In re B.C.

• Decision Date: 29 August 2013
• Docket Number: No. 13–073.,13–073.
• Parties: In re B.C., Juvenile.
• Court: Vermont Supreme Court

194 Vt. 391

81 A.3d 1152

2013 VT 58

In re B.C., Juvenile.

No. 13–073.

Supreme Court of Vermont.

Aug. 2, 2013.

Motion for Reargument Denied Aug. 29, 2013.

Matthew F. Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Appellant.

William H. Sorrell, Attorney General, Montpelier, and Kristin L. Clouser and Wendy Burroughs, Assistant Attorneys General, Waterbury, for Appellee.

Michael Rose, St. Albans, for Appellee Juvenile.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

SKOGLUND, J.

¶ 1. Father appeals from a judgment of the superior court, family division, terminating his parental rights to the minor B.C. Father contends the trial court erroneously:(1) denied parent-child contact in violation of his fundamental rights; (2) denied a request for an independent mental examination of the child; (3) made unsupported findings; and (4) erroneously applied the statutory best-interests criteria. We affirm.

¶ 2. The record reveals a rather tangled factual and procedural history. B.C. was born in May 2004. A parentage order in May 2006 awarded mother sole parental rights and responsibilities, and granted father visitation. Thereafter, the Department for Children and Families received reports concerning mother's use of drugs, abuse of the child, and involvement with sex offenders. For a period of time, mother entrusted care of the child to her father, the child's maternal grandfather, and after he became ill, the child was cared for by his maternal grandmother. In May 2011, a probate court order granted guardianship to the maternal grandmother.

¶ 3. Shortly thereafter, DCF received a number of reports from the child's pediatrician and school that B.C. was engaging in extremely aggressive behavior, making sexualized remarks, and threatening suicide. He was seven years old at the time. In early June 2011, B.C. was admitted to the Baird Center. A psychological evaluation found that he met the diagnostic criteria for PTSD and possibly Reactive Attachment Disorder. He was released to his grandmother but readmitted to Baird on June 29, 2011, after she reported that he was violent, destructive, and out of control. He was taken into custody by DCF that day and adjudicated CHINS in August 2011.

¶ 4. B.C. remained at Baird until October 2011, when he was transferred to a therapeutic foster home. During the period at Baird, father and other family members were afforded weekly hour-long visits and telephone calls. Visits were suspended for a time because family members had behaved poorly in the child's presence; Baird staff observed that B.C. was less frustrated and irritable during this hiatus. At a subsequent hearing, a Baird clinician recalled that B.C.'s anxiety and aggression became escalated when he was anticipating family visits, and that he required more intensive one-on-one supervision to stay regulated after visits. The clinician recalled that family visits were suspended in October 2011 to help B.C. transition to his first therapeutic foster home, explaining that continued contact would have been “incredibly stressful” for B.C.

¶ 5. A scheduled disposition hearing in September 2011 was continued to provide additional time for completion of a psychological evaluation of father by Dr. William Nash, a clinical psychologist. A completed evaluation and case plan were presented at the rescheduled hearing in December 2011. The disposition report observed that B.C.'s “out of control, aggressive, self-harming and sexualized behaviors” indicated that he had been traumatized, exposed to abuse and neglect, and suffered emotional harm over an extended period; that his family had placed him in chaotic situations; and that all members of the family had unresolved mental health issues. As to father, the report noted that he had cognitive impairments which “impact[ed] all aspects of life” and required that he obtain “support with attending to basic issues,” and observed that father lacked any “understanding of [B.C.'s] special needs” or the “skills to meet” them. The report concluded that B.C. was in immediate need of permanence in view of his age and developmental needs and that it was critical he develop a secure attachment to a permanent caregiver. The plan contemplated eventual reunification with mother and called for both parents to engage in extensive services.

