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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-397

                                         APRIL TERM, 2014

 In re Adoption of T.S.B.                              }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
                                                       }    Civil Division
                                                       }
                                                       }
                                                       }    DOCKET NO. 220-2-13 Cncv

                                                            Trial Judge: Geoffrey W. Crawford

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

        This case originated in the probate court where an adoption service moved to terminate
the parental rights of father to his biological son, T.S.B., born in August 2012. The probate court
granted termination, and father appealed to the civil division.1 The civil division affirmed the
probate court’s termination of father’s parental rights, concluding that father is unfit and that
termination is in the child’s best interests. On appeal, father argues that the court erred in
considering a twenty-four year-old criminal conviction and considering evidence that does not
bear on his ability to parent T.S.B. We affirm.

        The court found the following facts. In 1989, when he was thirty-seven, father was
married with three young children and had a sexual relationship with a fifteen-year-old girl, who
became pregnant. Father was convicted of felonious sexual assault and received a three-to-six
year sentence. He refused treatment while incarcerated because he did not admit the conduct.
Since then, father has been convicted of failing to register as a sex offender in 2001 and of
stalking in 2004. In the context of these proceedings, father admitted to altering copies of checks
to make it appear that he had provided financial support to T.S.B.’s mother during the
pregnancy. Father has a fifth child who visits him on weekends.

        T.S.B.’s biological mother is a heroin and opiate addict. She was incarcerated nine times
between May 2010 and March 2013 on drug-related charges. She met father, who is thirty-five
years her senior, in 2010. For three years, she had unprotected sex with father, and, in exchange,
father gave mother money to buy illegal drugs and facilitated her purchase of drugs from a
dealer. When T.S.B.’s mother became pregnant, she was unsure of the child’s paternity because
        1
           This case was captioned as an adoption in the probate division. On appeal, the civil
division re-captioned this case with father’s name and the name of the adoption service. Now on
appeal from the civil division, this Court has again captioned the case as an adoption. The
parties’ names are not used in this decision to maintain the confidentiality of the proceeding. See
15A V.S.A. § 3-203 (adoption proceeding in civil division confidential); Public Access to Court
Records Rule 6(b)(1) (explaining that public shall not have access to records in connection with
adoption proceeding).
she had multiple sexual partners at the time. She did not think father could be the father because
he falsely informed her that he had undergone a vasectomy.

       Mother arranged to have the child adopted through an adoption service. Mother chose
the adoptive parents. The service provided mother with groceries, gas cards and medical
treatment. Because of her addiction, the service did not give her cash. Father received a rental
payment from the service for a two-week period when mother was staying at his house.

       During the pregnancy, T.S.B.’s mother continued to use illegal drugs. Father gave
mother money for drugs and bought her drugs.

        When T.S.B. was born, he was very ill from the illegal drugs in his body. The
prospective parents were present at the birth and remained with T.S.B. in the intensive care unit.
After they left the hospital, the prospective parents cared for T.S.B. T.S.B. is closely attached to
the prospective parents and their family. T.S.B. would experience trauma and hurt if separated
from the parents and family he has known since birth.

       Mother voluntarily relinquished her parental rights after T.S.B.’s birth.

         Although father knew of the pregnancy he did not take any action until after the child was
born, when he contacted the service. Father then filed a parentage action and sought custody of
T.S.B.2 A paternity test confirmed father as the biological father. The service filed to terminate
father’s parental rights. The probate division held a two-day hearing and terminated father’s
rights, finding that father did not pay for prenatal, natal or postnatal expenses and was complicit
in mother’s use of opiates during the pregnancy. Further, the court found that father’s criminal
history, including his conviction for felonious sexual assault, and his history of predatory
relationships with young women made him unfit to parent.

        The civil division held a de novo hearing, and made written findings. The court applied
the terms of the Adoption Act, which provides that a parent’s rights may be terminated if a court
finds “upon clear and convincing evidence” that any one of several statutory grounds exists and
that termination is in the best interest of the minor. 15A V.S.A. § 3-504(a). Those grounds
include that “the respondent has been convicted of a crime of violence . . . , and the facts of the
crime or violation indicate that the respondent is unfit to maintain a relationship of parent and
child with the minor.” Id. § 3-504(a)(3). The biological parent then has an opportunity to
demonstrate compelling reasons why termination is not justified. Id. § 3-504(b).

        The court can still terminate if it finds by clear and convincing evidence that the
biological parent does not have the ability and disposition to “A) provide the child with love,
affection and guidance; (B) meet the child’s present and future physical and emotional needs; or
(C) provide the child with adequate food, clothing, medical care, other material needs, education,
and a safe environment.” Id. § 3-504(b)(2). Or, that:

                Placing the minor in the respondent’s legal or physical custody
               would pose a risk of substantial harm to the physical or
               psychological well-being of the minor because the circumstances
               of the minor’s conception, or the respondent’s behavior during the

       2
          That case was eventually voluntarily dismissed because of a pending action in New
Hampshire, where T.S.B. was born. Eventually, the New Hampshire case was dismissed in favor
of the probate action from which this appeal arises.
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                  pregnancy or since the minor’s birth indicates that he or she is unfit
                  to maintain a relationship of parent and child with the minor.

