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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-349

                                      FEBURARY TERM, 2013

 In re D.D., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 108-9-11 Wmjv

                                                            Trial Judge: John P. Wesley

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

       Mother appeals an order of the superior court, family division, terminating her residual
parental rights with respect to her son, D.D. We affirm.

       D.D. was born in June 2005 and lived with mother until May 2009, when mother’s
deepening addiction to drugs led her to place D.D. with his grandmother. Two months later,
mother moved D.D. from his grandmother’s home to his aunt’s home. In July 2009, mother was
incarcerated. During her incarceration, she consented to the aunt being appointed D.D.’s legal
guardian.

        In April 2010, mother entered into a comprehensive plea agreement in which she
admitted to probation violations and pleaded guilty to charges of retail theft, possession of
heroin, and possession of a regulated drug. She remained incarcerated until May 2010, when she
was furloughed. During the next eight months, mother’s furlough was revoked on three
occasions because of her continued drug use. In March 2011, mother was admitted to the
Brattleboro Retreat, where she attempted suicide and engaged in self-harming behaviors.
Following her release from the Retreat in the summer of 2011, she continued her drug use and
attempted suicide on two more occasions.

        Meanwhile, in May 2011, the aunt, D.D.’s guardian, was arrested as part of a drug
investigation. In June 2011, the aunt stipulated to D.D. being a child in need of care or
supervision (CHINS). The Department for Children and Families (DCF) filed a case plan
recommending reunification between D.D. and the aunt. In July 2011, the aunt was murdered,
possibly as the result of a drug-related dispute. Following the aunt’s murder, the case plan goal
changed to termination of parental rights.

        Because mother was consistent in weekly visits during a three-month period in late
summer and early fall of 2011, however, a modified case plan set forth a concurrent goal of
reunification with mother. The new case plan required mother, among other things, to complete
furlough in good standing, avoid criminal conduct, participate in planned visits, maintain safe
housing, participate in drug screening, follow recommendations for treatment, document her
drug-free status, and engage in therapy to address mental health issues.
       In October 2011, mother was arrested for violating her conditions of furlough after drug
paraphernalia was found in her apartment. Two months later, she was arrested for shoplifting.
In March 2012, she was incarcerated after testing positive for cocaine, suboxone, and
benezedrine. Following mother’s incarceration, DCF sought termination of her parental rights.
Mother was released from furlough in August 2012 but will remain under the supervision of the
Department of Corrections until June 2013.

        The termination hearing was held on August 17, 2012. Following the hearing, the family
court issued a decision terminating mother’s parental rights. The court found that mother’s
problems with the criminal justice system had deepened, that mother had failed to meet the case
plan goals, and that her life of cycling between jail and community supervision had been
accompanied by multiple threats of suicide and self-harming behaviors. The court concluded
that mother’s inability to remain out of jail or to adhere to case plan goals demonstrated “that she
is unlikely to be in a position to provide competently for [D.D.s] needs within any period of time
short enough to be consistent with his right to the security of a permanent placement.” Stating
that this case “is a discouraging revelation of the terribly vulnerable predicaments into which
infants and young children are abandoned when their parents fall prey to the scourge of drug
using, and the criminal lifestyles necessary to sustain resulting addictions,” the court concluded
that D.D.’s need to be in a safe and secure home trumped his tenuous relationship with mother.

        On appeal, mother argues that the record does not support the court’s assessment of her
relationship with D.D. Mother focuses particularly on the following statements in the court’s
discussion:

               More importantly, at two junctures just as visits were beginning to
               generate promising bonding between Mother and [D.D.], Mother’s
               criminal and antisocial behaviors broke the continuity of that
               connection when furlough violations sent her back to jail. The first
               hiatus in October 2011 was a matter of weeks, but the second one
               in March 2012 has lasted more than five months. DCF predictably
               and properly concluded that the child’s well-being was too fragile
               to risk further dashed expectations of reattachment. From the
               child’s perspective, it is likely that Mother’s commitment to the
               visits she managed to attend were more harmful than helpful,
               because her criminal behavior caused them to be drastically
               interrupted. To [D.D.], each time Mother went back to jail marked
               another wrenching disappointment of losing a loved one, just as he
               had begun to imagine having her in his life again.

According to mother, the record does not support the court’s speculation that her visits were
more harmful than helpful because of the supposed harmful effects on D.D. resulting from
interruptions in those visits. Mother further argues that the court’s speculation on the
harmfulness of the visits did not satisfy the requirement that its conclusions be supported by
clear and convincing evidence. See In re R.W., 2011 VT 124, ¶ 14, 191 Vt. 108 (“[T]he trial
court must find stagnation, as well as best interests, by clear and convincing evidence.”).

      Neither of these arguments supports disturbing the family court’s termination decision.
The court found that there was still a bond between mother and D.D., despite the limited contact
between them during the previous two years, as evidenced by D.D.’s desire to maintain contact
with mother. Indeed, it is the evidence of that continuing bond that led the court to surmise that
the multiple interruptions in mother’s visits with D.D. likely resulted in the visits being more
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harmful than helpful to the child. The court did not suggest that its supposition on this point was
based on clear and convincing evidence; rather, the court applied “its own common sense and
experience in reaching a reasoned judgment.” Payrits v. Payrits, 171 Vt. 50, 53 (2000). In any
event, the court’s ultimate determination that D.D.’s best interests required terminating mother’s
parental rights was based primarily on clear and convincing evidence that mother was unable to
stay out of jail and address the multiple drug-related and mental health issues that prevented her
from safely parenting D.D. The record contains overwhelming evidence to support the court’s
conclusions that mother had made virtually no progress toward being able to parent D.D. and
would not be able to undertake that responsibility within a reasonable period of time.

       Affirmed.




                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Brian L. Burgess, Associate Justice




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