2012 VT 108


In re D.C., Juvenile 
2012-240
 
2012 VT 108
 
[Filed 21-Dec-2012]
 
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.
 
 

2012 VT 108

 

No. 2012-240

 

In re D.C., Juvenile


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Washington
  Unit,


 


Family Division


 


 


 


November Term, 2012 


 


 


 


 


Thomas
  A. Zonay, J.


 

Matthew F. Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier,
  for Appellant-Mother.
 
William H. Sorrell, Attorney
General, and David Tartter, Assistant Attorney General, Montpelier, 
  and Jody Racht and Martha
E. Csala, Assistant Attorneys General, Waterbury, for Appellee
  Department for Children
and Families.
 
Michael Rose, St. Albans, for Appellee Juvenile.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.   Mother appeals the decision of the
superior court, family division, terminating her parental rights to her son,
D.C.  We affirm.
¶ 2.            
D.C. was born in May 2005.  He spent the first two years of his
life with both parents, who were not married.  When his parents separated
in 2007, the father took D.C. to stay with him.  Although a child-custody
order granted mother parental rights and responsibilities, she allowed father
to take the child because she had difficulty finding a residence and she knew that
father had the support of his mother in caring for D.C.  This arrangement
lasted until the end of 2009, when mother obtained police assistance to assert
her custodial rights over D.C.
¶ 3.            
Two weeks later, after mother had moved into a motel with D.C., the
Department for Children and Families (DCF) filed a petition alleging that D.C.
was a child in need of care or supervision (CHINS) due to a lack of proper
parental care.  The affidavit in support of the petition stated that: (1)
five years earlier mother’s parental rights had been terminated with respect to
an older child because of unsafe and unsanitary living conditions and the
child’s exposure to the risk of being sexually abused; (2) mother had a
relationship with a known, untreated sex offender who had been seen frequently
with mother at her motel room; (3) the motel room was filthy and unsanitary;
(4) D.C. was suffering from an untreated respiratory illness; and (5) school
officials had reported D.C. arriving at school hungry and not dressed properly
for the cold.
¶ 4.            
At a temporary care hearing, the family court issued a conditional
custody order giving the father temporary legal custody of D.C.  The
parents entered into a merits stipulation that D.C. was in need of care or
supervision.  A disposition case plan was prepared, and at the April 1,
2010 disposition hearing, the parents and D.C. agreed to, and the court
approved, an initial disposition plan that continued conditional custody with
the father.  Although the court approved a case plan goal of returning
custody to the father, it did not enter a written disposition order.
¶ 5.            
In September 2010, DCF moved to amend the disposition plan on the
grounds that the father had been arrested for aggravated assault and robbery,
and had left D.C. in the custody of a person whose own children had been the
subject of termination proceedings.  At an October 2010 hearing on the
motion, both parents agreed to conditional custody of D.C. with the father’s
mother.
¶ 6.            
At a periodic review hearing in September 2011, D.C.’s paternal
grandmother indicated that she was interested in adopting D.C. 
Unfortunately, the grandmother died two months later, and D.C. was placed in
DCF custody.  Since January 2012, D.C. has been in the foster home of a
woman who had been employed for the previous thirteen years in the public
school system as a paraeducator for special-needs children.
¶ 7.            
DCF’s February 2012 permanency plan for D.C. recommended termination of
parental rights (TPR), and in April 2012, DCF filed a termination
petition.  The hearing on DCF’s petition was held on June 28, 2012. 
At the beginning of the hearing, the father relinquished his parental
rights.  The family court noted that DCF’s initial disposition case plan
had not set forth a goal of reunification with mother and had not identified
any expectations or services for mother.  Rather, the plan merely noted
that mother would have the opportunity to visit with D.C. and expressed the
hope that she would begin to make better choices and be able to become more
involved in D.C.’s life.
¶ 8.            
Although the State indicated that it was asking for termination as a
modification of the disposition order, the court expressed uncertainty about
how to analyze the question of whether there had been stagnation when DCF had
never made mother the subject of any reunification efforts.  D.C.’s
counsel agreed that the procedural posture of the case was more akin to seeking
termination of parental rights at initial disposition rather than modifying an
earlier order.  Opining that an initial-disposition analysis would place
the highest burden on the State, the court asked mother’s counsel for his
