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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-022

                                         APRIL TERM, 2014

 In re J.W., J.W. and G.W., Juveniles                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 49/50/51-5-12 Wmjv

                                                            Trial Judge: Katherine A. Hayes

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

       Father appeals the termination of his parental rights with respect to his three daughters,
G.W., J.W., and J.W. We affirm.

        Father does not challenge any of the family court’s findings, which reveal the following
facts. G.W., J.W., and J.W. were born in October 2003, July 2005, and September 2006,
respectively. The children were briefly placed in the custody of the Department for Families and
Children (DCF) in 2011 during a period in which their mother was incarcerated and father
allowed a registered sex offender to live in the family home. The children eventually were
returned to the mother’s custody under a conditional custody order, which was vacated upon
dismissal of DCF’s petition alleging that the children were in need of care or supervision
(CHINS).

        A second CHINS petition was filed in May 2012 based on allegations of neglect and
abuse. At the time, the mother and father were heroin addicts who engaged in criminal activity
to support their habit. The mother’s younger sister, who was living with the family while she
was finishing high school, reported that the parents left the children alone unsupervised and that
father physically and verbally abused the children and the mother. In July 2012, the parents
stipulated to the CHINS petition and the facts alleged in support of the petition, including
specific incidents of child abuse by father. Father stipulated that he was an active heroin addict
who had a significant history of criminal convictions and was subject to pending criminal
charges.

        The children were frightened and in poor physical condition when they were taken into
state custody. The oldest child, who was nine at the time, had taken on a parental role. The
children exhibited sexualized conduct and reported being forced to watch mother have sex with
men. The children also reported witnessing and experiencing father’s physical violence while
they lived together as a family.

       In August 2012, the family court issued a disposition order providing for continued DCF
custody with concurrent goals of reunification and adoption. Among other things, the case plan
required father to attend visits, participate in team meetings, actively engage in and benefit from
individual therapy, successfully complete intensive substance abuse treatment, not engage in
criminal activity, demonstrate financial stability by maintaining employment for at least six
months, and maintain safe and stable housing for at least six months. Later, DCF added a
requirement that father complete and show benefit from a batterer’s intervention program.

        Meanwhile in June 2012, father pled guilty to retail theft charges stemming from
incidents in February 2012. In December 2012, father pled guilty to additional charges of
embezzlement and retail theft from earlier incidents. As a result of these convictions, father was
incarcerated for a period during the summer of 2012 and from December 2012 through February
2013, when he was furloughed with a minimum release date of October 2, 2013 and a maximum
release date of January 20, 2016.

       In March 2013, DCF filed a petition to terminate the mother’s and father’s parental rights
with respect to the three children. Mother voluntarily relinquished her parental rights on April
29, 2013, and an order to that effect was issued in May 2013. The termination hearing
concerning father was held over two days in September and October, 2013. Following the
hearing, in a December 16, 2013 decision, the family court terminated father’s parental rights.

        On appeal, father argues that the family court erred by determining whether he deserved a
continuing relationship with the children rather than whether a continuing relationship between
him and the children was in their best interests. According to father, in assessing two of the
statutory best-interest factors concerning the children’s relationships with other people in their
lives, see 33 V.S.A. § 5114(a)(1), (4), the court mistakenly focused on father’s actions rather
than the children’s best interests. We disagree.

        Before terminating parental rights, the family court must find by clear and convincing
evidence that termination is in the children’s best interests based on the following statutory
factors: (1) the children’s relationship with their family members and any other person who may
significantly affect their best interests; (2) the children’s adjustments to their home, school, and
community; (3) the likelihood that the parent will be able to resume parental duties within a
reasonable period of time; and (4) whether the parent has played and continues to play a
constructive role in the child’s welfare. Id. § 5114. “The most important factor is whether the
parent will be able to resume parenting duties within a reasonable period of time” as “measured
from the perspective of the child’s needs.” In re C.P., 2012 VT 100, ¶ 30, 193 Vt. 29.

        As the family court noted, all of the children had “recounted either witnessing or
themselves experiencing physical violence by the father when they were living with the parents.”
Indeed, “[t]he children’s continued expressions of fear and accounts of family violence made it
clear that this was a key issue to be addressed in case planning.” The court acknowledged the
significant progress that father had made in the six months preceding the termination hearing,
including becoming drug-free, following through with intensive outpatient treatment, obtaining
work and housing, and starting individual therapy. Nonetheless, the court found that father had
made no progress whatsoever toward reunification for the first ten months after the children were
taken into state custody. Most troubling, for a lengthy period of time father refused to accept any
responsibility for his having abused the children and the mother, and his recent acceptance of
responsibility for his violence was “at best, grudging and limited.” The court found that
although father visited the girls regularly for one hour a week when he was not incarcerated, his
failure to address his own anger issues prevented him from increasing the frequency or length of
those visits. The court also recognized the progress that father had made in therapy during the

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previous two months in dealing with his anger issues, but noted that he had not enrolled in an
anger management or batterer’s intervention program, as required by DCF. The court concluded
that, given the “chaotic, dangerous, and unhealthy conditions” that the children endured under
their parents’ care for years before they were taken into state custody, which resulted in
“significant and pervasive problems” for the children, it was critical for father to promptly
address the issues that caused the children to be removed from his custody, most particularly his
drug use and violent conduct. Although father had been drug free for some time, he had not yet
fully addressed his anger issues or taken full responsibility for his violent conduct and the effect
that it had had on the children.

        In the court’s view, because father had still not fully satisfied “some of the most
important goals of the case plan,” he would be unable to resume parental duties “for at least
several more months,” even without taking into account that he had no significant experience as
a single parent and that he was under the continuing supervision of the Department of
Corrections. Meanwhile, the children had been making progress in “safe, healthy, and
supportive homes” for some time and needed permanence to continue to do so. In short, the
family court did not terminate father’s parental rights because he did not “deserve” a continuing
relationship with his daughters; rather, the court based its termination order on the fact that father
had failed to take, in a timely manner, the steps necessary for him to be able to parent the
children within a reasonable period of time from their perspective.

       Affirmed.



                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice




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