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




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-020

                                          MAY TERM, 2016

 In re N.D., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 60-5-14 Wmjv

                                                            Trial Judge: Karen R. Carroll

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

        Both mother and father independently appeal a decision of the superior court, family
division, terminating their parental rights with respect to their daughter, N.D. We affirm.

        The family division made the following findings. N.D. was born in June 2013. In May
2014, the court issued an emergency temporary care order removing the child from her home and
placing her into state custody based upon mother having a mental health crisis and reportedly
being abused and physically restrained by father. In August 2014, the court issued an order
finding N.D. to be a child in need of care and supervision (CHINS) based on the parties’
stipulation.*

        In September 2014, the Department for Children and Families (DCF) filed an initial
disposition case plan that had a single goal of reunification with one or both parents by May
2015. In November 2014, without objection from either parent, the trial court adopted the case
plan, which was later amended to have concurrent goals of reunification or adoption by June
2015. The plan required both mother and father, among other things, to complete substance-
abuse evaluations and follow treatment recommendations, attend weekly individual therapy
sessions, participate in all scheduled visits with N.D., and successfully complete a parenting
program. Father was also required to participate in anger management counseling and to
maintain safe and stable housing.

       In June 2015, DCF filed a petition to terminate the parental rights of both father and
mother with respect to N.D. In December 2015, following a two-day hearing held the previous
month, the family court granted the petition. After setting forth detailed findings, the court
concluded that there was a change of circumstances as the result of stagnation of the parents’

        *
          Apparently because father’s parentage had not been established, father was not a party
at the time of the May 2014 temporary care order or a party to the CHINS stipulated order.
ability to care for N.D., who had been in DCF custody at that point for nineteen months, nearly
two-thirds of the child’s life. The court explained that neither parent had successfully engaged in
substance-abuse treatment or consistently participated in visits with N.D. The court further
concluded that the statutory best-interests factors favored termination, noting in particular that
neither parent would be able to resume parental duties within a reasonable period of time
because they were in no better position to parent at the time of the termination hearing than they
had been when N.D. first came into state custody more than a year and a half earlier.

        On appeal, father argues that neither the evidence presented at the termination hearing
nor the family court’s findings support the court’s conclusions that his parenting ability had
stagnated or that he would be unable to parent N.D. within a reasonable period of time. Father
contends that, in terminating his parental rights, the court focused primarily on his failure to
acknowledge his substance-abuse problem and obtain appropriate treatment, but that there was
no evidence that his use of any substance had an adverse impact on his ability to parent N.D. In
fact, father argues that the court had no basis to even find that father had a substance-abuse
problem requiring treatment.

        We find no merit to this argument. Father has a criminal history involving drugs. He
was incarcerated between 2008 and 2012 for felony possession of cocaine and misdemeanor
possession of marijuana. Among the risk factors identified in the disposition case plan were
domestic violence and substance abuse. Accordingly, the case plan called for father, among
other things, to complete a substance-abuse evaluation and follow recommendations resulting
from the evaluation. Father did not object to or challenge the case plan. Nor did father attend a
drug and alcohol assessment until March 2015, ten months after N.D. was taken into custody.
Moreover, father stated at the assessment that he was there for the evaluation only and did not
intend to participate in any recommended treatment. When confronted by DCF about his refusal
to obtain treatment, father first insisted that drugs were not an issue for him but later maintained
that he did not have enough time to engage in treatment. Father tested positive for marijuana as
well as other substances similar to those found in mother’s urinalysis at the time N.D. was taken
into state custody. In the fall of 2014, father’s physician expressed concern about the “cocktail”
of drugs father was taking for pain, particularly because there was no diagnosis that explained his
pain. In June 2015, father was diagnosed with chronic pain syndrome, but there was no evidence
that father engaged in regular treatment more than a few weeks.

        In short, there was a basis for DCF to require father to engage in substance-abuse
evaluation and treatment, and father did not oppose the case-plan requirement that he do so.
Accordingly, his failure to do so, in combination with several other factors noted by the court—
including his inconsistent visitation and his failure to obtain stable housing or employment—
supported the court’s conclusion that there was stagnation and that father would be unable to
resume his parental duties within a reasonable period of time from the perspective of N.D. See
In re D.M., 2004 VT 41, ¶ 5, 176 Vt. 639 (mem.) (“Stagnation may be found if the parent has not
made the progress expected in the plan of services for the family despite the passage of time.”).

       Father’s reliance upon In re T.M., 2016 VT 23 is unfounded. That case’s holding was
“narrow and closely tied to the facts of [the] case,” id., ¶ 23, which revealed that the father had


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satisfied most of the case plan goals, including engaging in substance-abuse treatment, but that
his parental rights were nonetheless terminated based solely on positive test results unconnected
by any testimony to either his progress in the treatment or his parenting ability. Id. ¶¶ 14, 18-19.
Here, in contrast, father failed to meet many of the critical case-plan goals, including the
requirement that he engage in recommended substance-abuse treatment. This is a situation
where the subject child was taken into state custody when she was less than a year old and
remained in foster care for over a year and a half while father made little progress toward
reunification. Father remained unemployed and without stable housing, and his inconsistent
visits with N.D. never progressed to in-home or unsupervised visits. We find no basis to disturb
the family court’s termination of father’s parental rights based on the record before us.