¶ 6. The report from Dr. Nash was submitted in response to DCF's request for a “psychological profile to assist in future planning” for the child's placement. Dr. Nash noted father's general reliance on his mother to interpret and explain what was happening, observing that father often appeared to “parrot” her statements with “only marginal comprehension.” Father reported that he received SSDI payments and did odd-jobs, that he had stopped using cocaine but continued to regularly smoke marijuana, and that he helped with the cooking and cleaning for his current wife, her two young children, and their infant child but that he could not perform these tasks without supervision or assistance. Father's overall I.Q. was 58, which Dr. Nash later likened to the intellectual functioning of a seven or eight year old. Dr. Nash concluded that, although father could benefit from training and support, he would likely always need assistance with “independent living skills, and tasks of daily living.”

¶ 7. At the disposition hearing in December 2011, the trial court heard from counsel, including father's attorney who argued for an immediate transfer of custody to B.C.'s paternal grandparents. The court adopted the case plan goal, but held no evidentiary hearing. Two days later, the child's attorney—dissatisfied with the plan—filed a petition to terminate parental rights. In January 2012, father appealed the disposition order. While these matters were pending, in February 2012, the court held a pretrial hearing in which the State indicated that it was joining the juvenile's termination petition, and father renewed his request to transfer custody to himself or his father, or issue a visitation order. The State explained that visits had been suspended to aid the child's transition to a therapeutic foster home, and the court ruled that father's counsel should submit a written request for visitation and the matter would be set for a hearing. No such request was submitted.

¶ 8. In May 2012, the trial court held a one-day termination hearing. Mother appeared and voluntarily relinquished her parental rights, and the hearing proceeded with respect to father. Dr. Nash discussed the results of his psychological evaluation, recalling father's admission that he hoped to obtain custody and then let his mother “kind of take over and raise the child.” A DCF social worker updated the court on B.C.'s placements, explaining that he was removed from his first therapeutic foster home because there was another child in the house whom he had threatened. He was subsequently placed with another experienced therapeutic foster parent, a single woman, whom he attacked, resulting in a hospitalization at the Brattleboro Retreat and later a return to Baird. The DCF clinician testified that father had experienced challenges in following the case plan, observing that he relied on his mother or wife to answer questions or provide information. He had engaged in some parenting training but “continue[d] to lack an understanding of how significant B.C.['s] needs are.” B.C.'s paternal grandparents, who were divorced, also testified, explaining that they had largely taken care of the child during his visits with father under the original parentage order, and were prepared to do so again. The paternal grandmother stated that she had not witnessed any problems with B.C. over the years. The paternal grandfather felt that he could handle any problems that the child presented, and planned to bring him to his wife's daycare center.

¶ 9. While the matter was under submission, the parties agreed to vacate the original disposition order on appeal to this Court, and we issued an order in July 2012 remanding the matter to the trial court for a new hearing. In August 2012, father filed a request with the trial court for immediate visitation. The following month, the State filed a renewed petition for termination of parental rights and a new disposition report recommending a goal of termination.

¶ 10. The court held an evidentiary hearing on the visitation motion in October 2012. B.C.'s therapeutic case manager at Baird testified to the severe challenges confronting the child's previous therapeutic foster parents and current therapists and care providers at Baird. He stated that B.C. requires extensive one-on-one attention by experienced clinicians able to identify the circumstances that lead to escalations in his mood, threats, and aggression and respond to them appropriately, and observed that “minimal changes” in his routine lead to “pretty aggressive behavior.” Citing its authority under 33 V.S.A. § 5319(a) to deny parent-child contact if necessary for “the protection of the physical safety or emotional well-being of the child,” the court found that B.C.'s emotional well-being required that visits remain suspended pending the new disposition/termination hearing scheduled for December 2012. Although father appealed the ruling, we dismissed the appeal as premature in view of the ongoing proceedings.

¶ 11. The court held a new evidentiary hearing over the course of two days in December 2012.^* B.C.'s current therapist at Baird testified that she worked with him five days a week for one to four hours a day; that his symptoms of PTSD, including sensitivity to other people and loud noises, aggression toward other children and staff, violent behavior, and night terrors remained strong and persistent; that he required an “experienced caretaker” with knowledge of childhood trauma, the skills and insight to “de-escalate” aggression, and the ability to provide structure and...