NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.


                                         2018 VT 132

                                         No. 2018-198

In re D.F., H.F., M.F. and D.F., Juveniles                   Supreme Court

                                                             On Appeal from
                                                             Superior Court, Addison Unit,
                                                             Family Division

                                                             October Term, 2018


Helen M. Toor, J.

Sarah R. Star of Sarah R. Star, P.C., Middlebury, for Appellant Father.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Martha E. Csala, Assistant Attorney
 General, Waterbury, for Appellee Department for Children and Families.


PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Grearson, Supr. J.,
         Specially Assigned


       ¶ 1.    ROBINSON, J.        Father appeals termination of his parental rights to his four

children. On appeal, father raises three arguments regarding the court’s termination decision:

(1) the termination of parental rights (TPR) petition was premature because the three-month

period for reunification provided for in the case plan had not expired and the Department for

Children and Families (DCF) had not made reasonable efforts to reunify father with the children

insofar as it refused to make the children available for expanded visitation that would have

enabled reunification to occur; (2) the evidence does not support the court’s determinations that

father’s progress had stagnated and that father would not be able to parent in a reasonable period

of time; and (3) several specific findings are unsupported by the evidence. He separately appeals

the trial court’s “reasonable efforts” finding. We affirm.
       ¶ 2.    The relevant procedural and factual background is as follows. Father and mother

were married for ten years and had four children, Dy.F., born in April 2006, H.F., born in March

2007, M.F., born in February 2009, and Da.F., born in February 2010. DCF has been involved

with the family since the children were born.

       ¶ 3.    In June 2016, the State filed a petition alleging that the children were in need of

care or supervision (CHINS) due to allegations of medical neglect, unsanitary conditions in the

home, neglect of the children’s hygiene, verbal abuse of the children by father, and verbal and

physical abuse of mother by father.

       ¶ 4.    The court transferred custody to DCF. In August 2016, parents stipulated to the

merits of the CHINS petition, agreeing that they were not meeting the children’s medical needs,

that mother’s unmet mental-health issues left her unable to protect the children from risk of

harm, and father’s preoccupation with mother prevented him from meeting the children’s needs.

DCF’s proposed disposition case plan called for concurrent goals of reunification with mother or

adoption. By the time of the initial case plan, mother was residing separately from father and

living with a boyfriend in New Hampshire. The plan of services called for father to, among

other things, complete a batterer’s intervention program during which it would be expected that

he would acknowledge his history of violence and demonstrate how to safely parent his children

without the use of violence. Although father did not oppose many of the expectations in the case

plan, he denied that he engaged in domestic abuse and would not agree to the proposed case plan

requiring that he complete domestic-violence programming.

       ¶ 5.    After a contested disposition hearing, on December 22, 2016, the court found by a

preponderance of the evidence that father engaged in a pattern of domestic abuse, directed

primarily at mother, that father on at least one occasion physically abused mother, and that there

was a “clear pattern of emotional abuse and controlling behavior.” Consequently, the case plan

adopted by the court at disposition called for father to complete the Domestic Violence to


                                                2
Responsible Choices (DVRC) program, in addition to more than a dozen other expectations. The

concurrent case-plan goals approved by the court were reunification with mother or with father

or adoption.1

       ¶ 6.     Father engaged in the required programming and attended weekly visits

supervised by WomenSafe. At the post-disposition review at the end of February 2017, father,

through his lawyer, expressed a desire to increase visitation time, perhaps on the weekends with

members of his family supervising, so that they were not constrained by the limits on available

independent supervisors. The State represented to the court that DCF had concerns about relying

on members of father’s family as supervisors because father’s family continued to minimize or

deny that there was any kind of domestic abuse. The court urged the parties to work together,

and invited father to file a motion if he felt DCF was being unreasonable.

       ¶ 7.     In late March 2017, DCF convened a safety-planning meeting in response to

concerns expressed by the respective foster parents that father was showing up at locations where

he knew the children or their foster families would be outside of set visitation times. Following

that meeting, DCF provided father with written guidelines that provided, among other things,

that father was authorized to have contact with the children only through the scheduled visitation

and phone calls; father was not be in any community location in which it would be reasonable to

assume that the children might be unless preapproved by DCF; that father should not, without

preapproval from DCF, go to any venue or event where the foster parents would likely be, and

should leave without having to be asked if he found himself at a venue or event with them; and

that father should not be in the physical vicinity of either foster home.



       1
          DCF’s proposed case plan did not contemplate reunification with father. The court
added that concurrent case-plan goal on its own initiative. Although the court should have
rejected the proposed case plan and ordered DCF to prepare a new one, rather than itself
imposing a case-plan goal not reflected in the proposed case plan, 33 V.S.A. § 5318(b), the State
did not appeal the disposition order and does not on appeal challenge the court’s imposition of a
concurrent case-plan goal of reunifying the children with father.
                                                 3
       ¶ 8.    In April 2017, father formally requested additional visits with the children, to be

supervised by specified relatives. At the time, father had one visit a week with all four children

for two-and-a-half hours supervised by Easter Seals.

       ¶ 9.    The court held a hearing on May 30, 2017 to consider father’s motion and to have

a permanency-planning hearing. At the hearing all parties agreed that DCF made reasonable

efforts to finalize the permanency plan and stipulated to a new case plan with an anticipated

reunification goal of three months. The court and the parties spent most of the time discussing

father’s request for additional visits supervised by his relatives. The State was not averse to

eventually increasing father’s visit time with supervision by a specified family member but did

not support an immediate order providing for such visits. The State noted that father had only

had one Family Time visit supervised by Easter Seals, had just finished his first visit with all four

children at once in over a year, represented that the clinical treatment team did not support

extended-family supervised visits at all, said it would defer to the treatment providers as to when

the children were ready for extended-family visits, and emphasized that if father wanted

extended family to serve as supervisors, then those family members needed to make contact with

the children by letter. The children’s attorney indicated that the children wanted more time with

their father and urged that when Easter Seals and DCF concluded that the visits had progressed

with father to the point where he could have some weekend time, the additional visits take place

in Middlebury, rather than Newfane, where father’s grandmother lived. Father emphasized that

increased visits were essential for him to realistically meet the three-month permanency goal

approved by the court that day and advocated for an order that provided for the additional visits

beginning at a date certain, rather than an open-ended order deferring to other providers. In

response to father’s concerns about the short window he faced for reunification, the State

reassured father and the court that father did not have to be prepared for reunification by that

time; he only needed to demonstrate significant progress moving forward.


