Opinion
SUPREME COURT DOCKET NO. 2012-042
07-11-2012
In re K.C., K.C., E.C. & K.C., Juveniles
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Superior Court, Rutland Unit,
Family Division
DOCKET NOS. 230/232/233/234-12-07 Rdjv
Trial Judge:
In the above-entitled cause, the Clerk will enter:
Mother appeals termination of her parental rights to her four children. On appeal, mother argues that the court's finding of changed circumstances is unsupported by the evidence. We affirm.
Mother had five children with father. The oldest was born in 1996 and is not part of this case. The four younger children include triplets, Ko.C., Ka.C., and Kr.C. born in September 2000, and a boy E.C., born in May 2003. Father subjected mother to serious physical abuse during the marriage. The family moved frequently due to father's serious drug problem and incarceration. Mother sought various relief-from-abuse orders and eventually obtained a divorce from father in 2007. After ending her relationship with father, mother began seeing a different man, who also physically and verbally abused her and the children. In December 2007, the Department for Children and Families (DCF) received a report that mother's boyfriend had assaulted mother and E.C. The following day someone notified DCF that the boyfriend was in the house threatening to kill the children. Police responded and mother lied about the boyfriend's presence in the home. DCF sought and received an emergency custody order for all of the children. Subsequently, the court determined that all of the children were in need of care or supervision (CHINS) based on mother's failure to protect them.
The children were placed in a foster home together. After a report that the oldest child had sexually abused some of the younger children, she was placed in a different foster home. DCF's initial plan was reunification with mother. The goals included participation in domestic violence counseling, a psychiatric evaluation, parent education, and individual counseling. Mother took steps to comply with DCF's plan. She took a parenting class and worked with a parent educator. She participated in a psychiatric evaluation and did individual counseling. Mother regularly visited with the children in a supervised setting. The visits took place with all four children at the same time in DCF offices and mother had difficulty controlling the children, and resorted to physically restraining them to keep them in the room.
DCF requested termination in March 2009. A contested hearing was held in February and March 2010. In April 2010, the court denied the petition. The court found that mother had made efforts to comply with the case plan but there was still a concern about mother's ability to keep herself safe from violent relationships with men. The court also had concerns about mother's ability to effectively parent her children independently as shown by her difficulty communicating with them in an appropriate manner and her inability to control the children's challenging behavior during visits. The court found that the children had developed strong relationships with their foster family, but had divided loyalties, still yearning to be with their mother. The court found that the children's behavior during visits stemmed from the environment of having four children in a small room, and encouraged DCF to find other options more conducive to visitation. Ultimately, the court concluded that DCF had not demonstrated stagnation in mother's ability to care for her children and that termination was not in the children's best interests.
Following the ruling, DCF set out specific requirements for mother, including that she demonstrate an understanding of her children's needs and properly respond to their behavior; accept responsibility for the trauma the children had suffered; work with a mental health counselor; avoid violent relationships; and complete anger management. DCF also required mother to incorporate the suggestions of the parenting coaches, maintain safe housing suitable for children, and demonstrate an ability to support her children. In response to the court's instruction, DCF scheduled visits at locations in the community. In June 2011, DCF filed a second petition to terminate parental rights. In December 2011, the court held a four-day termination hearing.
In its decision, the court found that mother had not complied with the recommendations of the case plan. Mother did not follow through on the local domestic violence worker referral. Mother had a precarious housing situation not suitable for children. She also had engaged in two different romantic relationships, and showed poor judgment in each case since one man has a criminal record and the other is a convicted and untreated sex offender. A forensic family evaluation was completed, and the court found it to be credible evidence. The doctor detailed each child's needs and feelings towards mother and reported the children's desire to be adopted by their foster families. Observing a visit with the children turn to chaos, the doctor was struck by how inept and ill prepared mother was to manage the visit. The children have a need for stability and returning them to mother could cause harm. The court found that mother was not receptive to advice from the parenting coaches during visits and did not demonstrate an ability to parent the children safely. Mother did not believe the children suffered from the serious emotional and mental health issues found by the doctor. The court concluded that there was a change of circumstances due to mother's stagnation and that termination was in the children's best interests. Mother appeals.