Id. § 3-504(b)(4).

       The best interests of the child are determined by the following criteria:

                    (1) the likelihood that the respondent will be able to assume or
                  resume his or her parental duties within a reasonable period of
                  time;

                   (2) the child’s adjustment to his or her home, school, and
                  community;

                   (3) the interaction and interrelationship of the child with his or
                  her parents, siblings, and any other person who may significantly
                  affect the child's best interests; and

                   (4) whether the parent or alleged parent has played and continues
                  to play a constructive role, including personal contact and
                  demonstrated love and affection, in the child’s welfare.

Id. § 3-504(c).

         In a written order, the court found three bases to terminate father’s parental rights. The
court found that father’s felony sexual assault conviction qualifies under § 3-504(a)(3) as a crime
of violence and that the facts of the crime demonstrate father is unfit to parent T.S.B. The court
also found that under § 3-504(b), father had failed to show there were not compelling reasons
why termination was not justified on that ground. The court found that father’s excuse that the
victim of his sexual assault appeared older was not a justification. Further, although the court
acknowledged the passage of time since the conviction, the court found that father had “learned
little from his conviction and has continued to engage in manipulative and illegal behavior in
order to obtain sex from young women.”

        The court also found that under § 3-504(b)(2) there were separate grounds to terminate
because father is unable to provide T.S.B. with a safe environment. The court explained that it
was highly likely that father’s “patterns of behavior of obtaining sex from underage or addicted
girls and young women will continue.” Finally, the court found that under § 3-504(b)(4),
father’s conduct of supplying drugs to mother during her pregnancy put T.S.B. at risk, and was
unlikely to change. The court noted that father supplied these drugs to mother while exercising
parent-child contact with his fifth child. The court weighed the statutory factors and concluded
that termination was in T.S.B.’s best interests.

       On appeal, father first raises arguments relating to his sexual assault conviction. He
argues that because the conviction was a long time ago, it should not have been admitted, and
should not reflect on his current ability to parent. He also contends that sexual assault is not a
crime of violence for purposes of § 3-504(a)(3).

        We do not reach father’s arguments that his felony conviction does not qualify as a crime
of violence under the Adoption Act or that he demonstrated compelling reasons why it should

                                                    3
not apply because even if termination is not justified under that section, the court found that
termination was warranted separately under § 3-504(b)(2) due to father’s inability to provide a
safe environment, and § 3-504(b)(4) based on father’s actions of placing T.S.B. in danger during
the pregnancy.

       Father next argues that several of the court’s findings, including those related to the
sexual assault, father’s fitness to parent T.S.B., and T.S.B.’s best interests, were based on
hearsay or were not supported by the evidence. The adoption service contends that father failed
to provide a transcript of the proceeding and therefore cannot challenge the sufficiency of the
findings. The service further argues that the court’s findings are supported and not in error.

        The party seeking relief from this Court has the burden on appeal to demonstrate the
existence of error. In re S.B.L., 150 Vt. 294, 297 (1988). If the party claims a finding or
conclusion lacks evidentiary support or is contrary to the evidence, the party must provide this
Court with a transcript of all evidence relevant to the finding or conclusion at issue. V.R.A.P.
10(b)(1). Because father failed to produce a transcript or apply for one under our rules, we must
assume that the court’s findings are supported by the record. V.R.A.P. 10(b)(1) (“By failing to
order a transcript, the appellant waives the right to raise any issue for which a transcript is
necessary for informed appellate review.”). Therefore, we accept as true the court’s findings,
including that: father provided mother with drugs during her pregnancy in return for sexual
favors; father showed little awareness of the seriousness of his conduct or the harm it caused the
baby; father continues to engage in manipulative and illegal behavior to obtain sex from young
women; and father allowed illegal drug use in his home. The court’s findings are sufficient to
support its conclusion that father is unfit to parent T.S. B. because he is unable to provide a safe
environment for T.S.B. and his behavior during the pregnancy put T.S.B. at risk of substantial
harm. See In re K.M.M., 2011 VT 30, ¶ 14, 189 Vt. 372 (explaining that conclusions will stand
if supported by findings). The findings also support the court’s conclusion that termination is in
T.S.B.’s best interests.

         On a final note, the adoption service moves to strike additional evidence offered by father
on appeal and not part of the record below. Because father failed to order a transcript, we cannot
determine what is new evidence and what was presented in the superior court. The consequence
of that failure is the main ground for our decision, and we do not need to rule on the motion.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice




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