In re W.L.

2009 VT 41, 974 A.2d 602, 185 Vt. 641, 2009 Vt. LEXIS 39
CourtSupreme Court of Vermont
DecidedApril 15, 2009
DocketNo. 08-497
StatusPublished
Cited by7 cases

This text of 2009 VT 41 (In re W.L.) 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 W.L., 2009 VT 41, 974 A.2d 602, 185 Vt. 641, 2009 Vt. LEXIS 39 (Vt. 2009).

Opinion

¶ 1. Parents appeal the family court’s order terminating their parental rights to W.L. and transferring residual parental rights to the Department for Children and Families (DCF) without limitation as to adoption. Parents argue that the court erred in denying their request to transfer their residual parental rights to W.L.’s paternal aunt and uncle. On appeal, parents contend: (1) the court lacked sufficient evidence regarding W.L.’s current circumstances to determine her best interests; and (2) the court erred in concluding that it lacked authority to fashion a shared custody arrangement between DCF and W.L.’s aunt and uncle. We affirm.

¶ 2. This termination case is somewhat unique in that parents do not challenge the court’s decision to terminate their parental rights. Prior to the final hearing, parents stipulated to termination of their rights, but moved to have their residual parental rights transferred to W.L.’s aunt and uncle. At the time of the final hearing, DCF’s plan on termination was to pursue adoption with W.L.’s foster mother. Therefore, the main issue at the-final hearing was whether the court should transfer the parents’ residual rights to DCF or to W.L.’s aunt and uncle. W.L.’s attorney proposed a shared custody arrangement whereby legal parental responsibility would be shared, and primary physical responsibility would go to foster mother with aunt and uncle having contact. The court held a four-day hearing on DCF’s petition and the parents’ motion.

¶ 3. Based on the evidence, the court found the following facts. W.L. was born in January 2004. On January 14,2005, she and her three older siblings were taken into emergency DCF custody for lack of proper parental care. The court found they were children in need of care or supervision. W.L. was placed in a foster home and has remained there ever since.

¶ 4. From the early stages, W.L.’s foster parent expressed a desire to adopt her. W.L.’s aunt and uncle also expressed a desire to have W.L. and her siblings live with them. In fact, W.L.’s two older sisters have successfully adjusted to placement in aunt and uncle’s home; parental rights have been terminated with respect to both, and aunt and uncle plan to adopt them.1 Because of their competing interest in housing and eventually adopting W.L., a tension between W.L.’s foster parent and her aunt and uncle developed. W.L.’s foster mother and her aunt “began to distrust each other and have greater difficulty cooperating regarding [W.L.].”

¶ 5. The procedural history reflects this tension and the difficulty all individuals involved in W.L.’s care have had in choosing between these two placements.2 Initially, DCF’s case plan was reunification with parents. Based on the parents’ lack of progress, DCF filed a petition to terminate in January 2006. DCF withdrew [642]*642the petition in October 2006 after the parents moved and began to engage in some services. The court found that this decision was contrary to W.L.’s interest given her young age, the amount of time she had already been in DCF custody, and parents’ very limited progress. DCF’s new case plan set a goal of reunification. At that time, aunt and uncle were not being considered as an appropriate placement for W.L.; W.L.’s older sister was placed with them and was exhibiting aggressive behavior. At a permanency hearing in June 2007, however, aunt and uncle sought increased visitation.3

¶ 6. DCF had two forensic evaluations done to evaluate placing W.L. with her aunt and uncle. In July 2007, Dr. Gabriel completed a report that recommended a gradual transition from foster parent to aunt and uncle, with eventual adoption. DCF then asked Mr. Kline to perform an evaluation and make recommendations regarding W.L.’s placement. He completed his evaluation in December 2007. He recommended that W.L. remain with her foster mother due to the strong bond that had formed between them. He recognized the importance of W.L.’s biological family, but explained that moving W.L. would be traumatic and very difficult due to her loss of friends, day care, therapist, and community.

¶ 7. In the fall of 2007, visits between W.L. and her sisters and aunt and uncle increased. W.L.’s foster parent reported that at the same time W.L.’s behavior changed. W.L.’s therapist and day care provider substantiated some behavioral changes in W.L., including aggression, clinginess, and toileting accidents. The court explained that it “cannot discount that what behavioral changes [W.L.] was actually experiencing in the fall of 2007 were connected to the increased visits with [aunt and uncle], but neither can the court on the state of the evidence, clearly find that to be the sole case.” In February 2008, DCF filed a petition to terminate the parents’ rights. Upon termination, DCF planned to pursue adoption with W.L.’s foster mother. The parents agreed to terminate them rights, but moved to have their rights transferred to aunt and uncle. W.L.’s attorney requested a shared custodial arrangement whereby W.L. would live with foster parent and have visits with aunt and uncle. Following a contested hearing, the court granted DCF’s petition to terminate parents’ rights and transferred those rights to DCF without limitation as to adoption, with the understanding that DCF intended to pursue adoption with foster mother. Parents appeal.

¶ 8. As we explained at the outset, the specification of issues in this appeal is unusual. This appeal is pursued by parents on behalf of aunt and uncle who are not parties and have not appealed. While we question the ability of the parents to pursue this appeal in these circumstances, we nevertheless reach the merits.

¶ 9. In a disposition proceeding, “[t]he polestar ... is the best interests of the child.” In re B.M., 165 Vt. 194, 199, 679 A.2d 891, 895 (1996). In assessing the child’s best interest, the court should consider:

(1) The interaction and interrelationship of the child with his natural parents, his foster parents if any, his siblings, and any other person who may significantly affect the child’s best interests;
[643]*643(2) The child’s adjustment to his home, school, and community;
(3) The likelihood that the natural parent mil be able to resume his parental duties within a reasonable period of time; and
(4) Whether the natural parent has played and continues to play a constructive role, including personal contact and demonstrated love and affection, in the child’s welfare.

33 V.S.A. § 5540. Our review of the family court’s findings and conclusions is limited. ‘We will uphold factual findings if supported by credible evidence, and the court’s conclusions will stand if the factual findings support them.” In re B.M., 165 Vt. at 201, 679 A.2d at 896.

¶ 10. The parents first argue that the family court lacked sufficient evidence regarding current circumstances to determine W.L.’s best interests. The parents claim that “DCF failed in its obligation to provide the court with expert opinions based on current information, and the court also failed in its responsibility to require such opinions.”

¶ 11. We agree that the family court’s findings must be based on “the current circumstances of the family.” In re C.B., 162 Vt. 614, 614, 644 A.2d 1294, 1295 (1994) (mem.).

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Bluebook (online)
2009 VT 41, 974 A.2d 602, 185 Vt. 641, 2009 Vt. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wl-vt-2009.