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

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-020

                                     SEPTEMBER TERM, 2013

 In re L.Z., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 331-7-06 Cnjv

                                                            Trial Judge: Alison S. Arms

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

        Mother appeals termination of her parental rights to her daughter L.Z., born in September
1995. On appeal, mother argues that the court erred in granting termination because there was
no change of circumstances since the prior disposition pursuant to which L.Z. was in long-term
foster care with visitation with mother. We affirm.

        L.Z. and her family immigrated to the United States in 1998. In July 2006, a petition was
filed to have L.Z. declared a child in need of care or supervision (CHINS), and L.Z. was placed
in the custody of the Department for Children and Families (DCF). The CHINS petition alleged
physical and sexual abuse of L.Z. and her siblings, domestic violence, and neglect of the
children. In October 2006, mother stipulated to a CHINS order. The initial case plan
contemplated reunification. Mother was required, however, to address her mental health issues,
gain parenting skills, create a safe environment for her children, and obtain housing. In 2008, the
court approved a permanency plan calling for long-term foster care, holding that reunification
was not feasible but that contact with mother was in L.Z.’s best interests. In February 2012,
DCF filed petitions to terminate parental rights. Following a hearing, the court granted the
request, concluding that there was a change of circumstances based on mother’s lack of progress
and that termination was in L.Z.’s best interests. Mother appeals.

       When the termination of parental rights is sought, the trial court must conduct a two-step
analysis. In re B.W., 162 Vt. 287, 291 (1994). The court must first find that there has been a
substantial change in material circumstances; second, the court must find that termination of
parental rights is in the child’s best interests. Id.

        On appeal, mother argues that there was no change of circumstances. Mother contends
that the only reason proffered by DCF for termination after years of long-term foster care was
L.Z.’s desire to be adopted, not mother’s stagnation, and that therefore a change of circumstances
could not be based on a finding of stagnation. We discern no error. Mother’s argument rests on
the DCF caseworker’s testimony that in March 2011 the case plan was changed from long-term
foster care to a concurrent plan of long-term foster care and adoption. In answer to why the
caseplan recommendation changed to adoption, the caseworker answered, “Prior to the March
2011 caseplan, [L.Z.] had begun to express that she did not want to be in foster care any longer.
Through conversations with [the social worker] and I, she also said that she didn’t think that her
mother would be able to care for her.” Mother interprets this statement as demonstrating that the
sole reason for termination was L.Z.’s desire to be adopted and therefore it was error for the
court to rely on stagnation as a basis for changed circumstances.

        Mother’s argument oversimplifies the reasoning behind DCF’s change in caseplan goal.
When explaining why L.Z. desired to be adopted and why reunification was not possible, the
caseworker noted that mother continued to lack suitable housing and continued to lack
understanding regarding how her actions impacted L.Z. Both the caseworker and social worker
also testified that mother is not able to put her child’s needs ahead of her own. In addition, on
cross-examination, in answer to why the caseplan goal was changed, the caseworker explained
that L.Z. did not “feel like her mother can care for her.”

       It is evident from the record that L.Z.’s desire to be adopted and mother’s lack of
progress are not two wholly separate reasons for seeking a change in the caseplan goal. The
matters are interrelated. Given mother’s lack of progress and continued inability to care for her,
L.Z. desired to be adopted. Thus, it was entirely proper for the trial court to base its finding of
changed circumstances on mother’s lack of progress.

       Mother also argues that her situation had not changed since the prior disposition order
and therefore there is no change of circumstances. In essence, mother argues that since she had
already stagnated for some years, her current lack of progress does not amount to a change in
circumstances. Moreover, mother argues that because the DCF caseplans during the years
preceding termination did not reflect any expectation of reunification, mother’s inability to
resume parenting within a reasonable period of time cannot constitute a change in circumstances.

        There is no merit to mother’s argument. Stagnation occurs when a parent’s abilities have
not improved from the time of the prior disposition order. See In re D.C., 168 Vt. 1, 4 (1998).
Here, the unchallenged findings indicate that mother did not improve in her ability to care for
L.Z. We note that mother’s ability to care for L.Z. is relevant even if the disposition plan calls
for long-term foster care or permanent guardianship by another adult. The purpose of the long-
term foster care plan was to facilitate ongoing visitation between L.Z. and her mother. The
record supports the trial court’s conclusion that since the prior disposition order mother had not
successfully made the changes necessary to effectively fulfill even the more limited parental role
envisioned for her pursuant to the long-term foster care plan. Mother’s continued lack of
progress is sufficient to demonstrate stagnation.

       Affirmed.




                                                2
BY THE COURT:


_______________________________________
Paul L. Reiber, Chief Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice

_______________________________________
Beth Robinson, Associate Justice




3
