







2015 VT 45










In re C.F., Juvenile (2014-364)
 
2015 VT 45
 
[Filed 27-Feb-2015]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 



2015 VT 45



 



No. 2014-364



 



In re C.F., Juvenile


Supreme Court




 


 




 


On Appeal from




 


Superior Court, Chittenden
  Unit,




 


Family Division




 


 




 


February Term, 2015




 


 




 


 




Linda
  Levitt, J.




 



Michael Rose, St. Albans, for Appellant Mother.
 
Matthew F. Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier,
  for Appellee Juvenile.
 
William H. Sorrell, Attorney General, Montpelier, and Martha
E. Csala and Katherine D. Lucier,
  Assistant Attorneys General,
Waterbury, for Appellee State.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Eaton, JJ.
 
 
¶ 1.            
REIBER, C.J.   Mother appeals a decision of the
superior court, family division terminating her parental rights with respect to
her son, C.F.  She argues that the decision, which was based in part on
the family division’s view that C.F. has an immediate need for permanency, is
irrational in light of the court’s contemporaneous decision not to terminate
the parental rights of C.F.’s father.  Although C.F. originally filed the
termination petition, which was later joined by the Department for Children and
Families (DCF), and did not appeal the family division’s decision to terminate
mother’s parental rights, he also has filed a brief asking this Court to
reverse that decision based on the court’s failure to solicit the opinions of
C.F.’s attorney and guardian ad litem (GAL) at the termination hearing. 
We affirm.
¶ 2.            
The family division’s findings, which are not in dispute in this appeal,
reveal the following facts.  C.F. was born in January 2011.  In May
2013, as the result of his parents’ addiction to heroin, C.F. was found to be a child in need of care or supervision (CHINS)
and was placed in the conditional custody of his paternal grandmother, with
whom he had been living since December 2012.  At the time C.F. came into
DCF custody, mother had not been actively parenting him.  She had
struggled with a heroin addiction for over a decade from the time she was
nineteen years old.  As the result of her drug use, mother has a lengthy
criminal record and has had periods of incarceration.  She also has mental
health problems that went unaddressed until shortly before the termination hearing.
¶ 3.            
When DCF was granted custody of C.F. in May 2013, mother and father were
together and homeless.  The family division eventually issued a no-contact
order between mother and C.F. because of mother’s ongoing heroin use and
failure to engage in treatment.  For most of the time between May 2013 and
April 2014, mother’s whereabouts were unknown.  She did not attend court
hearings regarding C.F. and did not engage in the DCF case plan adopted by the
court.
¶ 4.            
In February 2014, C.F.’s attorney filed a petition seeking termination
of mother’s and father’s parental rights.  In
March 2014, mother was incarcerated as the result of an outstanding arrest
warrant that listed twenty-seven pending charges against her.  While
incarcerated, mother attended a residential drug-treatment program.  She
was admitted to the program in mid-March 2014 and discharged the following
month, at which time she agreed to participate in the treatment court
program.  In April 2014, DCF joined the termination petition filed by
C.F.’s attorney.  At the time of the termination hearing in August 2014,
the twenty-seven charges against mother were still pending, and she was
awaiting a change-of-plea hearing.  Mother did not request that the
no-contact order with C.F. be lifted until the day of the termination hearing.
¶ 5.            
For his part, father made little or no progress toward reunification
with C.F. during 2013, but then began making significant progress beginning in
January 2014 when he returned to a residential drug-treatment program. 
From then until the termination hearing, he was engaged in drug treatment, was
compliant with probation conditions, and helped his mother with C.F.’s daily
care.
¶ 6.            
Following the termination hearing, the family division issued two orders
one day apart.  In the first order, the court granted the termination
petition as to mother, concluding that she had not played a constructive role
in C.F.’s life and would not be able to resume her parental duties within a
reasonable time from C.F.’s perspective because of her long history of relapse
into drug addiction.  In the second order, the court denied the
termination petition as to father, concluding that in recent months he had
played a constructive role in C.F.’s life and showed signs of being able to
resume his parental duties within a reasonable period of time.
¶ 7.            
Mother appeals the family division’s first order, arguing that the order
is irrational in light of the second order.  C.F. did not file a notice of
appeal of either order, but has filed a brief joining mother’s brief and asking
this Court to reverse the family division’s order as to mother.  He argues
that the court failed to ask C.F.’s attorney and GAL to give their opinions as
to whether termination of mother’s parental rights was in his best interests.
¶ 8.            
We first examine mother’s argument.  She contends that the family
division’s decision to terminate her parental rights is irrational, and thus
constitutes an abuse of discretion because: (1) it terminates her parental