                                                 4
       ¶ 10.   At the close of the hearing, the court summarized the collective plan, explaining

that DCF was to: provide a letter summarizing the expectations father would have to meet to

progress to visitation beyond the Easter Seals regime, including continued progress in DVRC;

provide notice of the expectation that any potential supervisor from father’s family make some

kind of communication so the kids would be comfortable with that person in a supervisory role;

and convene a team meeting by June 30 that parents, counsel, and any extended family

supervisor could attend to check in concerning the parties’ progress. The court set a status

conference for July 11, with the expectation that by then enough progress would be made to

allow the court to approve additional supervised visits.

       ¶ 11.   In June, after the boys’ foster mother secured a temporary stalking order against

father in a different docket, the State, with the support of the juveniles, filed a motion for a

juvenile protective order restricting father’s contact.2 Father responded with a request for a

juvenile protective order against the foster parent, as well as a request to transfer custody of the

boys to his aunt. He alleged that foster mother’s conduct in filing a stalking complaint against

him was detrimental to the boys, and that the boys had become alienated from him and that visits

had been canceled. In his motion, father indicated that he would be filing a modified motion to

transfer custody of the girls from a different foster-care provider to his aunt, but explained that

the situation with the boys’ foster mother required urgent, rather than gradual, action.

       ¶ 12.   At the June 30 hearing on the respective requests, the boys’ foster mother testified

about various instances in which father had appeared at or near events where foster mother and

the boys were present and described the impact of father’s presence at various places on the

boys’ sense of security. Father offered a mix of harmless explanations for his presence on such

       2
          Upon finding that a person’s conduct is or may be detrimental or harmful to a child, the
court in a juvenile proceeding may issue a protective order restraining or otherwise controlling
the person’s conduct. 33 V.S.A. § 5115(a). A person who intentionally violates such an order
concerning contact between the child and that person is subject to punishment pursuant to 13
V.S.A. § 1030, the statute that applies to violations of abuse-prevention orders. 33 V.S.A.
§ 5115(e).
                                                5
occasions and a denial of some of the secondhand reports to which foster mother had alluded in

her own testimony. The court did not make findings because the parties did not finish presenting

their evidence, but at the end of the hearing father acknowledged the court’s admonition that

father should closely follow the March 2017 DCF guidelines governing his contact with the

children. Father and the State eventually dropped their respective requests for a protective order

and the court heard no further evidence specifically directed to those requests.

       ¶ 13.   At the July 11 status conference, DCF was not ready to support additional visits

between father and the children supervised by father’s aunt. The children had not yet received

the letters father’s aunt had written each of them to reestablish a relationship, and the team

meeting that was to take place by June 30 had not happened. The court concluded that DCF was

not “put[ting] on the brakes,” but just needed more time for understandable reasons, and deferred

the question of expanded visitation supervised by father’s aunt. In response to father’s sense of

urgency given that the remaining time in the permanency plan was passing, the court reassured

father that as long as father was trying to engage and do what the plan calls for, he would not

lose his chance at reunification due simply to the mere passage of time and circumstances

beyond his control. In the meantime, the competing motions for a protective order and father’s

motion to transfer custody to his aunt remained pending.

       ¶ 14.   On July 26, father filed a revised motion to transfer custody of all four children to

his aunt. The next day, the State filed a petition to terminate father’s residual parental rights.3

       ¶ 15.   Following three days of hearings in February and March 2018, the trial court

made the following findings. At the time of the CHINS petition the home was in “utter chaos”

with dog feces and cat urine on the floors, dirty clothes and dishes everywhere, and a strong

offensive odor. The children went to school filthy and smelly, and had lice for extended periods


       3
           The State’s TPR petition also applied to mother. At the outset of the termination
hearing, she voluntarily relinquished her parental rights, conditioned on termination of father’s
parental rights.
                                               6
of time. Other children did not want to play with them. Mother and father argued almost daily,

and the children witnessed verbal, mental, and emotional abuse. In front of the children, father

called mother a host of insulting and offensive names. He regularly forced mother to have sex

by denying her necessities such as gas money. Father was controlling and manipulative of

mother; he stalked mother and was jealous and angry.

       ¶ 16.   With respect to physical abuse, the trial court credited the out-of-court statements

of several of the children, described in court by the DCF caseworker, suggesting that father

physically abused mother. In particular, the DCF worker testified that H.F. had reported that

there was lots of fighting in the home and that “Daddy was bigger so he didn’t get bruises but

Mommy got bruises;” that M.F. described to a preschool teacher (who then apparently relayed

the report to the DCF caseworker) a “boo-boo bear” that “Mommy puts on the bruises that

Daddy gives her”; and Dy.F. reported that there was lots of hitting and kicking between his

parents and by the parents upon him. The court found these reports to be reliable hearsay

because of the consistency of the reports, the children’s lack of a motive to lie, and the admitted

emotional abuse and physical manifestations of trauma in the children.

       ¶ 17.   A theme of the mother and father’s relationship near the end was father’s

(accurate) belief that mother was cheating on him, and his jealous and possessive behavior. The

trial court made a finding about father being so angry at mother for wearing a dress he believed

she was wearing to impress another man that he drove her to a remote location, with the kids in

the car, ripped it off her and burned it while the children watched. During this time period, he

called her up to fifty times a day to check on where she was and what she was doing. On one

occasion he woke the children up and drove around with them in the car until 1:00 a.m. looking

for mother.

