B.M., In re
| Decision Date | 05 July 1996 |
| Docket Number | No. 95-087,95-087 |
| Citation | 165 Vt. 331,682 A.2d 477 |
| Parties | In re B.M., Juvenile. |
| Court | Vermont Supreme Court |
Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for appellant father.
Jeffrey L. Amestoy, Attorney General, Montpelier, and Barbara L. Crippen, Assistant Attorney General, Waterbury, for appellee Department of Social and Rehabilitation Services.
Charles S. Martin of Martin and Paolini, Barre, for appellee Juvenile.
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
This termination-of-parental-rights case poses painfully difficult questions. Father, who did not play a significant caretaking role in this child's early life, has overcome substance abuse problems and stabilized his life, and now believes he can act as a parent to his young daughter. The child, now almost nine years old, has been in the custody of the Department of Social and Rehabilitation Services (SRS) for over five years, living with the same foster parents for that time. In such cases, there are no good solutions, but this case is particularly troubling given the prolonged uncertainty that this child has endured. Father raises salient criticisms of the family court's decision, which we address and to some extent accept. Nonetheless, we affirm the court's order terminating father's residual parental rights. 1
SRS first became involved with this family in the summer of 1990, when the child was almost three. Her mother reported to SRS that the child had been abused by a family friend. SRS opened a voluntary protective services case because of concerns that the child was not adequately supervised and that mother had problems with substance abuse. For the next few months, an SRS social worker made monthly home visits and met with mother. Father was sometimes present during these visits, but made no effort to talk with the social worker and was not identified as a primary caregiver for the child. During this time, father was on probation following a burglary conviction, and repeatedly tested positive for cocaine. He was also charged with assaulting mother, but the charges were dropped when the state's attorney was unable to subpoena mother to testify.
In April 1991, the situation became critical. A police officer was called to mother's home on a charge of unlawful trespass, and found father there visibly intoxicated. Mother was also intoxicated, and the police confiscated evidence of cocaine use. Neighbors reported that the parents were constantly drinking and abusing drugs, and that the child was left unsupervised. The next morning, the social worker and a police detective visited the home and found it in total disarray, with trash, garbage, and beer cans strewn throughout the apartment. Both parents were visibly hung over, and mother admitted that they had been partying for several days. The child was filthy and hungry. She was taken into protective custody, and an emergency detention order was issued the same day.
The child was found to be in need of supervision by agreement of the parties. Neither parent appeared for a scheduled disposition hearing. The first disposition report prepared by SRS recommended substance abuse treatment for both parents, participation in a parent education program, and father's successful completion of probation. At father's request, the report was amended to focus more on reunification with him, because of mother's lack of cooperation. The primary goal set for both parents was attaining sobriety. The plan anticipated reunification by mid-November of 1991.
At that time father was not complying with either his probation requirements or the case plan. He disappeared for a time in September, not showing up for his job, not reporting to his probation officer, not showing up for visits with the child, and not going to his treatment program at the University of Vermont. He later resumed treatment, but continued to test positive for cocaine and was discharged from the program for noncompliance in November 1991. He re-entered the program the next month, again testing positive for cocaine, and no-showed for most of his urine tests in January 1992. Also in January, he was arrested and charged with aggravated assault based on an incident involving mother's new boyfriend. In February, the SRS caseworker decided that the case plan goal should be changed to termination of parental rights because of the child's need for permanence and the parents' failure to engage in treatment. That change was made in April 1992, at the twelve-month plan review.
SRS waited six months, however, to file the petition for termination of parental rights. Father pursued an administrative appeal of the case plan goal but was unsuccessful. The court proceedings were delayed for almost two years due to a number of pretrial motions. The court did not begin hearings on the petition for termination of parental rights until April 1994. The hearings concluded in August 1994, and the court issued its decision five months later.
By the time of the hearings, father had made significant positive changes in his life. He had been sober for over two years, was regularly employed, and had been discharged from drug treatment and from probation. He had married in 1993, and he and his wife were in the process of buying a house. Nonetheless, SRS continued to prosecute the termination-of-parental-rights petition, maintaining that father's improvement had come too late given the child's need for permanency, and that at any rate father was still unable to adequately parent his daughter because of her special needs.
Two procedural issues in this case merit special attention. First, although we draw our description of the facts from the family court's findings, we are concerned that the court in this difficult and close case chose to adopt SRS's proposed findings essentially verbatim. Even the conclusions of law were altered only slightly from the proposed conclusions submitted by SRS. A court's adoption of a party's proposed findings is not error, and the findings shall not be set aside unless clearly erroneous. See V.R.C.P. 52(a)(2). Nonetheless, this was, in the court's words, a "tough case," one that the court took five months to decide. Under these circumstances, it would have been better for all concerned, including this Court, if the decision below reflected the court's independent evaluation of the case.
The length of time the court took to issue the decision raises the other troubling procedural issue: the unreasonable and unconscionable delay that this child has endured while waiting for a final decision about her future and her relationship with her natural father. The problem began with SRS's inexplicable six-month delay in filing the petition for termination of parental rights, and continued with the numerous pretrial motions that slowed the progress of this case. The five days of hearings were held over a five-month span, and as already mentioned, the court did not issue a decision until another five months had passed. Nor has the appeal progressed as rapidly as possible, because of extensions of time for filing the briefs. Each of the parties contributed to this problem, and the court system must also take its share of the blame. The tragic result, however, is that our decision issues more than five years after this child, then only three, was removed from her home and placed with foster parents. The harm that this child has suffered by remaining in limbo for so many years cannot be undone.
We also recognize that, at this writing, nearly two years have passed since the hearings were held. To some extent, we have assumed that the status quo has continued, specifically that the child still lives with the same foster parents and that father has continued to abstain from drug use. We have no way of knowing what has happened in the past two years, however, and base our decision only on the evidence before the family court.
Termination of residual parental rights at a modification hearing requires a two-step analysis. In re M.M., 159 Vt. 517, 521, 621 A.2d 1276, 1279 (1993). In order to modify the existing disposition order, the court must first find that "changed circumstances so require in the best interests of the child." 33 V.S.A. § 5532(a). Modification is warranted where there has been a substantial change in material circumstances, which is " 'most often found when the parent's ability to care properly for the child has either stagnated or deteriorated.' " In re M.M., 159 Vt. at 521, 621 A.2d at 1279 (quoting In re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890 (1990)). A finding that a parent has made some progress does not, however, preclude a finding of changed circumstances. In re A.F., 160 Vt. 175, 181-82, 624 A.2d 867, 871 (1993).
The court must also determine whether the best interests of the child require termination of all parental rights, in light of the criteria set out in 33 V.S.A. § 5540. The critical factor is whether the natural parent will be able to resume parental duties within a reasonable period of time. Id. at 177, 624 A.2d at 869. "The court's conclusion that a parent will be unlikely to resume [his] parental duties must be supported by clear and convincing evidence." Id. at 177-78, 624 A.2d at 869.
This is a difficult case in many ways, not least because it does not easily fit within our usual framework for analyzing termination-of-parental-rights cases. As one example, the delay between the filing of the petition and the hearings raises the question of how to measure stagnation. There was a lengthy period of stagnation, and even deterioration, in this case. Because of the numerous delays, however, by the time of the hearing father had made significant progress. In deciding whether stagnation has occurred, should the court consider only the period of time before the termination petition...
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