In re AG, No. 2003-532

• Decision Date: 23 December 2004
• Docket Number: No. 2004-081, No. 2003-532
• Citation: 868 A.2d 692
• Court: Vermont Supreme Court
• Parties: In re A.G., Juvenile

868 A.2d 692

In re A.G., Juvenile

Nos. 2003--081, May Term, 2004

Supreme Court of Vermont

December 23, 2004

Allison N. Fulcher of Martin & Associates, Barre, for Appellant Father.

Michael Rose, St. Albans, for Appellant Mother.

William H. Sorrell, Attorney General, Montpelier, and Kirstin Schoonover, Assistant Attorney General, Waterbury, for Appellee SRS.

PRESENT: Dooley, Johnson, Skoglund and Reiber, JJ., and Gibson, J. (Ret.), Specially Assigned

DOOLEY, J.

¶ 1. Mother and father appeal from orders of the Windham Family Court relating to their daughter A.G., who was adjudicated a child in need of care and supervision (CHINS) in 1999. Specifically, mother challenges the family court's decision to place A.G. in long-term foster care. Father appeals the court's decision to terminate his residual parental rights. We affirm the family court's decisions pertaining to both father and mother.

¶ 2. State intervention through the Department of Social and Rehabilitation Services (SRS) became necessary in 1999. In July of that year, SRS filed a CHINS petition to protect seven-year-old A.G. from the effects of her mother's binge drinking, which sometimes left the child without proper supervision. Mother stipulated to a CHINS adjudication. There were no allegations that mother physically abused A.G., however, and SRS did not seek to remove A.G. from mother's care. Mother's I.Q. is within the borderline range of intellectual function, and she suffers from epilepsy. In the past, she has chosen intimate male partners, including A.G.'s biological father, who abused her. Because of mother's binge drinking, her poor choice of intimate male partners, and her consequent mental health problems, the initial SRS case plan required mother to avoid relationships with abusive men, to obtain counseling for alcohol dependence, and to engage in therapy for her mental health problems. The case plan also set forth counseling services for A.G.

¶ 3. In February 2000, the court issued a disposition order approving the case plan and recommending services for mother and A.G. Mother was arrested two weeks later, however, for disorderly conduct, and she ultimately spent ten days at the Vermont State Hospital for evaluation. SRS placed A.G. in foster care, where she has remained since.

¶ 4. A.G. has experienced the turmoil of two termination-of-parental-rights (TPR) proceedings. The first proceeding came in 2001 after SRS changed the case plan goal to termination of mother's parental rights. At the time, mother's relationship with the SRS caseworker and A.G.'s foster mother had deteriorated to a low point. Recognizing the poor relationship and its potential to harm A.G., the court issued a protective order, pending the contested TPR hearing, forbidding the foster mother or the caseworker from supervising visitation between mother and daughter.

¶ 5. In its August 2001 order denying the first request for termination, the court harshly criticized the agency for not complying with that protective order. It found that the caseworker had impeded visitation between A.G. and mother and placed "obstacles in the way of a continuing positive parent-child relationship between mother and child." Noting that the caseworker's actions came at a time when mother was "operating under serious mental and emotional disabilities," the court found that certain agency actions were "not even consistent with the case plan of improving [mother's] mental health." The court moved sua sponte to hold SRS in contempt for violating the protective order. Prior to the scheduled contempt hearing, the agency remedied the problem by increasing visitation between A.G. and mother, and the court ruled that the contempt motion was moot.

¶ 6. As to mother, the court's August 2001 order found that she "had made considerable progress in addressing the issues identified in the spring of 2000 as needing attention and the reasons that [A.G.] remained in SRS custody: alcohol abuse, mental health problems, and abusive relationships." Mother sought and received treatment at the Brattleboro Retreat, and there was no sign that she had resumed drinking. The court also found that "[d]espite all of the problems [mother] has had, there is no evidence that she ever caused her child anything greater than indirect risk of harm." Ultimately, the court concluded that mother should be afforded more time to improve her situation, and the plan for reunification should go forward.