       ¶ 18.   The trial court found that father had made many significant, positive steps to

address his behaviors that led to the CHINS petition. He completed the DVRC class and the


                                                7
Nurturing Parents class, did a mental-health assessment, and was extremely consistent in

visitation. He was able to testify at the hearing about the impact his emotional abuse of mother

had on the children and was ashamed of his past behaviors. The court was persuaded that father

had learned a lot, and credited father for his progress.

       ¶ 19.   However, the court identified numerous deficiencies in father’s progress as well.

The court found that in his hearing testimony, father on multiple occasions sought to minimize

his behavior. Explaining the pre-petition conduct of awakening the children at 1:00 a.m. and

driving around looking for mother, father incredibly explained that he needed medications for

one of the children that mother had, and he needed the children’s car seats that were in her car.

Father denied that he was “obsessed” with mother when he called her fifty times a day, and

instead explained that he was “preoccupied” with his relationship with her—a clarification the

court saw as an attempt to minimize his behavior. He continued to deny reports of some pre-

petition behavior—including threatening to have his stepfather rape mother and physical abuse

of mother. And even at the hearing, father minimized his own responsibility for the squalid

conditions the children had lived in, continuing to blame mother for the condition for the home,

and emphasizing that he left early for work so did not know what condition the children were in

when they left for school.

       ¶ 20.   With respect to his alleged “stalking” of the foster parents and children while they

were in foster care, the court was persuaded by father’s explanations on some of the issues raised

in the hearing testimony and concluded that father did not intend to scare or threaten anyone.

However, the court concluded that father had repeatedly shown a lack of understanding about

how his conduct might affect the children, who needed predictability and were affected by his

appearing places where he was not expected. The court noted that one of the children had

recently stated that father was “still stalking us” and expressed a desire for it to end. The court

saw father’s behavior as evidence of his putting his own desire to see the children ahead of


                                                  8
considering their needs, and of a lack of insight into the trauma he can cause even without

intending to.

          ¶ 21.   And with respect to father’s continuing controlling behavior, the court found that

as recently as the weeks before the hearing, mother changed her telephone number because of

father’s frequent calls after she had repeatedly told him to leave her alone. The court concluded,

“He clearly has not fully grasped the idea of respecting others’ rights to control their own lives

rather than letting him control them.”

          ¶ 22.   The court described the children’s progress in foster care. The girls, H.F. and

M.F., were placed in a foster home together. They had sleep issues and had not learned proper

hygiene. The boys, Dy.F. and Da.F., were placed together in a different foster home. Dy.F. had

hygiene issues and a stress-induced allergy. He was below grade level for academics. Da.F. was

diagnosed with attention deficit hyperactivity disorder (ADHD), anxiety, and depression. He

was below grade level and had impulse-control issues. He had nightmares after father raised his

voice at a visit. All the children have improved dramatically since going into DCF custody.

They feel safe, their behavior has stabilized, and they have good hygiene.            They are less

parentified and are able to act like children. The children do not do well when all four are

together, and their clinicians opined that it would be very challenging for all four to live together

again.

          ¶ 23.   Father was reliable in visiting the children. However, the court credited testimony

from both the DCF caseworker and the Easter Seals worker that in visits, the children tended to

seek emotional support from the visit coaches rather than father, suggesting that the coaches had

been able to create emotional bonds that the children trusted more than the bonds with their

father.

          ¶ 24.   Based on the above and other findings, the court found that father’s progress had

stagnated. Although he had made significant gains, and had completed all the programming


                                                   9
called for by the case plan, father still minimized his past conduct in important ways, failed to

move past some of his controlling behavior, failed to take responsibility for his physical abuse of

mother, and failed to take responsibility for the extreme neglect of the children that was one of

the key aspects of the case.

       ¶ 25.   The court further found that termination was in the children’s best interests.

Father demonstrated commitment to the children, but their relationships with him were

complicated by their past trauma. They are strongly bonded to their foster parents and siblings,

have stability and safety, and are settled in their schools and communities. With respect to the

father’s ability to parent in the future, despite father’s laudable progress, he would not be ready

to resume parenting them within a reasonable period of time as measured from the children’s

perspective. Even though nearly two years had passed since the children were in taken into DCF

custody, father had not fully acknowledged his role in the neglect and abuse to which he exposed

the children, and the children did not look to father first to soothe them during their visitation. In

fact, one child did not want to have further contact with father. The court noted that the

guardians ad litem supported termination of father’s rights based on the children’s need for

stability, father’s inability to currently parent them, and the amount of time that had passed, but

that they would support a four-to-six-month deadline for father to resume parenting if

termination was not granted.4

       ¶ 26.   The court also denied father’s request for a conditional-custody order with his

aunt or grandmother. The court found that it would create too much trauma to move the children

from their current placements.


       4
           The statement of the guardians ad litem was not entirely clear as to whether they
supported immediate termination. They said that the process had taken too long already and
emphasized the children’s need for stability. They were especially concerned about the prospect
of it dragging on indefinitely into the future and noted that father had “an awful lot” to do before
he could parent them properly. They urged the court to put a time limit on father’s opportunity
to develop his relationship with the children and suggested four to six months as a firm deadline
after which there would be no further extensions.
                                                 10
       ¶ 27.   Following its order terminating father’s parental rights, the trial court, by separate

order, made a finding by the preponderance of the evidence that DCF had made reasonable

efforts to finalize the permanency plan.5 Father appeals both the termination of his parental

rights and the order reflecting the “reasonable efforts” finding.

       ¶ 28.   With respect to the termination of his parental rights, father argues that the

termination petition and order were premature because father had not yet had the chance to

expand his visitation, and contends that the evidence does not support the trial court’s

conclusions that father had stagnated and that he was not likely to be able to resume parenting

within a reasonable time, and challenges several specific findings.

