E. G., In re

• Decision Date: 05 November 1980
• Docket Number: No. 6-80,6-80
• Citation: 423 A.2d 1197,139 Vt. 171
• Court: Vermont Supreme Court
• Parties: In re E. G.

Page 1197

423 A.2d 1197

139 Vt. 171

In re E. G.

No. 6-80.

Supreme Court of Vermont.

Nov. 5, 1980.

M. Jerome Diamond, Atty. Gen., Susan R. Harritt, Asst. Atty. Gen. and Elizabeth Grant Rome, Sp. Asst. Atty. Gen., Montpelier, for petitioner.

Stephen J. Murphy, Montpelier, for respondent.

Before DALEY, LARROW, BILLINGS and HILL, JJ., and SMITH, J. (Ret.), Specially Assigned.

LARROW, Justice.

We are again presented with the question of whether the district court, in a juvenile proceeding under 33 V.S.A. chapter 12, was justified in terminating parental rights of the mother of E. G., a minor some three years of age at the time of the modification hearing which resulted in the order. The factual situation is complicated by provisions of the same order returning custody of N. G., a sister some six years older, to the mother, with protective services to be provided by the Department of Social and Rehabilitation Services.

No question is raised here or below about the validity of the original order entrusting custody of both children to the Commissioner of Social and Rehabilitation Services, in February, 1978, or to the continuance of that order at the review hearing in August, 1978. Truly dire circumstances made these steps requisite, and they were taken virtually by stipulation. But in September, 1979, the mother filed a petition seeking return of custody, and the State's Attorney filed a petition seeking the relief which the court eventually afforded.

Appellant mother (the only present parent) raises two general questions on appeal. The first is a claimed lack of justification for the trial court's finding of "stagnation" with respect to the mother's ability to care for the minor, within the connotations of In re Petition of Certain Neglected Children, 134 Vt. 74, 349 A.2d 228 (1975), enlarged upon in In re J. & J. W., 134 Vt. 480, 365 A.2d 521 (1976), and further explained in In re D. R., 136 Vt. 478, 392 A.2d 951 (1978). The second questions the basis for reception and use of the testimony of a child psychiatrist, one Dr. Rife.

The factual pattern here in issue is varied and complex. Its cause has root in the unchallenged diagnosis of the mother as a person suffering from chronic schizophrenia, characterized by exacerbations and remissions. During the periods of exacerbation, often a result of stress, the mother has demonstrated inability to provide proper child care. In the past, this inability has manifested itself in delusional behavior, lack of heat and cleanliness in her living quarters, inattention to E. G.'s personal hygiene, and the like. One incident, with -10o temperature in her apartment, resulted in frostbite and the amputation of four of the mother's toes. The court, in substance, found that while the rearing of N. G., a child extensively self-reliant, was within the capabilities of the mother, given appropriate supportive social help, the added burden of E. G., with her tender years, was more than she could manage, and that recurrences of her episodes were apt to take place under this added stress. Medication reduces the chance of such occurrences, but there is an admitted history of failure to take such medication on a regular basis.

The case thus presented is a very close one. We have indeed held, rather firmly, that improvement of parental condition was a bar to the severance of parental rights. In re J. A. S. (Juvenile), 135 Vt. 243, 373 A.2d 558 (1977); In re J. & J. W., supra. But we were also at pains to point out, in In re J. A. S. (Juvenile), that these decisions antedated the passage of what is now 33 V.S.A. § 667. With our decisions undoubtedly in mind, the legislature chose to enumerate with care the factors to be considered by a court in passing upon a petition like the one here involved, for custody of a minor by the Department of Social and Rehabilitation Services without limitation as to adoption. Besides the interactions and interrelationships of the child, his adjustment, and the constructive role of the natural parent, it has defined in precise language what we previously termed "deterioration" and "stagnation." As we commented in In re D. R., supra, 136 Vt. at 481, 392 A.2d at 953, reasonable time is now an element of prime consideration. To sever parental rights completely, temporary placement outside the home must be inadequate to serve the best interest of the child, and a reasonable possibility of family restoration within a reasonable time will operate to bar total termination of parental rights. The factor to be considered is couched in the following language in 33 V.S.A. § 667(3);

(3) The likelihood that the natural parent will be able to resume his parental duties within a reasonable period of time; ....

It is apparent from a reading of the findings, carefully drawn and somewhat extensive, that the trial court gave thoughtful consideration to all the enumerated factors. A growing affection to foster parents was, as is usual at tender years, clearly indicated, as well as adjustment and improvement. Personal contact with the natural mother was shown to be not extensive, due partly to disabilities and illnesses, but nonetheless present. The statutory factors were not specifically enumerated in the findings and conclusions, but we have held this an unnecessary formality. In re G. V. & R. P., 136 Vt. 499, 394 A.2d 1126 (1978). The ability to care for a self-reliant nine year old, coupled with inability to adequately care for a three year old, found ample support in expert testimony, even though there was conflict on the point. And we cannot say, as a matter of law, that the determination that this disability could not be remedied within a reasonable time is legally unsupportable. The chronic nature of the mother's disability, the unfavorable prognosis indicating future manifestations, and the lurid history of past difficulties capable of repetition, furnish support, as a matter of law, for the trial court's...