In re J.M.

Skoglund, J.,

dissenting.

In this case of a special-needs child, the trial court acknowledged that there was no likelihood that father could resume parental responsibilities within a reasonable period of time — the critical best-interests factor — but, with scant evidence to support its decision and findings that would appear to argue against it, denied the motion to terminate father’s parental rights. I would reverse the trial court’s decision to deny termination.

¶ 17. Let’s be clear about the reasons J.M. first came into custody in July 2009. The Department for Children and Families (DCF) sought custody of W.M. and J.M. through an emergency care order (ECO). The ECO was granted based on allegations of noncompliance with the conditional custody order (CCO) that had been granted in February 2009 and noncompliance with current safety plans. Specifically, the safety plan included a condition of no contact between father and the children, based on his violent behaviors and substance abuse. Then, in May 2010, custody was returned to mother and father under a new CCO that included conditions that father remain sober and that mother and father not engage in violent behavior. Sometime in December 2011, *635father left the home to prevent the family from being evicted due to his drinking and belligerent behavior. The couple is now divorced. DCF has never recommended placement with father as a disposition goal.

¶ 18. This ten-year-old child has significant issues. As the court found, he has three diagnoses: post-traumatic stress disorder, opposition defiance disorder, and attention deficit hyperactive disorder. He has been in residential care for about two years. When it becomes therapeutically appropriate, J.M. could be moved to a skilled foster home. The father, it appears, has significant issues as well, primarily related to substance abuse and aggression. The court found that father’s progress in dealing with these issues had been insufficient and inadequate — support for the court’s finding of father’s stagnation.

¶ 19. The paramount concerns of the juvenile statutes are safety and permanency for children. 33 V.S.A. § 5101(a)(4); In re A.W., 2013 VT 107, ¶ 10, 195 Vt. 226, 87 A.3d 508. The optimal paths to permanency for a child are reunification or adoption. 33 V.S.A. § 5321(a). As the court below found, father’s stagnation in addressing or.attempting to resolve his issues removes reunification as an option. Thus, the ruling denies either road to J.M. and creates uncertainty about his future.

¶ 20. In evaluating the evidence under the statutorily stated “best interests of the child” factors, id. § 5114, the court found a basis for continuing father’s parental rights in § 5114(a)(4), which considers “whether the parent has played and continues to play a constructive role, including personal contact and demonstrated emotional support and affection, in the child’s welfare.” The evidence showed that father has never played what any reasonable person would consider a constructive role in J.M.’s life. Indeed, the most that can be said of father’s relationship with J.M. is that he visits. Unfortunately for J.M., the court exalted consistency of contact above quality of contact. The court found father has “somewhat of a flat affect” towards J.M. at visits. Father sometimes plays with J.M., but sometimes just sits and watches him. “He does not express much affection explicitly.” The court found that father did not play a particularly constructive role in J.M.’s life, but hopefully concluded that father’s consistent contact with J.M. “may . . . provide some emotional support.”

¶21. Not only is this speculative conclusion not supported by the court’s findings, it is in contrast to the court’s conclusion *636concerning J.M.’s older brother, W.M. The court found that W.M. had a good relationship with father and enjoyed time with him, but could not find that there was very much emotional support because of father’s flat affect. The court explained, “It seems to be a good relationship but I don’t believe there is much, if any, emotional support that is being perceived at least by W.M.” Finding father was not able to resume parenting of W.M. within a reasonable period of time, the court terminated his parental rights to W.M. While the court may have hoped that father’s mere presence at visits “may” provide something approaching emotional support to J.M., his younger, more damaged child, there is nothing in the court’s findings that supports that wishful thinking.

¶ 22. It is possible there will be a case in which the parent-child bond is so loving and strong that, despite an inability to resume parental duties within a reasonable period of time, termination of parental rights would not be in the child’s best interests. See In re J.F., 2006 VT 45, ¶ 13, 180 Vt. 583, 904 A.2d 1209 (mem.). But, according to the actual findings of the court below, this is not that case.

¶23. In this Court’s review of a termination decision, conclusions of law will be upheld if supported by the findings, In re A.F., 160 Vt. 175, 178, 624 A.2d 867, 869 (1993), but conclusions not supported by the findings cannot be sustained, In re 2011 VT 30, ¶ 14, 189 Vt. 372, 22 A.3d 423. The role of this Court is indeed limited; however, I cannot find that the trial court’s exercise of discretion can be sustained. I would reverse.

¶24. I am authorized to state that Chief Justice Reiber joins this dissent.