Termination of parental rights involves a two-step analysis. As a threshold to altering the prior disposition, the court must consider whether there has been a substantial change in material circumstances. 33 V.S.A. § 5113(b). Change of circumstance occurs "when a parent's ability to care for a child has either stagnated or deteriorated over the passage of time." In re S.W., 2003 VT 90, ¶ 4, 176 Vt. 517 (mem.) (quotation omitted). If this threshold is satisfied, the court must then consider whether termination is in the child's best interests. 33 V.S.A. § 5114(a) (listing statutory best-interests factors); see also In re D.C., 168 Vt. 1, 4 (1998). "On appeal, we will affirm the trial court's findings in support of changed circumstances unless they are clearly erroneous, and we will affirm its conclusion if supported by the findings." In re S.W., 2003 VT 90, ¶ 4.
Mother does not challenge the court's best-interests analysis, but argues that the evidence does not support the court's conclusion that there was a change of circumstances. According to mother, the court's 2010 decision doubted mother's ability to resume parenting and therefore her continued inability to resume parenting presented no change. Mother contends that the "only significant change in circumstances cited by the court was the views of the children, originally ambivalent about severing their relationship with their mother to being certain that severance was desirable." Mother argues that this change in attitude is not supported by the evidence.
As an initial matter, we do not read the court's decision regarding changed circumstances as derived from the children's feelings about reunification with mother. While the court found that the children's attitude toward mother had changed from 2010 to 2012, this finding was part of the court's analysis of the statutory best-interests factors regarding the strength of the bond between the children and their foster parents as well as mother.
The court's changed circumstances analysis was totally separate and based on the court's conclusion that mother's ability to parent her children had stagnated. Stagnation means that the parent's ability to properly care for her children has not improved over a period of time and may be demonstrated even when the parent makes some progress in certain aspects of her life. In re S.W., 2003 VT 90, ¶ 4. Here, the credible evidence supported the court's finding that mother's progress had stalled since the court's 2010 order. Mother made little, if any, progress in dealing with her children's behavior during visits and refused the support and advice of the parenting coaches so that there was no improvement in her parenting skills. Mother's ability to protect her children from abusive partners and keep them safe was a key issue, yet mother did not follow through on referrals from DCF regarding domestic violence issues and continued to show poor judgment in choosing romantic partners. Mother did not recognize the emotional issues her children faced.
We are not persuaded by mother's contention that her progress did not stagnate because she was already a dubious candidate for resuming her parental responsibilities. However predictable mother's difficulties were at the time of the 2010 order, the court's ultimate conclusion then was that DCF failed to prove mother would "not be able to resume parenting duties within the next twelve to twenty four months." It was the court's hope, if not expectation, that with renewed and better coordinated efforts from DCF, mother might advance towards reunification. In any event, stagnation looks to the actual progress, or lack thereof, made over time. It measures improvement from whatever starting point existed previously. Here, the evidence demonstrated that mother's parenting skills had not advanced, but deteriorated, since 2010 and therefore the evidence supports the court's finding that mother's progress stagnated.
Finally, we address mother's argument that the court erred in faulting her for not successfully negotiating with DCF to develop a long-term care plan for the children. The court's statement regarding the negotiations was in response to mother's argument at trial that DCF failed to participate in the mediation process with good faith. The court rejected this argument, explaining that mediation is a confidential process and further noted that DCF had been attentive to the court's prior order while mother "remained intransigent and unwilling to negotiate with the Department to develop a long term care plan for any of her children." We find no error in the court's statement insofar as it merely refers to DCF's overall effort to comply with the court's prior TPR denial and work with mother. Moreover, mother suffered no prejudice from the court's perception of her efforts to work with DCF since the court's findings and conclusions regarding changed circumstances were independently supported by credible evidence in the record.
Affirmed.
BY THE COURT:
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Paul L. Reiber, Chief Justice
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice