B.S., In re

• Decision Date: 28 March 1997
• Docket Number: No. 96-137,96-137
• Citation: 166 Vt. 345,693 A.2d 716
• Parties: , 6 A.D. Cases 1310, 22 A.D.D. 165, 9 NDLR P 313 In re B.S., Juvenile.
• Court: Vermont Supreme Court

Page 716

693 A.2d 716

166 Vt. 345, 6 A.D. Cases 1310, 22

A.D.D. 165, 9 NDLR P 313

In re B.S., Juvenile.

No. 96-137.

Supreme Court of Vermont.

March 28, 1997.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for appellant mother.

Charles S. Martin of Martin & Associates, Barre, for appellant juvenile.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane, Assistant Attorney General, Waterbury, for appellee SRS.

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

DOOLEY, Justice.

The mother in this case appeals the termination of her parental rights with respect to her son, B.S., arguing that the family court (1) improperly allowed the Department of Social and Rehabilitation Services (SRS) to recommend the termination of her parental rights in violation of an agreement not to make such a recommendation, and (2) failed to resolve her claims under the Americans with Disabilities Act (ADA) before terminating her parental rights. We affirm.

The mother is a moderately retarded woman with a verbal I.Q. of 75 and a performance I.Q. of 87. She gave birth to her third child, B.S., on December 30, 1993. On the same day, SRS intervened because the mother and the father had been found responsible for physical abuse of their two other children and those children had been removed from their home. SRS initiated a petition alleging B.S. to be a child in need of care or supervision (CHINS) and successfully sought temporary custody of him.

On January 13, 1994, SRS and the parents entered into a written agreement which kept B.S. in SRS custody, but placed him at the Lund Family Center to reside there with the mother. Both parents agreed to accept the extensive and intensive services of the Lund Family Center. On January 31, however, the mother left the Center to be with the father, leaving B.S. at the Center with no arrangements for his care. SRS returned the child to foster care.

At a merits hearing on March 29, 1994, the parties entered into an oral agreement ¹ that: (1) the parents would not contest a merits adjudication of CHINS, (2) custody of B.S. would remain with SRS, (3) certain parts of the affidavit of the SRS worker in support of the CHINS petition would be stricken, (4) the family would be enrolled in intensive family-based services at the Baird Center, (5) the disposition hearing would be held in sixty days, ² and (6) SRS would not recommend termination of parental rights at the first disposition hearing. The court found CHINS "based upon the agreement of the parties and their admissions," and ordered a disposition hearing to be set in sixty days.

Thereafter, the mother enrolled in the Intensive Family-Based Service Program at the Baird Center to learn parenting skills. The parents were granted, under the supervision of the Baird Program, twenty hours of visitation each week. Despite assistance from a social worker at the Baird Center, the mother made minimal progress in learning parenting skills.

The initial disposition hearing was held on August 31, 1994, substantially beyond the sixty-day time period agreed to in March, due primarily to delays in obtaining SRS's disposition report and a report from the Baird Center. SRS submitted the disposition report to the court on August 29 and, in compliance with the parties' agreement, did not recommend termination of parental rights. Instead, SRS recommended that B.S. remain in the foster home where he had been living for several months. The mother requested placement with B.S.'s paternal great aunt, who resided in New Hampshire. SRS objected to this placement.

In response to the mother's request, the court ordered a continuance of the disposition hearing to allow for a study by the New Hampshire Department of Children and Youth Services of the great aunt's home. The SRS social worker requested, and was granted, permission to file a supplemental disposition report.

By December 1994, it became apparent that the home study by the New Hampshire department would not be ready for several months. At a status conference on December 6, the SRS caseworker indicated that he would be seeking termination of the mother's parental rights. As a result, the mother sought an immediate interim placement for the child with the mother's sister. On January 15, 1995, SRS filed a supplemental disposition report, in which it recommended termination of parental rights. Combined hearings on disposition, the petition to terminate parental rights, and the mother's motion to transfer custody to the mother's sister were held on February 1, April 10, April 13, October 12 and October 13, 1995. In a written order issued March 6, 1996, the court denied the mother's motion to transfer custody. Finding that the mother's ability to care for her child had stagnated between August 1994 and October 1995, and that termination of parental rights would be in the best interests of the child, the court granted the State's petition to terminate parental rights and transferred all remaining residual rights to SRS.

