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

                                              ENTRY ORDER

                               SUPREME COURT DOCKET NO. 2012-323

                                         FEBURARY TERM, 2013

    In re S.M., Juvenile                                  }     APPEALED FROM:
                                                          }
                                                          }     Superior Court, Chittenden Unit,
                                                          }     Family Division
                                                          }
                                                          }     DOCKET NO. 379-10-08 Cnjv

                                                                Trial Judge: Edward J. Cashman

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

        Father appeals from the termination of his parental rights in S.M. We affirm.

        The record shows the following history. S.M. was born in July 1998. She was taken into the
custody of the Department for Children and Families (DCF) in 2008 after telling a school guidance
counselor that her stepfather was sexually abusing her. S.M. was adjudicated as a child in need of care
or supervision in January 2009. In October 2011, mother indicated to the court that father was S.M.’s
biological parent. Genetic testing confirmed this, and father was added as a party. Father played no
direct or indirect caretaking role in S.M.’s life. He saw S.M. twice in her life, once shortly after her
birth and once many years later at a DNA testing session. Mother voluntarily relinquished her parental
rights and following a hearing, the court terminated father’s rights.

        The court found as follows. S.M. has a long history of sexualized behavior consistent with
being sexually abused. She exhibited severe developmental delays throughout her life and expressed
herself with violence at school. A doctor who examined S.M. opined that she had lengthy exposure to
an unhealthy and unstable family setting that included sexual and physical abuse among family
members. Despite her chronological age of fourteen, S.M. had the emotional and intellectual skills of
a first grader. The court found that S.M. had shown improvement in her foster home. She also
received significant assistance from numerous school professionals at her new school. The court found
that any success that S.M. had gained came from the coordinated efforts of her caseworker, foster
family, school-based clinician, an educational surrogate, a school social worker, and a special educator.
Given S.M.’s numerous needs, the court found that she needed a primary caretaker who understood the
challenges she faced and could provide sustained cooperation with a treatment team that included a
social worker, school officials, and other health care providers.

        As noted above, father had essentially no contact with S.M. nor did he meaningfully participate
in the DCF proceedings. Father was aware shortly after S.M.’s birth that mother claimed he was the
child’s father. Father ignored the court’s advice at the time to pursue DNA testing, and otherwise
ignored the child. Father stated that he thought mother was doing fine with S.M. and “walked away”
from the situation. The court noted that father also abandoned another child from a different
relationship.

      Father admitted that he knew nothing about S.M. He had no sense of her present needs, her
medical, physical, and emotional history, her current siblings and friends, her progress in school, or
even her grade level. He mistakenly believed that she suffered from epilepsy. Father was unconcerned
about removing S.M. from her foster family and her foster siblings. Father asserted that mother,
S.M.’s foster parents, and the case worker had brainwashed the child. Father did not explain what he
meant by that term or what facts supported his claim.

        The court noted that father also appeared to be physically unable to care for S.M. Father had
heart disease, high blood pressure, and diabetes. Additionally, father’s wife provided the primary care
for three small children, including a newborn. Father was not clear whether his wife would be willing
to care for an additional child, and he had given no thought to how these children would react to S.M.’s
presence. Father admitted that left to his own skills and abilities he would be unable to care for S.M.

        Based on these and other findings, the court agreed with DCF that father had abandoned S.M.
shortly after her birth and that he lacked the skills necessary to parent her. The facts of abandonment
were uncontested. Father provided no emotional, financial, or other support for S.M. He took no
action regarding the child, other than opposing the termination of his residual parental rights. He had
not participated in the DCF proceedings. He sought out no information from S.M.’s caseworker,
treatment providers, or school authorities.

        The court also found that father presented no favorable evidence under any of the statutory
best-interests factors. He had no relationship with S.M. and no understanding of her special needs or
behavior problems. S.M. had adjusted favorably to her living situation with her foster family. Father
was unaware of the child’s progress with her foster family, yet would remove her from this setting to
an uncertain placement within his own home. The court found it clear from the evidence that father
lacked an adequate understanding of how and if the child would fit into his home, or who would care
for her. S.M. was loved and wanted in the foster setting. She was making progress there, was happy,
and wanted to stay. The court found that father had not accepted responsibility for the care of his
children, and he had abandoned two children. He had no observable skill or experience with child
rearing. Father suffered from debilitating health issues that would seem to prevent his providing
anything beyond the most superficial supervision of another caretaker’s efforts to struggle with S.M.’s
many needs. He demonstrated no insight into the depth and variety of S.M.’s needs. He proffered no
current capacity, or future means by which to gain the skills and motivation needed, to effectively
address those needs. Father played no constructive role in the child’s life. The court thus concluded
that termination of father’s rights served S.M.’s best interests. Father appealed.