       ¶ 29.   When the termination of parental rights is sought after the initial disposition, the

trial court must conduct a two-step analysis. In re B.W., 162 Vt. 287, 291, 648 A.2d 652, 654

(1994). The court must find first that there has been a change in circumstances; and second, that

termination of parental rights is in the child’s best interests. Id. “A substantial change of

circumstances is most often found when a parent’s ability to care for a child has either stagnated

or deteriorated over the passage of time.” In re D.S., 2016 VT 130, ¶ 6, 204 Vt. 44, 162 A.3d

1254 (quotation omitted). “Stagnation may be found when the parent has not made the progress

expected in the plan of services . . . despite the passage of time.” Id. (quotation omitted). In

assessing the child’s best interests, the court is guided by the statutory criteria. 33 V.S.A.

§ 5114. The most important factor is whether the parent will be able to resume parenting duties

within a reasonable period of time. In re J.B., 167 Vt. 637, 639, 712 A.2d 895, 897 (1998)

(mem.).

       ¶ 30.   “As long as the court applied the proper standard, we will not disturb its findings

unless they are clearly erroneous, and we will affirm its conclusions if they are supported by the


       5
           The court issued this order one day after the court granted the petition to terminate
father’s rights on May 7, 2018. Although the court had decided the termination petition the
previous month, it was not processed by the clerk or sent to the parties until May 7, 2018.
                                               11
findings.” In re G.S., 153 Vt. 651, 652, 572 A.2d 1350, 1351 (1990) (mem). “Our role is not to

second-guess the family court or to reweigh the evidence, but rather to determine whether the

court abused its discretion in terminating” a parent’s rights. In re S.B., 174 Vt. 427, 429, 800

A.2d 476, 479 (2002) (mem.).

                       I. Timing of TPR Petition and Efforts to Expand Visitation

        ¶ 31.    We conclude that in this case the TPR petition was not premature simply because

DCF filed it during the three-month period subject to the permanency plan then in effect and that

DCF did not unreasonably thwart father’s progress toward reunification by declining to expand

visitation.

        ¶ 32.    In arguing that DCF’s petition was premature because it preceded the end of the

three-month period covered in the most-recent case plan, father relies on our decision in In re

D.S., 2016 VT 130. In In re D.S., this Court reversed the trial court’s termination of parental

rights where DCF shifted to an adoption-only goal and withdrew the Family Time coaching

services to be provided to the mother pursuant to the court-approved case plan several months

before the target reunification date in the case plan. 2016 VT 130, ¶¶ 10-14. In light of the trial

court’s finding in In re D.S. that the mother was progressing in Family Time coaching when

those services were withdrawn before the expiration of the case plan period, we concluded that

the withdrawal of services was premature and it was impossible to tell whether this had inhibited

further progress by the mother. Id. ¶ 14. We reversed the court’s order terminating mother’s

parental rights. Id.

        ¶ 33.    This case is different. Although the State filed a TPR petition about a month

before the case-plan end date, DCF did not inhibit father’s further progress by withdrawing

services or ending visitation. In fact, father continued to have weekly Family Time visits

through the final hearing, giving him ample opportunity to continue progressing toward

reunification.


                                                  12
       ¶ 34.   Father’s deeper argument is that the TPR petition was premature because he had

not been allowed frequent visits, including visits in the community and with his family. He

focuses on the fact that through the spring of 2017, and right up until the State filed a TPR

petition at the end of July, he persistently sought more visitation time, but the court did not order

increased visitation time and DCF continued to resist allowing it. Father argues that because he

has thus far been denied the opportunity to deepen his bonds with the children through more

frequent and higher quality visits, termination was premature.

       ¶ 35.   Father misapprehends the thrust of the trial court’s analysis. The trial court’s

stagnation analysis did not turn primarily on the lack of progress in the quality of father’s

relationship with children, but instead hinged on father’s inadequate progress, despite an

extensive roster of services, in addressing the pre-CHINS-petition behaviors that contributed to

the CHINS determination. Despite father’s participation in the various services provided to him,

he still engaged in controlling behavior and failed to adequately accept responsibility for the

abuse and extreme neglect of the children. Likewise, the court’s conclusion that father was not

likely to be able to resume parenting duties within a reasonable period of time turned on the

inadequacy of father’s progress remedying his pre-petition behaviors, and the fact that even with

the weekly contact father did have, the children turned primarily to other adults during Family

Time coaching for comfort and soothing. Father’s theory is that the unreasonable denial of

increased visits was the major impediment to reunification and if he could only have more time

with the children, then their relationship would blossom. The trial court’s analysis, by contrast,

suggests that the main impediment to reunification was father’s failure to make the progress in

his own personal development and in his relationships with the children that would have opened

the door to additional visits and ultimately reunification. Implicit in the trial court’s analysis,

made explicit with its post-judgment “reasonable efforts” determination, was that DCF’s refusal

to expand father’s visitation was reasonable.


                                                 13
       ¶ 36.     Despite the progress father made, and the tenacity with which he sought expanded

visitation, sufficient evidence supports the trial court’s implicit rejection of the arguments that

father was wrongly prevented from having increased visits supervised by his aunt, that DCF’s

conduct inhibited father’s reunification, or that increased visits would have solved the problems

that prevented reunification in this case. The evidence at the time supported the court’s decision

that the children were not ready for increased visits supervised by relatives in May 2017,

including that father had just had his first supervised visit with Easter Seals, the children were

not sufficiently reacquainted with their aunt, and some clinicians advised against expanded visits.

And evidence at trial supports the conclusion that declining to expand the visits with supervision

by father’s aunt was reasonable. The caseworker testified that there had been only limited

communication between the children and aunt6 and the children did not want to see the relatives

or father. Moreover, testimony at trial from clinicians and foster parents was that the once-per-

week visits were disruptive and emotionally challenging for the children. For these reasons, we

reject father’s arguments that the TPR petition was premature and that father was inhibited in his

progression toward reunification by the limitations on his time with the children.

               II. The Trial Court’s Stagnation and Resumption-of-Parenting Analyses

       ¶ 37.     We conclude that the evidence was sufficient to support the trial court’s

stagnation determination and its conclusion that father would not be able to resume parenting in

a reasonable time. Father challenges the trial court’s findings that he had not fully accepted

responsibility for his pre-petition conduct, asserting that the record clearly shows that he

complied with all case-plan requirements, and fully acknowledged the abuse and neglect and

accepted responsibility.    He argues that the court’s focus on his pre-petition conduct was

improperly backward, rather than forward, looking.

