likelihood that the parent will be able to resume or assume parental duties
within a reasonable period of time.” 33 V.S.A. § 5114. This is the most critical factor, and the
“reasonableness of the time period is measured from the perspective of the child’s needs.” In re
C.P., 2012 VT 100, ¶ 30, 193 Vt. 29.

        Father points to some facts, which he claims support that he was working towards being
able to resume his parental duties. The court’s finding that a parent will not be able to resume
parental duties within a reasonable period of time “must be supported by clear and convincing


                                                  4
evidence.” In re A.F., 160 Vt. at 177-78. “When findings are attacked on appeal, our role is
limited to determining whether they are supported by credible evidence.” Id. at 178. It is up to
the trial court to determine the witnesses’ credibility and the weight of the evidence. Id. Here, the
evidence supports the court’s finding that despite father’s efforts, there was no likelihood he would
be able to resume parenting within a reasonable time as measured from the needs of the children.
Father’s mental illness, his aggression, and his substance abuse were all barriers to reunification.
The evidence demonstrates that father was in the early stages of getting mental-health counseling
and addressing his substance abuse. Father exhibited aggressive behaviors within a year prior to
the termination hearing, and failed to understand or accept how his behavior impacted others,
particularly his children. He had not had contact with the children since June 2015. On the other
hand, the children had been out of the home for some time, were young, and had needs for stability
and permanence. These facts all support the court’s finding that father would not be able to parent
within a reasonable time as measured from the needs of his children.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice




                                                 5
