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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-313

                                       JANUARY TERM, 2012

 In re I.C., M.C., A.C. and A.H., Juveniles            }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Caledonia Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NOS. 30/31/32-5-10 &
                                                                        44-8-10 Cajv

                                                            Trial Judge: M. Kathleen Manley

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

        Mother appeals the family division’s order terminating her parental rights with respect to
her children, I.C., M.C., A.C., and A.H. Father separately appeals the same order with respect to
his and mother’s child, A.H. We affirm.

       This case concerns four children: I.C., born in July 2001; M.C., born in March 2005;
A.C., born in February 2006; and A.H., born in October 2008. With respect to the three oldest
children, mother has indicated that two of the children’s fathers have been deported and one is
deceased. These three putative fathers were never married to mother, were never subject to a
judgment of parentage, have not been involved to any significant degree in the children’s lives,
and could not be located despite very substantial efforts by the Department for Children and
Families (DCF). They did not participate in the termination hearings.*

        Mother had a troubled childhood in which she experienced trauma and witnessed
domestic violence. She has grappled with drug dependency and mental-health issues since she
was a teenager. Father met mother in 2006 and lived with her periodically over the next four or
five years. Father and mother married in October 2010, but father left mother in March 2011.

         Mother was living in Massachusetts when she gave birth to I.C. in 2001. Between 2002
and 2006, the Massachusetts Department of Social Services became involved with the family on
at least three occasions as the result of reports of mother’s ongoing drug use, her neglect of I.C.,
domestic violence within the family, and an unstable and unsanitary home environment.
Between 2006 and 2010, mother and the children moved intermittently between Massachusetts,
Vermont, and New York, staying at times at shelters or with friends or family. During that time,
mother was involved with various partners and continued to struggle with drug dependency and
mental-health issues. The children were exposed to drug use, domestic violence, and
homelessness. DCF became involved with the family on a number of occasions beginning in
2007.

        *
         Accordingly, references to “father” in this opinion relate solely to the father of the
youngest child, A.H.
        On May 3, 2010, mother’s mother called DCF to report that mother had dropped the three
oldest children off with her three weeks prior and had left for Massachusetts. The grandmother
wanted to obtain guardianship over the children, but she could not do so because of her own
health needs. She was also limited in helping the children because mother was receiving I.C.’s
SSI checks and the children were still registered for benefits in Massachusetts, thereby
preventing the grandmother from obtaining Medicaid benefits for the children in Vermont to
address their significant medical needs. On May 23, A.C. was seriously injured in a dog attack
in connection with which she required surgery; because mother was not in Vermont and was
constantly moving, grandmother had no authority to authorize surgery and did not have the
information she needed regarding Medicaid coverage.

       On May 25, 2010, the family division of the superior court issued an emergency care
order regarding the three older children based on mother’s abandonment and the absence of
anyone authorized to deal with the children’s medical needs. A temporary care hearing was held
two days later, but mother’s whereabouts were unknown. After mother was located, another
temporary care hearing was set for June 17, 2010, at which time mother was present with
counsel. Following a contested hearing the court continued temporary custody with DCF,
concluding that returning the three children to mother would result in substantial danger to their
physical and mental health. After mother failed to appear at two July hearings, a final merits
hearing was scheduled for September 9, 2010.

       In the meantime, on August 2, 2010, the court issued an emergency care order with
respect to A.H. based on trauma symptoms exhibited by the older three children, mother’s
constant moves, and concerns about the lack of routine medical care for the child. The court
continued the temporary care hearing until mother and A.H. were located. Following an August
19, 2010 hearing, the court issued a temporary care order continuing DCF custody.

        On September 9, 2010, the parties entered into a written stipulation agreeing to a factual
basis for the court to find by clear and convincing evidence that the three older children were in
need of care and supervision because they were without parental care necessary for their well-
being. On October 21, 2010, the parties entered a similar stipulation with respect to A.H.