opinion.  He responded: “We agree.”
¶ 9.            
On July 12, 2012, the family court issued its decision terminating
mother’s parental rights.  The court noted that the parties had agreed at
the termination hearing that the appropriate procedural posture was to treat
the case as a TPR petition at the initial disposition stage, given that the
initial disposition plan had called for reunification only with the father, who
had voluntarily relinquished his parental rights.  The court then skipped
over the threshold question of whether changed circumstances existed and
instead went straight to considering the best interests of the child.
¶ 10.        
Examining the statutory best-interests criteria, the court concluded
that: (1) mother did not have a good relationship with D.C.; (2) D.C. had
adjusted well to his foster home; (3) D.C. had special-needs and was at a
critical point in his life from a developmental standpoint; (4) although mother
had been consistent with her visits, she had not played a constructive role in
D.C.’s life and was unable to provide the necessary care to address D.C.’s
special needs; (5) mother had not worked toward putting herself in a position
to care for D.C. and was no closer to being able to parent him than she had
been more than two years earlier when he was removed from her custody; (6)
mother failed to comprehend the nature and extent of D.C.’s special needs; and
(7) mother would not be able to resume her parental duties within a reasonable
period of time.  Accordingly, the court entered an order terminating
mother’s parental rights.
¶ 11.        
On appeal, mother argues that the termination order is invalid because
the court failed to: (1) consider whether the State had met its burden of
showing changed circumstances, which was required because the State’s
termination petition sought modification of the initial disposition order; (2)
determine by clear and convincing evidence that mother was presently unfit to
care for D.C.; and (3) find that DCF had made reasonable efforts to prevent the
unnecessary removal of D.C. from his home.
I.
¶ 12.        
In her first argument, mother asserts that the family court exceeded its
authority at the termination hearing by effectively repositioning the case back
to before the initial disposition more than two years earlier.  According
to mother, in so doing, the court established an unlawful standard that
absolved the State from meeting its statutory obligation to show changed
circumstances.  In support of this argument, mother points to three cases
in which this Court invalidated conditioned or continued disposition orders
that had led to later termination orders entered without the State having to
show changed circumstances.  See In re B.B., 159 Vt. 584, 587-89,
621 A.2d 1270, 1272-73 (1993) (holding that court’s order reserving decision on
termination petition at initial disposition and keeping record open for
evidence of future progress must be treated as de facto denial of petition); In
re R.B., 152 Vt. 415, 422-23, 566 A.2d 1310, 1313-14 (1989) (invalidating
provision in family court’s disposition order that allowed parties to reopen
order for any reason at any time after thirty days with right to full
disposition hearing as if first hearing and order had never existed); In re
A.A., 134 Vt. 41, 43, 349 A.2d 230, 232 (1975) (reversing termination decision
that stemmed from automatic review provision in initial disposition
order).  Mother acknowledges that she did not object to the procedural
analysis by the family court in this case, but notes that we reversed the
orders in the above cases even though the parties had not objected at trial to
the procedural posture adopted by the trial court in those orders.  See In
re B.B., 159 Vt. at 589, 621 A.2d at 1273 (rejecting state’s argument that
mother waived her right to appeal by failing to object and noting that no
objections were made in In re A.A. or In re R.B.).
¶ 13.        
Here, in contrast to the above cases, mother did more than merely fail
to object to the procedural framework adopted by the family court. 
Rather, as she acknowledged at oral argument, she stipulated to the procedure
she now challenges for the first time on appeal.  Based on the discussion
that took place among the court and the parties at the beginning of the
termination hearing, she made a tactical decision through counsel to proceed as
if this were a TPR petition at initial disposition.  She explicitly agreed
that it was the right way to proceed.  Under these circumstances, we
conclude that she waived her right to challenge that procedure on appeal. 
See Anderson v. Coop. Ins. Cos., 2006 VT 1, ¶ 10, 179 Vt. 288, 895 A.2d
155 (“A waiver is a voluntary relinquishment of a known right, and can be
express or implied.” (citation omitted)); cf. In re A.O., 161 Vt. 302,
308, 640 A.2d 537, 540-41 (1994) (holding that father’s stipulations agreeing
to state custody and disposition plan precluded finding of error based on lack
of written findings to support disposition order); In re P.F., 133 Vt.
