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


                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-001

                                         APRIL TERM, 2016

 In re O.S., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 1-1-14 Cnjv

                                                            Trial Judge: Thomas J. Devine

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

        Mother and father separately appeal from a family court judgment terminating their
parental rights to the minor O.S. Mother contends that the court: (1) violated her statutory and
due process rights by failing to hold a contested disposition hearing prior to changing the
permanency goal to termination of parental rights; and (2) committed reversible error by
terminating her parental rights notwithstanding her stipulation to a CHINS adjudication in which
she “admitted wrongdoing and accepted full responsibility” for the child’s injuries. Mother also
contends that the court erred by engaging in “speculation” about her drug use, and by failing to
explain how the cause of the child’s injuries “related to [m]other’s current ability to parent.”
Father contends: (1) the court’s reasons for concluding that he could not resume parental
responsibilities within a reasonable time were flawed; (2) the court’s findings concerning his
interactions with O.S. and the role he played in the child’s life were not supported by the
evidence; and (3) the court’s finding concerning father’s mental stability was unsupported and
erroneously shifted the burden of proof. We affirm.

       The facts may be summarized as follows. O.S. was born in November 2013. He lived
with mother and father at his paternal grandmother’s home. Mother stayed at home to care for
O.S. while father worked and provided some childcare assistance, although the court found that
“the vast majority of the child’s care was performed by” mother.

        In late December 2014, when O.S. was a little short of two months old, his paternal
grandmother noticed a lump on his chest. A pediatrician who examined him referred him to
Fletcher Allen Medical Center where a pediatric doctor arranged for x-rays and a skeletal survey.
These revealed that O.S. had suffered bone fractures of eight separate ribs on his left and right
sides and his back, as well as a broken tibia. Callus lines that form when bones heal revealed
that no single incident was responsible for the injuries. The doctor concluded, and the court
found, that O.S. had suffered multiple, non-accidental traumas over a sustained period of time.
Neither parent provided an adequate explanation for the injuries to the doctor, who reported the
matter to the Department for Children and Families (DCF). In response to a DCF inquiry, father
recalled a time when O.S. had almost slipped off the bed, and another time when he found him
on the floor near where mother was sleeping. Mother mentioned one incident about three weeks
earlier when she “shook him a little.”

       O.S. was taken into DCF custody and initially placed with father, who had separated
from mother. After a few weeks, father proved unable to care for the child, who was then placed
with a foster family, where he has since remained. Mother was charged with domestic assault
and cruelty to a child. A CHINS petition was filed in January 2014. The initial case plan filed in
February 2014 proposed a concurrent plan for reunification or adoption. Supervised visitation
and family time coaching were provided to the parents under the plan, and mother began
substance abuse counseling. In June 2014, parents stipulated to a CHINS adjudication. Mother
acknowledged in the stipulation that she was the child’s primary caregiver, that the child was
under her general care and supervision during the time in which the injuries occurred, that she
shook the child one time three weeks before his visit to the hospital, and that other than the one
incident she did not have an adequate explanation for how the injuries occurred. A disposition
hearing was scheduled for July 2014.

        The scheduled disposition hearing was continued to afford mother’s attorney additional
time to review the updated disposition plan from early July 2014, which called for reunification
within three to six months or adoption. In August 2014, father experienced a mental health crisis
in which he threatened mother and others, and his visits with O.S. were temporarily suspended.
In October 2014, DCF submitted a revised plan calling for termination of parental rights.
Mother’s presentation at subsequent visits with O.S. began to raise serious concerns. In May
2015, and again in September 2015, she tested positive for non-prescribed Oxycodone, and she
refused to be tested in other months. In August 2015, mother pled guilty to the criminal charges
and received a sentence of 4 to 42 months, all suspended, and was placed on probation.

        An evidentiary hearing on the TPR petition was held over two days in September 2015,
and the court issued a written ruling in November 2015. The court found that although both
parents interacted well with the child during visits, the depth of their relationship was limited,
and mother had more recently disengaged while testing positive for drugs. The court also found
that the child had lived almost his entire life with his foster parents, that he considered them to be
his parents, was well integrated into his home and community, and was thriving.

