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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-243

                                       OCTOBER TERM, 2015

 In re J.L., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Rutland Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 11-2-14 Rdjv

                                                            Trial Judge: Nancy Corsones

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

       Mother appeals an order of the family division of the superior court terminating
her parental rights with respect to her son, J.L. She argues that the court failed to engage
her in a personal colloquy to assure that her decision not to testify under direct examination
was knowing and intelligent. We affirm.

        The family court’s undisputed findings reveal the following facts. Mother has a
lengthy history of severe drug addiction that began in her teen years. She became fully
addicted to heroin about eighteen months before the termination hearing, which was held
in May 2015. In late 2013, when she discovered that she was pregnant with J.L., she
went to the Brattleboro Retreat, where she was prescribed Subutex. She left the Retreat
after a few days and began injecting heroin again. She did so throughout her pregnancy,
and J.L. was born on January 26, 2014, addicted to heroin. Shortly after his birth, he was
placed into the custody of the Department f o r Children and Families (DCF). On
February 13, 2014, the parties stipulated to J.L. being a child in need of care or
supervision (CHINS). The parties also stipulated to a disposition order that continued
DCF custody and set forth a case plan with concurrent goals of reunification and adoption.
The case plan emphasized parent-child contact and addressing mother’s substance abuse.

        Mother continued to use heroin after J.L. was taken into DCF custody. At one
point, she entered a treatment clinic but was discharged for failure to attend treatment
sessions consistently. She later went back into the clinic and remained there for about
four months before being discharged in the fall of 2014 after testing positive for opiates
and cocaine. At the time of the termination hearing, mother was still using heroin. In
May 2014, mother was charged with domestic assault based on an incident in which she
strangled her mother, with whom she was living. Mother’s visits with J.L. after he was
placed in foster care were inconsistent. Between J.L.’s birth in January 2014 through the
termination hearing in May 2015, mother visited J.L. for a total of about 170 hours, all of
which were supervised.
         Following the hearing, the family court terminated mother’s parental rights,
concluding that her ability to parent J.L. had stagnated and that the child’s best interests
compelled termination. In the court’s view, mother was unable to play a constructive role
in J.L.’s life, and there was no possibility that she would be able to assume parenting duties
within a reasonable period of time from the child’s perspective.

        On appeal, mother argues that at the close of the State’s case at the termination
hearing, the family court committed reversible error by not engaging her in a colloquy to
ensure that she was knowingly and voluntarily foregoing her opportunity to present her case.
At the termination hearing, mother was called as a State’s witness. Following her direct
testimony, her attorney cross-examined her, eliciting testimony about why she missed visits
with J.L. through no fault of her own and how her DCF caseworker had not returned
telephone calls regarding her attempt to start up visits again. Her attorney also elicited
testimony about mother’s impending move to a home in Middlebury. At the conclusion of
the cross-examination, the attorney stated that there might be other questions on direct. After
the State rested, the court asked whether mother was going to present any evidence. Mother’s
attorney indicated that he had had a “short discussion” with mother and then stated: “I think
what she said this morning on cross is her testimony and I think I'll leave it like that.”

         Other than noting the gravity of a termination hearing, mother cites no legal basis
for compelling the family court to engage her in a personal colloquy concerning the scope of
her testimony. Mother states only that at the close of the State’s case, “the evidence
decidedly supported termination of [her] parental rights,” and thus the court should have
ensured that she understood she was effectively “ conceding the case” by “ waiving her sole
opportunity to communicate fully why such a result would be unjust.”

        We find no error. The record indicates that mother’s attorney took an active role at
the hearing, cross-examining every State’s witness and eliciting positive testimony from
mother on cross- examination after she was called as a witness by the State. Given the
evidence about mother’s continuing drug use, lack of stable housing, and lack of contact
with J.L., the tactical decision not to have mother testify on her own behalf was not
necessarily unreasonable. Absent any indication that the attorney was failing to represent
mother adequately, the family court had no obligation to question mother about her attorney’s
decision not to call any witnesses or have her testify. Cf. In re E.T., 2008 VT 48, ¶ 10, 184
Vt. 273 (“Whether to cross-examine and the extent of questioning are tactical decisions within
the purview of the attorney.”).

         Even assuming, which we do not, that the court was remiss in not engaging mother in
a colloquy about her not testifying further, mother does not assert, and the record does not
show, that the omission resulted in any prejudice. Mother makes no proffer as to what
evidence was omitted or what her testimony would have been.                 Indeed, there was
overwhelming evidence that mother had made no progress toward reunification and would not
be able to assume parenting duties within a reasonable period of time. Cf. In re K.F., 2013 VT
39, ¶¶ 27-28, 194 Vt. 64 (concluding that ineffective-assistance claim could not be established


                                              2
where parent could not demonstrate that alleged errors would have altered critical findings
supporting termination of parental rights).

       Affirmed.
                                            BY THE COURT:


                                            _______________________________________
                                            Paul L. Reiber, Chief Justice

                                            _______________________________________
                                            Beth Robinson, Associate Justice

                                            _______________________________________
                                            Harold E. Eaton, Jr., Associate Justice




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