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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-342

                                       JANUARY TERM, 2015

 In re J.D., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 59-7-13 Wmjv

                                                            Trial Judge: Katherine A. Hayes

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

        Mother appeals from the trial court’s disposition order, which directed that J.D. remain in
the custody of the Department for Children and Families (DCF) and adopted concurrent goals of
reunification with father or, alternatively, termination of parental rights and adoption. We
affirm.

        J.D. was born in November 2006. In July 2013, she was taken into emergency custody in
Massachusetts and subsequently transferred to DCF custody in Vermont. In July 2013, DCF
filed a petition alleging that J.D. was a child in need of care and supervision (CHINS). Parents
agreed that J.D. was CHINS between certain dates because she was without proper parental care
and they agreed that she should remain in DCF custody pending disposition.

        In connection with the CHINS proceeding, parents admitted to the following facts. J.D.
was in mother’s sole custody and residing in Vermont when mother was caught shoplifting while
J.D. was present. Mother was on probation and pre-approved furlough at the time and she has
numerous other criminal convictions, including at least one felony conviction. Mother fled the
store with J.D. and evaded police. On June 14, 2013, mother was charged with felony escape
and retail theft. As indicated above, in July 2013, Massachusetts authorities filed an emergency
request for temporary legal custody of J.D., alleging that she was a child in need of care and
protection because she had been abandoned by mother, who was on escape status from the
Vermont Department of Corrections, and she had been neglected by father due in part to his
ongoing drug use. Massachusetts authorities had received a report that father was using heroin,
sleeping until late in the afternoon, and not meeting J.D.’s needs. Vermont DCF received a
report voicing similar concerns. A DCF social worker spoke with mother during this time but
mother refused to meet with the social worker or turn herself in to authorities. Mother was
arrested in Vermont on July 24, 2013, and she has been incarcerated since that date.

        The court adjudicated J.D. as CHINS in November 2013 and ordered that she remain in
DCF custody. DCF filed a disposition case plan in December 2013 and an updated permanency
case plan in August 2014. The disposition case plan set a goal of either J.D.’s reunification with
father or adoption by June 2014, noting that J.D. had been in custody since July 2013. The plan
explained that mother was incarcerated and unable to provide for J.D., and given mother’s
current lengthy incarceration status, it was unlikely that she would be able to resume parenting
J.D. by June 2014. As indicated above, the plan also recognized that father was an admitted drug
user who, without treatment, could not provide appropriate care and supervision for J.D. The
updated case plan continued the same goal of adoption or reunification with father but it
extended the estimated date for achieving the case plan goal to March 2015. This plan
recognized that mother remained incarcerated, and that her minimum and maximum release
dates were in April 2015. It noted that father continued to use heroin.

        The disposition hearing occurred over the course of several months (January 2, May 21,
July 23, and September 10, 2014). Mother and father both argued primarily for a placement with
J.D.’s maternal grandmother, although father indicated on the last hearing date that he would be
in a position to take custody of J.D. within days. The court issued its disposition order at the
conclusion of the hearing in September 2014. The court recognized at the hearing that mother
was not in a position to care for J.D. as mother was in jail; it found that father and J.D.’s
grandmother were similarly not in a position to take J.D. into their custody for various reasons.
The court also noted that J.D. had made clear that she did not want to be alone with any of her
family members, and this evidence reinforced the court’s conclusion that the disposition case
plan should be adopted as written. The court expressed some concern that the plan did not
provide for permanency for J.D. as quickly as one might like, given that J.D. had already been in
custody for more than a year, but the court accepted the plan, as updated by the permanency case
plan filed at the end of August. The court found that the evidence established that the disposition
case plan was consistent with the case plan goal, and the plan had established appropriate parent-
child contact for both parents. It thus ordered that DCF continue to have legal custody of J.D.,
with parents to have contact with J.D. as agreed between parents and DCF. The order indicated
that the concurrent permanency goals of reunification with father or, alternatively, adoption were
established. Mother appealed from this order.

        Mother first argues that the family court had no authority to issue a disposition order that
contained “multiple and contradictory permanency goals.” She objected to the concurrent goals
of the plan as proposed by DCF but did not object to the propriety of case plans having
concurrent goals as a general proposition. In particular, she now argues that the applicable
statute requires that a court may impose only a single permanency goal for disposition, 33 V.S.A.
§ 5318, and that concurrent goals of reunification and adoption are inherently conflicting.
Mother did not raise this issue below. To the contrary, she advocated for “multiple and
contradictory permanency goals,” seeking to be added herself as part of the concurrent-
disposition plan along with father and adoption. Because mother raises her argument for the first
time on appeal, we do not consider it. See In re White, 172 Vt. 335, 343 (2001) (reiterating that
“[t]o properly preserve an issue for appeal a party must present the issue with specificity and
clarity in a manner which gives the trial court a fair opportunity to rule on it,” and Supreme
Court “will not address arguments not properly preserved for appeal”) (internal quotation marks
omitted); see also V.R.A.P. 28(a)(4)(A) (appellant’s brief should explain “the issues presented”
and “how they were preserved”).*

       *
          Appellant argues that even if the objection to a disposition order reflecting concurrent
goals was not preserved, we should reverse because the court’s approval of concurrent
disposition goals was plain error. See In re D.C., 157 Vt. 659, 660 (1991) (mem.) (recognizing
that “we can reverse on an unpreserved issue in exceptional cases” where “the error . . . is so
obvious, grave, and serious as to warrant reversal”). At oral argument, counsel acknowledged
that judicial approval of concurrent-disposition goals is not unusual in current practice. Given
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        Mother’s second argument suffers from the same flaw. Mother asserts that the State was
required to prove that she was unfit by clear and convincing evidence because the disposition
order was “akin to a termination of parental rights.” Mother did not argue below that the court
needed to make a finding that she was unfit by clear and convincing evidence in issuing its
disposition order. We therefore do not address this argument. We note, however, that the court
did not terminate mother’s rights. The disposition order provides for, among other things,
contact between mother and J.D., and it is evident that mother retains her residual parental rights.
There is no dispute, moreover, that mother was in no position to care for J.D. at the time of the
disposition hearing as she was incarcerated and was expected to remain incarcerated potentially
until April 2015, although an earlier release date was possible.

       Affirmed.



                                                 BY THE COURT:


                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




that, we cannot say that any error, if there was any at all, was so obvious as to warrant reversal in
the absence of a specific and clear objection before the trial court.
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