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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-321

                                         APRIL TERM, 2013

 In re A.W. and J.W., Juveniles                        }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Lamoille Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 17/18-3-10 Lejv

                                                            Trial Judge: Dennis R. Pearson

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

        Father appeals from a superior court order terminating his parental rights to the minors
A.W. and J.W. He contends the court’s findings concerning his relationship with the children
are clearly erroneous. We affirm.

        The facts may be summarized as follows. Father has three children with mother—a son,
who was almost fourteen years old at the time of the termination proceeding, and two daughters,
A.W. and J.W., who were eleven and five years old respectively. Between 2004 and 2009, the
Department for Children and Families investigated various reports of drug use by mother and
general neglect of the children. In March 2010, mother’s five-month old baby with a different
father was found to be unresponsive and transported to the hospital, where he died. The children
were taken into emergency custody and placed with their maternal grandmother, where they have
since remained.

       While these events were occurring, father was incarcerated on a number of DUI
convictions and probation violations. He was released in December 2010, briefly reincarcerated
for non-compliance with conditions in May and September 2011, and was on furlough release at
the time of the termination hearing. The court found that he will remain under the supervision of
the Department of Corrections until March 2021.

        Both parents stipulated to an adjudication of CHINS in August 2010. The initial case
plan called for father to comply with all DOC recommendations, engage consistently with all
recommended services, and abstain from the use of drugs and alcohol. After his release from
prison in December 2010, father began working with a DCF case worker and had visits with the
children under the supervision of an Easter Seals parent-child supervisor. The case worker
observed that father’s focus “has always been on his son,” that his daughters were “secondary,”
that he was not “attuned to their needs,” and indeed that he had been incarcerated for much of
J.W.’s life. From her observations, she concluded that father’s relationship with J.W. was “quite
minimal,” and with A.W. “fairly minimal.” The Easter Seals supervisor similarly observed that
father appeared to have a good bond with his son, but that he was unable to address the
emotional needs of his younger daughters, indeed that it was A.W. who acted the role of parent
for her younger sister, even when father was present. When this was discussed with father, he
did not, as the court later found, “appear to grasp the issue, and took no real steps to address it.”

         In March 2011 father tested positive for drugs, in May 2011 he was found to be in
possession of marijuana, and in July and September he was found to be consuming alcohol and
briefly reincarcerated. Based on the foregoing, DCF filed a termination petition as to both
parents, citing a general failure to make progress under the case plan. Following a hearing, the
court granted the petition as to mother, and granted it in part, and denied it in part, as to father.1
Concerning father, the court found that, although he had recently made some progress in
maintaining sobriety, his relationship with each of the children was “the determinative factor.”
In this regard, the court found that father “essentially ha[d] no relationship at all with” J.W., that
he had not been a part of her life, and that he had “no established parental bond to speak of.”
There was, the court continued, “no emotional connection [and] no innate sense of parent-child
trust and proven commitment, from which to build any viable parenting role.” The court thus
concluded that there was no likelihood father could resume parenting J.W. within a reasonable
time.

        Although there was some foundation for a relationship with A.W., the court found that it
was “superficial” and that father continued to lack the “ability, and inclination to interact
consistently, and positively” with her and attend to her needs during the critical pre-adolescent
and teenage years. Given “the limited nature and scope of their present relationship,” and
father’s continuing “preoccupation with maintaining his own sobriety and compliance with” his
furlough conditions, the court concluded that there was no likelihood he could resume parental
responsibilities for A.W. within a reasonable time. The court further found that both J.W. and
A.W. had an excellent relationship with their grandmother, and were thriving in her home.

        Based on father’s demonstrated bond and relationship with his son, the court concluded
that there was a “sufficient connection, and basis on which [father] might be able to resume a
role as primary parent,” although the court emphasized that it was “not clearly convinced at this
time” that there was no reasonable probability of father’s resuming his parental role, and stressed
that the son would remain in his grandmother’s custody. Accordingly, the court denied the
petition as to the son, and set the matter for further proceedings to consider an amended
disposition order and case plan. Father has appealed from that portion of the order terminating
his parental rights to J.W. and A.W.2

        Father’s sole contention on appeal is that the trial court’s findings concerning his
relationship with J.W. and A.W. are clearly erroneous because they were not based on a current
assessment of the relationship. See In re C.B., 162 Vt. 614, 614 (1994) (“Our decisions reflect
the need for findings based on current circumstances of the family.”). Father asserts in this
regard that “[o]nly the DCF case worker” testified as to the weakness of the relationship with
J.W. and A.W., and she had not observed parent-child visits since September 2011, nearly a half-
year before the termination hearing. In contrast, he asserts that the Easter Seals supervisor, the


       1
          As mother has not appealed from the order, we need not recite or address the court’s
findings as to her.
       2
           The State has not appealed from that portion of the order denying the petition as to the
son.
                                                  2
children’s foster mother, and father all testified that his current relationship with J.W. and A.W.
was positive and improving.

        We review the trial court’s findings solely for clear error, and will not disturb them if
supported by credible evidence. In re D.B., 2003 VT 81, ¶ 4, 175 Vt. 618 (mem.). We leave it to
the “sound discretion” of the trial court to determine the credibility of the witnesses and balance
the competing evidence and claims. In re A.F., 160 Vt. 175, 178 (1993). Contrary to father’s
claim here, the testimony of the Easter Seals supervisor largely supported that of the DCF case
worker; while the supervisor acknowledged that she had observed “moments” when father
appeared to be getting along well with the younger children, she also testified that his bond with
his son was strong while that with J.W. and A.W. was “not so much,” that it was A.W. rather
than father who attended to J.W.’s needs during visits, and that father had trouble “connecting
with his younger children.” Furthermore, while the children’s grandmother acknowledged that
father’s relationship with the children was “positive” and father testified that it was “really
great,” the trial court was in the best position to evaluate the testimony and weigh it against the
countervailing testimony of the DCF case worker and Easter Seal’s supervisor. Id. Accordingly,
we find no merit to the claim that the trial court’s findings concerning father’s relationship with
the younger children were unsupported by credible evidence or clearly erroneous. We thus
discern no basis to disturb the judgment.

       Affirmed.



                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Brian L. Burgess, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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