In Re DC

712 A.2d 902
CourtSupreme Court of Vermont
DecidedMay 1, 1998
Docket97-210
StatusPublished

This text of 712 A.2d 902 (In Re DC) 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 DC, 712 A.2d 902 (Vt. 1998).

Opinion

712 A.2d 902 (1998)

In re D.C., Ca.L. and Ch.L., Juveniles.

No. 97-210.

Supreme Court of Vermont.

May 1, 1998.

*903 Michael Rose, St. Albans, for Appellant/Mother.

Charles S. Martin of Martin & Associates, Barre, for Appellant/Father.

William H. Sorrell, Attorney General, Montpelier, and Barbara Crippen, Assistant Attorney General, Waterbury, for Appellee.

Before DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, Justice.

Mother and father both appeal an order of the family court granting the petition of the Commissioner of Social and Rehabilitation Services (SRS) to terminate residual parental rights. See 33 V.S.A. §§ 5532, 5540. Mother claims that the court erred in finding a substantial change of material circumstances. Father claims that the court erred in concluding that termination of his residual parental rights was in the best interests of the children. We affirm.

This case involves three children: D.C., Ca.L., and Ch.L., ages twelve, ten, and nine respectively. D.C. is the biological child of mother. The biological father of D.C. has relinquished his parental rights and is not part of this appeal. Ca.L. and Ch.L. are the biological children of mother and father.

SRS initially became involved with the family in 1991, when mother herself reported that she had hit Ch.L., who was then two years old, with a spoon. The report was investigated and substantiated as Ch.L. had a bruise and a welt. SRS next became involved in February 1993, when then seven-year-old D.C. was sexually abused by father's own father. Prior to 1994, mother and father received in-home services from the Vermont Nurses Association, the Intensive Family Based Services program, and the Lund Family Center.

On September 12, 1994, the State filed petitions with the Chittenden Family Court seeking to have the three juveniles adjudicated children in need of care and supervision (CHINS). The petitions were accompanied by two affidavits, one by a police officer, the other by an SRS caseworker, describing incidents that had occurred on September 9, *904 1994, which had resulted in SRS assuming temporary custody of the three children. In his affidavit, the police officer described two incidents in which the children had been outside playing in a road without supervision, noted that mother's apartment appeared to be unclean and unkept and that one child had a dirty face and clothing, and stated that mother was too stressed (to the point of having attempted suicide) to care for her children. The officer's affidavit also stated that father was interested in caring for the children but lacked a residence. The caseworker's affidavit recommended removal of the children from mother's home based on mother's stated inability to care for them and father's lack of residence.

At the merits hearing held on October 10, 1994, mother, father, and the State agreed to a CHINS adjudication. A disposition hearing was held on December 6, 1994, and an order of disposition was issued on January 25, 1995. The family court adopted the disposition report filed by SRS on January 12, 1995, somewhat modified by agreement of the parties, and ordered custody and guardianship of the juveniles to be transferred to SRS, with the residual parental rights remaining with the parents. The report contained a plan of services to assist the family in reuniting in a timely manner. The three facts that the court found supported SRS custody were:

1. That on 9/9/94 [mother] was emotionally unable to adequately care for her 3 children and she refused to continue doing so.
. . . .
[2]. That neither [mother] or [father] have adequate housing to provide a minimal level of care for the 3 children.
[3]. That [father] has a history of explosive anger and that he attempted to assault [mother] and her present partner [M.H.] in August of 1994.

A dispositional review was held on February 26, 1996. At that hearing, SRS changed its goal from reunification of the family to termination of the parents' residual parental rights so that the children could be freed for adoption. SRS claimed that the reasons that originally brought the juveniles into custody had not been resolved. The parents moved for a forensic evaluation and, over SRS's objection, their motion was granted. The evaluation was conducted in March and April 1997 by Dr. William Nash, who recommended termination of parental rights.

An evidentiary hearing commenced on April 8, 1997, and concluded on April 21, 1997. The court issued its findings of fact, conclusions of law, and order on May 19, 1997. The court made eighty-seven findings, concluded that a change in circumstances had occurred in that the parents had not improved their parenting abilities and would not within a reasonable period of time, and ordered the termination of parents' residual parental rights. This appeal followed.

In a proceeding to terminate parental rights "[t]he State must prove by clear and convincing evidence that there has been a material change in circumstances and that the best interest[s] of the child[ren] require[] termination of parental rights and responsibilities." In re J.R., 164 Vt. 267, 270, 668 A.2d 670, 673 (1995). "Individual findings of fact will stand unless clearly erroneous, and 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). When findings are challenged on appeal, "our role is limited to determining whether they are supported by credible evidence." Id.

I.

First, we address mother's claim that the family court erred in finding a substantial change in material circumstances. A substantial change in material circumstances is most often found when the parent's ability to care properly for the children has stagnated. See id. at 177, 624 A.2d at 869. Where, as here, stagnation is the alleged change in circumstances, "the question is whether the [parent's] improvement substantially conformed with the expectations at the time of the CHINS adjudication and with SRS's case-plan, [and][i]f the expectation of improvement has been met, there is no change in circumstances." In re D.B., 161 Vt. 217, 220, 635 A.2d 1207, 1210 (1993). Accordingly, *905 the burden is on SRS to demonstrate "that there is no reasonable possibility that the causes and conditions which led to the filing of the petition can be remedied and the family restored within a reasonable time." In re R.B., 152 Vt. 415, 421, 566 A.2d 1310, 1313 (1989) (citation and internal quotations omitted).

On appeal, mother makes two arguments. First, she alleges that the three facts justifying SRS custody have been remedied in substantial part, and thus there is no stagnation on which to base a conclusion of changed circumstances. Second, she claims that SRS improperly relied on pre-merits parenting deficiencies as a baseline for assessing a change in circumstances. Relying on In re D.B., she claims that the baseline circumstances should have been those adjudicated in the original CHINS proceeding.

We begin by addressing mother's first argument.

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Related

In re R.B.
566 A.2d 1310 (Supreme Court of Vermont, 1989)
In re A.F.
624 A.2d 867 (Supreme Court of Vermont, 1993)
In re D.B.
635 A.2d 1207 (Supreme Court of Vermont, 1993)
In re J.R.
668 A.2d 670 (Supreme Court of Vermont, 1995)
In re D.C.
712 A.2d 902 (Supreme Court of Vermont, 1998)

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Bluebook (online)
712 A.2d 902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dc-vt-1998.