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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-265

                                      DECEMBER TERM, 2013

 In re C.C., S.C. & A.C., Juveniles                    }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Washington Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 97/98/99-7-10 Wnjv

                                                            Trial Judge: Thomas J. Devine

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

       Father appeals the termination of his parental rights with respect to his three children.
We affirm.

        The children, C.C., S.C., and A.C., were born in February 2008, February 2006, and
April 2010, respectively. They have been in the custody of the Department for Children and
Families (DCF) since July 2010. That same month, C.C. and her older half-sibling, who is not a
subject of these proceedings, were placed in the care of their current foster parents. The younger
two children were placed with the same foster family in September 2010. In the fall of 2010, all
three children were found to be children in need of care or supervision (CHINS), and the
superior court entered a disposition order continuing DCF custody and approving a case plan
with concurrent goals of reunification and adoption.

        In January 2011, DCF filed a petition seeking to terminate parental rights with respect to
all four children. In January 2012, following three days of hearings held in late 2011, the
superior court granted DCF’s petition with respect to the mother, but denied the petition with
respect to father, concluding that DCF had failed to establish stagnation on his part by clear and
convincing evidence. The court stated that, going forward, father would “need to work diligently
to satisfy the necessary requirements under the case plan,” and that DCF would need to provide
father “with the opportunity to take the necessary steps to be reunified, including the ability to
work with the children’s counselors and assistance with housing.”

        Following the court’s order, the superior court adopted DCF’s revised case plan. The
objectives in the plan included expectations that father would continue to attend Family Time
coaching to develop skills and show understanding of age appropriate developmental needs and
how to have a quality time with all three children while setting clear and consistent boundaries;
attend and complete a recommended parenting group; understand and provide for each of the
children’s needs during family time; continue to attend weekly individual counseling; find stable,
independent and safe housing by April 15, 2012, and access and find alternative transportation to
transport the children to medical, dental and counseling appointments.
         In May 2012, DCF again filed a petition asking that father’s parental rights be terminated.
In a June 10, 2013 decision, following three days of hearings in the fall of 2012, the superior
court granted DCF’s petition. After finding stagnation in father’s progress toward assuming the
responsibilities of parenting, the superior court considered the factors relevant to the children’s
best interests. Their relationships with others, including their parents, is the subject of two of the
four best-interest factors set forth in 33 V.S.A. § 5114(a). The first factor concerns the
interaction and interrelationship of the children with their natural parents, foster parents, siblings,
and other persons who may significantly affect their best interests. Id. § 5114(a)(1). With regard
to this factor, the court found that: (1) the children and father love each other; (2) father and the
children have had some successful visits with each other during the time that the children have
been in DCF custody; (3) father’s success with the children has occurred “when he has small,
manageable periods of time with them rather than extended time”; (4) when his time with the
children increased, “the children have experienced significant emotional and behavioral issues,
both at home and at school”; and (5) the children have developed close bonds with their foster
family. The court concluded that, on balance, this factor favored granting the State’s petition.

         Regarding the second factor, which concerns the children’s adjustment to their home,
school, and community, see id. § 5114(a)(2), the court found that: (1) the children had lived with
the same foster family for over two and one-half years, a significant portion of their lives; (2)
when they were first placed with the foster family, they each had significant medical, dental, and
emotional health issues; (3) the foster parents have patiently worked with the children to
overcome these issues, and the children made significant progress until they regressed when
visitations were increased with father; and (4) the foster family has demonstrated extraordinary
commitment to the children. The court found that this factor weighed in favor of termination.

        Regarding the third and most important factor, which pertains to the likelihood that the
parent will be able to resume parental duties within a reasonable period of time, id. § 5114(a)(3),
the court found that: (1) although father had made some progress, he still struggled to parent the
children effectively despite the significant amount of time that had passed since the children
were placed in DCF custody and the substantial services provided to him; (2) father had not
made adequate efforts to learn about the children’s emotional needs; (3) father had not completed
the parent education program; (4) father continued to lack transportation and stable housing; and
(5) from the perspective of the children, father would be unable to resume his parental duties
within a reasonable period of time, given the children’s significant needs and their anxiety and
confusion about the lack of clarity in their living situation. The court found that this factor
weighed in favor of granting the State’s petition.

