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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-464

                                         APRIL TERM, 2015

 In re B.H. and A.H.B., Juveniles                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 256/257-8-12 Cnjv

                                                            Trial Judge: James R. Crucitti

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

        Father appeals termination of his parental rights to his children B.H. and A.H.B., born in
April 2001 and September 2002, respectively. On appeal, father argues that the court’s findings
that his contact with his children has been inconsistent and that he does not have a father-
daughter relationship with his daughters are not supported by the record. We affirm.

        Until 2004, father assisted with the children’s care, but when he resided with their mother
he was physically and emotionally abusive. Father has a criminal history, including domestic
assaults and exploitation of a vulnerable adult. He has mental-health, substance-abuse, and anger
problems. He moved to North Carolina in 2004. Since his move, he has visited the children
once, when he came to Vermont in 2013. His other contact with the children has been by
telephone or video chat.

        In August 2012, a petition was filed alleging the children were in need of care or
supervision (CHINS). The children were subsequently removed from mother’s care based on a
risk of sexual abuse from mother’s boyfriend. The children were both initially placed with their
maternal grandmother, where their sister (who is not part of these proceedings) resides. A.H.B.
was later moved to a foster home because she behaved aggressively toward her sister. Father
requested that his home in North Carolina be considered as a placement for the children. A
home study was conducted and concluded that father’s home was too small. In July 2013 the
court approved a disposition plan that called for concurrent goals of reunification with mother or
termination of parental rights. The plan noted that father would participate in the home study
noted above, obtain a substance-abuse assessment, undergo a mental-health evaluation, and work
with parenting groups. Father did not object to this plan, and the court approved it at a
September 2013 post-disposition review.

        DCF filed a motion to terminate the parental rights of both mother and father in January
2014. Mother voluntarily relinquished her rights in October 2014. Following a contested
hearing, the court found that there was a change of circumstances because mother relinquished
her rights. The court found that termination of father’s rights was in the children’s best interests
based on the following findings. Father lacks stability in his life. Father currently resides with
his mother, and is unemployed, although he hopes to obtain employment. At the termination
hearing, father acknowledged that he could not care for the children in his present housing
situation. The children have made progress since coming into custody, but need consistency and
stability in their lives. Father’s absence from Vermont and his lack of contact has negatively
impacted his relationship with his children, and his lack of stability in housing and employment
made it impossible for him to assume parental duties in a reasonable time. Father has not played
a constructive role in the children’s lives. Further, father has failed to provide information to
DCF on whether he has addressed his substance-abuse, domestic-violence, or mental-health
issues, and these issues have negatively impacted the children. Father appeals.

         In determining whether to terminate parental rights, the court employs a two-step
analysis, inquiring first whether there was a substantial change in material circumstances and
second whether termination is in the children’s best interests. In re M.M., 159 Vt. 517, 521
(1993). In determining the children’s best interests, the court must consider the four statutory
factors. 33 V.S.A. § 5114. “As long as the court applied the proper standard, we will not disturb
its findings unless they are clearly erroneous, and will affirm its conclusions if they are supported
by the findings.” In re D.S., 2014 VT 38, ¶ 22, ___ Vt. ___ (quotation omitted).

       On appeal, father claims that the record does not support the court’s finding that, even
though father had contact with his daughters by telephone, father’s contact “was not consistent
enough to establish a father/daughter relationship with them, as evidence by his daughters’
regarding [mother’s boyfriend] as their father.” Because the parent-child relationship is integral
to two of the statutory factors—the “interrelationship of the child with his or her parents” and
whether the parent has played a constructive role in the child’s welfare, 33 V.S.A. § 5114(a)(1),
(4)—father claims that the court’s failure to properly assess father’s relationship with his
daughters prejudiced the outcome.

         Father points to the following facts to demonstrate that the court erred in finding that
father’s contact with the children was inconsistent: mother testified that before the children
entered DCF custody, father sent them gifts and spoke to them on the telephone or through video
chat; father had telephone contact when the children were at the maternal grandmother’s home;
father communicates with B.H. on social media or through text messages; and father has
telephoned A.H.B. in her foster home. Father also claims that the fact that his daughters called
mother’s boyfriend “daddy” does not indicate that he does not have a father-daughter
relationship with his daughters. He claims that there is no evidence to indicate that the girls
currently view the boyfriend as their father, and points to the fact that the DCF caseworker
testified that the girls refer to father as “dad.”

        We conclude that the court’s findings were adequately supported. It is up to the family
court to judge the credibility of witnesses and to weigh the evidence. D.S., 2014 VT 38, ¶ 22. In
addition to the evidence highlighted by father, there was other evidence in the record regarding
the extent of father’s relationship with his daughters. Mother testified that since 2004 father had
not supported the children and not had much contact with the children. She stated father
telephoned, had video chat “every now and then” and had seen them in person once. They had
never spent a vacation with him. Father testified that he has recently had more regular contact
through text messages and social media, but acknowledged there were periods of time when his
contact was “sporadic.” Further, the DCF caseworker testified that M.H. did not view father as
her “daddy.”

       This evidence is sufficient to support the court’s findings that father’s contact with the
children has been inconsistent, and that he does not have a father-daughter relationship with

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them. See In re B.W., 162 Vt. 287, 291-92 (1994) (explaining that findings will stand unless
clearly erroneous). While father has contacted the daughters by electronic means more
consistently since they have been in DCF custody, his presence in their lives has not been
consistent over time. Father has seen the children in person only once since 2004. He has not
been involved in their daily care, and has done little to ensure their safety or address their needs.
On the quality of his relationship with them, the court found that he lacks insight into how his
lack of contact with his daughters has negatively impacted them, and he has not played a
constructive role in their lives.

        In addition, the facts support the court’s conclusion that father will not be able to assume
parental responsibilities within a reasonable period of time given the children’s need for stability
and consistency. Father lacks any stability in his housing or employment situation. His past
substance abuse and domestic violence negatively impacted the children, and he has not provided
information to DCF that he has addressed these issues. Therefore, the court properly assessed all
of the statutory factors, and there is no basis to disturb its termination decision.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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