64, 66, 329 A.2d 632, 634 (1974) (holding that parties’ stipulation to finding
of neglect obviated the need for detailed findings indicating circumstances
upon which finding of neglect was based).
¶ 14.        
We reject mother’s suggestion that she could not waive the court’s
handling of this matter as a TPR petition at initial disposition because the
court lacked subject matter jurisdiction to do so.  Without question, the
family court possessed subject matter jurisdiction over the general type of
controversy before it in this case.  See 33 V.S.A. § 5103 (a) (stating
that family court has “exclusive jurisdiction over all proceedings concerning a
child who is or who is alleged to be . . . in need of care or supervision
brought under the authority of the juvenile judicial proceedings chapters,
except as otherwise provided in such chapters”).  Moreover, the juvenile
proceedings act expressly authorizes the family court to order termination of
parental rights at the initial disposition stage, see id. § 5318(a)(5)
(providing that at initial disposition court may order termination of parental rights
and transfer of custody to DCF), as well as through modification of the initial
disposition order, see id. § 5113(b) (providing that court may modify
previous order on grounds that change of circumstances requires such action to
serve child’s best interests).
¶ 15.        
The fact that the court may have erred in how it exercised its
jurisdiction neither voids the court’s judgment nor precludes the parties from
accepting the judgment or waiving the right to later challenge that
judgment.  Cf. In re B.C., 169 Vt. 1, 7, 726 A.2d 45, 50 (1999)
(“[W]hen a court has jurisdiction over a general category of case, the fact
that the court errs in exercising its jurisdiction in a particular case within
that general category ‘is generally not sufficient to make the resulting
judgment void for lack of subject-matter jurisdiction.’ ”) (quoting 12 J. Moore
et al. Moore’s Federal Practice § 60.44[2][b], at 60-142 (3d ed. 1998))). 
This is particularly true here given the parties’ acquiescence in the arrangement. 
Otherwise, parties could agree to a particular procedural posture “while
reserving the ‘jurisdictional card’ in the event of an unfavorable
decision.”  See In re B..C., 169 Vt. at 8, 726 A.2d at 50.  In
short, there is no jurisdictional defect in this case precluding the parties
from agreeing to waive the procedural posture adopted by the family court.
¶ 16.        
In any event, assuming that the family court was required to find a
change of circumstances, any error on the court’s part in not doing so was harmless
because changed circumstances were manifest in this case.  See In re
R.W., 2011 VT 124, ¶ 17, 191 Vt. ___, 39 A.3d 682 (noting that harmless
error standard has been employed in termination cases and that court error
warrants reversal only if substantial right of party is affected). 
Accordingly, we conclude that the father’s relinquishment of his parental
rights and the grandmother’s death established changed circumstances by clear
and convincing evidence.
¶ 17.        
From the outset, no one involved in this case, including mother,
anticipated that she would assume primary care of D.C.  As noted, the
disposition plan anticipated that mother would be able to have only supported
visits with D.C.  Mother never expressed an interest in caring for D.C.; to
the contrary, she stipulated to orders giving custody first to the father and
then to the father’s mother.  Given that the disposition plan called for
reunification only with the father, the father’s voluntary relinquishment of
his parental rights and the grandmother’s subsequent death after she had
assumed custody of the child established changed circumstances satisfying the
threshold for the family court to consider D.C.’s best interests.
¶ 18.        
Mother’s argument that a finding of stagnation cannot be based solely on
the acts of third persons misses the point.  Section 5113(b) allows the
court to modify previous orders “on the grounds that a change in circumstances
requires such action to serve the best interests of the child.”  Thus, the
threshold statutory requirement is found in the broader term “change of
circumstances” rather than the more specific term “stagnation.”  Parental
stagnation is but one way to show changed circumstances.  See In re
Certain Neglected Children, 134 Vt. 74, 77, 349 A.2d 228, 230 (1975)
(rejecting mother’s argument that changed circumstances could not be based on
her failure to improve her parental skills and permitting cautious use of
“stagnation in parental capacity to care for children as a ground for change of
circumstances necessary to support a transfer of residual parental
rights”).  To be sure, the threshold changed-circumstances requirement is
most often met by showing stagnation in a parent’s ability to care for a
child.  In re J.G., 2010 VT 61, ¶ 10, 188 Vt. 562, 2 A.3d 817
(mem.) (stating that threshold showing of changed circumstances is “ ‘most
often found when the parent’s ability to care properly for the child has either
