In re D.B.

635 A.2d 1207, 161 Vt. 217, 1993 Vt. LEXIS 112
CourtSupreme Court of Vermont
DecidedDecember 10, 1993
DocketNo. 92-539
StatusPublished
Cited by24 cases

This text of 635 A.2d 1207 (In re D.B.) 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 D.B., 635 A.2d 1207, 161 Vt. 217, 1993 Vt. LEXIS 112 (Vt. 1993).

Opinion

Morse, J.

Biological parents appeal the family court’s order terminating their residual rights to parent their four daughters. 33 V.S.A. §§ 5532, 5540 (TPR proceeding). At the time of hearing, the girls were aged 12, 8, 6, and 5. The parents take issue with the court’s essential finding that their progress was insufficient to warrant further rehabilitation efforts toward reuniting the family. They also maintain that less drastic alternatives to termination of parental rights were not adequately explored and that the court improperly denied them a hearing on motions to reopen the evidence. We affirm.

In February 1990, all four girls were adjudicated children in need of care and supervision (CHINS), pursuant to 33 V.S.A. § 5502(a)(12)(A), (B), in part because of sexual abuse, including an older brother’s sexual contact with two of the girls and three of the girls viewing pornographic acts in their parents’ presence and with their encouragement. Consequently, legal custody and guardianship of the daughters were transferred to the Department of Social and Rehabilitation Services (SRS). In January 1992, after multiple foster care placements, the girls were placed together with foster parents willing to adopt them. In May 1992, SRS brought termination proceedings, which resulted in termination of parental rights with respect to all four girls.

In early 1990, SRS’s case plan was designed to reunite the girls with their parents by providing for psychological evaluation of the parents, parental education in properly disciplining and protecting the children, and counseling for all family members. Then, in August 1990, two of the girls alleged their father had sexually abused them, behavior that was later confirmed by his admission. Mother admitted she was involved in the abuse by encouraging the girls to touch father’s penis on numerous occasions. In October 1990, the parents moved to Florida, despite SRS’s attempt to dissuade them because of the adverse impact the move would have on rehabilitation efforts. The children remained in foster care in Vermont. Mother returned a few months later while father remained in Florida.

Meanwhile, father had been charged here with lewd and lascivious behavior with two of his daughters and sexual assault on a relative. When he eventually returned from Florida in January 1991, he was incarcerated until spring when the criminal [219]*219charges were resolved by plea agreement. He was placed on probation with conditions aimed at controlling his sex offending. Mother admitted using cocaine but refused treatment until February 1992, when she entered a drug program. At the time of the May 1992 hearing, she had experienced alternating periods of abstinence and relapse, but had been cocaine-free for the five previous days. Father began general counseling in March 1991 and sex offender treatment in August 1991, but, given his parenting deficiency, the family court determined he would need “a minimum of one and up to two years” of treatment to develop parenting capacity. Moreover, for father “to realistically reassume or assume his parental responsibilities at the end of that time,” mother would have to be free of drug addiction. The court concluded that “for (father) to parent the children successfully, he must have the assistance of the children’s mother . . . they must function as a unit or not at all.”

During the time between the transfer of the girls’ custody to the State and the TPR hearing, progress toward unification of the family was hampered by the parents’ erratic visits and their inconsistent commitment to treatment. The court found the girls have adapted well to the family wishing to adopt them and that the children need to settle down with responsible parents. The family court concluded that any further delay would exacerbate their emotional instability and would not be in their best interests.

A court may terminate parental rights at a modification hearing if it finds that there has been a substantial change in material circumstances since the disposition order and that termination is in child’s best interests. In re A.F., 160 Vt. 175, 177, 624 A.2d 867, 869 (1993). The child’s best interest is to be determined by the criteria in 33 V.S.A. § 5540. “Stagnation” of parental ability is often the change in circumstances alleged in these cases. Id.; In re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890 (1990). The change in circumstances is the failure of the expectation that parental ability to care for a child will improve within a reasonable time after the CHINS adjudication. The key factor affecting the child’s best interests is the likelihood that the biological parent or parents will “be able to resume ... parental duties within a reasonable period of time.” 33 V.S.A. § 5540(3); see In re E.G., 139 Vt. 171, 173, 423 A.2d 1197, 1198 [220]*220(1980) (whether family can be reunited in a reasonable time is now prime consideration in termination proceeding).

The parents claim there is no clear and convincing evidence supporting a finding of stagnation because the court found the issue was “an exceedingly close call” and there was “some improvement in the father, and some efforts on the part of the mother, albeit belated, to improve her condition as well.” Father’s therapist had concluded that progress in treatment had been “substantial.” They argue that, for stagnation to occur, improvement must be nonexistent and, in support, cite In re J.R., 153 Vt. 85, 99, 570 A.2d 154, 161 (1989) (stagnation may be shown by “passage of time with no improvement in parental capacity to care properly for the child”) (emphasis added).

Our more recent cases, however, do not support the parents’ interpretation of J.R.. In In re J.M., 160 Vt. 146, 149, 624 A.2d 362, 364 (1993), parents whose rights were terminated contended that “stagnation is properly defined as a situation where there has been a complete lack of movement toward reunification.” We held, to the contrary, that stagnation may be found even though a parent’s generalized parenting skills improve. Id.; see also A.F., 160 Vt. at 181-82, 624 A.2d at 871, and cases cited therein (that parent showed some progress does not preclude finding of changed circumstances if it is unlikely that parent will be able to resume parental duties in a reasonable time). Rather, the question is whether the improvement substantially conformed with the expectations at the time of the CHINS adjudication and with SRS’s case plan. If the expectation of improvement has been met, there is no change in circumstances. If, however, the expected improvement has not occurred, there may be a change in circumstances; if such a change is shown, the inquiry shifts to what outcome will be in the child’s best interests.

The court’s conclusions, that the children’s lives would be adversely affected by maintaining the status quo and that adoption was in their best interests, were supported by the evidence. The court stated:

At the time of disposition the parents were totally unfit to have custody of their children. As discussed above, the likelihood that either parent will be able to resume parental [221]*221duties within a year of the hearing is nil.

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Bluebook (online)
635 A.2d 1207, 161 Vt. 217, 1993 Vt. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-db-vt-1993.