       6
           There was apparently some confusion about who would communicate to father’s
family members that they were to send letters to reestablish contact. Consequently, letter writing
did not begin until later than contemplated and, at the time of the final hearing, the children had
only received one letter from aunt and had not chosen to respond.
                                                14
       ¶ 38.   Although there may have been conflicting evidence, and the trial court could have

reached different conclusions on this record, we conclude that evidence in the record supported

the court’s assessment that father had not made the progress required by the case plan and that he

would not be able to resume parenting in a reasonable time. Our conclusion on this point is

heavily informed by the standard of review; our job is not to reweigh the evidence, but is to

determine whether the trial court’s factfinding was clearly erroneous. See In re S.B., 174 Vt. at

429, 800 A.2d at 479 (explaining that appellate court does not “second-guess” family court or

“reweigh the evidence”). We are mindful that the trial court had the opportunity to hear from the

witnesses directly, rather than relying on a cold record, and was accordingly in a better position

to evaluate their credibility. In re A.F., 160 Vt. 175, 178, 624 A.2d 867, 869 (1993) (“We leave

it to the sound discretion of the family court to determine the credibility of the witnesses and to

weigh the evidence.”). With that in mind, we conclude that sufficient evidence supported the

trial court’s findings, and the fact that father performed all the tasks required of him pursuant to

the case plan does not defeat this conclusion.

       ¶ 39.   Ample evidence supported the trial court’s conclusions that father had not fully

acknowledged and taken responsibility for his pre-petition behavior and continued to engage in

controlling behavior. First and foremost, father’s own testimony provides support for the trial

court’s conclusion. Although he broadly accepted responsibility for calling mother names and

being emotionally abusive, his specific answers to various questions suggested that he was not

truly owning his behavior. For example, when asked about the occasion, pre-petition, when he

took children out in the car at 1:00 a.m. to search for mother, father suggested that his desires to

get one child’s medicine and the children’s car seats from mother were substantial factors

motivating his actions. When asked whether he had been obsessed with mother pre-petition,

father pushed back and explained that he was preoccupied with his relationship with her because

he was focused on keeping the family together. Father denied that he had threatened to have his


                                                 15
stepfather rape mother. And, when asked about his children, pre-petition, going to school

smelling and with feces on their backpack, father implied that he did not know they were going

to school that way because he left for work before they left for school—a claim the trial court

could reasonably find not credible. And father denied ever physically abusing mother pre-

petition—a denial the trial court found not credible.

       ¶ 40.   The trial court’s conclusions are reinforced by other testimony as well.          A

domestic-violence specialist from DCF interviewed father near the conclusion of his DVRC

program. She concluded that he still did not take full responsibility for most of his behaviors,

saying that his daughter made things up, putting most of the blame for the condition of the home

on mother, and failing to understand that his emotional abuse of mother impacted her ability to

parent the children. In addition, the testimony of the facilitator who ran father’s DVRC program,

while generally supportive of father’s efforts, provided support for the trial court’s findings.

Although the facilitator was favorably impressed by father’s admission to a range of abusive

conduct, the conduct that she described him acknowledging was generally far less severe than

the conduct testified to by mother. For example, whereas mother described father regularly

using certain epithets against her in an abusive way, the facilitator described father admitting to

laughing when one of his children picked up an unusual epithet and directed it at mother. Where

mother described father as denying her gas money and other necessities if she declined to engage

in sex with him, the facilitator described father admitting to withdrawing love or affection when

mother did not give him what he wanted. The facilitator did not recall him acknowledging that

he declined to put gas in the car or threatening to arrange for his stepfather to rape mother.

       ¶ 41.   The court’s findings were appropriately forward looking. Determining whether a

parent will be able to parent within a reasonable period of time is “forward-looking, that is, the

court must consider a parent’s prospective ability to parent the child.” In re D.S., 2014 VT 38,

¶ 22, 196 Vt. 325, 97 A.3d 882 (quotations omitted). The court’s conclusion turned not on


                                                 16
father’s neglect and abuse pre-petition, but on his prospective unreadiness to assume parenting

responsibilities for four highly traumatized children. Even though father had completed all of

the programming asked of him, the trial court concluded that he had not adequately internalized

the lessons of his DVRC program. Father’s parenting deficits that led to the CHINS petition in

the first place persisted to a substantial degree—a factor highly relevant to father’s ability to

resume parenting in a reasonable time. The court properly considered father’s prospective ability

to parent and did so in light of what was a reasonable period of time from the children’s

perspective.

                                   III. Sufficiency of Findings

       ¶ 42.   We likewise reject father’s arguments that the evidence does not support several

other findings. Although there may be countervailing testimony, each of the challenged findings

is supported by evidence and therefore not clearly erroneous. See id. (reciting standard of

review).

       ¶ 43.   The court’s finding that father exhibited controlling behavior over mother by

continually phoning her before the termination hearing was supported by mother’s testimony.

Mother testified that although she asked him to leave her alone, father called her at least weekly,

at times more. She explained that this forced her to change her telephone number.

       ¶ 44.   The record supports the trial court’s finding that father had physically abused

mother pre-petition and still refused to accept responsibility. Mother’s testimony supported the

trial court’s findings as to father’s controlling behavior and emotional abuse, but she denied that

father had physically abused her. In concluding that father had physically abused mother pre-

petition, the court credited the hearsay evidence from several children, offered through the

testimony of the DCF caseworker, indicating that father did physically abuse mother. Hearsay

evidence may be admitted in termination proceedings and may be relied on to the extent of its

probative value. 33 V.S.A. § 5317. However, hearsay may not be “the sole basis for termination


                                                17
of parental rights.” In re A.F., 160 Vt. at 181, 624 A.2d at 871. Here, the trial court was within

its discretion in crediting the hearsay evidence, even though it contradicted mother’s in-court

testimony. The court offered considered reasons for its decision to credit the evidence—the

children had no motive to lie, and the children’s accounts were consistent with one another’s

statements and with the undisputed culture of emotional abuse in the marriage. Moreover, the

hearsay evidence was not critical to the trial court’s reasoning. Although the court did make a

finding that father had failed to acknowledge his pre-petition physical abuse of mother—abuse

the trial court concluded had in fact happened—the court also made extensive findings about

father’s minimization of his emotional abuse of mother and his ongoing controlling conduct.