stagnated or deteriorated’ ” (quoting In re H.A., 153 Vt. 504, 515, 572
A.2d 884, 890 (1990))).  But the statutory standard is changed
circumstances, not stagnation, and stagnation is not the only way to show
changed circumstances. 
¶ 19.        
In arguing that the threshold requirement cannot be satisfied through
the actions of third parties, mother relies upon a case that stands only for
our oft-stated principle that “stagnation caused by factors beyond the parents’
control [cannot] support termination of parental rights.”  In re S.R.,
157 Vt. 417, 421-22, 599 A.2d 364, 367 (1991).  Mother may be correct that
stagnation cannot result solely from the actions of third parties, but
that does not mean that other types of changed circumstances cannot arise
independent of the subject parent’s actions.  In this case, the voluntary
relinquishment of parental rights by the only parent who was the subject of
reunification efforts, as well as the custodial grandmother’s death,
established changed circumstances that allowed the court to consider DCF’s
termination petition under the best-interests-of-the-child criteria.
II.
¶ 20.        
Mother also argues that her right to procedural due process before the
parent-child bond is severed precludes us from finding changed circumstances
based solely on the circumstances of others, including D.C.  This assertion
ties in with mother’s second major argument that the family court failed to
determine by clear and convincing evidence that she was presently unfit to
parent D.C.  According to mother, at no point during the CHINS proceedings
in this case has a court determined by clear and convincing evidence that she
was unfit to parent, as required by the U.S. Supreme Court’s holding in Santosky
v. Kramer, 455 U.S. 745, 755 (1982).  In mother’s view, the evidence
at the termination hearing showed only that she was very poor, not that she was
an unfit parent.
¶ 21.        
In Santosky, the U.S. Supreme Court held that “[b]efore a State
may sever completely and irrevocably the rights of parents in their natural
child, due process requires that the State support its allegations by at least
clear and convincing evidence.”  455 U.S. at 746-48.  The Court in Santosky
reviewed and rejected a provision of a New York statute permitting irrevocable
termination of parental rights based on a preponderance-of-the-evidence
standard.  Although the Court spoke in terms of proving parental
“unfitness” in noting the specific state statutory criteria for determining
whether a parent was capable of parenting a child, it did not purport to
address the issue of what substantive showing was required to terminate
parental rights.  Indeed, the New York statutes, which allowed for
termination of parental rights on a finding that the child had been permanently
neglected, did not require that the court explicitly find that the parent was
unfit.  See id. at 748.  Rather, Santosky addressed
only the standard of proof for terminating parental rights required by
procedural due process protections contained within the U.S.
Constitution.  See In re Daniel C., 480 A.2d 766, 771 (Me. 1984)
(noting that Santosky dealt only with standard by which elements in New
York statute needed to be proved and citing majority of states applying “the Santosky
requirement of clear and convincing evidence to whatever statutory elements the
legislature has provided”).
¶ 22.        
In other words, the Santosky holding stands for the proposition
that whatever measure of “unfitness” a state requires to terminate parental
rights must be shown by clear and convincing evidence.  The Vermont
Legislature has chosen the best-interests criteria contained in 33 V.S.A. §
5114(a), which encompass both directly and indirectly the question of parental
fitness.  Indeed, the most important criterion is the one that most
directly addresses parental fitness—whether the parent is likely to be able to
resume parental duties within a reasonable period of time.  Id. §
5114(a)(3).  Other criteria concern the parent’s fitness indirectly by
requiring the court to examine the parent’s relationship with the child and
what kind of role the parent has played and continues to play with respect to
the child’s welfare.  Id. § 5114(a) (1), (2), (4).  These
criteria do not attempt to determine whether a parent is a “good” person or is
generally fit to parent any child; rather, the critical question in a termination
proceeding is whether the parent is fit, or will be fit within a reasonable
period of time, to parent the particular child who is the subject of the
termination proceeding.
¶ 23.        
Moreover, it is important to keep in mind that a TPR proceeding does not
occur in a vacuum.  Initially, there must be a determination following a
merits hearing that the subject child is in need of care or supervision, see 33
V.S.A. § 5315(a), which directly addresses the parent’s ability to care for the
child at that time.  See In re C.A., 160 Vt. 503, 505, 630 A.2d
1292, 1294 (1993) (noting that absent finding of unfitness, court “may not
