J.T., In re

• Decision Date: 10 January 1997
• Docket Number: No. 96-051,96-051
• Parties: In re J.T. and C.T.
• Court: Vermont Supreme Court

Page 283

693 A.2d 283

166 Vt. 173

In re J.T. and C.T.

No. 96-051.

Supreme Court of Vermont.

Jan. 10, 1997.

Charles S. Martin of Martin & Paolini, Barre, for appellant mother.

Michael Rose, St. Albans, for appellant father.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane, Assistant Attorney General, Waterbury, for appellee Department of Social and Rehabilitation Services.

Robert Appel, Defender General, and Henry Hinton, Appellate Defender, Montpelier, for appellees juveniles.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

GIBSON, Justice.

J.T.'s and C.T.'s mother and father separately appeal a family court order terminating their parental rights to both children. The mother argues that the court erred in terminating parental rights without a prior approved case plan and that the court improperly incorporated CHINS findings in the disposition findings. The father argues that the court failed to determine whether the Vermont Department of Social and Rehabilitation Services (SRS) made reasonable efforts to assist him. Both parents contend that the court should have provided notice under the Indian Child Welfare Act (ICWA) as soon as it had reason to believe that the children were of Indian ancestry. We remand for the court to give notification of the proceeding to the Bureau of Indian Affairs. If a tribe responds, further proceedings consistent with the ICWA will be necessary; otherwise, we affirm the court's finding that it is in the best interests of J.T. and C.T. that parental rights be terminated.

SRS first became involved with the family in May 1989, when the parents' failure to maintain telephone service while C.T. suffered from a breathing disorder posed a serious medical threat. From that date through 1993, SRS became increasingly involved with the family. Between 1989 and early 1991, two attempts were made to improve the mother's and father's parenting skills through the Family Intensive Program and a parent education program. Both counselors terminated the programs when the mother's mental health issues made working on parenting skills impossible. The mother began participation in a mental health program in 1989, but dropped out in January 1990. From late 1992 to early 1993, the mother again entered counseling, both individually and with the children, but attempts to improve parenting skills were unsuccessful.

In spite of the services offered by SRS, the condition of the family deteriorated steadily. By 1993 SRS had substantiated physical and sexual abuse to both children by family members and persons living with family members. There was also extensive evidence of physical neglect and emotional abuse to both children, particularly J.T. The children were taken into temporary custody by SRS in September 1993, and after a merits hearing in November 1993, they were found to be children in need of care and supervision (CHINS) due to lack of proper parental care.

A case plan was developed by SRS in March 1994 and given to both parents. Although the case plan set a goal of family reunification, the parents were informed at a case plan review on March 31, 1994 that failure to follow the plan could result in a change in the goal. Following the CHINS order and distribution of the case plan, both parents continued to receive family services through SRS.

After completion of a family evaluation by an independent psychologist, a disposition hearing was scheduled for July 27, 1994. At the start of the hearing, the parents informed the court that they planned to separate. Deciding that the existing case plan, which called for reunification of the children with both parents, was not appropriate if the parents separated, the court discussed development of new case plans, ended the hearing, and issued an order maintaining custody of both children with SRS. When SRS was unable to confirm that the mother and father had separated as announced, alternative case plans were not developed. Instead, a new SRS case plan dated September 9, 1994 called for termination of parental rights.

In October 1994, SRS filed a petition to terminate parental rights; hearings began in December. Following eight days of hearings, the court terminated parental rights.

I.

Mother and father both raise several issues on appeal. The mother first argues that the trial court erred in finding a change in circumstances when there had been no previously approved case plan. But termination of parental rights can occur in one of two ways. Where there has been a prior disposition order and an approved case plan, the court must find a substantial change in material circumstances and that it is in the best interests of the child that all parental rights be terminated. In re M.M., 159 Vt. 517, 521, 621 A.2d 1276, 1279 (1993). Parental rights may also be terminated at the initial disposition hearing if the court finds it to be in the best interests of the child to do so. In re B.M., 165 Vt. ----, ----, 679 A.2d 891, 895 (1996); 33 V.S.A. § 5540. The first method is preferred, In re B.M., 165 Vt. at ----, 679 A.2d at 895, but the court's findings in either situation will be upheld unless clearly erroneous. See In re J.M., 160 Vt. 146, 149, 624 A.2d 362, 363-64 (1993).