Father’s refusal to admit to having physically abused mother was part of the overall picture of

denial, or inadequate acknowledgment, that underlay the trial court’s termination decision, but it

was not the sole, or even the predominant, basis for the court’s decision.

       ¶ 45.   The trial court’s finding that father incredibly denied his motives in taking the

children in the car to look for mother at 1:00 a.m. is likewise supported by the evidence—in this

case father’s own testimony. In his testimony in the termination hearing, father admitted to his

jealous motives in looking for mother, but also said that he drove around looking for mother “for

many reasons.” As noted above, he indicated that he was looking for mother at that hour, with

his children in his car, in part because he wanted to retrieve medicine for a child and the

children’s car seats.

       ¶ 46.   Finally, father’s challenge to the trial court’s finding concerning the “dress-

burning” incident is well-founded, but the error is harmless. The trial court made the following

finding: “On one occasion father was so angry at mother for wearing a dress that he believed was

to impress another man that he drove her to a remote location—with the children in the car—and

ripped the dress off, then burned it while the children watched. He also threatened that he would

let his step-father rape mother. He admits taking the dress off and burning it, but denies the


                                                18
threat.” Father asserts that there was no evidence that father tore a dress from mother’s body.

We agree that this detail was not recited in the testimony presented. However, the rest of the

court’s recitation of the incident is supported by mother’s testimony. This detail was not central

to the court’s decision and was harmless. See In re R.W., 2011 VT 124, ¶ 17, 191 Vt. 108, 39

A.3d 682 (explaining that in termination cases “error warrants reversal only if a substantial right

of the party is affected” (quotation omitted)).

                              IV. Reasonable-Efforts Determination

       ¶ 47.   Father also appeals the trial court’s separate order reflecting its “reasonable

efforts” determination, arguing that the court erred in finding that DCF had made reasonable

efforts to comply with the case plan. We conclude that father’s challenge is moot.

       ¶ 48.   A reasonable-efforts finding is essential to preserving federal funding for state

child-welfare programs. 42 U.S.C. § 671(a)(15). Accordingly, Vermont law provides that upon

the filing of a petition for a finding of reasonable efforts and a report or affidavit by DCF and

notice to all parties, the Court shall hold a hearing within thirty days of the filing of the petition

to determine whether DCF has made reasonable efforts to finalize the permanency plan for the

child that is in effect at the time of the hearing. 33 V.S.A. § 5321(h). The statute provides that

“[r]easonable efforts to finalize a permanency plan may consist of: (1) reasonable efforts to

reunify the child and family following the child’s removal from the home, where the permanency

plan for the child is reunification; or (2) reasonable efforts to arrange and finalize an alternate

permanent living arrangement for the child, in cases where the permanency plan for the child

does not include reunification.” Id.

       ¶ 49.   We have previously explained that “whether DCF made reasonable efforts to

achieve permanency is a separate question from whether termination is in the child’s best

interests and the former is not a prerequisite to the latter.” In re C.P., 2012 VT 100, ¶ 38, 193 Vt.

29, 71 A.3d 1142. The reasonableness of DCF’s efforts to promote reunification may be relevant


                                                  19
to whether a parent’s progress has stagnated and whether a parent is likely to be able to resume

parenting within a reasonable time, so the same evidence may be relevant to both the reasonable-

efforts determination and the termination decision. Id. Nonetheless, the two decisions present

distinct issues.

        ¶ 50.      In this case, father contends that the reasonable-efforts determination was in error

because the evidence shows that father’s lack of progress was due to DCF’s failure to allow

increased visitation. Father has appropriately raised this issue in his challenge to the termination

decision, and we have addressed it above in that context, determining that the trial court properly

granted the petition to terminate father’s parental rights. To the extent that father also seeks to

challenge the separate reasonable-efforts determination based on the same argument, we

conclude that the matter is moot. Having determined that the trial court properly granted the

petition to terminate father’s parental rights, there is no further relief this Court could grant to

father by reviewing the standalone reasonable-efforts determination. See In re Moriarty, 156 Vt.

160, 163, 588 A.2d 1063, 1064 (1991) (“A case is moot if the reviewing court can no longer

grant effective relief.” (quotation omitted)); see also In re D.C.D., 105 A.3d 662, 675 (Pa. 2014)

(explaining that remedy for not complying with reasonable-efforts requirement “is not to punish

an innocent child, by delaying her permanency through denying termination”).

        Affirmed.

                                                   FOR THE COURT:



                                                   Associate Justice


        ¶ 51.      SKOGLUND, J., dissenting. “[T]he freedom of children and parents to relate to

one another in the context of the family, free of governmental interference, is a basic liberty long

established in our constitutional law.” In re N.H., 135 Vt. 230, 236, 373 A.2d 851, 856 (1977).

In order to ensure that this fundamental liberty will not be unduly denied, the Legislature has
                                                    20
expressly provided that a child be separated from its parents “only when necessary to protect the

child from serious harm or in the interests of public safety.” 33 V.S.A. § 5101(a)(3). In In re

N.H., we wrote “[t]he statute certainly does not allow for intervention simply because a child

might be better off somewhere else.” 135 Vt. at 236, 373 A.2d at 856.

       ¶ 52.   The deference to be accorded the parent-child relationship was eloquently

described by the late Justice Larrow in his concurring opinion in In re J., 134 Vt. 480, 486, 365

A.2d 521, 525 (1976):

               I do not view the statute as trying to create the best possible world.
               I do not think it intends to set up a mechanism for transferring
               parental rights from those in temporary difficulty to those more
               affluent and adjudged by the social worker as more capable of
               educating and rearing the progeny . . . .