        DCF filed the disposition plans for the three older children and A.H. on October 8 and
November 24, 2010, respectively. The plans identified services available for mother and father,
but recommended termination of parental rights at the initial disposition hearing. The
termination hearing was held over three days in mid-April 2011. On July 26, 2011, the family
division filed a twenty-eight-page decision terminating mother’s and father’s parental rights and
freeing the children for adoption.

        Mother and father have filed separate appeals of the court’s termination order. Mother
argues that the record does not support either: (1) the court’s findings that she was in only the
preliminary stages of achieving enough stability in her life to resume parental duties and that it
would take her one to two years to reach that goal; nor (2) the court’s conclusion that mother
would not be able to resume her parental duties within a reasonable period of time. Father
argues that the court erred by making its initial disposition determination without waiting for
home study reports concerning potential placements with his family. The State opposes mother’s
and father’s efforts to overturn the trial court’s termination decision, and the children join in the
State’s brief asking this Court to uphold the decision.


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        We first consider mother’s arguments. Mother essentially challenges the evidentiary
basis for the court’s conclusion regarding the third and most important factor of the four best-
interest factors contained in 33 V.S.A. § 5114(a)— the likelihood that the parent will be able to
resume parental duties within a reasonable period of time. Indeed, mother’s first argument
concerning the evidentiary basis for some of the court’s findings is actually part of her second
argument that the record does not support the court’s determination that she will be unable to
resume her parental duties within a reasonable period of time.

        After making 126 findings detailing the mother’s history of neglect and the children’s
exposure to domestic violence, drug use, homelessness, and constant moving over the course of
nearly a decade, the court reached the following conclusions in regard to the critical third best-
interest factor:

       There is little, if any likelihood that Mom will be able to assume or resume
       parental duties within a reasonable time. To her credit Mom has
       seemingly begun to engage in services in a meaningful manner and at long
       last appears to be getting much needed treatment and assistance. She has
       had a difficult life and her concerted effort to engage in treatment is
       commendable. As noted by her psychiatrist, change, to the level needed to
       parent these children in the way they require, does not happen quickly.
       She was clearly overwhelmed by their many needs and still is not able to
       have unsupervised contacts or even decrease the number of persons
       necessary to supervise. Every treatment provider for the children had the
       same message; the children need stability, predictability, safety and
       someone who is able to meet their needs day in and day out on a
       consistent basis.

       Mom is in the very early stages of learning how to provide safely for
       herself. She is not capable of doing so for the children at present, nor in
       the near future. While she has begun to make some progress on those
       areas identified in the action plan, they were preliminary steps to show
       consistency and some stability. She has not been able to establish and
       maintain a consistent safe home for a period of six months, much less to
       be able to provide such a home in a manner that is safe and stable for the
       children. It is not the undersigned’s intent to denigrate the progress Mom
       has made and it is hoped that she will continue to follow through with all
       of the services in which she is engaged, for her own sake. However, Mom
       is not in a position to parent even one of these children at this time.

       To ask the children to wait in limbo in foster care for the one or two years
       or more that it will take Mom to maybe be in a position to provide a safe,
       nurturing and stable home for the children is not in their best interest; it is
       only anxiety producing. Moreover the children need more than that. They
       need to be nurtured, intellectually stimulated and parented safely, all areas
       beyond Mom’s ability to provide and things she will have to learn how to
       do. The children need to have stability and permanence now. Their
       current homes provide that to them.

       Mom has maintained consistent contact with the children and it is clear
       that she loves them. It is equally as clear that the three older children miss
       their Mom, based on statements made to therapists immediately after
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       having contact with Mom. What is difficult to find however is that Mom
       plays a constructive role in their lives. Certainly when the children lived
       with them Mom probably tried to do her best but the chronic
       homelessness, exposure to drugs, danger and Mom’s absences has caused
       much emotional distress to the children and problems that they will
       continue to work on for some time.

       Waiting to see if Mom can pull it together enough to parent the children in
       the manner they require and deserve is not in their best interest.


