In re K.F.

2004 VT 40, 852 A.2d 584, 176 Vt. 636, 2004 Vt. LEXIS 106
Supreme Court of Vermont·Decided April 28, 2004·No. No. 03-477·Published·Cited by 43 cases

Opinion

¶ 1. Father appeals from the family court’s order terminating his residual parental rights over K.F. He argues that the court erred by failing to recognize that the Department of Social and Rehabilitation Services bore substantial responsibility for the circumstances alleged to support the termination order. We affirm.

¶ 2. Mother and father, who have never married, are the parents of K.F., born in October 2002. Shortly after K.F.’s birth, father was incarcerated on probation violations related to domestic violence toward mother. In December 2002, K.F. was adjudicated as a child in need of care and supervision. At that time, mother admitted that she did not possess all of the skills necessary to provide appropriate care and supervision to K.F. In December 2002, mother was accepted into the Lund Family Center’s Residential Program where she was joined by K.F. for a trial reunification.

¶ 3. In January 2003, the family court held an initial disposition hearing. SRS indicated that it was seeking to assist mother in developing parenting skills so that she could live independently with K.F. SRS noted, however, that mother had demonstrated an inability to incorporate new learning into her care of K.F. and she had shown resistance to the parent education offered at Lund. Given this, and K.F.’s age and fragile stability, SRS explained that it concurrently planned to seek the termination of mother and father’s parental rights if significant progress was not made within two months. Father did not object to SRS’s case plan. In March 2003, mother was discharged from Lund, and K.F. was placed in emergency foster care. Shortly thereafter, father was released from prison, and he contacted SRS seeking visitation with K.F. The SRS caseworker sent a letter to the court, with a copy provided to father, explaining why she did not support visitation. The caseworker stated that since his release father had been living with mother despite a no-contact order, father had not engaged in any type of parent education services since being incarcerated, and father had seen K.F. on only one occasion. Based on this information, and because SRS was filing a petition for termination of parental rights, the caseworker expressed her belief that contact between father and K.F. was not in KF.’s best interests. In response to the letter, the family court indicated that there would be no hearing on visitation except on motion.

¶ 4. In April 2003, SRS filed a petition to terminate parental rights. In its petition, SRS stated that over the past six months mother had demonstrated her inability to parent K.F. in a consistently safe and appropriate manner and she continued to struggle with self care. SRS noted that father had been in prison from November 2002 through March 2003, and he had previously been charged with domestic assault, disorderly conduct, and numerous probation violations.

¶ 5. Two months later, at a June 2003 status conference, father’s attorney asked the family court to impose visitation with K.F. “today.” The court responded that, given its earlier order, father needed to file a motion to establish visitation. Father’s attorney then made an oral motion for visitation, and the court stated that the matter could be set for a hearing. Father’s attorney responded that he did not see the necessity for a hearing when “we’re so close to a termination.” It does not appear that the question of visitation was set .for a sepa[637] rate hearing. Father returned to jail in June 2003; he remains incarcerated.

¶ 6. In August 2003, mother voluntarily relinquished her residual parental rights. After a hearing, the court terminated father’s residual parental rights. The court found that father had not assumed any cai-etaldng responsibilities for K.F. nor provided any financial or parental support after her birth. While in jail, he did not participate in any programming with the Department of Corrections, nor did he contact SRS to inquire about K.F.’s well-being or play any role in her life. When he was released from prison, he failed to keep in consistent contact with K.F.’s caseworker. Shortly after his release, he was charged with numerous violations of an abuse prevention order, and with violating probation, and he returned to jail. The court found that father had seen K.F. only twice since her birth, and that SRS had been unable to set up any consistent contact between father and K.F. due to father’s frequent incarceration. The court also noted that father’s parental rights had recently been terminated over another child, A.C., due in part to his substantial failure to comply with the requirements of SRS’s case plan. Based on its findings, the court concluded that there was no likelihood that K.F. could be reunited with father in the foreseeable future. The court stated that father had demonstrated a pattern of unavailability due to incarceration, criminal behavior, and nonparticipation in Corrections programming, and he had not played a constructive role in K.F.’s life. The court recognized that K.F. had a need for stability, and that she was thriving with her foster parents. The court thus concluded that termination of father’s parental rights was in KF.’s best interests. Father appealed.

¶ 7. On appeal, father asserts that the family court erred by failing to take into account that SRS “in substantial part engineered the circumstances alleged to support termination.” Father maintains that SRS failed to shoulder its responsibility to provide services to him, and it denied him visitation with K.F. Under these circumstances, father argues, his lack of contact and his lack of a bond with K.F. cannot be held against him.

¶ 8. When the termination of parental rights is sought, the trial court must conduct a two-step analysis. In re B.W., 162 Vt. 287, 291, 648 A.2d 652, 654 (1994); 33 V.S.A. § 5532(a). The court must first find that there has been a substantial change in material circumstances; second, the court must find that termination of parental rights is in the child’s best interests. In re B.W., 162 Vt. at 291, 648 A.2d at 654-55; 33 V.S.A. § 5532(a). We will uphold the trial court’s findings of fact unless they are clearly erroneous, and we will uphold the court’s conclusions of law if supported by the findings. In re D.C., 168 Vt. 1, 4, 712 A.2d 902, 904 (1998).

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In re K.F., 2004 VT 40, 852 A.2d 584, 176 Vt. 636, 2004 Vt. LEXIS 106 (Vt. 2004).

2004 VT 40 (In re K.F.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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