rights in part due to C.F.’s need for permanency, and yet at the same time
delays permanency for C.F. by not terminating father’s parental rights; and (2)
it foresees the real possibility of father resuming his parental responsibility
for C.F., and yet terminates her parental rights despite father’s testimony
that he had recently reconciled with mother.  In mother’s view, it makes
no sense to terminate her parental rights at this juncture when the court will
hold another hearing in the future to assess father’s continued progress. 
According to her, at that time, the court can reevaluate her progress without
any harm to C.F., who in any case will remain in the custody of his paternal
grandmother.
¶ 9.            
Upon review of the record, we conclude that the family division’s
decision to terminate mother’s rights while preserving father’s rights at this
juncture was rationally based on clear and convincing evidence.  At a
termination hearing, the family division is required to consider the best
interests of the subject child by examining: (1) the child’s interaction and
interrelationship with parents and other designated persons affecting his or
her interests; (2) the child’s adjustments to home, school, and community; (3)
the likelihood of the parent being able to resume parental duties within a
reasonable period of time; and (4) whether the parent has played and continues
to play a constructive role in the child’s welfare through, among other things,
personal contact and demonstrated emotional support and affection.  33 V.S.A. § 5114(a).
¶ 10.         With
regard to mother, the court found that for a period of several months after
C.F. was placed in DCF custody in May 2013, mother’s whereabouts were unknown
and she had had no contact with C.F. or DCF.  Mother was incarcerated in
March 2014 on various charges, including possession of heroin, and had
twenty-seven charges pending against her at the time of the termination
hearing.  At that time, mother was unemployed, had not attained her own
housing or any stability in her life, had not been able to maintain a
relationship with C.F. because of her drug use, and had not requested a lifting
of a previous no-contact order with C.F. until the day of the termination
hearing.
¶ 11.         The
court found that mother continued to have little insight into how her drug use
and resulting lack of contact with C.F. had impacted the child.  The court
noted mother’s recent reentry into a drug treatment program, but also pointed
out her long history of drug use and relapses.  The court found that
mother’s drug use had resulted in her essentially abandoning her parental
duties and absenting herself from court proceedings concerning C.F.  The
court concluded that mother had not played a constructive role in C.F.’s life,
had failed to work with DCF on any of the disposition plan goals, and was
unlikely to be able to resume parental duties within a reasonable period of
time from the perspective of C.F., who needed permanency and stability in his life.
¶ 12.         Mother
does not dispute any of these findings and conclusions, which are supported by
the record and which, in turn, support the court’s termination order. 
Rather, she argues only that terminating her parental rights makes no sense in
light of the court’s second order denying the petition to terminate father’s
parental rights.
¶ 13.         We
reject mother’s contention that her and father’s
respective situations are comparable.  The evidence supports the court’s
findings and conclusions contrasting mother’s and father’s situations. 
The court found that, since January 2014, father had been actively engaged in
drug treatment and had remained drug free from that time up until the
termination hearing in August 2014.  Moreover, since January 2014, he had
seen C.F. on a daily basis and had been actively engaged in his care.  The
court found that during that relatively lengthy period of time, father had
shown insight into how his drug addiction had impacted C.F. and had
consistently played a positive role in the child’s life.  Given the
court’s findings and conclusions, there is nothing irrational or contrary to
the applicable statutory law in the court’s decisions to grant the termination
petition with respect to mother but deny the petition with respect to father.
¶ 14.          We
reject mother’s argument that it makes no sense to terminate her parental
rights due to C.F.’s need for permanency while at the same time delaying
permanency by not terminating father’s parental rights.  The family division
found it was in C.F.’s best interests to terminate mother’s parental rights
under the relevant statutory criteria for multiple reasons, only one of which
was C.F.’s need for permanency.  The fact that father retains residual
parental rights as the result of the family division’s second order did not
prevent the court from terminating mother’s rights after examining the
applicable statutory criteria.  See In re A.D.T., 174 Vt. 369,
376-77, 817 A.2d 20, 26 (2002) (rejecting mother’s argument that because
father’s parental rights had yet to be determined, family division erred in
terminating her parental rights rather than allowing her to continue to work
toward reunification).  The court explained in its decisions that, unlike
mother, father would most likely be able to resume his parental duties within a
reasonable period of time, given his relatively short history of drug use and
his demonstrated commitment to overcoming his addiction and caring for his son.

