In re W.B., Juvenile

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

ENTRY ORDER

SUPREME COURT DOCKET NO. 2016-045

JUNE TERM, 2016

In re W.B., Juvenile } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
} Family Division
}
} DOCKET NO. 290-10-13 Cnjv

Trial Judge: Thomas J. Devine

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

Father appeals an order of the superior court, family division, terminating his parental
rights with respect to his son, W.B. We affirm.

The following facts are based on the family court’s unchallenged findings. Father, who
was sixty-one years old at the time of the termination hearing, has a long history of drug use. He
was honorably discharged from the United States Marine Corps in 1987 after serving thirteen
years. After his discharge, he began using cocaine, and later heroin. Father met W.B.’s mother
in approximately 2004. The two used cocaine together, in addition to alcohol and marijuana. In
2009, both parents were charged with cocaine offenses. Father pled guilty to two counts of
possession of cocaine with intent to distribute. He received a probationary sentence, from which
he was successfully discharged in January 2014 after engaging in an intensive outpatient
program. In about 2010, following a car accident that resulted in permanent nerve damage to his
back, father was prescribed methadone and a muscle relaxant for pain. He also uses marijuana
for pain management, although not pursuant to medical advice.

The parents were residing together in father’s apartment when the mother became
pregnant with W.B. Shortly before W.B.’s birth in April 2012, the parents separated and the
mother moved into a motel with another man, who physically abused her. The parents worked
out a shared custody arrangement in which father took care of W.B. over extended weekends.

The Department for Children and Families (DCF) first became involved with the family
in November 2012 when W.B. was about six months old, after mother had moved back in with
father. The mother had relapsed with her cocaine use, and DCF had received several reports
concerning the parents’ lack of care of W.B., including the parents’ failure to bring him in for his
six-month wellness check. Over the next year, DCF worked with the family, encouraging
mother to get back into treatment for her cocaine addiction and working with the Visiting Nurses
Association to get the parents to enroll W.B. in child care. Ultimately, DCF made little progress
with these goals and in October 2013 DCF filed a petition alleging that W.B. was a child in need
of care or supervision (CHINS). After DCF filed the CHINS petition, the family court initially
approved a conditional custody order (CCO) allowing W.B. to remain in the parents’ custody.
The order required both parents to abstain from alcohol and nonprescription drugs and to keep
W.B. away from the mother’s abusive boyfriend, with whom she had reunited.

In December 2013, after mother violated the no-contact order, the family court issued a
new CCO transferring custody to father. On February 13, 2014, W.B. swallowed half a
methadone pill that father had left on top of a safe in father’s bedroom. Noticing that W.B. had
become groggy, father suspected that the child had eaten the pill, but nonetheless waited between
a half hour and an hour before calling 911. By the time the paramedics arrived, the child was
nonresponsive. W.B. was taken to the hospital, where he remained in critical condition,
receiving treatment for four days. As the result of this incident, the family court issued an order
returning custody to DCF, and father was criminally charged with cruelty to a child. He pled
guilty to a reduced charge of reckless endangerment and was placed on probation, which
included a condition that he refrain from drug or alcohol use. No family members came forward
to offer to care for W.B., who was placed in a foster family with whom he has remained ever
since.

A disposition hearing was held in March 2014. At the hearing, DCF proposed a plan of
reunification with the mother or father within a four-to-six-month time frame. The plan, which
was approved by agreement, called for father to: (1) maintain safe and appropriate housing; (2)
remain clean and sober; (3) provide appropriate supervision of W.B. at all times; (4) assure that
W.B.’s medical, physical, and emotional needs were met on a regular basis; (5) provide
urinalysis samples to DCF and other service providers as necessary; (5) sign releases for DCF;
(6) engage in a parent support program; (7) attend scheduled visitation with W.B.; and (8)
complete an updated drug and alcohol assessment and follow its recommendations.

Father completed a substance assessment that same month. Although father reported that
he had last used cocaine in 2009, in fact he had tested positive for cocaine as recently as June
2013. Father acknowledged daily marijuana use and occasional alcohol use, but his testing
showed a heavier use of alcohol than reported. The person providing the assessment
recommended outpatient treatment, and father began individual counseling.

Following a post-disposition review hearing in May 2014, parent-child contact between
father and W.B. was expanded, with the court directing DCF to explore additional visitation at
father’s home. In June 2014, a fire destroyed the apartment building in which father lived, and it
was another nine months before father found stable housing. DCF proposed a new case plan that
called for reunification within three months or adoption. The parents objected to the case plan.
In November 2014, father suffered a medical condition that required his hospitalization for
several weeks.

