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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-189

                                     SEPTEMBER TERM, 2014

 In re M.W. and C.W., Juveniles                        }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Lamoille Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 44/45-6-11 Lejv

                                                            Trial Judge: Timothy B. Tomasi

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

       Mother appeals termination of her parental rights to her children M.W. and C.W., born in
July 2009 and October 2010, respectively. Mother argues that the court erred in assessing her
parenting ability in isolation when grandmother played a significant role in assisting mother with
childcare. We affirm.

        The court found the following by clear and convincing evidence. Mother first came to
the attention of the Department for Children and Families (DCF) in July 2009, around the time of
M.W.’s birth, when it received reports that mother was drinking and using drugs. DCF
investigated and monitored mother’s care of M.W. The DCF social worker observed that M.W.
was delayed in motor functions and verbal skills. Mother did not follow recommendations for
improvement and cancelled visits with providers. In May 2010, DCF filed a petition alleging
M.W. was a child in need of care or supervision (CHINS). The court issued a conditional
custody order requiring mother to undergo a substance-abuse assessment, to enroll M.W. in a
special daycare center, and work on M.W.’s development delays. In October 2010, C.W. was
born, and he experienced similar delays in his motor and verbal development. He also failed to
properly gain weight.

        In June 2011, DCF filed another CHINS petition, and the court issued several conditional
custody orders over the ensuing months, requiring mother to enroll the children in a specialized
daycare, follow recommendations for services for M.W. and maintain C.W.’s medical
appointments. Mother brought the children to only half of their scheduled daycare visits, was
inconsistent in ensuring the children went to medical appointments, and failed to fill out forms so
the children could receive special services.

        In March 2012, the court granted DCF’s request for custody based on the children’s lack
of progress and mother’s failure to follow the conditional custody orders. DCF placed the
children in a foster home, where they have remained. Over the next months, mother was offered
visits with the children with the assistance of family-time coaching. Mother missed several visits
and was frequently late. She did not consistently attend pre-visit planning and became defensive
and angry during post-visit evaluations. She did not attend the children’s medical appointments.
A psychological evaluation of mother was done that found she was cognitively impaired. The
family-time coach attempted to use alternative strategies to communicate appropriate parenting
skills to mother, but mother continued to need prompting to address the children’s needs and to
set proper boundaries.

        In March 2013, DCF filed petitions to terminate the parents’ rights. A hearing was held
in December 2013. The court granted the request in a written order in February 2014. The
court found that there was a change of circumstances based on stagnation. Although the court
recognized that mother had made some occasional progress, the court found that the progress
was not consistent or significant. The court explained that mother had not addressed the issues
that led to the required family-time coaching—she continued to require prompting of necessary
parenting skills, she left the children unattended, she was not responsive to C.W.’s needs when
M.W. was present, she failed to engage in pre-visit planning and was hostile to comments on
improving her parenting skills. The court also found that mother continued to have little insight
into the reasons for state intervention, believing that she could adequately parent and not
appreciating the importance of attending medical appointments.

         The court further found that termination was in the children’s best interests. The court
found that there was no likelihood that mother would be able to make the necessary substantial
progress to allow her to parent within a reasonable period of time. The court explained that
mother had failed to make progress on necessary skills and the children required immediate
stability given their young age and length of time in state custody. The court also found that
mother did not play a constructive role in the children’s lives because she could not meet their
needs. The court found that the children were well adjusted in their foster home, had made
significant improvements in their development and speech issues, and their foster parents hoped
to adopt them. In assessing the children’s relationships, the court noted that the children’s
grandmother often assisted mother in caring for the children.

        To modify an existing disposition order, the court must engage in a two-step analysis by
first determining if there is a substantial change in material circumstances and then analyzing
whether termination is in the children’s best interests. In re S.M., 163 Vt. 136, 138-39 (1994);
33 V.S.A. § 5113(b) (allowing court to modify an existing order based on change in
circumstances). In assessing the child’s best interests, the court must consider the statutory
factors. See 33 V.S.A. § 5114 (listing statutory criteria). The most important factor is whether
the parent will be able to resume parenting duties within a reasonable period of time. In re J.B.,
167 Vt. 637, 639 (1998) (mem.). On appeal, we will uphold the family division’s conclusions if
supported by the findings and affirm the findings unless clearly erroneous. Id.

       On appeal, mother argues that the court’s best-interests analysis was flawed because the
court considered mother’s ability to parent “in a vacuum” without considering the assistance of
the grandmother. According to mother, the evidence at trial indicated that grandmother assisted
mother in parenting the children and mother’s ability to provide parental care should be viewed
with grandmother’s contribution in mind.

        There was no error. The family court is not required to determine the fitness of a parent’s
relatives in assessing whether termination is in a child’s best interests. See In re S.W., 2008 VT
38, ¶ 13, 183 Vt. 610 (mem.) (concluding that court was not required to make findings on
parental fitness of father’s mother and sister). The critical questions at termination are whether

       
         The petition to terminate father’s parental rights was also granted and is not challenged
on appeal.
                                                2
there was a change of circumstances and whether termination is in the child’s best interests,
which is demonstrated most significantly by whether the parent will be able to resume parenting
duties within a reasonable period of time. Grandmother’s relationship with the children was
relevant to assessing the best interests of the children insofar as the court must consider “[t]he
interaction and interrelationship of the child with his or her parents, siblings, foster parents, if
any, and any other person who may significantly affect the child's best interests.” 33 V.S.A.
§ 5114(a)(1). The family court properly considered grandmother’s relationship with the
children, noting that she had often helped mother care for the children when mother still had
custody and that she loved the children.

       The focus of the statute is on the “likelihood the parent will be able to resume or assume
parental duties within a reasonable period of time” and “[w]hether the parent has played and
continues to play a constructive role.” Id. § 5114(a)(3)-(4) (emphases added). Even with
grandmother’s support and assistance, mother was inconsistent in getting the children to their
doctor’s appointments and day care and, over an extended period, demonstrated no ability to
meet their needs. The court’s findings on these critical factors, which were detailed and are not
challenged on appeal, support the court’s conclusion to terminate mother’s rights.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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