¶ 15.         Mother
argues, however, that even if her and father’s
circumstances are different, the family division’s decisions still don’t make
any sense, given father’s testimony that he plans to move in with mother as
long as she remains drug free.  We disagree.  The court’s findings
show that mother and father were no longer living together and had not been
living together for a significant period of time.  Father was living with
his sister at the time of the termination hearing.  When asked whether he
would be staying with mother in the future, father responded: “That’s to be
decided.”  Father’s circumstances with respect to mother will undoubtedly
be considered in upcoming hearings concerning father’s parental rights. 
Speculation over whether father might move back in with mother is not a
sufficient basis to reverse the family division’s termination order with
respect to mother.
¶ 16.         This
appeal is unusual in that, although C.F., through his attorney, initially filed
the termination petition granted by the family division, he now joins mother’s
brief, arguing that the family division committed reversible error by
terminating mother’s parental rights without giving his attorney and his GAL an
opportunity to take a position on whether termination was in his best
interests.  According to C.F., “[t]he court’s total failure to consider
C.F.’s position on the matter rendered the decision void.”  In C.F.’s
view, the court’s oversight resulted in its failure to consider “any of the
favorable evidence that weighed against TPR, evidence that would have supported
the GAL’s and counsel’s position on the matter.”
¶ 17.         C.F.
failed to appeal the family division’s decision.  In any event, there was
no indication that C.F., through his attorney, was taking a position at the
proceedings other than in favor of terminating his parents’ parental
rights.  C.F. notes his attorney’s hesitation in filing the petition in
the first place, but does not cite to anything in the proceedings after the
filing of the petition to indicate that his attorney was backtracking from his
support of the petition he had filed.  Moreover, nothing in his attorney’s
examination of the witnesses at the termination hearing indicates a change of
position.
¶ 18.         Nor
did family division preclude either C.F.’s attorney or his GAL from stating a
position.  At the close of the hearing, the court asked if there was “[a]nything further,” and neither C.F.’s attorney nor his GAL
indicated that they wanted to make a statement.  Indeed, the first time this
change of heart came to light was in the brief filed by C.F. in this
appeal.  C.F.’s attorney and GAL had an opportunity to make statements
regarding C.F.’s interests, but did not do so.  See V.R.F.P. 6(e)(3) (stating that GAL “may” state his or her position or
opinion in certain juvenile proceedings based on evidence in record). 
Under these circumstances, assuming that he has standing and this Court has
jurisdiction, C.F. waived the claim of error he raises for the first time in
this appeal.  Cf. In re C.L., 2012 VT 108, ¶ 13, 193 Vt. 101,
71 A.3d 1191 (finding that mother waived right to challenge on appeal procedure
in which she acquiesced at termination hearing).
Affirmed.
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Chief
  Justice



 