       ¶ 53.   In the case of In re N.H., the Court noted “the existence of some questions

concerning the ability of the appellant [father] to assume an active, responsible parental role.”

135 Vt. at 237, 373 A.2d at 856. But the Court found it “beyond dispute that he, with the support

of his parents, [stood] willing and able to provide N.H. with a family environment,” and reversed

the lower court’s disposition order that had placed the child in the custody of the Department of

Social and Rehabilitation Services, as it was called at the time. Id. at 237, 373 A.2d at 856-57. I

suggest the same situation is present in this case.

       ¶ 54.   In this case, mother and father had been in a “toxic” marriage for ten years and

had four children. There was apparently parental fighting, neglect, and dysfunction. While

mother testified that father was emotionally abusive, sexually coercive, and had threatened her

physically on one occasion, she denied that father was ever physically assaultive. The conditions

in the home were described as “filthy” and the children went to school dirty and odorous.

Eventually, a child-in-need-of-care-or-supervision (CHINS) petition was filed, and the children

were removed from the home in June 2016. After the children were removed from the home,

mother and father ended their marriage.


                                                 21
          ¶ 55.   At the first hearing following the removal, both parents took responsibility for the

CHINS allegations and admitted that, at that time, neither parent was meeting the children’s

basic needs for hygiene, dental appointments, medical care, and therapy. They conceded that

mother’s unmet mental-health issues left her unable to protect the children from risk of harm and

neglect and that father’s preoccupation with mother prevented him from meeting the children’s

needs.

          ¶ 56.   A September 2016 disposition plan called on father to fulfill many requirements,

including: participation in and completion of a domestic-violence program; demonstration of an

understanding of the impact his use of violence had on his family; commitment to living

violence-free; signing of all releases for DCF regarding ongoing treatment recommendations;

adherence to visitation guidelines as set up by the Department for Children and Families (DCF)

and WomenSafe; attendance and participation in all court hearings; and maintenance of safe and

adequate housing. For reasons not readily apparent, DCF’s disposition case plan contemplated

reunification with mother only or adoption.         Father disagreed with the plan but agreed to

participate in the Domestic Violence to Responsible Choices (DVRC) program. However, he

was deemed ineligible because he denied physical-abuse allegations in the referral that DCF

required him to sign.      Father requested an evidentiary hearing on the issue of whether he had

been physically abusive to mother, which the court consolidated with the hearing on the

disposition plan. At the time of the consolidated hearing, mother was living in New Hampshire

with her boyfriend.

          ¶ 57.   At the consolidated hearing, the sole allegation of physical abuse was H.F.’s

disclosure to a social worker that she allegedly watched father take mother into a room and then

heard mother yell, “[s]top, no you are hurting me!” At the hearing, the court addressed father’s

counsel suggesting that the testimony seemed to be focused on physical violence. The court

stated:


                                                   22
               [T]he Court has heard substantially more evidence of a pattern of
               controlling behavior, which is textbook domestic violence—
               battering behavior.

                 You know as well as the Court . . . that domestic violence is not
               limited to physical violence and in fact, sometimes is even more
               violent and more destructive of relationships and particularly more
               concerning for children when it’s psychological violence. And
               that’s the evidence that the court has heard thus far here.

       ¶ 58.   After the first day of the consolidated hearing, the court informed the parties that

the court would not require proof of physical violence to support a finding of domestic violence.

During the second day, the court again reiterated the distinction it applied to domestic violence:

“the question for the [c]ourt is whether . . . it’s a problem that’s symptomatic of a larger problem,

which is a pattern of domestic abuse, which extends beyond or does not necessarily include

physical violence, but may include emotional violence and controlling behaviors.”

       ¶ 59.   In its written decision, the court found by a preponderance of the credible

evidence that father did engage in a pattern of domestic abuse. It noted that father denied

physical violence and wrote “while there may not have been a well-established pattern of

physical violence, there was a clear pattern of emotional abuse and controlling behavior, directed

primarily at [m]other, but also at the children.” The court then held that there were no facts that

warranted the exclusion of reunification with [f]ather as a goal of the plan, stating, “[i]ndeed, if

there were no hope or expectation of reunification with father, there would be no need for his

completion of a batterer’s intervention program.” It adopted the plan with one exception: that

the case plan goal be modified to recommend reunification with mother or father or adoption.

       ¶ 60.   By the time father started DVRC, he had been in counseling for six months, was

gainfully employed, had a stable home, and was consistently visiting with the children. He met

the program’s expectations and graduated from the twenty-six-week program on schedule. In

fact, father’s progress so impressed his instructor that she asked him to be interviewed about his

experience for a television segment about the program. DCF, however, was not impressed and


                                                 23
remained fixated on the idea that father needed to admit to some unspecified instance of physical

violence. Apparently, DCF did not understand the court’s determination that the domestic abuse

in this case was primarily emotional abuse and controlling behavior.

       ¶ 61.   As described in the majority decision, the children were placed in two separate

foster homes: the girls with a family in Bristol and the boys with another in Middlebury. The

children all remained at the same elementary school and saw each other every day. At the post-

disposition review hearing in February 2017, father asked DCF and the court to increase his

visits. He proposed several family members who could support visits, including an aunt who

was a licensed foster parent and early childhood educator. The court urged DCF to increase

visits, but DCF did not. Father filed a formal motion to increase visits in April 2017.

       ¶ 62.   After the motion was filed, DCF changed the visits from one hour a week with the

girls and one hour with the boys, to a combined visit of one time per week for two-and-a-half

hours with all four children. When father’s motion came before the court for hearing on May 30,

2017, the permanency hearing occurred at the same time. That plan called for reunification to

happen in the next three months or a termination-of-parental-rights (TPR) petition would be

filed. Father agreed with the permanency plan that included reunification with him within three

months but emphasized that increased visits were essential for him to realistically meet the three-

month permanency goal and argued that he had insufficient contact with the children to

effectuate the plan. At that hearing, the attorney for the children strongly advocated for father to

have more contact with the children, reporting “on behalf of the kids who I’ve met with each of

them individually, they would like to have more time with their dad.” The social worker

objected, claiming the clinical team did not support extended family supervising visits at all.

