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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-315

                                       JANUARY TERM, 2015

 In re S.G., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 158-12-12 Wmjv

                                                            Trial Judge: Katherine A. Hayes

                          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 daughter, S.G. We affirm.

        S.G. was born in August 2006 with cerebral palsy, and has had extensive medical
treatment for the disorder since then. She came into the custody of the Department For Children
and Families (DCF) in December 2012 when mother and her husband were arrested for
possession of heroin in the early morning hours after they had left her alone in a motel room.
Mother’s husband, who is not S.G.’s father,* pled guilty to a charge of possession of heroin. The
same charge against mother was eventually dismissed, but the family court did not find credible
mother’s testimony at the termination hearing that she was unaware of her husband’s possession
of heroin. In February 2013, the family court found, based on mother’s admission to the
allegations contained in DCF’s petition, that S.G. was a child in need of care or supervision
(CHINS). Meanwhile, mother was arrested on a probation violation and incarcerated in a New
Hampshire correctional facility until her release in May 2013.

        A disposition order continuing S.G. in DCF custody was issued in March 2013. The
disposition case plan recommended reunification with mother by December 2013, and called for
mother to: (1) follow all probation and parole recommendations; (2) complete a mental health
evaluation and follow its recommendations; (3) complete a substance abuse evaluation and
follow its recommendations; (4) attend parent education classes; (5) sign all necessary releases to
allow DCF to monitor her progress; (6) alert DCF to any change of address; (7) seek appropriate
housing through recommended services; (8) follow recommendations of employment services;
(9) follow through on S.G.’s medical care when the child was in her care; (10) attend family time
coaching visits; and (11) maintain regular contact with S.G. At a July 2013 permanency review
hearing, the case plan goal was modified to concurrent goals of reunification or adoption. In late
November 2013, the case plan goal was modified to termination of parental rights (TPR) by May


        *
          The father’s parental rights were terminated by default when he failed to appear at the
termination hearing. He had made no effort to obtain parent-child contact with S.G., and
apparently had not played any significant role in the child’s life.
2014. Mother was arrested for shoplifting on multiple occasions between the fall of 2013 and
the spring of 2014.

        DCF filed a TPR petition in January 2014, and a termination hearing was held on May 1,
2014. Following the hearing, the family court issued an order granting DCF’s petition and
terminating mother’s parental rights. The family court found that there had been a substantial
change of circumstances through stagnation, and that the best interests of S.G., considered under
the statutory criteria set forth in 33 V.S.A. § 5114(a), compelled termination of mother’s parental
rights. See In re R.W., 2011 VT 124, ¶ 14, 191 Vt. 108 (“When termination of parental rights is
sought, the trial court must determine, first, whether there has been a substantial change in
material circumstances and, second, whether termination is in the child’s best interests.”).
Regarding the first prong of the two-part test, the court found that mother had made very little
progress toward reunification, noting that her housing had been unstable and shifting; she
continued to engage in criminal activity; she had no fixed or stable source of income; she had not
provided to DCF any proof of her engagement in mental health or substance abuse treatment; she
had not signed releases necessary for DCF to determine if she was receiving appropriate
treatment; and although she visited S.G. fairly regularly, she missed many visits and never
progressed to unsupervised visits.

        As for S.G.’s best interests, the court found that: (1) S.G. had regular contact with mother
at most for only two two-hour visits per week, while, in contrast, the child had developed a close
connection with her foster family and their community; (2) S.G. had been in custody for over
sixteen months, and yet mother, despite having ample opportunity, failed to demonstrate that she
had progressed toward being able to resume parental duties within a reasonable period of time
from the perspective of the child, who was in particular need of structure and predictability due
to her specialized medical needs; (3) although mother and S.G. loved and cared about each other,
mother was struggling to meet her own needs and was incapable of meeting S.G.’s needs; and (4)
although mother continued to maintain a connection with S.G., the connection was marginal and
intermittent and caused S.G. distress at times because the child worried about her mother.

        Mother’s sole argument on appeal is that the termination order must be reversed because
the family court abused its discretion by sustaining an objection to the foster mother being asked
whether she would maintain S.G.’s relationship with mother should she adopt the child. During
cross-examination, mother’s attorney asked the foster mother the following question: “Now,
when you think about S.G. being freed for adoption, can you tell us what your intentions are,
regarding S.G. and her relationship with her mother?” The State’s attorney objected, arguing
that the question was irrelevant because it had “no relationship to the best interest of the child or
the stagnation issue.” After the family court sustained the objection, mother’s attorney asked the
foster mother whether she had promoted a positive attitude toward S.G. about her mother during
the time she provided care for the child and whether she intended to continue to do so. The
foster mother answered in the affirmative to both questions. Mother argues on appeal that the
foster mother’s intentions regarding whether she would facilitate continued mother-child contact
following the child’s adoption “would inform the court regarding her views on the extent of the
mother’s importance to S.G. and the role played by the mother in S.G.’s life” and “also would
indicate to the court whether termination of parental rights would eliminate all mother-child
contact or not, a factor bearing on the appropriateness of the disposition option.”

        We find no merit to the argument. The challenged question was not focused on mother’s
relationship with S.G. but rather on whether the foster mother would continue to promote a
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relationship with mother and S.G. if and when she adopted the child. An order terminating
residual parental rights, by definition, ends a parent’s legal right to have a relationship with the
subject child. See 33 V.S.A. § 5102(26) (defining “Residual parental rights and responsibilities”
as “those rights and responsibilities remaining with the parent after the transfer of legal custody
of the child, including the right to reasonable contact with the child, the responsibility for
support, and the right to consent to adoption”). A court issuing a termination order cannot
assume that there will be any contact between the terminated parent and the subject child,
regardless of what the potential adoptive parents presume might happen if in fact they do adopt
the child. Indeed, a termination order is not dependent upon the existence or likelihood of an
adoptive home. See In re T.T., 2005 VT 30, ¶ 7, 178 Vt. 496 (mem.) (“[A]n alternative
placement is not a prerequisite to termination of parental rights.”). Because this termination
order was not dependent upon the existence of an adoptive home, the trial court could reasonably
conclude that any speculation about the potential adoptive parents’ attitude towards maintaining
a relationship between the subject child and the terminated parent would not be relevant to its
termination decision. See V.R.E. 401 (stating that evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence”).

        Nor would the foster mother’s speculative answer have carried any probative value as to
the relationship between S.G. and mother, which was the subject of other testimony and several
trial court findings. Thus, the family court did not abuse its discretion in sustaining the objection
of the State’s attorney on this point. Moreover, even if the foster mother’s answer to the
challenged question should have been allowed, the foster mother immediately thereafter agreed
that she had always promoted, and would continue to promote, a relationship between S.G. and
mother. See State v. Felix, 2014 VT 68, ¶ 19, ___ Vt. ___ (stating that evidentiary rulings are
reviewed for abuse of discretion resulting in prejudice).

       Affirmed.




                                                 BY THE COURT:


                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




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