In re J.G.

2010 VT 61, 2 A.3d 817, 188 Vt. 562, 2010 Vt. LEXIS 58
Supreme Court of Vermont·Decided June 22, 2010·No. Nos. 09-359 & 09-434·Published·Cited by 16 cases

Opinion

¶ 1. Father appeals from a family court order terminating his residual parental rights to the minor J.G. Father contends the court erred in: (1) finding that there had been a substantial change of material circumstances; and (2) amending its original termination order to provide for a transfer of custody to the minor’s stepmother. We affirm.

¶ 2. The factual and procedural history of this appeal may be summarized as follows. J.G. was born in June 1998. He initially lived with his mother in New York and had visits from his father, who resided in Vermont. In April 2000, the New York Family Court ordered a change of custody, placing the child with father and stepmother in Vermont. Stepmother thereupon became the child’s primary care provider and, except for a brief period noted below, has continued in that role ever since.

¶ 3. Concerns about father’s use of corporal punishment and the child’s emotional health were brought to the attention of the Department for Children and Families in June 2002, and the case thereafter remained open. In January 2004, the family court issued a final relief from abuse order restricting father’s contact with the child. Stepmother and father were divorced the following July. J.G. continued to reside with stepmother and had limited visits with father.

¶4. DCF remained concerned about evidence of bruising on the child's arms and legs and, in July 2004, took him into temporary custody. Father and stepmother stipulated to a CHINS adjudication in April 2005. J.G. remained in foster care until May 2005, when he was returned to stepmother’s custody. While J.G. was in DCF custody, stepmother began counseling and engaged in regular and generally positive visits with the child. Father’s visits, in contrast, elicited anger, fear, and emotional distress in the child, and the visits were eventually discontinued in April 2005. In June 2005, a permanency planning review concluded that father had failed to meet the expectations of the case plan that he engage in counseling and address his role in the child’s emotional distress. The plan also noted that J.G.’s mother had not had any contact with him for years. Accordingly, DCF filed a petition to terminate father’s and mother’s parental rights.

¶ 5. The court held a contested termination hearing over several days in October and November 2005. Mother was served but failed to appear at the hearing. Stepmother was granted limited party status and was present and represented by counsel. The court issued a written decision in February 2006. Based on the evidence, including a forensic evaluation of the family, the court found that the child’s relationship with father had been a source of severe stress and fear; that father had made no effort to seek counseling, attain an understanding of his role in inducing fear in the child, or develop an appreciation of the child’s physical and emotional needs; and that father’s continued contact would be detrimental to the child’s physical and emotional health.

¶ 6. Nevertheless, the court concluded that termination of father’s parental rights was not absolutely necessary to establish permanency for the child because stepmother was providing a stable home environment. It was sufficient, the court found, to suspend parent-child contact for a significant period of time to allow father time to seek counseling and the child “to heal and grow.” Accordingly, the court denied the termination petition and ordered that contact be suspended [563] and could only be resumed after a period of three years, conditioned upon a showing that father had “consistently and actively engaged in counseling and . . . achieved sufficient insight into [J.G’s] emotional situation and anxiety [such] that [father] can play a positive role in the child’s emotional development.” The court granted the petition as to mother. Finally, based upon its findings that stepmother had been the child’s primary care provider for most of his life, that he viewed her as his main parental figure and support, and that she had provided a positive and stable environment, the court “vacated” the previous order entrusting custody to DCF and transferred legal custody to stepmother.

¶ 7. Permanency review hearings were held in June 2006, March 2007, and April 2008. At the April 2008 review, the court approved a permanency plan calling for adoption by stepmother, and ordered that a hearing be scheduled in February 2009. On February 11, 2009, the child, through his court-appointed attorney, filed a motion to terminate father’s parental rights. The court held an evidentiary hearing in early August 2009 and issued its decision later that month. Father acknowledged, and the court found, that he had failed to engage in counseling to help him understand and address J.G.’s emotional needs. Instead, he had spent the last three and a half years investigating the people who, in his view, had “illegally” taken away his child. Based on this evidence and its findings that father “has completely ignored the court’s [earlier] decision and... has not taken any steps that would help him better understand his son and the effect of [his] actions on his son,” the court concluded that the circumstances had stagnated and that this constituted a real and substantial change of circumstances.

¶ 8. Applying the statutory best-interests criteria, the court further found that, as a result of father’s demonstrated refusal to accept any responsibility for the child’s severe emotional problems or engage in any counseling over the previous three years, there was no likelihood that he would be able to resume parental responsibilities within a reasonable time. The court found that, over the same time period, J.G.’s relationship with stepmother had “blossomed,” and that he had made “dramatic improvements” in his life, had adjusted well to his school and community, and was thriving socially and academically. Accordingly, the court ordered that father’s residual parental rights be terminated and that custody be transferred to DCF without limitation as to adoption.

¶ 9. J.G., through his attorney, later moved to modify the court’s decision to provide for continued custody with stepmother, who had exercised legal custody for the past three and a half years pursuant to the court’s February 2006 ruling. Although a party to the proceedings, DCF did not oppose the motion. Father filed an opposition, however, asserting that the court lacked authority to transfer custody of the child to any person or entity other than DCF. The court, in response, issued a revised order providing that “[ejustody and guardianship hereby remains with [stepmother] without limitation as to adoption.” This appeal followed.

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In re J.G., 2010 VT 61, 2 A.3d 817, 188 Vt. 562, 2010 Vt. LEXIS 58 (Vt. 2010).

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