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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-126

                                          JULY TERM, 2015

 In re S.K. and Z.K., Juveniles                        }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 37-4-13/49-4-12 Bnjv

                                                            Trial Judge: William D. Cohen

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

        Mother appeals the termination of her parental rights to her children S.K. and Z.K., born
in June 2011 and April 2013, respectively. Mother argues that the court failed to explicitly state
that it was making findings by clear-and-convincing evidence and failed to address mother’s
argument that she was prevented from meeting the case-plan goals by actions of the conditional
custodians. We reverse and remand.

       The court adjudicated the children as children in need of care or supervision (CHINS) for
lack of proper parental care when they were respectively ten months and three days old. The
children were initially placed with their maternal grandmother under a conditional custody order,
and then, due to her medical problems, conditional custody was transferred to a family friend in
January 2014. The children have remained in that home since then. The case plan for parents
focused on addressing parents’ substance-abuse problems, living situation, parenting techniques
and lack of engagement with services.

        The children’s attorney moved to terminate parental rights. Following a hearing, the
court found that parents failed to progress on most of their goals. The court found mother was
inattentive, did not accept assistance and could not provide an appropriate home for the children.
Father did not remain drug free and was unable to provide a stable home. He was incarcerated at
the time of the final hearing and was expected to remain there for a year and a half. The court
found the parents’ failure to substantially conform to the expectations in their action plans
amounted to a change of circumstances. The court further found that termination was in the
children’s best interests, insofar as mother did not play a constructive role in the children’s lives
and would not be able to parent within a reasonable period of time. Mother appeals.

        Termination of parental rights involves a two-step analysis. As a threshold to altering the
prior disposition, the court must consider whether there has been a substantial change in material
circumstances. 33 V.S.A. § 5113(b). A change of circumstance occurs “when a parent’s ability
to care for a child has either stagnated or deteriorated over the passage of time.” In re S.W.,
2003 VT 90, ¶ 4, 176 Vt. 517 (mem.) (quotation omitted). It may also be found where a parent’s
improvement has not “substantially conformed with the expectations at the time of the CHINS
adjudication” and with the case plan. In re D.B., 161 Vt. 217, 220 (1993). If this threshold is
satisfied, the court must then consider whether termination is in the child’s best interests. 33
V.S.A. § 5114(a) (listing statutory best-interests factors). The most important factor is whether
the parent will be able to resume parenting duties within a reasonable period of time. In re J.B.,
167 Vt. 637, 639 (1998) (mem.). The standard of proof required to terminate parental rights is
clear-and-convincing evidence. 33 V.S.A. § 5317(c).

        On appeal, we will uphold the family court’s conclusions if supported by the findings and
affirm the findings unless clearly erroneous. In re J.B., 167 Vt. at 639.

        Mother first argues that the court’s decision is flawed because the court failed to state
explicitly that it was making findings by clear-and-convincing evidence. While the trial court
must certainly apply a clear-and-convincing standard in deciding these cases, this Court has not
required “an explicit statement by the trial courts as to the standard employed in parental
termination cases.” In re C.L., 151 Vt. 480, 488 (1989). To determine if the proper standard was
met, we examine “the language used by the trial court.” Id. In In re C.L., we concluded that the
proper standard was used where the court stated that it was “convinced” mother would be unable
to resume her parental duties within a reasonable period of time. Id. at 488-89.

        Mother points to the fact that the family court in this case did not use words like
“convinced” and instead stated that mother was “unlikely” to be able to resume parenting
responsibilities within a reasonable period of time as an indication that the court’s decision was
not made by clear-and-convincing evidence. We agree that the language used by the trial court
in this case does not provide assurance that the court utilized a clear-and-convincing standard to
evaluate whether there was a change of circumstances and whether termination was in the
children’s best interests. Although the court acknowledged that termination “necessary,” it did
not indicate whether it determined that necessity by clear-and-convincing evidence. Therefore,
we remand for the trial court to indicate whether its findings on whether there was a change of
circumstances and whether termination was in the children’s best interests are made by clear-
and-convincing evidence. No further hearing is required.

        Because this issue will not be resolved by the remand, we also address mother’s
argument that the court failed to address her argument that she was prevented from meeting her
case-plan goals because of interference from the children’s custodians. We conclude there was
no error. In its written order, the family court acknowledged mother’s argument that her efforts
to achieve her case-plan goals had been thwarted. Although not explicitly so stated, it is evident
from the entirety of the order that the court did not credit mother’s contention, and instead found
that mother was responsible for her inability to progress. This is clear from the court’s findings
related to areas that were entirely within mother’s control, including that mother continued to use
illegal drugs, did not maintain stable housing, refused assistance from social-service
organizations, did not play a constructive role in the children’s lives, failed to appear for visits,
and displayed disinterest when she did attend. Therefore, the court adequately addressed—and
rejected based on supported findings—mother’s argument that her inability to meet the case-plan




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goals was due to interference from the children’s custodians. On remand, the trial court must
indicate whether this finding was made by clear-and-convincing evidence.

       Remanded for further proceedings consistent with this decision.

                                              BY THE COURT:


                                              _______________________________________
                                              Marilyn S. Skoglund, Associate Justice

                                              _______________________________________
                                              Beth Robinson, Associate Justice

                                              _______________________________________
                                              Harold E. Eaton, Jr., Associate Justice




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