         As to parents’ ability to resume parental responsibilities, the court acknowledged their
argument “that even in the absence of a court-approved disposition plan, they have already
completed many of the services DCF has sought,” including substance-abuse assessments and
counseling, and attendance at visits, meetings, and court proceedings. The court found, however,
that the “fundamental question” of how the child had received his severe, multiple injuries
remained unanswered, and neither parent had offered an adequate explanation. Mother had also
more recently tested positive for non-prescribed drugs, and father continued to lack independent
housing. The court concluded that neither parent could resume parental duties within a
reasonable time, measured from the perspective of the child’s needs for permanence and
stability. Accordingly, the court determined that termination of parental rights was in the best
interests of the child. These appeals followed.




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        Mother contends that the court violated her statutory and constitutional rights by revising
the permanency goal to termination of parental rights without holding a contested disposition
hearing. The argument is unpersuasive. First, we note that the record does not show that she
preserved these arguments for review on appeal by asserting them at any point below. See In re
A.M., 2015 VT 109, ¶ 28, __ Vt. __ (“To properly preserve an issue for appeal a party must
present the issue with specificity and clarity in a manner which gives the trial court a fair
opportunity to rule on it.” (quotation and alteration omitted)). While she objected to the original
disposition proposal, she did not make the argument she is making here when DCF changed its
permanency goal. Furthermore, while the statutory scheme provides that a disposition hearing is
to occur “no later than 35 days after a finding that a child is in need of care and supervision,” 33
V.S.A. § 5317(a), we have held that the timeframe “is not mandatory,” In re D.D., 2013 VT 79,
¶ 24, 194 Vt. 508, and that the court “may terminate parental rights at the initial disposition
proceeding if the court finds by clear and convincing evidence that termination is in the child’s
best interests.” In re C.P., 2012 VT 100, ¶ 30, 193 Vt. 29. We find no error in DCF changing its
disposition position in response to changing circumstances. Having said that, we do not condone
extensive delays in reaching an initial disposition order such that DCF is pursuing termination of
parental rights before the parents have an opportunity to comply with disposition conditions and
seek reunification. In another case, the prejudicial impact of delay might make it inappropriate
to pursue termination of parental rights before an initial disposition order is completed.

       Mother’s related assertion that she was unfairly denied the opportunity to contest a plan
provision requiring that she be “forthcoming” about how O.S. was injured also lacks merit.
Mother filed her objection stating that the child’s injuries were due to the fact O.S. “suffered
from Vitamin D deficiency which made his bones weak,” and she was afforded a full and fair
opportunity to contest the issue at the termination hearing.

         Mother also claims that the State’s decision to proceed to termination of parental rights at
initial disposition unfairly “lifted the State’s burden . . . to prove changed circumstances.” She
asserts, more specifically, that the State’s decision to establish a goal of adoption would have
been rejected by the court at an earlier modification hearing “because [m]other’s explanation of
O.S.’s injuries had been sufficient for the parties at merits and nothing had changed in the
meantime to suggest that [m]other was not being truthful.” The premise of the argument is
mistaken. Mother’s stipulation at merits stated that she had shaken O.S. on one occasion, and
that she otherwise lacked “an adequate explanation for how the injuries occurred.” Nothing at
merits established that mother’s explanation for the child’s injuries was sufficient or truthful.

       In a related vein, mother contends that the court’s decision was improperly based on
DCF’s “change of heart” brought about by “consultation with its central office” to reject
mother’s stipulation at merits in which she allegedly “admitted wrongdoing and accepted full
responsibility for the injuries.” As noted, however, mother’s stipulation at merits admitted
merely that she had shaken the child on one occasion, and that she lacked an “adequate
explanation” for the injuries. The medical evidence, by contrast, showed that the injuries had
occurred on more than one occasion over a period of time.

      Mother also challenges the court’s allegedly unsupported “speculation about [her] drug
use.” Mother acknowledged that she tested positive for opiates in her own testimony, and the

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court admitted without objection the results of a test administered by the Vermont Department of
Health showing that mother tested positive for Oxycodone in September 2015. The test was
administered pursuant to conditions of probation requiring that mother submit to random drug
tests and remain substance free. The court’s finding that mother had tested positive for non-
prescribed drugs, “despite the risk that this may lead to a revocation of probation and her
incarceration,” was well supported.