        As evidenced by these conclusions and several of the court’s findings, mother’s assertion
that the court inaccurately emphasized the negative and failed to give her credit for the progress
she has made is not supported by the record. The trial court acknowledged mother’s efforts and
her love for her children, but concluded that her neglect and absence, the ongoing drug use and
domestic violence, and the perpetual homelessness as she moved from place to place for nearly a
decade had a significant negative impact on the children’s lives. Most significantly, the court
concluded that mother was not reasonably likely to be able to resume parental duties within a
reasonable time relative to the needs and best interests of the children.

        Mother asserts that the evidence does not support the court’s conclusion that she was in
the preliminary stages of providing stability for her children. The court made the following
findings, among others— all supported by record evidence and unchallenged by mother— in
support of its conclusion regarding mother’s progress: (1) She had been offered services at
various time since 2002, but did not seriously engage in any services until the fall of 2010 after
A.H. was taken into DCF custody; (2) when she finally did engage seriously in mental-health
counseling, she initially refused to sign a release and eventually signed only a limited release that
allowed DCF to verify participation but not the nature of the counseling or the results of drug
testing; (3) she was not required to give observed urine samples, and thus any abstinence is
solely by self-report and not independent verification; (4) her involvement with her mental health
counselor was inconsistent at times through February 2011; (5) since engaging in services, she
has been diagnosed as being bipolar, cannabis dependent, abusive of alcohol, and also suffering
from borderline personality disorder and ADHD (attention deficit hyperactivity disorder); (6) by
all accounts, she is emotionally fragile and in the very early stages of recovering from substance
addiction; (7) although counseling has helped her with anger management and maintaining a
sober lifestyle, the counseling has not addressed how her childhood experiences, past drug use,
mental problems, and domestic violence in her life has had a negative impact on her children or
her ability to parent; (8) her psychiatrist agreed that treatment of a personality disorder is a very
long process; and (9) her primary counselor is unaware of her medication regimen or her
involvement with her children or their circumstances.

        These findings and many others, all supported by evidence in the record, support the
court’s conclusion that mother is in the preliminary stages of stabilizing her life and putting
herself in a position to parent her children. The court’s findings do not directly address mother’s
most recent housing situation, but the court found that she was moving around in the fall of 2010
and was living in her car for a period of time in December 2010. Obviously, given mother’s
longstanding issues of drug dependence, mental problems, and homelessness over a period of
many years, the court did not err in characterizing her recent efforts to address those issues as
preliminary in nature.


                                             4
        We find unavailing mother’s complaint that the court “conflated” the children’s long-
term needs for stability with mother’s inability to assume parental duties in the immediate future.
Although the question of a parent’s ability to resume parental duties is forward-looking, the state
of the parent’s progress must be considered in relation to the children’s needs for stability and
permanence. See In re B.M., 165 Vt. 331, 337 (1996). On this point, the trial court’s findings,
unchallenged and supported by record evidence, indicate that: (1) the children, to varying
degrees depending on their ages and other factors, suffered considerable emotional trauma and
developmental delays while in their mother’s care; (2) when the children came into foster care,
they suffered, to varying degrees, from anxiety, nightmares, fear of the dark, and sleep problems;
(3) they hoarded food and exhibited inappropriate sexualized behaviors; and (4) since being in
foster care, they have made significant progress in development and emotional stability.

        The court found credible testimony from the children’s therapists that the children needed
permanence and stability in their lives after what they had been through before they came into
foster care. Specifically, the court found credible the testimony of I.C.’s therapist that the child
needed “a ‘roadmap’ as to where he is going to be and a stable environment with appropriate
social connections,” noting that he would “decompensate quickly” if he were returned to a
“chaotic household.”

        Similarly, M.C.’s therapist testified that the child needed a consistently nurturing and safe
environment to thrive and that she would regress absent such an environment. The court found
credible her therapist’s opinion that any long-term foster care or other temporary arrangement
would negatively affect M.C.’s ability to attach to others. The court also found that A.C. needed
predictability, safety, and consistency in her life, and that continued foster care would cause
uncertainty, while returning to her former unpredictable lifestyle would negatively impact her
development. The trial court found that the foster parents for the three older children were
highly skilled, and needed to be, given the children’s significant needs.