        The fourth factor, which also implicates father’s relationship with his children, is whether
the natural parents have played, and continue to play, a constructive role in the children’s lives,
including personal contact and demonstrated emotional support for the children’s welfare. Id.
§ 5114(a)(4). Regarding this factor, the court found that: (1) father loves the children; (2) he has
maintained regular, though not expansive, personal contact with them; (3) he has tried to play a
constructive role in their lives, but has struggled to provide emotional support; (4) his continued
insistence on airing with the children his personal grievances with the foster parents and DCF
has caused them distress; and (5) father has expressed little interest in the work being done by
the children’s therapists. All in all, the court described the impact of this factor as “mixed.”




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        On appeal, father does not challenge the court’s finding of stagnation. See In re Cr. M.,
163 Vt. 542, 545-46 (1995) (noting that, in considering petition to terminate parental rights, court
must first determine whether there has been substantial change in material circumstances, most
often due to stagnation in parent’s ability to care for child, and, if so, whether child’s best
interests require termination of parental rights). With respect to the best interests analysis, father
argues that: (1) the court’s findings regarding the adverse effects of contact between him and the
children are clearly erroneous; (2) the court’s recitation of testimony of C.C.’s therapist cannot
be considered a finding of fact; and (3) the issue of whether it was worth preserving the bonds
between father and the children was left unresolved despite ample evidence from which the court
could have made such a determination. In particular, noting that “in some cases a loving parental
bond will override other factors in determining whether termination of parental rights is the
appropriate remedy,” In re J.F., 2006 VT 45, ¶ 13, 180 Vt. 583 (mem.), father argues that the
superior court’s findings regarding the bond between him and the children, to the limited extent
that they were made, misapprehended the evidence and failed to resolve the issue of whether
those bonds are worth preserving.

        We disagree. The court in fact acknowledged that father and the children had a loving
relationship, that father had maintained regular, if not extended, contact with the children, and
that he had had some positive interactions with the children during his visits with them. But the
court determined, based on the evidence submitted at the termination hearing, that his
relationship with the children was not constructive overall and in fact had caused them distress,
which interrupted the progress that they had made in foster care. The court’s conclusion on this
point is supported by sufficient evidence. The child’s pediatrician, whose testimony the court
credited, testified that it would be a “gargantuan task” for anybody, let alone father, to meet the
special needs of these children, given their significant emotional and behavioral issues, and that
it would be harmful to the children to disrupt the attachments that they had developed with the
foster family. The court also credited the testimony of the children’s pediatrician and therapists
that the expansion of visitations with father in early 2012 appeared to have been a catalyst for a
dramatic regression in their behavior and well-being.

        Moreover, we cannot agree that the court’s findings regarding the adverse impact father’s
visits had on the children were clearly erroneous. The finding was supported by the testimony of
the children’s pediatrician and two of their counselors. Father faults the court for merely reciting
the testimony of one of the children’s therapists that she had not seen signs of a bond between
father and the children. See Krupp v. Krupp, 126 Vt. 511, 514 (1967) (“A recitation of evidence
in findings is not a finding of the facts contained in the testimony related and it cannot be so
construed.”). However, after describing that therapist’s testimony, the court made a finding in its
own right that “when father’s time with the children has been expanded, the children have
experienced significant emotional and behavioral issues, both at home and at school.” The
court’s decision here was not based on mere recitation of testimony.

        In short, there was substantial evidence that despite his love for his children, as well as
their demonstrated affection for him, father was not yet capable of parenting these children who
had spent much of their lives in DCF custody with the same foster family. The children had an
immediate need for stability and permanence in their lives in order to overcome medical and
emotional challenges. As required, the court weighed the quality of the relationship between
father and the children in the context of the statutory best-interest factors, which it concluded
favored termination of father’s residual parental rights. We find ample support in the record for
that decision, notwithstanding that father loves his children and has maintained contact with
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them. See In re M.B., 162 Vt. 229, 238 (1994) (“Public policy . . . does not dictate that the
parent-child bond be maintained regardless of the cost to the child; [statutory law] recognizes
that severance of that bond may be in the child’s best interest.”).

       Affirmed.

                                              BY THE COURT:


                                              _______________________________________
                                              Paul L. Reiber, Chief Justice

                                              _______________________________________
                                              Beth Robinson, Associate Justice

                                              _______________________________________
                                              Geoffrey W. Crawford, Associate Justice




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