The court did not increase visits at that time. Nor were visits gradually increased over the next

three months. DCF indicated at a status conference it was not ready to support additional visits

between father and the children supervised by father’s aunt because of a failed letter-writing


                                                24
scheme that was to occur between the aunt and the children. It is worth noting, as did the court,

that father’s aunt had served as a licensed foster parent, had been an early-childhood educator for

twenty-eight years, has a certification in Child Development, had operated her own day care, and

had taken care of children with special needs.

        ¶ 63.    After some occurrence that resulted in the boys’ foster mother seeking party status

and a relief-from-abuse order against father which was withdrawn,7 father filed a revised motion

to transfer custody of all four children to his aunt and asked for a speedy hearing. The following

day, the state filed its petition to terminate father’s parental rights. Thus, less than two months

after the permanency planning hearing where the State had assured the court it was not looking

for an immediate TPR if reunification did not occur over the next three months,8 it changed its

mind.

        ¶ 64.    While the TPR was pending, father completed all aspects of the case plan—

finishing DVRC, completing a parent-education program, and continuing to engage in

counseling. At the TPR hearing with a new judge presiding, the State argued that despite

father’s compliance with all aspects of the case plan, he had stagnated. In the alternative the

State argued that father had stagnated because he had not taken responsibility for physical abuse

against mother.

        ¶ 65.    When mother took the stand to voluntarily relinquish her parental rights to the

children, she testified that father had not been physically abusive towards her. Question: “[D]id

[father] ever physically hit or abuse you?” Answer: “No.” She described the abuse in her

marriage as “controlling and manipulative.” She specifically testified “[father’s] never hit me.

He’s never been physical with me.”

        7
            The court found that father did not intend to scare or threaten anyone.
        8
           “We don’t want to create a situation where we’re saying you have to be completely
done by this date and oh, by the way, we’re not going to let you, because we’re pumping the
brakes on everything that would get you there. I mean, that would be . . . artificially be creating
a situation where TPR would happen.”
                                               25
       ¶ 66.    The court terminated father’s parental rights, basing its decision on DCF’s theory

of stagnation because he had not taken full responsibility for his role in the neglect and abuse to

which the children were exposed and that he failed to admit to physical violence. The court

relied on factual allegations that were contained in DCF’s characterization of the facts, not

witness testimony. It erroneously found that all four children reported physical abuse by father

when that was not true. It erroneously found that after father believed mother was having an

extramarital affair, he “ripped [mother’s] dress off, then burned it while the children watched.”

There was no testimony that he “ripped” the dress off mother, only that he subsequently burned

it. The court also found that the prior judge, Judge Hoar, had specifically found that father

physically abused mother. As discussed above, he did not. The court also said that the guardians

ad litem (GALs) supported termination of parental rights.          However, the GALs actually

suggested a four-to-six-month window for father to have more visitation with the children to

better enable reunification.

       ¶ 67.    While acknowledging that “father has worked harder than many parents to

comply with the case plan and has made laudable progress . . . even he agrees that he is not ready

to take the kids home now.” At the time of the hearing, father testified that he believed the

children should not be returned to his home immediately because he had not been a part of their

lives in two years despite his efforts, and he had not been given an opportunity to repair the

damage in their relationship. The court acknowledged that father now lives in an appropriate

home with a woman who has a college degree and a license as an elementary school teacher and

who had previously worked at a childcare center. The court noted that she has not met the

children because DCF would not allow it. DCF had also not allowed the children to see father’s

current home.

       ¶ 68.    In TPR cases, the family court “first determine[es] whether there has been a

substantial change in material circumstances from the initial disposition order, and, if there has,


                                                26
whether the best interests of the child require termination of parental rights.” In re D.S., 2016

VT 130, ¶ 7, 204 Vt. 44, 162 A.3d 1254. “A substantial change in material circumstances is

most often found 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, 833 A.2d 879 (mem.)

(quotation omitted). “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.” In re D.M., 2004 VT 41, ¶ 5,

176 Vt. 639, 852 A.2d 588 (mem.). However, this Court has repeatedly emphasized that

“stagnation caused by factors beyond the parents’ control [can] not support termination of

parental rights.” In re D.S., 2016 VT 130, ¶ 7 (quotation omitted). “We will affirm the [family]

court’s findings in support of changed circumstances unless they are clearly erroneous, and its

conclusions if reasonably supported by the findings.” Id. ¶ 6.

       ¶ 69.   I suggest that the State failed to show by clear and convincing evidence that there

had been a substantial change in circumstances to support the court’s findings that stagnation had

occurred or that father engaged in physical abuse. More disturbing, if there is stagnation on the

part of father in this case, then we may as well stop pretending that the goal in juvenile judicial

proceedings is preservation of the family. From the time reunification with father was added to

the disposition plan, father did everything asked of him. DCF denied every suggestion made by

father that he believed might promote healing for the children and the family. Did DCF consider

that the children might be enthused about reunification with father if they had seen his new living

situation, a clean, “appropriate” house?      He was reprimanded for showing the children

photographs of the new beds he bought for them. Would the children have benefited from

meeting father’s new partner, a major departure from their mother and her many issues? Why

was he not allowed to have visitation with one child at a time, why must it have been a mass

visitation with multiple children at one time where little intimacy could occur?




                                                27
       ¶ 70.   Throughout this matter, the State and DCF continued to tumble together phrases

of domestic violence and domestic abuse, failing to recognize the distinction articulated by Judge

Hoar in the disposition hearings and decision, and insisting father admit to something he denied.

Whatever evidence the court below thought existed concerning physical abuse cannot be

considered clear and convincing, especially because mother testified to many obnoxious,

controlling behaviors by father but adamantly denied he was ever physically abusive to her. This

decision should not stand.



                                              Associate Justice




                                               28
