Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2014-013
APRIL TERM, 2014
In re A.M., Juvenile } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
} Family Division
}
} DOCKET NO. 376-12-12 Cnjv
Trial Judge: Linda Levitt
In the above-entitled cause, the Clerk will enter:
Father appeals from the termination of his parental rights to his daughter, A.M., born in
December 2012. Father argues that the court’s finding that father will not be able to parent
within a reasonable period of time is not supported by the evidence and the court’s findings on
father’s contact with A.M. misapprehend the record. We affirm.
Mother has a history of drug addiction, mental health problems, criminal activity and
homelessness. At birth, A.M. experienced withdrawal symptoms due to mother’s use of drugs
during her pregnancy. After birth, the Department for Children and Families (DCF) initially
placed A.M. with father’s sister and filed a petition to have A.M. declared a child in need of care
or supervision (CHINS). Mother stipulated that A.M. was CHINS in January 2013, and father
did so later. The placement with father’s sister lasted only a few weeks, and then A.M. was
placed in a foster home where she has remained since late December 2012.
Father has a long history of drug addiction and crime. He began using drugs at age
twelve. He had twenty-four convictions from 1993 to 2013 and an array of correctional rule
violations from his time in jail. He has four other children, and his parental rights to all of those
children have been terminated. When A.M. was born, father was incarcerated on charges of
escape and driving while under the influence. The initial disposition had concurrent goals of
reunification with mother and adoption. Father was required to complete programs on parenting,
anger and drugs. He was released in September 2013 and placed on furlough status. Father is
classified as a high-risk violent offender and receives the highest level of supervision from the
Department of Corrections. Father will be supervised until 2025 and has a poor history of
complying with furlough agreements. Father had three visits with A.M. while in jail. After his
release, he visited with A.M. in the DCF office. He has not engaged in any activities with A.M.
outside a supervised setting. At the time of the final hearing, father had been drug-free since his
release from jail, and had been in counseling for five weeks. He was living with a pastor and
saving money for an apartment.
A.M.’s attorney and guardian moved to terminate parental rights to A.M. and the State
joined the petition. Following a hearing, the court issued a written order. The court found that
parents’ progress had stagnated. As to father, the court found that father’s ability to parent had
stagnated insofar as he did not have a close relationship with A.M. and visits with father were
stressful for A.M. The court also found that father’s recent lifestyle changes were too short-lived
to demonstrate that they were sustainable and that he could provide a stable, loving home for
A.M. The court also found that termination was in A.M.’s best interests explaining, that, among
other reasons, father would not be able to parent A.M. within a reasonable period of time. Father
appealed.
To terminate parental rights, the court must determine by clear and convincing evidence
first that there is a change of circumstances, and second that termination is in the child’s best
interests. See 33 V.S.A. § 5113(b); In re B.W., 162 Vt. 287, 291 (1994). In assessing the child’s
best interests, the court must consider the statutory criteria. 33 V.S.A. § 5114. 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.). On appeal, we will uphold the
family court’s conclusions if supported by the findings and affirm the findings unless clearly
erroneous. Id.
Father first argues that the family division’s finding that he will not be able to parent
within a reasonable period of time is not supported by the evidence. Father’s argument revolves
around the court’s finding that it was not reasonable for A.M. to wait “a year or more to see if
father could responsibly care for her.” Father claims that this finding is not supported by the
evidence, which was that it may take eight months to a year—not a year or more—to see if father
could achieve stability and care for his daughter. Father argues also that the evidence indicated
A.M. could wait for four months to achieve permanency and therefore it was premature to
determine that father would not be able to parent within a reasonable period of time.
There was no error. The testimony father points to came from A.M.’s DCF social
worker, who testified that she would like to see father maintain stability for “eight months to
year minimum” before father could assume parenting A.M. This evidence is not at odds with the
court’s finding that A.M. would have to wait “a year or more” for father to attain the necessary
permanency to parent her. The social worker’s testimony was not the only evidence regarding
father’s readiness to parent. There was also evidence of father’s long-standing history of drug
abuse, criminal behavior and failure to comply with furlough conditions. It was not error for the
court to find based on that evidence combined with the social worker’s testimony that father
would require “a year or more” to make the necessary lifestyle changes that would allow him to
parent A.M.
Whether it would take father eight months, one year, or more to achieve goals necessary
to begin parenting A.M., the court’s other findings indicate that all of those times were too long
when measured from A.M.’s perspective. See In re B.S., 166 Vt. 345, 353 (1997) (“The period
of time must be viewed from the perspective of the needs of the child.”). The court found that
given A.M.’s young age, she needed permanency as soon as possible. Moreover, while father
claims that termination was premature because the DCF social worker testified that A.M. could
wait for four months, there was no evidence father would be ready in four months. More
importantly, the court did not accept that A.M. could wait for four months. To the contrary, the
court found that A.M. required permanency as soon as possible, and father would not be able to
parent in a reasonable time.
Father next argues that the court’s findings regarding father-child contact seriously
misapprehend the record. Father points to two findings in particular. The first is the court’s
finding that father had three visits with A.M. while incarcerated and A.M. “reacted negatively to
the visits becoming exhausted afterwards.” Father claims that the evidence indicated the first
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two visits went well and only the third went badly and caused A.M. to become exhausted. The
second is the court’s finding that A.M. “experiences visits with father as stressful. Even after the
best visits, [A.M.] is exhausted.” Father argues that this falsely indicates that there was
deterioration in visits after improvement when the evidence indicated that all recent visits went
well.
The social worker’s testimony that A.M. would fall asleep immediately after visits and
the foster mother’s testimony that A.M. was tired after visits support the court’s finding that
A.M. was exhausted after visits. The court’s recitation that A.M. “reacted negatively” to the
prison visits is also consistent with the evidence insofar as the testimony indicated that the third
visit did not go well and A.M. cried inconsolably for some time afterwards.
We disagree with father’s statement that the implication of the court’s finding that A.M.
experiences visits as stressful incorrectly implies that the visits were not improving. The court
acknowledged that since father’s release from prison he has visited with A.M. regularly, his
visits have improved, and he acts appropriately with her. Nonetheless, the court found that A.M.
was exhausted after visits and the visits were stressful. As explained above, the evidence
supports that the visits tired A.M. and it was not error to the court to infer from A.M.’s
exhaustion that the visits caused A.M. stress.
To the extent the court’s findings were inconsistent with the evidence—either because the
visits were not “stressful” or because A.M. did not react negatively to all of the prison visits,
neither of these errors require reversal. The court’s decision did not hinge on either of these
particular findings. See In re A.F., 160 Vt. 175, 178 (1993) (affirming termination where
supported findings were sufficient to sustain decision). The evidence supported the court’s
findings that father has a minimal role in A.M.’s life, that father’s contact with A.M. was for
limited periods of time in a supervised setting, that father does not have a close relationship with
A.M., that A.M. was well-adjusted to her current home, that A.M. required permanency, that
father had not demonstrated that he could sustainably lead a drug- and crime-free life, and that
father could not begin parenting within a reasonable period of time. These findings all support
the court’s termination decision.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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