In Re CL

563 A.2d 241
CourtSupreme Court of Vermont
DecidedApril 14, 1989
Docket88-113
StatusPublished

This text of 563 A.2d 241 (In Re CL) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re CL, 563 A.2d 241 (Vt. 1989).

Opinion

563 A.2d 241 (1989)

In re C.L. and H.L.

No. 88-113.

Supreme Court of Vermont.

April 14, 1989.
Motion for Reargument Denied May 4, 1989.

*242 Jeffrey L. Amestoy, Atty. Gen., Montpelier, Barbara L. Crippen, Sp. Asst. Atty. Gen., and Michael O. Duane, Asst. Atty. Gen., Waterbury, for plaintiff-appellee.

Michael Rose, St. Albans, for defendant-appellant.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

Respondent J.L., mother of the minor children C.L. and H.L., appeals from the trial court's order terminating her residual parental rights and transferring custody of the children to the Department of Social and Rehabilitation Services (SRS) without limitation as to adoption. We affirm.

SRS's first involvement with this family came in 1982 when C.L., the elder child, was three months old. At that time, SRS received a report that C.L. had been left in the care of the reporter and that respondent's whereabouts were unknown. After this incident, a voluntary protective services case was opened, with goals to assist *243 respondent in obtaining substance abuse counseling, education, stable housing and parental training.

In December of 1983, eight months after H.L. was born, SRS filed a petition with the Franklin District Court under 33 V.S.A. § 645 alleging that both C.L. and H.L. were children in need of care and supervision (CHINS). After a hearing on the merits, the children were adjudicated CHINS on December 21, 1983. A disposition hearing was held the following month, and on January 27, 1984 the court issued an order transferring legal custody and guardianship of the children to SRS. Respondent did not appeal either decision.

Disposition review hearings pursuant to 33 V.S.A. § 658 were held on May 28, 1985 and on October 10, 1986. SRS's recommendation at the first review was to continue the case plan already in place and, if all went well, it would petition for discharge from custody. Its recommendation at the October 10, 1986 review was to extend the case plan until December in order to give respondent additional time for compliance with its goals. On both occasions, the court concurred with the recommendations of SRS and continued custody and guardianship of the children with the agency.

On June 4, 1987, SRS filed a petition pursuant to 33 V.S.A. § 659 to modify the original disposition order to transfer respondent's residual parental rights to the Commissioner of SRS without limitation as to adoption. After a hearing on July 31st, the court issued an order on January 14, 1988 granting the requested modification and terminating respondent's parental rights in C.L. and H.L.

Respondent presents numerous claims of error on appeal. First, she alleges that the trial court failed to make an explicit jurisdictional finding of "changed circumstances" as required in modification petitions under 33 V.S.A. § 659, and that the evidence does not support such a finding. Next, she contends that the court failed to use the correct "clear and convincing evidence" standard of proof in reaching its determination. She also states that the court failed to make any findings of abuse or neglect of the children, erroneously relied on the SRS case plan in measuring maternal fitness, placed undue emphasis on whether the children had bonded with respondent, and made insufficient findings concerning the children's grandmother (respondent's mother), a "significant person" in their lives. Finally, respondent assigns as error a number of the court's findings, claiming that they were speculative, unsupported by the evidence, or irrelevant. We shall address each of these claims in turn.

I.

A.

Section 659(a) of 33 V.S.A. provides that "[a]n order of the court may also be amended, modified, set aside or terminated by that court at any time upon petition therefor by a party or on its own motion on the ground that changed circumstances so require in the best interests of the child." Respondent claims that since the trial court failed to make an explicit finding of changed circumstances, it did not meet the jurisdictional prerequisite for modification. In addition, she contends that in ascertaining whether circumstances had changed, the court could examine only the time period since its last judicial review in October of 1986. In other words, she claims that the court was precluded from reviewing how circumstances may have changed since the original disposition order in January of 1984.

This Court has never held that the absence of an explicit finding as to changed circumstances requires the reversal of a modification order pursuant to 33 V.S.A. § 659. Instead, when confronted with cases in which the statutory factors outlined in 33 V.S.A. § 667 (best interests of the child) were not specifically enumerated, we have stated that it was "not necessary, however, that the court couch its findings in the precise language of [the statute], as long as it is evident that the court fully considered" these criteria. In re G.V., 136 Vt. 499, 502, 394 A.2d 1126, 1128 (1978); see also In re E.G., 139 Vt. 171, 174, 423 A.2d 1197, 1198 (1980) (enumeration of *244 § 667 factors was "unnecessary formality"). While we agree that it is the better practice to enunciate clearly that changed circumstances have been found, the findings in this case are replete with facts sufficient to meet the required standard. Inasmuch as the children's best interests are of paramount importance in this kind of proceeding, we will not reverse the trial court's disposition on a technicality.

A change in circumstances sufficient to modify a disposition order was found on almost identical facts in In re Certain Neglected Children, 134 Vt. 74, 349 A.2d 228 (1975). There, three years had passed since the initial order transferring custody to SRS, during which time, in spite of all the services provided the mother, she had not been able to effect changes in her living habits and style. "[T]he passage of three years' time here, coupled with no improvement in parental capacity to care properly for her children, constitutes a change of circumstances sufficient to support the transfer of residual parental rights to the State." Id. at 77, 349 A.2d at 230.

This lack of improvement, sometimes referred to as "stagnation" or "deterioration," has often served as the basis for a finding of changed circumstances. See, e.g., In re D.P., 147 Vt. 26, 30-31, 510 A.2d 967, 970 (1986) ("The passage of time without any improvement for the better—`stagnation in parental capacity'—may establish a material change in circumstances.") (quoting In re Certain Neglected Children, 134 Vt. at 77, 349 A.2d at 230); In re G.V., 136 Vt. at 502, 394 A.2d at 1128 (petitions to modify an order to terminate parental rights proceed on theory "`that natural parents have an obligation to correct their living circumstances for the better... and that there has been a deterioration or that there exists stagnation coupled with a prospective inability for improvement'") (quoting In re J. & J.W., 134 Vt. 480, 484, 365 A.2d 521, 524 (1976)).

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In re C.L. & H.L.
563 A.2d 241 (Supreme Court of Vermont, 1989)

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563 A.2d 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cl-vt-1989.