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

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-381

                                      DECEMBER TERM, 2013

 In re J.F., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windsor Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 26-3-13 Wrjv

                                                            Trial Judge: Howard A. Kalfus, Acting
                                                                         Judge, Specially Assigned

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

       Mother appeals the termination of her parental rights to her son J.F. On appeal, mother
argues that the family court failed to resolve whether mother was responsible for failing to gain
information about J.F.’s developmental needs, and that the findings and evidence do not support
the court’s conclusion that mother’s missed visits were detrimental to J.F. We affirm.

        The family court found the following facts. J.F. was born in 2004 to mother; his father’s
identity is unknown. J.F. was diagnosed as being on the autism spectrum at age four and a year
later the diagnosis was categorized as Asperger’s syndrome. More recently, he has been
diagnosed with attention deficit hyperactive disorder (ADHD) and post-traumatic stress disorder
(PTSD).

        In August 2009, mother transferred guardianship of J.F. to friends in New Hampshire
because mother was unable to care for him for various reasons including homelessness.
Following a report of abuse, New Hampshire social services removed J.F. from that home and
placed him in foster care. In August 2011, J.F. was reunited with mother. At the time, mother
was living with her boyfriend and their child, born in 2010. That relationship ended after an
incident of domestic abuse. Mother then had a friend stay with her, but DCF informed mother
that the man was being investigated for sexual abuse and his parental rights to his own children
were being terminated. Mother began the process of transferring guardianship of J.F. to another
friend.

        The Vermont Department for Children and Families (DCF) sought temporary custody of
J.F. in March 2012. In support, DCF cited mother’s failure to recognize the impact on J.F. from
his traumatic experiences and several placement disruptions, mother’s lack of appropriate
housing, mother’s failure to maintain consistent contact with her children, and mother’s failure to
obtain counseling. Based on a stipulation, J.F. was adjudicated a child in need of care or
supervision (CHINS) in April 2012. The disposition order continued custody with DCF. DCF’s
case plan recommended reunification with mother, and required her to engage in mental health
counseling, participate in a substance-abuse assessment, participate in J.F.’s therapy and special
education services, maintain employment, and maintain regular contact with J.F.
        DCF established a visiting schedule for mother and employed a family time coach.
Mother began a pattern of missing approximately half of the visits and being late for those she
did attend. Because mother came late, pre-visit sessions with the family time coach were
frequently not possible. J.F. reacted in different ways to missed visits; sometimes he was happy
and other times he was introspective and sad. The family court concluded that “missed visits
impact him negatively.”

        Although mother has a history of opiate and cocaine use, the court found that mother’s
cocaine use ended twelve years ago and opiate use eight years ago. The court found that mother
was not currently abusing any substance. Mother failed to engage in individual counseling as
required by the prior disposition order. Mother did not engage with J.F.’s mental health
providers or follow up on their recommendations for J.F., as required. The court found that
J.F.’s counselor and the DCF social worker did not make this opportunity available to mother.
The court also noted that there was little interaction between DCF and mother and no adequate
explanation for this was provided.

       During his time in DCF custody, J.F. unfortunately moved three times. He is well
adapted in his current placement. He displays affection to his foster mother and she wants to
adopt him if he is freed for adoption. He is involved in his community and is making progress
with his counselor.

      DCF filed a petition to terminate mother’s rights in January 2013. Following a hearing in
August 2013, the court granted the petition.

        The court credited mother for securing safe and stable housing. The court found,
however, that J.F. needs consistency, and mother’s failure to visit on a consistent basis must
create “feelings of loss, confusion and perhaps even abandonment” for J.F. The court found that
the lack of contact, especially in light of the fact that J.F. spent half his life being cared for by
someone other than mother, combined to create a situation where there is not a significant bond
between J.F. and mother. The court concluded that there was a change in circumstances based
on stagnation because mother is not any closer to meeting J.F.’s emotional and developmental
needs. The court found mother does not play a constructive role in J.F.’s life and will not be able
to resume parenting within a reasonable period of time, and therefore concluded termination was
in J.F.’s best interests. Mother appeals.

         Termination of parental rights involves a two-step analysis. As a threshold to altering the
prior disposition, the court must consider whether there has been a substantial change in material
circumstances. 33 V.S.A. § 5113(b). A change of circumstance occurs “when a parent’s ability
to care for a child has either stagnated or deteriorated over the passage of time.” In re S.W.,
2003 VT 90, ¶ 4, 176 Vt. 517 (mem.) (quotation omitted). If this threshold is satisfied, the court
must then consider whether termination is in the child’s best interests. 33 V.S.A. § 5114(a)
(listing statutory best-interests factors).

       On appeal, mother first argues that the court erred in concluding mother’s progress had
stagnated because the court failed to resolve whether DCF was to blame for mother’s lack of
information about J.F.’s developmental needs. See In re S.R., 157 Vt. 417, 421-22 (1991)
(recognizing that “stagnation caused by factors beyond the parents’ control could not support
termination” while rejecting parents’ claim that State’s failure to provide adequate services
contributed to stagnation). According to mother, there is uncontested evidence that DCF failed
to encourage or facilitate mother’s participation in J.F.’s counseling or to arrange for parenting

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classes on the developmental needs of children with Asperger’s. Mother contends that because
DCF failed to make an effort to engage mother in these programs, her inability to meet J.F.’s
emotional and developmental needs resulted from actions beyond her control. The court found
that mother had failed to participate in J.F.’s counseling, but did not resolve the reasons for
mother’s lack of participation, explaining “[r]egardless of where the blame for this lies, [mother]
is woefully uninformed with respect to [J.F.]’s developmental needs.”