         Finally, mother notes the court’s concern with the “fundamental question” of how O.S.
sustained his injuries, and asserts that the court “failed to explain how this question (which
should have been resolved once and for all by the merits stipulation) related to [m]other’s current
ability to parent.” As noted, however, the merits stipulation did not resolve the issue of how O.S.
sustained his injuries. Moreover, the court’s decision provides a clear and cogent explanation, if
such explanation were necessary, of how the grievous injuries sustained by O.S. while in
mother’s care reasonably relates to her current ability to parent. We find no error, and no basis
to disturb the judgment.

        In his separate appeal, father challenges the adequacy of the evidence and findings to
support the judgment. We emphasize that our role “is not to second-guess the family court or to
reweigh the evidence,” but to determine whether the court abused its discretion. In re S.B., 174
Vt. 427, 429 (2002) (mem.). We will not disturb the court’s findings unless they are clearly
erroneous, In re B.W., 162 Vt. 287, 291 (1994), nor its conclusions if reasonably supported by
the findings. In re A.F., 160 Vt. 175, 178 (1993). “We leave it to the sound discretion of the
family court to determine the credibility of the witnesses and to weigh the evidence.” Id.

        Father maintains that the reasons underlying the court’s conclusion that he could not
resume parental responsibilities within a reasonable time were “flawed.” First, he asserts that the
court unfairly relied on father’s failure to provide an adequate explanation for the child’s injuries
when it was mother who had cared for the child and pled guilty to the resulting criminal charges.
The court, in fact, expressed doubt that father was being truthful in professing not to have any
knowledge as to how O.S. sustained such serious injuries over time, and also expressed
significant concern that father was contemplating reuniting with mother notwithstanding the
potential risk to O.S. These concerns were supported by the evidence, and we discern no factual
or legal flaw in the court’s reliance on them. We also discern no merit to father’s additional
claim that DCF was at fault for failing to offer father specific counseling “to help him become
disentangled from . . . mother.” Father was provided counseling; the progress he made was up to
him. See In re C.P., 2012 VT 100, ¶ 40 (rejecting argument that stagnation was caused by
factors beyond parents’ control where services were provided but progress was inadequate). The
court’s additional observation that father had not obtained independent, stable housing—while
not the principal basis for its decision—was also supported by the evidence.

        Father also claims that the court’s findings concerning his relationship with O.S. and the
role that he played in the child’s life were flawed. Father asserts that his limited contact with
O.S. was due to factors beyond his control, specifically the cessation of family time coaching,
but father overlooks the evidence that his visits were suspended for a period due to his mental
breakdown, and that overnight visits were consistently precluded by evidence that he did not live
in a safe environment. Father further claims that the court underestimated his progress in finding

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that he merely had “moments of success during some visits,” asserting that this is contradicted by
other findings that he had engaged well with O.S. since visits resumed in November 2014. The
court’s conclusion concerning father’s role in the child’s life reached a fair and reasonable
balance in ultimately determining that this factor was “mixed,” consisting of early neglect
followed by a period of emotional instability, and more recent progress. We find no error.

        Finally, father contends that the evidence failed to support the court’s statement that it
could “not find that [father] is particularly stable.” Father does not challenge the court’s
underlying finding that “[t]he evidence demonstrates that [father] has become dysregulated and
violent on multiple occasions when faced with a stressful situation”; rather, he notes that he had
made progress during the year preceding the hearing. While the court acknowledged that
progress, it did not negate the evidence of father’s “longstanding history of anxiety, depression
and suicidal ideation” or otherwise undermine the court’s findings and conclusions. Father’s
additional claim that the court somehow reversed the burden of proof to demonstrate that his
parental rights should not be terminated is unsupported. Accordingly, we find no basis to disturb
the judgment.

       Affirmed.


                                               BY THE COURT:


                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice

                                               _______________________________________
                                               Harold E. Eaton, Jr., Associate Justice




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