Some confusion was created by the abbreviated July 27 hearing, which was originally intended to be a disposition hearing. Additional confusion was created when the trial court included a finding of substantial change in material circumstances in its January 1996 termination order, stating it was unsure of the effect of the July 27 hearing. Nonetheless, it is clear that the July 27, 1994 hearing was not a disposition hearing, and therefore the court's finding of substantial change in material circumstances was unnecessary. No evidence was considered during the July 27 hearing--on either the mother's and father's parenting abilities or the children's physical and emotional condition. Instead, discussion focused solely on the adequacy of the current case plan and the need for new case plans. Although labelled a disposition order, the order issued that same day simply maintained the status quo until the confusion created by the parents' announcement of change in marital status could be sorted out. During a hearing on visitation six weeks later, the parties discussed the effect of the July 27 hearing. All parties and the court agreed there had been no disposition hearing and that disposition was still before the court. Ultimately, the court's extensive findings detailing nearly five years of evidence of the parents' inability to care adequately for the children are sufficient to support the court's conclusion that it was in the best interests of the children to terminate parental rights. Because the court's finding of change in circumstances was unnecessary, we do not address the mother's argument that modification of a disposition order due to change in circumstances cannot be supported without a prior approved case plan.

Our prior decisions do not affect our decision here. We have previously held that a court cannot continue a disposition hearing to determine how the situation of a child or a parent will change over time. In re B.B., 159 Vt. 584, 588, 621 A.2d 1270, 1273 (1993); In re R.B., 152 Vt. 415, 422, 566 A.2d 1310, 1313-14 (1989), cert. denied by Appleby v. Young, 493 U.S. 1086, 110 S.Ct. 1151, 107 L.Ed.2d 1055 (1990); In re A.A., 134 Vt. 41, 43, 349 A.2d 230, 232 (1975). In all those cases, however, a full disposition hearing was held, see, e.g., In re B.B., 159 Vt. at 585, 621 A.2d at 1271 ("court took extensive evidence at the disposition hearing"), and the hearings were continued for other reasons: to allow the court to accept additional evidence on a parent's progress, id. at 586, 621 A.2d at 1271, or to facilitate settlement of a contested disposition, In re R.B., 152 Vt. at 422, 566 A.2d at 1313-14. Holding proceedings open to allow admission of evidence of a parent's improvement is impermissible, because it places a child "in a state of continuing limbo rather than creating a stable living arrangement, as the law requires." In re R.B., 152 Vt. at 422, 566 A.2d at 1314.

Such was not the situation here. The hearing was not continued to allow additional evidence of the parents' improvement. Rather, it was continued as a result of the parents' announcement of their separation. After discussion among the parties and the court, the July 27 hearing was terminated and rescheduled for a date when case plans more appropriate to the parents' marital situation would be available. The court was not required to hold a disposition hearing when all parties agreed they were not prepared to address what was in the children's best interests.

Nonetheless, the mother claims that terminating her parental rights without an approved case plan is reversible error because she was never given information on how she could get her children back. The court's findings of fact clearly refute this argument. SRS developed a case plan for the parents on March 14, 1994, which it reviewed with them on March 31, 1994.

Both parents' participation in the programs outlined in the plan belies the mother's allegation that she could not meet "expectations that were never announced." Noting the specific programs offered to both parents, including individual counseling and the Nurturing Program for the mother, and parent education, supervised visitation, and other casework services for both parents, the court made detailed findings on the parents' participation in these programs and the lack of improvement in each. Both parents were told that supervised visits were an opportunity to demonstrate improved parenting skills. Nevertheless, the mother continued to act inappropriately and to fly into rages during visits, while the father did nothing to curb the mother's behavior. The evidence supports the court's finding that the March 1994 case plan gave the parents full...