remove a child from the parent’s custody at the dispositional stage of a
juvenile proceeding”); In re J.H., 156 Vt. 66, 71, 587 A.2d 1009, 1012
(1991) (“The parental unfitness test must be met before [state] can initially
be awarded custody of a child.”).  The State’s burden to establish CHINS
at the merits hearing is by a preponderance of the evidence, but the court, in
its discretion, may find CHINS by clear-and-convincing evidence.  Id.
§ 5315(a).
¶ 24.        
The parties can stipulate to CHINS or they may contest the issue, in
which case they have the right to present evidence and to examine
witnesses.  Id. § 5315(b)-(c).  Parents who stipulate to
CHINS or state custody are essentially acknowledging their unfitness, at least
temporarily, to parent their child.  See In re A.W., 164 Vt. 412,
417, 670 A.2d 1265, 1268 (1995) (noting that parties’ stipulation at
disposition hearing to state custody of children “precluded the parents from
complaining that the court made no finding of parental unfitness”).
¶ 25.        
Within thirty-five days of the CHINS finding there must be a disposition
hearing, and, if the disposition is contested, all parties have a right to
present evidence and examine witnesses.  Id. § 5317(a)-(b). 
The standard of proof at the disposition hearing is preponderance of the
evidence unless termination of parental rights is sought, in which case the
standard of proof is clear and convincing evidence in light of the
best-interest factors contained in § 5114(a).  Id. §
5317(c)-(d).  If termination is not sought at the initial disposition
hearing but is sought later, the petitioner must show by clear and convincing
evidence that changed circumstances exist and termination of parental rights
serves the best interests of the child, 33 V.S.A. § 5113(b), as viewed through
the specific criteria contained in § 5114(a).
¶ 26.        
This statutory framework is aimed at ensuring not only that children are
protected from harm but also that the parent-child relationship is preserved
unless circumstances, as demonstrated by clear and convincing evidence, require
terminating that relationship because the parent is incapable of caring for his
or her child.  While this Court has noted on numerous occasions that
breaking the parent-child custodial bond requires a finding of unfitness, see,
e.g., In re B.L., 145 Vt. 586, 591, 494 A.2d 145, 148 (1985), the term
“unfitness” is not part of the legal lexicon in CHINS proceedings under Vermont
law and is not treated as a legal term of art required by this Court or by Santosky. 
In re C.A., 160 Vt. at 505-06, 630 A.2d at 1294 (“[T]he failure to use
the word ‘unfit’ does not necessarily preclude a finding of unfitness in
fact.”).
¶ 27.        
Nor does Santosky stand for the proposition, as mother suggests,
that the child’s interests must be considered the same as those of the parent
until the parent is found to be unfit and thus cannot be part of an unfitness
determination.  We agree that until a parent is proved to be unfit to care
for a child, “the child and his parents share a vital interest in preventing
erroneous termination of their natural relationship.”  Santosky,
455 U.S. at 760.  Santosky noted this truism in the context of
stating that the foster parents’ interests, no matter how substantial, were not
directly implicated in the factfinding stage of New York’s state-initiated
permanent neglect proceeding against the natural parents.  Id. at 761.
¶ 28.        
Vermont law is not inconsistent with this position.  While
Vermont’s best-interests standards allow the court to consider a child’s
relationship with all persons having a significant role in the child’s life,
including any foster parents, see 33 V.S.A. § 5114(a)(1), we have stated on
numerous occasions that the most critical factor is “the likelihood that the
parent will be able to resume parental duties within a reasonable time,” In
re B.M., 165 Vt. 194, 199, 679 A.2d 891, 894-95 (1996), and that “parental
rights cannot be terminated simply because a child might be better off in
another home,” In re E.C., 158 Vt. 8, 12, 603 A.2d 373, 376
(1992).  But nothing in Santosky precludes a termination process
that evaluates a parent’s ability to care for a child by considering, in part,
the subject child’s circumstances, which very often are a result of the
parent’s earlier failure to properly care for the child.
¶ 29.        
In this case, mother has consistently acknowledged her inability to care
for D.C.  She stipulated to D.C. being CHINS, and she agreed to
conditional custody of D.C. first with the father and then with the father’s
mother.  Apart from a very brief period in mid-January 2010, which ended
with D.C.’s removal from her custody, mother has not cared for D.C. since 2007,
when he was two years old.  At the termination hearing, she acknowledged
that she had no ability to parent D.C. at that time, several years after she
last cared for the child for any extended period of time.
¶ 30.        
The trial court described in detail D.C.’s numerous special needs and