¶ 7. In November 2001, father began seeking joint custody of A.G. and joint visits with mother. Father was never considered a custodial resource for A.G. for a variety of reasons, including his repeated criminal behavior and unstable lifestyle. Mother initially acquiesced to joint visitation, but wanted to end the arrangement a month later because the visits were becoming unduly stressful. The stress escalated to violence during the 2001 Christmas holiday. Wanting more time with A.G., father went unannounced to mother's home during her visit with A.G. and banged repeatedly on mother's door, shouting his demands for more visitation. Father's conduct was frightening, and mother refused to open the door. Father eventually left, but A.G. was so shaken up that mother called the foster family to take A.G. to their home.

¶ 8. The situation further deteriorated in mid-February 2002 when father physically assaulted mother. Frightened for her safety, mother informed the foster parents and A.G. that she was leaving her apartment to go to a women's crisis center. Unfortunately, father learned of mother's location from some paperwork filed at the court, and, consequently, mother relocated to another crisis center two hours driving distance from A.G. Then, after father made threatening remarks to A.G.'s foster family, SRS moved A.G. to an undisclosed location with a new foster family. A.G. remained in hiding from February 26 to July 29, 2002. Only one visit between mother and A.G. appears to have occurred during that five-month period. Mother feared that father would find her new home so she did not want to tell SRS where she was living, and for reasons that are unclear, SRS would not divulge A.G.'s whereabouts to mother. Thus, throughout the summer of 2002, disputes between mother and the agency arose over whether visitation would take place and on what terms.

¶ 9. Meanwhile, mother's life was stabilizing in her new location. Mother found part-time employment, and in May 2002, she secured an apartment. The caseworker wrote to mother that A.G. would be placed in her care thirty days after SRS approved the apartment she found in her new community. A Barre SRS employee inspected mother's residence and approved it, but A.G. remained in the otherwise anonymous foster home until the end of July. The agency wanted Dr. Laurence Bart to conduct an expert evaluation of mother before reunification. Mother eventually completed the evaluation with Dr. Bart although she would not allow him access to her medical history. Like the SRS caseworker from Barre, Dr. Bart inspected mother's living arrangements and found them suitable for A.G.

¶ 10. After A.G. returned to her regular foster home at the end of July 2002, the distance between mother and A.G. made transportation arrangements difficult. Mother did not have a car, and traveling to see A.G. by bus involved a twelve-hour round trip to the child's community. As a result, visitation again became a point of contention between mother and SRS officials. Their already difficult relationship was further aggravated by mother's firm belief that the agency had no right to demand that she reveal details of her current circumstances-the name and address of her employer, her work schedule, or mental health records. In September 2002, the apparent standstill in the case led SRS to modify A.G.'s case plan goal to termination once again. SRS filed petition in furtherance of the plan in October.

¶ 11. In November 2002, Dr. Bart filed his report and opined that mother was ready to resume parenting A.G. He recommended that SRS return A.G. to mother's care. After receiving Dr. Bart's report, the agency did not withdraw its petition to terminate mother's rights.

¶ 12. The court's October 2003 order denying TPR found that, as to mother, no change of circumstances had occurred because her parenting ability had not deteriorated or stagnated. The court seemed sympathetic that mother "took steps to extricate herself from [father's] violent presence, only to have her whereabouts revealed, either inadvertently by SRS or the relief from abuse court process." But the court was also concerned that mother's reluctance to share information with SRS was interfering with efforts to reunite her with A.G. SRS believed that "until there is verification, SRS can have little confidence in [mother's] ability to parent [her] ten year old child." The court also noted the close, loving and supportive relationship that existed between mother and A.G. despite long periods of separation, and, therefore, denied termination. On the other hand, the court found ample evidence to terminate father's residual parental rights in A.G., and it did so in the order.

¶ 13. In November 2003, the court held a status conference to discuss the next steps in the case. The court did not want to sever A.G.'s bonds with mother, but it also did not want to disrupt the child from her present circumstances. The court informed the parties of its preferences so that SRS could consider them when developing a new case plan, and it suggested that mother think about moving back to the town in which A.G. was living to resume reunification efforts. Visitation was also discussed, and the court was informed that A.G. had spent a few overnight weekend visits with mother in mother's new home. Mother's attorney secured transportation funding for those visits on a temporary basis from the Vermont Defender General. The court and the parties also discussed making plans to...