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




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-124

                                          JULY TERM, 2013

 In re S.S., A.S. and L.S., Juveniles                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 73/74/75-9-10 Bnjv

                                                            Trial Judge: David A. Howard

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

       Father appeals the termination of his parental rights with respect to his three daughters.
We affirm.

        The children were born in October 2007, November 2008, and August 2010. The
children and their parents were living in the home of the paternal grandparents when, in the
spring of 2010, father was charged with aggravated domestic assault based on an incident in
which he threatened to kill himself and everyone in the house. Father pleaded guilty to the
charge and was given a thirty-day-to-four-year sentence. In September 2010, while father was
incarcerated, the Department for Children and Families (DCF) filed a petition alleging that the
children were in need of care and supervision (CHINS) due to neglect of their basic needs,
including sufficient food. Based on the mother’s admissions, the children were adjudicated
CHINS in November 2010. The court approved a reunification plan at disposition and ordered
that the children remain in DCF custody. Much of the DCF planning focused on the mother as
the primary care provider, but ultimately she was unable to deal with the children, despite having
access to intensive services at the Lund Home.

        Father served eleven months of his sentence before he was released. Upon his release, he
reunited with the mother and had contact with the children. DCF began a plan to reunify the
children with father as the primary care provider because he appeared to be making progress
with employment and parenting, although he and the mother were living together in a motel and
the children remained in foster care. In October 2011, shortly before a planned transfer of the
children’s legal custody from DCF to father, father was arrested on charges of felony domestic
assault and felony domestic assault with a weapon based on an incident in which he threatened
the mother with a knife. He was held without bail, and in December 2011, he pleaded guilty to a
felony count of domestic assault and received a sentence of sixteen to thirty-six months. After
father was incarcerated, DCF once again shifted its reunification efforts to the mother. The
mother, however, became involved in an abusive relationship that was not conducive to her
obtaining custody of the children.

        In prison, father had a great deal of difficulty with the domestic-assault program because
of his refusal to take responsibility for his actions. He was denied early release in 2012 due to
the nature of his convictions and his lack of effort with the program. At the end of 2012, he
overcame these difficulties and completed the program.

        Meanwhile, in September 2012, DCF sought termination of the parents’ residual parental
rights. The termination hearing was held in February 2013, just days after father’s release on
furlough from prison. Following the hearing, the superior court terminated both the mother’s
and father’s parental rights. The mother did not appeal the decision. Father appeals, arguing
that: (1) the evidence does not support either a threshold showing of stagnation or the court’s
best-interests determination; (2) terminating his parental rights is premature because of the
absence of an adoptive home for the children; and (3) the court’s termination decision was based
on a mere guess that father would violate the terms of his release and be unavailable to the
children again in the future. The State has filed a brief in support of the superior court’s
decision, and the children’s attorney has filed a statement asking this Court to uphold the
superior court’s decision.

        Before terminating parental rights, the court must first find that there has been a
substantial change of material circumstances since the initial disposition order and, if so, must
then conclude that the best interests of the children, considering the statutory criteria, require
termination of parental rights. In re Cr. M., 163 Vt. 542, 545-46 (1995). A substantial change of
circumstances most often results when the parents’ ability to care for their children either
stagnates of deteriorates over time. Id. Here, father argues that he has always had good
parenting skills and that they have not stagnated over time, as evidenced by his successful
completion of prison programs. Father notes that the court made no specific finding concerning
stagnation but does not appear to challenge its change-of-circumstances conclusion on that basis.
In any event, this Court will uphold a termination decision even when there is no explicit finding
of a substantial change in circumstances when “it is evident from the record that a substantial
change of material circumstances had occurred since the initial disposition order.” In re K.F.,
2004 VT 40, ¶ 9, 176 Vt. 636 (mem.).

        In this case, stagnation is manifestly evident from the record. When the CHINS
proceedings commenced in September 2010, father was serving a sentence for domestic assault
and playing no meaningful role in the children’s lives. Two years later, when DCF filed its
termination petition, father was again serving a sentence for a second domestic assault and thus
playing no role in the children’s lives. At the time of the termination hearing in February 2013,
father had just been released on furlough with significant restrictions affecting his ability to care




                                                 2
for his children. As the court stated in its decision, father was in no better, and perhaps worse,
position to care for the children than over two years earlier when the children were taken into
custody. The required threshold showing of changed circumstances due to stagnation was
plainly met here.

        The record also amply supports the court’s conclusion that the children’s best interests
compel termination here. The court found that the children had adjusted to foster care and that
father had not played a constructive role in their lives because of his absence most of their lives
due to his incarceration for domestic assault. Although, as the court noted, father has expressed
love for his children, he bears sole responsibility for the effect of his incarceration resulting from
his voluntary criminal acts. See id. ¶ 12. The court stated that father’s absence alone would not
compel termination of his parental rights, but that, under the circumstances, father would most
likely not be able to resume his parental duties within a reasonable period of time from the
perspective of the children. As the court noted, the children have spent most of their young lives
apart from their parents, and the evidence indicated that they are in need of stability and
permanence. The evidence demonstrated significant uncertainty as to when father would be able
to resume his parental duties, even though he had been essentially out his young children’s lives
for most of the previous twenty-eight months.

        Father complains that part of the court’s rational for concluding that he would not be able
to resume parental duties within a reasonable period of time was based on its “guess” that he
would reoffend and once again be unavailable to the children. Father asserts that a termination
decision cannot be based on a guess. In making this argument, father relies upon the court’s
statement that it “would only be hopefully guessing that he will avoid future trouble when
looking at what his history of being able to put his children’s interests first is.” The court noted
that father had twice been unable to control violent tendencies that resulted in him being
imprisoned and unavailable to his children. The court further noted that father had had the
benefit of programs in prison the first time, and yet committed a second domestic assault on the
eve of successfully obtaining custody of his children. The court commented that if getting his
children back in the next few days was not motivation enough for him to control himself, it could
not imagine what would be. While consideration of the critical reasonable-period-of-time factor
is “forward-looking,” see In re B.M., 165 Vt. 331, 337 (1996), the court may consider a parent’s
past actions in gauging the likelihood of the parent being able to resume parental duties within a
reasonable period of time from the perspective of the child. That is what the court did here. See
In re J.B., 167 Vt. 637, 640 (1998) (mem.) (stating that although “past conduct itself is no barrier
to resuming parental responsibilities,” court could consider extent of mother’s past behavioral
problems and lack of certainty about her progress in overcoming those problems in determining
whether she would be able to resume parental duties within reasonable period of time).

        Father also argues that the court’s termination decision is premature given that DCF had
been looking for two years but had not found an adoptive home for the children. The testimony
at the termination hearing was that DCF had located a family that was a “good possibility” for



                                                  3
adoption. In any event, we have repeatedly stated that the absence of a prospective adoptive
home is not a prerequisite to terminating parental rights when the statutory best-interests criteria
are met. See In re S.B., 174 Vt. 427, 430 (2002) (mem.) (“[W]e have repeatedly stated ‘that a
valid termination of parental rights does not depend on the availability of permanent foster care
or adoption.’ ” (quoting In re D.M., 162 Vt. 33, 40 (1994))); In E.B., 158 Vt. 8, 15 (1992)
(“[T]ermination of residual parental rights does not depend on the existence of an alternative
placement”).

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Brian L. Burgess, Associate Justice




                                                 4
