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



                                           ENTRY ORDER

                            SUPREME COURT DOCKET NO. 2016-102

                                        AUGUST TERM, 2016

 In re D.I., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Caledonia Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 120-12-13 Cajv

                                                            Trial Judge: Robert R. Bent

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

          Mother appeals the termination of her parental rights with respect to her daughter, D.I. We
affirm.

         D.I. was born in May 2005. She is a special-needs child whose IQ has been tested in the
fifties, although her functional capacity may be greater. In late 2013, the Department for Children
and Families (DCF) received reports that D.I. and her two older half-brothers were truant and that
mother’s boyfriend, who had a history of violence, was spending time with the family. In
December 2013, DCF filed a petition alleging that D.I. and one of her half-brothers were children
in need of care or supervision (CHINS). The following month, the superior court adjudicated D.I.
CHINS and granted DCF’s request that mother be allowed to retain custody of the children,
including D.I., subject to certain conditions and the Department’s protective supervision.

        In June 2014, DCF requested an emergency care order regarding D.I. based on various
circumstances, including that mother was continuing to spend a considerable amount of time with
her abusive partner, that she was leaving her children with her brother’s family, and that one of
her brother’s children was being aggressive towards D.I. The superior court granted the motion
and transferred custody to DCF the following day. After a disposition modification hearing in
September 2014, the court continued custody with DCF. The new disposition plan, which was
later adopted by the court, had a goal of reunification with mother and required her, among other
things, to attend mental health counseling, sign releases, and work with service providers to learn
how to more appropriately parent her children.

         In May 2015, DCF filed a petition to terminate both mother’s and the father’s parental
rights with respect to D.I., citing, in relevant part, mother’s failure to abide by many of the case
plan goals aimed at putting her in a position to resume her parental duties. D.I.’s father voluntarily
relinquished his parental rights. A two-day termination hearing regarding mother’s parental rights
was held in February 2016. Following the hearing, the superior court terminated mother’s parental
rights, concluding that there were changed circumstances due to stagnation because of mother’s
failure to comply with key components of the case plan, and that termination of mother’s parental
rights was in D.I. best interests because mother had not played a constructive role in D.I.’s life and
would be unable to resume her parental duties within a reasonable period of time from the child’s
perspective.
        On appeal, mother’s sole argument is that the superior court erred by dismissing the foster
family’s lack of commitment to adoption as irrelevant to its best-interests analysis and speculating
that the foster placement was of indefinite duration in any event. We conclude that the premises
underlying this argument are inaccurate.

         In support of her argument, mother relies on the following findings made by the superior
court:

                [The foster family is] not sure that . . . they can commit to the
                adoption process with [D.I.], but there’s nothing . . . in the evidence
                that would suggest that the period of time which they would keep
                this child is time-limited.

                 . . . . It would be nice to think she’s got a permanent home, but
                that’s not necessarily what the Court needs to find under [33
                V.S.A. §] 5114.

        These findings do not indicate that the court thought either that the foster family’s lack of
commitment to adoption was irrelevant or that D.I.’s current foster placement would be of
indefinite duration even if the family ultimately decided not to adopt D.I. Rather, the court stated
a simple fact supported by the record: the foster family had not yet committed to adoption but there
was no other evidence suggesting that D.I.’s stay with them would be limited. The court then
acknowledged the uncertainty as to whether D.I. had a permanent home at that time, but stated that
a termination order based on the statutory best-interests factors was not necessarily dependent on
a finding that the subject child had a permanent placement.

        These statements are completely consistent with In re J.M., 2015 VT 94, ¶ 11, where we
reiterated that “the availability of a permanent alternative placement is not a precondition to
terminating parental rights,” but the superior court may consider the absence of an alternative
placement, especially if the parent is the child’s sole emotional connection. In this case, mother
does not challenge, and the record supports, the superior court’s findings and conclusions stating
that mother had not played a constructive role in D.I.’s life and had abdicated her parental
responsibility. Nothing in the record suggests that D.I. has a critical emotional attachment to
mother that should preclude terminating mother’s 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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