Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2016-395
MARCH TERM, 2017
In re D.H. and A.H., Juveniles } APPEALED FROM:
}
} Superior Court, Lamoille Unit,
} Family Division
}
} DOCKET NO. 46/48-10-14 Lejv
Trial Judge: Dennis R. Pearson
In the above-entitled cause, the Clerk will enter:
Father appeals from the termination of his parental rights in D.H. and A.H. He argues that
the court erred in making one of its findings and erred in concluding that termination of his rights
was in the children’s best interests. We affirm.
Parents have a long history with the Department for Children and Families (DCF). DCF
first became involved with the family in 2006, and the issues that concerned DCF at that time with
K.D., mother’s child with another father, remained essentially the same through the birth of D.H.
in July 2007, and A.H. in July 2013. These issues include chronic homelessness and an inability
to consistently provide for the family’s basic needs, and later, an inability to control and supervise
K.D. with respect to his interactions with the two younger children. In October 2014, DCF filed
a petition alleging that the children were in need of care or supervision (CHINS). At that point,
the family was again homeless and living out of their vehicle and sleeping in a tent. Father was
again briefly incarcerated, and K.D. was “out of control” and abusing his younger siblings. Mother
lacked funds for basic necessities. The children were taken into DCF custody on an emergency
basis. In December 2014, parents stipulated that the children were CHINS. Parents eventually
stipulated to disposition and continued custody of the children with DCF. In September 2015,
DCF moved to terminate parents’ rights. Following a three-day hearing, which concluded in
August 2016, the court granted DCF’s request.
The court found, among other things, that mother was unable to follow through consistently
with services, and she consistently failed to meet the expectations in the case plan. The court
explained that between March 2015 and September 2015, parents had to change housing eleven
times, including several stints at different motels. Father was arrested during this time. Although
father was required to regularly attend mental health treatment and anger management counseling
sessions, he was not doing so. Parents also had several threatening and hostile interactions with
DCF staff and visitation supervisors during the summer of 2015. This led to temporary stoppage
of services, including Family Time coaching. In August 2015, parents applied to resume
supervised visitation, but visitation did not begin, in part because parents failed to demonstrate that
they were in compliance with their mental health treatment plans.
While the children were in custody, father continued to be significantly involved in various
criminal cases, with new charges, and violations of furlough and/or probation. This made it
difficult for him, and mother, to maintain stability, including housing and employment. Despite
anger management counseling, father continued to be volatile and his behavior led to violations-
of-probation (VOP) charges and sanctions. In June 2016, father was charged with his fourth VOP
for drinking alcohol and then getting into an altercation and physically resisting when his probation
officers attempted to take him into custody. Father became increasingly out of control and
combative, and then assaultive, as he was being processed, including making death threats against
the officers and damaging personal and Department of Corrections (DOC) property. As of August
2016, father remained in DOC custody; his probation had been revoked and he was serving a two-
year sentence. Father was still waiting to be released on furlough, with his inability to find
approvable housing being the most significant impediment to his supervised reentry. Father was
also facing new charges of simple assault on a police officer and unlawful mischief, stemming
from the incident discussed above. Father has also been diagnosed with schizophrenia.
The court noted that father primarily blamed DCF and others for his inability to make
substantial progress on the reunification plan. Father complained that parents were unable to make
progress because DCF social workers failed to return their calls and emails. The court rejected
this argument, crediting instead testimony by DCF social workers, “supported by their case file
and notes,” that there were very few, and very sporadic calls and contacts from parents for almost
the entire two years that the cases were pending. The court found that parents’ attitude toward
DCF persistently thwarted whatever ability they might otherwise have had to take advantage of
many of the services and support offered to them.
Parents are no longer a couple. Mother conceded that there was domestic violence in the
home, witnessed by the children. Mother had not had in-person contact or visitation with the
children for over a year by the time of the TPR hearing. Father’s last in-person contact with the
children was in July 2015.
Based on these and other findings, the court concluded that parents had stagnated in their
ability to parent and that termination of their rights was in the children’s best interests. It explained
that father was still not effectively engaged in regular and continuous treatment and counseling for
his mental health issues; he had no stable home; and he had no apparent ability to support and care
for himself or his children. As of August 2016, father was still incarcerated, with no indication of
when he might be released due to his failure to identify acceptable housing. Given father’s
criminal history and continuing inability to control his anger and volatility, there was a substantial
risk that he would again become involved in further criminal proceedings even after his release,
thereby further complicating his ability to provide a stable home life and permanency for D.H. and
A.H. While father might at one time have had a parental bond with and shown substantial affection
for his two children, the court found that he had not had any meaningful contact with D.H. and
A.H. in many months, and that any bond that previously existed had largely dissipated. Father had
not played a constructive role for some time in his children’s lives. The court concluded that
father’s failure to position himself to resume parenting, in the almost two years since the cases
were commenced, was overwhelmingly the result of his own choices and his own actions, and it
was not due to factors beyond his control. This appeal by father followed.
Father first challenges the court’s finding that the testimony of the social workers regarding
parents’ failure to communicate was “supported by their case files and notes.” He asserts that the
social worker who testified did not indicate that her testimony was based on case files and notes.
2
Even if the court erred in making this statement, the error is harmless. As we have
explained, “where a finding of fact that supports the conclusion of the court is clearly erroneous,
we find harmless error if other valid findings also support the court’s conclusion.” In re G.F., 2007
VT 11, ¶ 15, 181 Vt. 593 (mem.). The court’s decision did not turn on this point. Instead, as
detailed above, the court found that father made no progress toward being able to resume the care
and custody of the children. He failed to engage in necessary treatment, he had no stable home,
no ability to support himself or care for the children, he was incarcerated, he continued to commit
crimes, and he remained unable to control his anger and volatility. The court’s findings amply
support its conclusion that father had stagnated in his ability to parent and that termination of his
rights was in the children’s best interests.
Finally, father argues that the court misstated the law concerning the relevance of a parent’s
inability to resume parenting due to factors beyond that parent’s control. The court did not find in
this case that father’s failure to comply with the case plan was due to factors beyond his control,
and thus, any error that might exist in the court’s statement is immaterial. It is evident that the trial
court applied the appropriate statutory standard in evaluating the children’s best interests, and its
decision is supported by the record. See In re G.S., 153 Vt. 651, 652 (1990) (mem.) (explaining
that as long as trial court applied proper standard in evaluating child’s best interests, Supreme
Court will not disturb its findings on appeal unless they are clearly erroneous and will affirm its
conclusions if they are supported by the findings).
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Harold E. Eaton, Jr., Associate Justice
3