In January 2015, DCF proposed adoption as the sole case plan goal and filed petitions to
terminate both father’s and the mother’s parental rights. The termination hearing was held over
two days in October and December 2015. Mother voluntarily relinquished her parental rights
during the first day of the hearing.

Following the hearing, the family court terminated father’s parental rights, concluding
that his parenting ability had stagnated and that termination of his parental rights was in W.B.’s
best interest. Regarding stagnation, the court noted that nearly two years after the initial
disposition plan called for reunification within four to six months, father was still struggling with
his sobriety and had ceased working with his counselor. The court further noted that father had
been warned about the potential dangers of using alcohol and marijuana in conjunction with

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methadone, but that he continued to do so and had not been candid with DCF about the extent of
his alcohol and marijuana use. The court stated that father’s lack of candor regarding the extent
of his drug use puts the success of his case plan in jeopardy.

As far as W.B.’s best interests, the family court acknowledged that W.B. and father have
a close relationship and that father had engaged in regular visitation during which he had shown
obvious signs of love and affection toward the child. The court also found that W.B. had a close
and loving bond with his foster mother and her family, and that W.B. had spent half his life in
her care. He had made strong adjustment to his foster home, fully integrating into his household.

With respect to father’s ability to resume parental duties within a reasonable time, the
court found that father had demonstrated an ability to care for W.B. for limited periods of time.
But father had not been involved with W.B.’s medical appointments, and had temporarily lost
the child’s benefits from a state nutritional program when he was made responsible for
maintaining those benefits. The court was most concerned with the extent of father’s continued
drug use, noting again that marijuana and alcohol used in combination with father’s prescription
medications was a serious concern, particularly given ongoing issues regarding father’s ability to
ensure W.B.’s safety. The court observed that even after his past carelessness with his
methadone pills, which resulted in dire consequences for W.B., father continued to leave his pills
in the open and also continued to have knives displayed in his apartment despite being told that
some of them were within W.B.’s reach. Noting that DCF had worked with the family for a year
before filing the petition in court, and two more years have passed, and father is still “at the
beginning” in terms of sobriety, the court concluded that W.B. needs permanency.

Finally, the court’s assessment of the fourth factor—whether the parent has played and
continues to play a constructive role—was mixed. On the one hand, father has consistently
demonstrated love and affection and emotional support for the child. On the other hand, he has
exposed the child to danger due to his substance abuse, which has been destructive.

In light of its analysis of the relevant factors, the court concluded that W.B.’s best interest
would be served by terminating father’s parental rights without limitation as to adoption.

On appeal, father argues that the family court placed an inordinate emphasis on the third
statutory best-interests factor—whether he would be able to resume parental duties within a
reasonable period of time—which he insists is not the most critical factor in a situation such as
this, where the parent plays a positive role in the child’s life. See In re J.M., 2015 VT 94, ¶ 14
(stating that parent’s ability to resume parental duties has been identified as most important of
statutory best-interest factors, “but not to the exclusion of the remaining statutory criteria”
(emphasis in original)). Father contends that whatever question there is concerning his ability to
be a custodial parent, his parenting skills as a noncustodial parent have been very good.

We do not find this argument persuasive. We agree that in certain situations the other
best-interest factors may override the reasonable-period-of-time factor. See In re J.F., 2006 VT
45, ¶ 13, 180 Vt. 583 (mem.) (stating that “in some cases a loving parental bond will override
other factors in determining whether termination of parental rights is the appropriate remedy”).
Whether a parent will be able to resume parental duties within a reasonable period of time from
the perspective of the child is not dispositive, but remains the most critical of the four factors. In
re J.M. does not suggest otherwise. Here, the family court did not ignore the other statutory
factors, but rather considered them in conjunction with the most critical factor and the
circumstances of this case. In doing so, the court acknowledged and credited father for having a

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loving, if limited, relationship with W.B. Notwithstanding his attributes as a noncustodial
parent, however, the court concluded that father could not keep W.B. safe on a regular basis
because of his ongoing drug use and his likely related laxness toward potential dangers. Further,
the court concluded that W.B. needs permanency and cannot wait any longer for father to reach
the point where he can parent the child safely. The court’s findings, and the evidence upon
which they are based, support these conclusions. In re J.M., 2015 VT 94, ¶ 8 (stating that our
role in reviewing termination decision “is not to second-guess the family court or to reweigh the
evidence,” but rather to uphold findings that are not clearly erroneous and conclusions that are
reasonably supported by those findings and “to determine whether the court abused its discretion
in terminating . . . parental rights” (quotation omitted)).

Affirmed.

BY THE COURT:

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John A. Dooley, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice

_______________________________________
Beth Robinson, Associate Justice

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