B.B., In re, 92-047

• Decision Date: 15 January 1993
• Docket Number: No. 92-047,92-047
• Citation: 159 Vt. 584,621 A.2d 1270
• Parties: In re B.B., Juvenile.
• Court: Vermont Supreme Court

Page 1270

621 A.2d 1270

159 Vt. 584

In re B.B., Juvenile.

No. 92-047.

Supreme Court of Vermont.

Jan. 15, 1993.

Motion for Reargument Denied

Feb. 10, 1993.

Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Barbara L. Crippen and Martha Csala, Asst. Attys. Gen., Waterbury, for plaintiff-appellee.

E.M. Allen, Defender Gen., and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellant.

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

DOOLEY, Justice.

M.B., the mother of B.B., appeals from an order of the Caledonia Family Court terminating her parental rights with respect to her son. She argues that the extended continuation of the proceedings below to determine how she responded to therapy was an improper procedure. We agree, and reverse and remand.

B.B. was born on January 17, 1990, and was placed in the custody of the Commissioner of Social and Rehabilitation Services (SRS) in July of 1990. M.B. did not oppose SRS custody and stipulated to the CHINS adjudication. The State then sought termination of parental rights at the initial disposition hearing. M.B. opposed termination. ^*

The family court took extensive evidence at the disposition hearing. It found that, from B.B.'s birth, M.B. was helped by a number of service providers, but these providers became increasingly concerned about M.B.'s parenting. In particular, they observed that M.B. could not control her temper and that she vented her anger on B.B. through verbal and physical abuse. She also abused alcohol. When social agency efforts to improve the situation failed, the State intervened and took custody of B.B.

The evidence at the detention hearing detailed the above history, as well as a number of failed post-detention attempts to help M.B. improve her parenting skills. Based on the testimony of the psychiatrist who evaluated M.B. for SRS, the court found that M.B. met the criteria that describe an individual with a mixed personality disorder, and had many of the characteristics of other types of personality disorders. The court found that these personality traits seriously impair M.B.'s ability to parent.

The court detailed, but did not adopt, the psychiatrist's opinion that M.B. would need two years of intensive therapy, and up to five years of less intensive therapy, before she could adequately and safely care for B.B. It adopted instead the evidence of the psychologist who testified for M.B. that (1) she was motivated to continue treatment; (2) she was demonstrating an increasing insight into her problems, and recognized that she had abused B.B. and expressed remorse; (3) she was concerned for B.B.'s well-being; (4) she was working diligently to restructure her life in a positive way; and (5) she had shown improvement. It also adopted the psychologist's recommendation that the situation be reassessed at three-month intervals because it was impossible to say when M.B. would be ready to fulfill her parental responsibilities.

The court concluded that the State "has [not] shown clearly and convincingly that ... [M.B.] will not be unable to resume parental duties within a reasonable period of time." Rather than denying the termination request made by SRS, however, the court reserved its ruling on termination and continued the matter, pursuant to 33 V.S.A. § 5527(e), for two or three months to take further evidence on M.B.'s progress. It transferred custody and guardianship of B.B. to SRS.

A renewed hearing commenced three months later. The evidence was similar to that received earlier, with M.B.'s psychologist testifying that she was continuing to make progress. The court's findings detail the efforts undertaken by social service providers between the hearings, and include the statement that M.B. "has not yet learned the skills necessary to provide adequate parental care" for B.B. The findings also show that B.B. has adjusted well to his foster home and that the foster parents want to adopt him.

In its conclusions, the court revisited the issue of whether M.B. could resume her parental responsibilities within a reasonable period of time. It concluded:

Had ... [M.B.] resolved her own problems and been ready to resume her role as ... [B.B.'s] mother at the end of the summer, the court would have given serious consideration to denying the state's petition. However, despite her commendable efforts at addressing her own problems in therapy, and despite continued progress in this regard, she still has not achieved the requisite emotional stability. Moreover, she has not yet developed the necessary parenting skills, and, as a result, her interaction with ... [B.B.] continues to be neither positive nor constructive. And one can only speculate as to when she might be able to accomplish these twin goals of emotional stability and adequate parenting ability.

[T]he focus must be on ... [B.B.'s] needs. He needs stability, and a loving, nurturing and safe environment. And these needs must be met now, not at some indeterminate point in the future. [M.B.] ... cannot meet these needs now, and a reasonable time has already expired.

The court granted the request to terminate M.B.'s parental rights, and this appeal followed.

Relying on In re A.A., 134 Vt. 41, 349 A.2d 230 (1975), and in rE R.B., 152 vt. 415, 566 A.2d 1310 (1989), M.b. argues that the court's initial order, reserving decision on the termination request and holding open the record for evidence of her future progress, was error that requires reversal of the subsequent termination order. The circumstances of In re A.A. are almost identical to those present here. At disposition, the parties stipulated to custody and guardianship transferral to SRS, but did not agree on the State's request to terminate residual parental rights. The court did not act on the request, but instead scheduled, in the disposition order, a "review" hearing on it for six months later. After the later hearing, the court terminated parental rights. This Court reversed, finding in the juvenile statutes no authority for such a procedure. In re A.A., 134 Vt. at 43, 349 A.2d at 232.

In In re R.B., the disposition order specifically allowed for review at any time after thirty days, with the burden of proof allocated as in a normal disposition hearing. Relying on In re A.A., we found the review provision invalid, reasoning:

The reopening provision meant that the disposition order was only temporary and subject to relitigation at any time. It placed R.B. in a state of continuing limbo rather than creating a stable living arrangement, as the law requires. Further, the order cannot be reconciled with the Legislature's concern that disposition orders follow shortly after the merits determination, as evidenced by the requirement that the disposition hearing be held no later than thirty days after the merits hearing.

152 Vt. at 422, 566 A.2d at 1313-14.

The State makes two...