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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-349

                                       JANUARY TERM, 2016

 In re F.B., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 122-12-14 Bnjv

                                                            Trial Judge: William D. Cohen

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

          Father appeals the termination of his parental rights with respect to his son, F.B. We
affirm.

        F.B. was born on November 26, 2014, and placed in the custody of the Department for
Children and Families (DCF) under an emergency care order issued a few days after his birth.
DCF then placed the child with the same foster family that was, and is, caring for his older
brother, who was born in December 2013 and was previously ordered into DCF custody. On
February 6, 2015, the court found F.B. to be a child in need of care or supervision (CHINS)
following a contested hearing. A disposition hearing was scheduled for March 26, 2015, but on
March 2, 2015, DCF filed a petition to terminate the mother’s and father’s parental rights with
respect to F.B., stating that there was no likelihood that the parents would be able to resume their
parental rights within a reasonable period of time, as evidenced by the facts set forth in the
CHINS petition and the disposition case plan. DCF moved to consolidate this termination
petition with its petition that had been filed in November 2014 seeking termination of parental
rights with respect to F.B.’s older brother, but the family court denied the motion.1 The court
considered DCF’s termination petition at F.B.’s initial disposition hearing on June 18, 2015. On
August 28, 2015, the court issued an order granting DCF’s petition and terminating mother’s and
father’s parental rights with respect to F.B. Only father appeals that decision. DCF and F.B. ask
this Court to affirm the family court’s decision.

        On appeal, father first argues that the family court erred by treating this case as if DCF
was seeking termination at a post-disposition hearing. In particular, he argues that the court
erred by conducting a two-step analysis, first determining that there had been a substantial
change in material circumstances caused by stagnation in the parents’ ability to care for F.B., and
second concluding that terminating the parental rights was in F.B.’s best interest under the
statutory criteria. Father argues that the court’s error was prejudicial because it “changed the
          1
          The family court terminated the parents’ rights with respect to F.B.’s older brother in
June 2015, and a panel of this Court affirmed that termination order in October 2015. See In re
K.B., No. 2015-244, 2015 WL 6395422 (Vt. Oct. 21, 2015) (unpub. mem.),
https://www.vermontjudiciary.org/LC/unpublishedeo.aspx.
calculus of the case” in that termination at initial disposition is an extreme remedy that is
appropriate only as a last resort. According to father, by proceeding as if DCF was seeking a
modification of a previous order, the family court authorized itself to look backwards at what had
transpired in the past when its focus should have been on a prospective examination of the
parents’ potential to parent F.B. We agree that the family court unnecessarily considered
whether there were changed circumstances, given that DCF’s petition sought termination at
initial disposition, but we do not agree that the court’s error prejudiced father.

        The family court may terminate parental rights either at initial disposition or in a post-
disposition hearing seeking modification of a prior order. In re J.T., 166 Vt. 173, 177 (1997).
When terminating parental rights at initial disposition, the court need determine only that
termination “is in the child’s best interests” after reviewing the statutory criteria. In re C.P.,
2012 VT 100, ¶ 30, 193 Vt. 29. In contrast, when termination is sought after initial disposition
through modification of a prior order, the court must conduct a two-step analysis that requires the
court to first find “that there has been a substantial change in material circumstances” and second
“that termination of parental rights is in the child’s best interests.” In re K.F., 2004 VT 40, ¶ 8,
176 Vt. 636 (mem.). Thus, in the latter circumstance, the court must make the initial threshold
showing of changed circumstances that is inapplicable when termination is sought at the initial
disposition hearing.

         Whether the State seeks termination of parental rights at initial disposition or in the
context of a post-disposition petition to terminate parental rights, the court must consider the four
best-interest factors enumerated in 33 V.S.A. § 5114(a), the most important of which requires the
court to “consider the parent’s prospective ability to parent the child.” In re B.M., 165 Vt. 331,
337 (1996). Although we have cautioned that termination at initial disposition should be rare,
we have not adopted a separate or more stringent best-interests standard in such cases, compared
to cases involving termination after the initial disposition. See In re B.M, 165 Vt. 194, 199-200
(1996) (rejecting father’s argument that parental rights may be terminated at initial disposition
only in cases involving egregious abuse). Rather, we rely on the rigorous standards articulated in
our statutes and case law requiring a showing of clear and convincing evidence that termination
is in the best interests of the child under the enumerated statutory criteria. See In re J.T., 166 Vt.
at 177 (observing that parental rights may be terminated “at the initial disposition hearing if the
court finds it to be in the best interests of the child to do so”); see also In re D.R., 136 Vt. 478,
480-81 (1978) (construing likelihood-of-resuming-parental-duties criterion “as evincing a
legislative policy . . . that total termination of parental rights will not be ordered in the first
instance if there is a reasonable possibility that the causes and conditions which led to the filing
of the petition can be remedied and the family restored within a reasonable time”).