        As we have often repeated, the superior court “may terminate parental rights only when it finds
by clear and convincing evidence that to do so is in the best interests of the child as determined by
consideration of four statutory factors.” In re J.B., 167 Vt. 637, 639 (1998) (mem.); see 33 V.S.A.
§ 5114. The most important factor in the court’s best-interests analysis “is the likelihood that the
parent will be able to resume parental duties within a reasonable time.” In re J.B., 167 Vt. at 639. As
long as the court applied the proper standard, we will not disturb its findings on appeal unless they are
clearly erroneous; we will affirm its conclusions if they are supported by the findings. In re G.S., 153
Vt. 651, 652 (1990) (mem.).

        Father first argues that the court erred by treating abandonment per se as an independent
ground for termination of parental rights. We need not address this issue because the record shows that
the court applied the statutory best-interests factors and its conclusion that termination of father’s
rights is in S.M.’s best interests is amply supported by the record. As father acknowledges, the
uncontested evidence that father abandoned S.M. was certainly relevant to this analysis.

       Father next argues that the court’s conclusion that he lacked parenting skills is based in
material part on clearly erroneous findings. According to father, the court speculated in finding that he
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appeared physically unable to care for S.M., and it erred in finding that he had not accepted
responsibility for the care of his children and had no observable skill or experience with child rearing.
Father also states that his wife wanted S.M. to join their family, contrary to the court’s finding that he
was unclear on this issue. Finally, father argues that the court erred in finding him unconcerned about
removing S.M. from her foster home. Father maintains he thought it would beneficial for S.M. to live
with her biological siblings and that his “brainwashing” comment was based on his own experience in
DCF custody.

        Even assuming arguendo that the findings above were clearly erroneous, they would not
undermine the court’s well-supported conclusion that termination of father’s rights was in S.M.’s best
interests. See In re G.F., 2007 VT 11, ¶ 15, 181 Vt. 593 (mem.) (explaining that superior court’s
decision will be upheld, despite clearly erroneous findings, if other valid findings also support court’s
conclusion). As set forth above, father played no role whatsoever in S.M.’s life and none of the
statutory best-interest factors weighed in his favor.

        In any event, with one exception, the findings challenged by father are supported by the record.
The court could reasonably infer, based on the evidence presented, that father’s health issues might
have an impact on his physical ability to care for S.M. The court’s statement that father did not accept
responsibility for his children is supported by the uncontested fact that father abandoned two of his
natural children. Father’s testimony that the three children who currently live with him are “doing
great” does not demonstrate that he has the skills and experience necessary to parent S.M.

        Additionally, while father testified that his wife wanted S.M. to live with them, it does not
necessarily follow that she would be willing (or able) to care for S.M. But even if the court did err in
finding it unclear whether father’s wife was willing to care for S.M., the error is harmless as the court’s
decision in no way turned on this finding. See In re B.M., 165 Vt. 194, 205 (1996) (Supreme Court
will not reverse superior court’s decision even if one or more finding is erroneous as long as findings
are not material to court’s decision).

        Finally, the evidence supports the court’s finding that father was unconcerned about removing
S.M. from her foster home. Regardless of the context of the brainwashing comment or father’s belief
that it would be beneficial for S.M. to live with her biological siblings, the record shows that father
appeared to have no understanding of the impact that such removal would have on S.M. We find no
grounds to disturb the court’s conclusion that termination of father’s rights was in S.M.’s best interests.

       Affirmed.

                                                    BY THE COURT:

                                                    _______________________________________
                                                    Paul L. Reiber, Chief Justice

                                                    _______________________________________
                                                    John A. Dooley, Associate Justice

                                                    _______________________________________
                                                    Brian L. Burgess, Associate Justice




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