       Regarding mother, she argues that: (1) the family court failed to adequately explain its
conclusion that she would not be able to resume parental duties within a reasonable period of
time; (2) the court impermissibly collapsed the change-of-circumstances and best-interests
components of the two-part analysis for modifying disposition orders; and (3) the evidence does
not support the court’s conclusion that mother would be unable to resume her parenting duties
within a reasonable period of time.

        Mother first argues that the court failed to adequately explain its decision when it
referenced “the reasons stated above” as a basis for the conclusion that she would be unable to
resume parental duties within a reasonable period of time. We disagree. This is not a situation
where this Court is left to speculate as to the basis of the family court’s decision—or more
particularly its determination that mother would not be able to resume her parental duties within
a reasonable period of time. The court explicitly acknowledged its duty to engage in a two-step
analysis in considering whether there were changed circumstances and, if so, whether the child’s
best interests required termination of parental rights. See In re S.M., 163 Vt. 136, 138-39 (1994)
(explaining two-step analysis for modifying disposition orders based on changed circumstances
and best interests of child).

        In explaining the existence of changed circumstances by way of stagnation, the family
court stated that mother had “consistently refused to follow [substance-abuse] treatment
recommendations” or participate in urinalysis testing for DCF despite having a serious
substance-abuse problem and had not consistently visited N.D, which resulted in stress to the
child and decreased visits. At the end of its discussion on stagnation, the court stated that there
was no indication that the parents’ problems would be resolved within a reasonable period of
time. Then, in discussing the statutory best-interests factors, the court indicated that “for the
reasons stated above,” neither parent would be able to resume parenting duties within a
reasonable period of time. The court explained that “[i]n refusing to address their own serious
issues for an unacceptable period of time, the parents are in no better position to parent now than
they were in May 2014 when [N.D.] came into custody.” The court’s explanation of how the
parents had made little progress with respect to critical components of the case plan aimed at
allowing them to reunite with N.D., which was supported by eighteen pages of detailed findings,
adequately explained the basis of the court’s determination that neither parent would be able to
resume parental duties within a reasonable period of time.



                                                 3
        Mother argues, however, that the family court impermissibly collapsed the backward-
looking changed-circumstances determination and the forward-looking best-interests factors,
particularly the question of whether parental duties could be resumed within a reasonable period
of time. We agree that the reasonable-period-of-time inquiry is forward looking, but that “does
not mean . . . that past events are not relevant to whether the parent can resume parental duties.”
In re B.M., 165 Vt. 331, 337 (1996); see also In re D.S., 2014 VT 38, ¶ 22, 196 Vt. 325 (“Of
course, past events are relevant to [the forward-looking reasonable-period-of-time] analysis.”); In
re J.B., 167 Vt. 637, 640 (1998) (mem.) (stating that while mother is correct that past conduct is
no barrier to resuming parental responsibilities, family court did not err in concluding that
mother would be unable to resume her parenting duties within a reasonable period of time “in
light of the detailed evidence about the extent of mother’s past behavioral problems and the lack
of certainty about the extent of her progress”). Here, the court explained how N.D. had been
taken into state custody at the age of eleven months and remained with the same foster family for
over a year and a half—again, more than half of N.D.’s entire life—and yet neither parent had
made significant progress in the most crucial areas with respect to reunification: addressing
substance-abuse and mental-health issues and engaging in consistent visitation so that they could
progress to in-home and unsupervised visitation. In short, the court looked forward and found
that, given the length of time that had passed and the parents’ failure to address critical concerns
that were preventing them from reuniting with N.D., they would not be able to resume parental
duties within a reasonable period of time. Although many of the court’s factual findings were
relevant to both the stagnation and resumption-of-parental-duties-within-a-reasonable-time
analysis, the court did not improperly collapse the two steps.

        Mother further argues that she made significant progress toward reunification and that the
record does not support the family court’s conclusion that she will be unable to resume her
parental duties within a reasonable period of time. She states that she has failed to comply only
with “technical aspects” of the case plan, noting that although she did not participate in a
residential treatment program, as recommended, she participated in an outpatient medication-
assisted treatment plan. Further, she blames DCF for her inconsistent visits, citing its
“draconian” visitation protocol pursuant to which visits were canceled if she was even a few
minutes late.

        None of these arguments withstand the light of the record. The case plan required mother
to follow all recommendations concerning substance-abuse and mental-health treatment, given
her history of mental health problems and substance abuse. Nevertheless, she failed to engage in
consistent mental-health therapy or follow through on a recommendation that she participate in
and complete a residential treatment program. The court acknowledged that on the last day of
the termination hearing mother reported having participated in an opiate replacement program
but noted that mother provided no documentary evidence to corroborate this. The court
concluded, however, that even if this were true, beginning such a program three months before
the termination hearing and nearly a year and a half after N.D. was taken into custody was of
limited use.

       Regarding visitation, DCF’s policy of cancelling a visit if the parents were even a few
minutes late was put in place because the parents often did not show up for scheduled visits,


                                                 4
resulting in inconvenience for the foster parents and disappointment for N.D. As the court noted,
the parents were unemployed and lived in the same town where the visits took place. The record
does not support mother’s suggestion that her unsatisfactory progress in connection with the
myriad issues identified in the case plan, including consistent attendance at visits, was DCF’s
fault. Rather, the record supports the court’s termination order, and particularly its conclusion
that mother would not be able to resume her parental duties within a reasonable period of time
from the perspective of N.D., who had progressed significantly over a lengthy period of time
with the same foster family.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice

                                               _______________________________________
                                               Harold E. Eaton, Jr., Associate Justice




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