       As for A.H., the court found that her significant developmental delays at the time she
came into foster care were directly related to her experiences and trauma sustained in an unstable
environment under mother’s care. The court noted the remarkable strides she had made since
joining her foster family and found that if A.H. were to return to an unstable environment, it
would impede further developmental progress. The court noted that two-and-one-half-year-old
A.H. had been with her foster family at that point for eight months, a significant portion of her
young life, and had bonded with the family.

        Mother does not challenge any of these findings, but contends that there is no support for
the family court’s isolated comment in its conclusions that mother would need one or two years
or more to put herself in a position to provide a safe and nurturing home for the children. The
record amply reveals the depths and history of mother’s longstanding problems and the
uncertainty of her ability to turn her life around in the long run. At the same time, the evidence
supports the trial court’s conclusion that the children need stability and permanence in the very
short run. As a whole, the record supports the court’s conclusion that mother will be unable to
resume her parental duties within a reasonable period of time from the perspective of the
children.

        For his part, father does not challenge the trial court’s termination of his parental rights
based on its assessment of his circumstances and relationship with A.H. Rather, he argues only
that the court erred by entering its termination order before obtaining home-study reports of two
of his relatives, including his mother. As the court acknowledged in its findings, when A.H.
came into custody, at which time father was in New York living with his mother, DCF asked the
                                              5
New York social services agency to do home studies of father and potential paternal relatives.
Father argues that because home study reports of his mother and another potential relative were
not completed and presented to the court for consideration, the court did not have adequate
evidence to make a disposition determination at the initial disposition hearing.

        Father acknowledges this Court’s decision in In re T.T., 2005 VT 30, ¶ 7, 178 Vt. 496
(mem.), where we held that once a court determines that termination is the proper disposition
under the statutory best-interests criteria, it need not explain why it is choosing termination over
other statutory permanency options. Father argues, however, that T.T., which was decided
before the comprehensive rewrite of the juvenile statutes in 2008, is distinguishable because it
did not concern a termination at the initial disposition hearing.

        We find father’s argument unavailing. The legislature has expressly directed courts to
consider kinship placements in the context of temporary care orders before a CHINS (child in
need of care or supervision) adjudication. See 33 V.S.A. § 5308(b) (setting forth potential
temporary placements for the court to consider in order of preference, with relatives being the
third and fourth options after conditional placement with the custodial parent or placement with
the noncustodial parent). At the disposition stage, by contrast, the legislature has established no
order of preference or requirement that the court consider certain placement options.

        To the contrary, the statutory provision addressing the disposition hearing provides that if
the commissioner of DCF or the attorney for the child seeks an order terminating parental rights
at the disposition hearing, “the court shall consider the best interests of the child in accordance
with section 5114.” 33 V.S.A. § 5317(d). Section 5114 sets forth specific criteria for the court
to consider in determining whether to terminate parental rights. Although that section does
include as a factor in the best interests analysis “the interaction and interrelationship of the child
with . . . any [] person who may significantly affect the child’s best interests,” there is no
requirement that certain categories of people, such as relatives, be considered for placement
before the court may terminate parental rights.

        In this case, there was no evidence that father’s mother or any other of his relatives had a
significant relationship with A.H. Indeed, the only evidence concerning father’s mother was that
she was arrested as the result of her confrontational behavior when social services personnel
went to New York to pick up A.H. We reject father’s argument that the absence of the home
studies of his relatives deprived the court of essential information before his parental rights could
be terminated.

       Affirmed.
                                                  BY THE COURT:


                                                  _______________________________________
                                                  John A. Dooley, Associate Justice

                                                  _______________________________________
                                                  Brian L. Burgess, Associate Justice

                                                  _______________________________________
                                                  Beth Robinson, Associate Justice


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