        We conclude that there was no error. See In re A.G., 2004 VT 125, ¶ 19, 178 Vt. 7
(explaining that decision on substantial and material change in circumstances is within sound
discretion of family court). The court was not required to resolve the question of whether
mother’s failure to engage in counseling was due to her own actions because the court’s finding
that mother had stagnated in her ability to parent J.F. was based on other circumstances within
mother’s control. “Stagnation is shown by no improvement or the lack of sufficient
improvement over time.” Id. Here, the court’s finding of stagnation was based on mother’s lack
of improvement in creating a bond with J.F. and in being prepared to parent him. Part of
parenting J.F. involves understanding his emotional and developmental needs. Apart from
mother’s failure to engage with J.F.’s therapist and participate in J.F.’s counseling, the court
found that much of mother’s lack of progress in these areas stemmed directly from mother’s
failure to consistently attend visits and to productively engage with the family-time coach. As
the court explained, mother’s shortcomings regarding her lack of information was attributable
more “to missing visits than to missing meetings.” The court found, and mother does not
contest, that since J.F. has been in custody she has missed on average half of the visits offered,
and been late to many of those she attended. Because of missed visits, there is no consistency in
mother’s relationship with J.F., the bond between them is deteriorated, and mother is unable to
meet J.F.’s emotional needs. See In re A.D.T., 174 Vt. 369, 376 (2002) (holding that mother’s
lack of contact with children stemmed from her own conduct and could form basis for
terminating parental rights). Mother’s failures to consistently attend visits and to engage with
the parent coordinator were matters within her control, and independently caused stagnation in
her ability to parent J.F.

        Mother next argues that the evidence and findings do not support the court’s conclusion
that mother’s missed visits are detrimental to J.F. “Individual findings of fact will stand unless
clearly erroneous, and conclusions of law will be upheld if supported by the findings. When
findings are attacked on appeal, our role is limited to determining whether they are supported by
credible evidence.” In re A.F., 160 Vt. 175, 178 (1993) (citation omitted). Mother points
particularly to the following part of the court’s order:

                [J.F.] reacts to the missed visits in various ways. At times he is
               happy to have a visit cancelled. At times he is introspective and
               appears sad. The logical conclusion is that the missed visits impact
               him negatively. This would be true for any child, but especially so
               for [J.F.] as he is in particular need for consistency.

The court also found that “[J.F.] is old enough to know that he is coming to a visit or that a visit
is scheduled and there must be feelings of loss, confusion and perhaps even abandonment when
those visits have to be cancelled.” Mother contends that the evidence does not support that J.F.
was sad about missed visits more frequently than happy. She points to testimony at trial from the
family-time coach, who testified that when mother did not attend a visit, J.F. reacted with
happiness. In addition, J.F.’s current foster mother stated that when informed of a missed visit,
J.F. once was indifferent and once appeared hurt.
                                                 3
         According to mother, this evidence is insufficient to demonstrate that mother’s missed
visits impacted J.F. negatively. We conclude there was no error. Evidence supported the court’s
finding. While the family-time coach testified that J.F. was happy when visits were cancelled,
she also explained that there is a general policy that visits are cancelled if a parent does not
appear after fifteen minutes because it is emotionally difficult for children to show up expecting
a visit and not have it happen. Although J.F.’s therapist explained that J.F. had not talked to her
about his mother’s missed visits, she testified that J.F. does not react well to unanticipated
changes, and posited that mother’s late and missed visits would likely make him upset and
unhappy. In addition, J.F.’s foster mother testified that J.F. was outwardly indifferent at times
and really hurt one other time when his mother missed visits.

       Moreover, the key issue here is not whether J.F. was immediately happy or sad at the
times when his mother did not attend their visits. The trial court’s finding of stagnation was
based upon its conclusion that mother’s lack of consistent participation in visits with J.F.
prevented the formation of a bond between mother and J.R. in the near future.

        The court can make reasonable inferences from the evidence and can use its common
sense. See In re B.C., 2013 VT 58, ¶ 22 (court can draw reasonable inferences from evidence);
Payrits v. Payrits, 171 Vt. 50, 53 (2000) (explaining that in assessing child’s welfare court may
“draw upon its own common sense and experience in reaching a reasoned judgment”). The
court’s finding that mother’s missed visits affected J.F. negatively is a reasonable inference to be
drawn from the above testimony and the facts that J.F. was old enough to know when a visit was
scheduled, J.F. particularly needs consistency, J.F. has Asperger’s, ADHD and PTSD, and J.F.
does not readily show emotion or affection. Because credible evidence supports the court’s
finding and related conclusion, there was no error.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice

                                                _______________________________________
                                                Geoffrey W. Crawford, Associate Justice




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