The mother's first claim of error is that the court improperly allowed SRS to recommend termination of her parental rights (TPR) in its supplemental disposition report of January 1995 in violation of the oral agreement under which she admitted B.S. was CHINS. She seeks specific performance of the SRS's agreement not to recommend TPR, or in the alternative, an order vacating the CHINS adjudication. SRS responds that it fulfilled the terms of the stipulation because it did not recommend termination at the first disposition hearing held in August 1994. The court concluded that changed circumstances relieved SRS of its obligation not to recommend termination of parental rights.

We need not decide whether SRS violated the agreement between the parties because we agree with the family court that the agreement was subject to modification and could be modified in this case. We have consistently held that agreements involving the interests of children are subject to the overriding supervision of the family court to protect the children's interests. See Barbour v. Barbour, 146 Vt. 506, 509, 505 A.2d 1217, 1219 (1986); White v. White, 141 Vt. 499, 503, 450 A.2d 1108, 1110 (1982). Thus, we held in White:

A stipulation between husband and wife on matters pertaining to child support merely reflects what the parties have settled on as an arrangement agreeable to them. Its incorporation into a divorce decree indicates that at the time of the decree the trial court found that what the parties had already settled upon was a just and reasonable sum. That judgment, however, does not affect the trial court's later ability to modify its order when such modification is shown to be equitable under the circumstances.

141 Vt. at 503, 450 A.2d at 1110 (citations omitted).

We adopted a similar rule for CHINS proceedings in In re Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972), where a parent stipulated to CHINS in return for an agreement that she would retain residual parental rights, but not physical custody. We held that the stipulation could not be given greater stature than a judgment, which is subject to modification for changed circumstances. Id. at 536, 296 A.2d at 257. We conclude that Neglected Child applies here in order to protect the continuing interests of the child. The agreement had no greater force than a judgment that adjudicated B.S. as CHINS and limited the disposition for some period. The stipulation was subject to modification for changed circumstances.

The circumstances in this case demonstrate the wisdom of the rule. The March 1994 agreement was based on the expectation that the parents would participate in an intense parenting program and would make progress in learning to parent B.S. If the parents did not improve, the parties contemplated a speedy disposition hearing that could adopt a different case plan. Neither of these expectations was met. Meanwhile, almost a year later, SRS, which by law is required to present an "assessment of the child's medical, psychological, social, educational and vocational needs," 33 V.S.A. § 5527(b)(1), and a proposed disposition and case plan, id. § 5527(b)(4), was put in the position of offering a dishonest assessment and recommendation that was not in the best interest of the child if it followed the mother's interpretation of the stipulation.

Any disposition order may be "amended, modified, set aside or terminated ... on the ground that changed circumstances so require in the best interests of the child." 33 V.S.A. § 5532(a). Findings in support of changed circumstances will be affirmed unless they are clearly erroneous. See In re B.W., 162 Vt. 287, 291, 648 A.2d 652, 654 (1994). The conclusion will be affirmed if supported by the findings. See In re M.M., 159 Vt. 517, 522, 621 A.2d 1276, 1279 (1993). We hold that the court's ruling that changed circumstances existed was adequately supported by the findings, particularly in light of the failure of the Baird Center program and the passage of time without progress. The modification to allow SRS to recommend termination, assuming it was necessary, was within the court's discretion.

The mother's second claim of error is that the court improperly terminated her parental rights without addressing her claims under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134. She relies on the fact that she is mentally retarded and mental retardation is a disability within the meaning of the ADA. See 42 U.S.C. § 12102(2) (defining "disability"); 28 C.F.R. § 35.104(1)(ii) (mental retardation is a disability); Howard v. Department of Social Welfare, 163 Vt. 109, 115 n. 1, 655 A.2d 1102, 1106 n. 1 (1994) (learning disability is impairment under ADA). She argues that, with help, she has the capacity to care for her child and is therefore a qualified person eligible for accommodation under the ADA. See 42 U.S.C. § 12131(2) (d...