        In short, the best-interest analysis is the same for both types of proceedings, requiring a
prospective review of the parent’s ability to resume parental duties within a reasonable period of
time, and a consideration of the other statutory factors. In this case, the family court’s
consideration of the inapplicable issue of stagnation did not negate the court’s need to address
the applicable best-interests criteria. Although the family court must consider a parent’s
prospective ability to parent in determining whether he or she will be able to resume a parental
role within a reasonable period of time, “[p]ast circumstances that have affected the parent-child
relationship will of course be relevant to whether a parent can resume a caregiving role.” In re
B.M., 165 Vt. at 337; see In re J.B., 167 Vt. 637, 639-40 (1998) (mem.) (rejecting mother’s
argument that family court “punishe[d] her for past bad behavior” in considering her sex-offense
history, and stating that while critical inquiry addresses prospective ability to parent, past
                                                  2
conduct may inform that inquiry). Here, the court’s consideration of father’s past conduct
informed its consideration of whether father would be able to assume parental duties within a
reasonable period of time. We find no reversible error simply because the court engaged in an
additional and inapplicable analysis of whether there were changed circumstances due to
stagnation.

        Next, father argues that the family court improperly relied on the fact that DCF declined
to allow father unsupervised time with his child as a reason to terminate his parental rights. In
analyzing the third and most important of the best-interest criteria—whether father would be able
to resume his parental duties within a reasonable period of time—the court stated that the
primary obstacle to reunification was father’s poor attendance at scheduled visits with F.B. and
his minimal interactions with his son on the occasions he did attend, which made it difficult for
him to bond with the child and incorporate any techniques he could have learned from parenting
classes. The court then noted that father “has been unable to have unsupervised time with his
son because of his status as a sex offender, and that would complicate any future reunification.”
According to father, this finding demonstrates that this is a situation where the State—DCF—
created the barrier that formed the basis for termination.2

         We disagree. One significant concern considered by the court in terminating father’s
parental rights is that he had failed to accept responsibility for and improve upon several of the
conditions that led to a termination of his parental rights with respect to F.B.’s older brother.
Most significantly, father attended few visits with F.B. and showed little interest in interacting
with F.B. on those occasions when he did visit him, resulting in a lack of any bond between him
and the child. The court found that over time father had consistently failed to prioritize time with
F.B. or his brother, as evidenced by the fact that he attended a small percentage of the visits and
left early or neglected to fully engage with the children on the few occasions when he did attend
the visits. As a result, father was not gaining and implementing the skills that are crucial to
raising F.B. safely. In short, the court’s statement regarding the potential impact of DCF’s
restriction on his visits was not a significant basis for the termination order, and any error in
noting DCF’s restriction would not provide a basis for reversal. Cf. In re C.P., 2012 VT 100,
¶ 40, 193 Vt. 29 (concluding that although family court made some findings regarding
circumstances that were beyond parents’ control, court made other findings “demonstrate[ing]
that termination was caused primarily by factors within parents’ control”); In re D.M., 2004 VT
41, ¶ 6, 176 Vt. 639 (mem.) (“That [mother] was unable to engage in therapy for a period of time
with a particular therapist because of circumstances that were admittedly out of her control is,
ultimately, irrelevant to whether she made progress in improving her parenting skills.”).

        Finally, father argues that the court’s findings do not support its conclusion that he would
be unable to resume his parental duties within a reasonable period of time, insofar as the court
failed to engage in an analysis of what would be a reasonable period of time from the perspective
of F.B. According to father, this is not a situation where a reasonable period of time is self-
evident. For the reasons stated above, we conclude that the record supports the court’s
determination that father is unlikely to be able to resume his parental duties within a reasonable
period of time. As noted, the court relied heavily on the fact that father had failed to take
advantage of visits offered to give him and the mother an opportunity to bond with F.B. and his

       2
          The barrier to unsupervised contact did not arise from any condition of probation or
parole, and father had completed his sex offender treatment for the offenses he had committed
many years prior.
                                              3
older brother. The court relied on F.B.’s tender age; his need to be in a stable home; the fact that
his foster family was able to provide a stable home to F.B. and his brother; and the unlikelihood
that father would be able to assume parental responsibilities in a reasonable time in light of
father’s continuing inability or unwillingness to spend the time necessary to position himself to
play a productive role in F.B.’s life. See In re C.P., 2012 VT 100, ¶ 30 (stating that in
considering whether parent can resume parental duties within reasonable period of time,
reasonableness “is measured from the perspective of the child’s needs, and may take account of
the child’s young age or special needs” (citation omitted)).

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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