mother’s ongoing inability to care for him.  Contrary to mother’s
assertions on appeal, the trial court did not terminate her parental rights
because she was poor.  Rather, the court terminated her parental rights
because there was no likelihood that she would be able to resume her parental
duties within a reasonable period of time.  The court’s unchallenged
findings and conclusions reveal that mother has not been employed in fourteen
years and, despite receiving supplemental security income, was not taking
medications to address her mental-health issues.  At the time of the
termination hearing, she was on probation for a domestic assault conviction,
subject to a curfew, and required to take anger-management classes.  She
had no idea where she would be living month to month.  She acknowledged
not knowing what D.C.’s needs were.  She was aware of his developmental
delays, but did not recognize their significance, and in fact believed that
they were normal because she had had the same delays when she was young. 
According to the court, mother has never played a constructive role in D.C.’s
life, has not taken any steps to be in a position to parent D.C., and
consequently is no closer to being able to care for the child—particularly
given his special needs—than she was two years earlier.  In short, the
evidence of mother’s unfitness is overwhelming.
III.
¶ 31.        
Finally, mother argues that the family court’s termination order must be
reversed because the State never undertook reasonable efforts to prevent the
removal of D.C. from her care, as required by Vermont law.  In making this
argument, mother relies principally upon 33 V.S.A. § 5308(c)(1)(B), which
states that if the family court transfers legal custody of a child, it must
issue a written temporary care order that includes, among other things, “a
finding as to whether reasonable efforts were made to prevent unnecessary
removal of the child from the home.”
¶ 32.        
We recently rejected a similar argument in In re C.P., 2012 VT
100, ¶ 38, ___ Vt. ___, ___ A.3d ___.  In In re C.P. we noted that
reasonable-efforts determinations were incorporated into Vermont law to
implement federal law, id. ¶ 32, presumably to preserve federal
funding.  As we explained with respect to the reasonable-efforts
determination required by 33 V.S.A. § 5321(h)(1)-(2):
Under the statute,
this issue of reasonable efforts is separate from whether termination of
parental rights is in a child’s best interests.  Termination of parental
rights may be granted at the initial disposition stage if the court determines
that it is in the best interests of the child, as set forth in the statutory
factors.  33 V.S.A. § 5114.  The extent of DCF’s efforts to
achieve the permanency plan is not one of the best-interests factors to be
considered at termination.  See In re J.T., 166 Vt. [173], 180, 693
A.2d [283], 287 [(1997)] (explaining that extent of efforts to assist parents
is not a best-interests factor).  Thus, the court is not required to find
DCF made reasonable efforts as a prerequisite to termination.  In re
J.M., 170 Vt. 587, 589, 749 A.2d 17, 19 (2000) (mem.).  In saying
this, we recognize that the level of assistance provided to parents is relevant
in determining whether “a parent is unlikely to be able to resume parental
duties within a reasonable period of time.”  Id.; In re J.T.,
166 Vt. at 180, 693 A.2d at 287.  But our main point is that whether DCF
made reasonable efforts to achieve permanency is a separate question from
whether termination is in the child’s best interests and the former is not a
prerequisite to the latter.
 
Id. ¶ 38.
¶ 33.        
By the same token, whether DCF made reasonable efforts to prevent D.C.’s
removal from his home is a separate question from, and not a prerequisite to,
the issue of whether termination of parental rights is warranted under the
statutory criteria contained in § 5114(a).  In any event, mother
stipulated to legal custody being transferred to the father and the
grandmother, and at the time legal custody was transferred to DCF, D.C. was not
living with mother.
¶ 34.        
Here, as in C.P., nothing in the record supports a conclusion
that termination resulted from factors beyond mother’s control.  Indeed,
by her own acknowledgement, mother did not consider herself a candidate for
reunification from the beginning of DCF’s involvement in the case.  She was
content to play a minimal role in D.C.’s life while DCF, with mother’s
agreement, focused on establishing permanency for D.C. first with the father
and then the father’s mother.  The record supports the family court’s
undisputed findings that during the lengthy period when mother played a limited
role in D.C.’s life and agreed to other family members assuming custody of the
child, she made no progress in reaching a point where she could care for the
child.  Mother cannot now challenge the TPR order through a belated claim
that DCF failed to make reasonable efforts to prevent D.C.’s removal from his
home.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 

