In re C.L.S.

Decision Date10 January 2020
Docket NumberNo. 19-270,19-270
Citation225 A.3d 644
Parties IN RE C.L.S., Juvenile
CourtVermont Supreme Court

Sarah Star, Middlebury, for Appellant Mother.

Allison N. Fulcher of Martin & Delaney Law Group, Barre, for Appellant Father.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jody A. Racht, Assistant Attorney General, Waterbury, for Appellee State.

Michael Rose, St. Albans, for Appellee Juvenile.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

CARROLL, J.

¶ 1. Parents appeal the termination of their parental rights to son C.L.S., who is nearly two years old. We affirm.

¶ 2. C.L.S. was born in February 2018. During mother's last trimester of pregnancy, hospital staff reported to the Department for Children and Families (DCF) that mother had repeatedly tested positive for illicit unprescribed substances. She missed numerous prenatal and medication-assisted-treatment appointments during her pregnancy. She declined inpatient treatment or a referral to a substance-abuse clinic.

¶ 3. Parents are unmarried but lived together prior to C.L.S.'s birth. In early February 2018, a DCF caseworker went to their home. Father answered the door and reported that mother was inside sleeping. He refused to wake mother up and would not let the caseworker into the home. The DCF caseworker observed that father's eyes were "pinpoint." DCF made several further unsuccessful attempts to meet with mother prior to C.L.S.'s birth.

¶ 4. DCF has been involved with both parents in the past. Mother has a history of substance abuse and mental health issues, and her parental rights to her first child were terminated in 2006. Father was involved with DCF from 2010 to 2012 due to his ex-wife's substance abuse. He worked with DCF to retain custody of three of his children, all of whom are now adults.

¶ 5. At birth, C.L.S. weighed less than five pounds, had an underdeveloped esophagus, and was in withdrawal from having illegal drugs in his system. He initially required a feeding tube. Mother also tested positive for numerous unprescribed illegal drugs. DCF took C.L.S. into custody on an emergency basis on the day he was born and filed a petition alleging that C.L.S. was a child in need of care or supervision (CHINS).

¶ 6. A temporary care hearing began the following day. The parents denied that C.L.S. was CHINS, sought a conditional order giving custody to father, and requested a contested temporary care hearing. The court continued custody with DCF but permitted parents to have unsupervised contact with C.L.S. while he remained in the hospital. C.L.S. was subsequently discharged to a foster home and father filed a motion requesting parent-child contact and unsupervised visitation.

¶ 7. On March 15, the court began a contested temporary care hearing, which did not conclude due to lack of time. A DCF caseworker testified that she had concerns regarding substance abuse by father. These were based on her observation that he had pinpoint pupils when she visited parents' home and his refusal to undergo requested urinalysis. The court ordered that father could have unsupervised contact with C.L.S. for two hours each day, seven days a week, once he returned a clean urinalysis.

¶ 8. On May 24, the court resumed the temporary care hearing. At the beginning of the hearing, mother stipulated to the merits of the CHINS petition and the court entered an adjudication of CHINS. The court then heard testimony from two DCF employees relating to temporary care. At the conclusion of the hearing, the court stated that it did not find suspicions of father's drug use to be founded. However, it had some concerns about his living situation and needed more information from him before it could issue a conditional custody order. The court stated it would issue a final ruling on conditional custody to father once DCF completed a background check on father's roommate, conducted a home visit, and was satisfied there was a plan for C.L.S.'s care while father was sleeping and at work. It warned father that a substance-abuse assessment and urinalysis would be part of a conditional custody order and asked if father would be willing to submit to urinalysis prior to the court making a final decision. Father agreed to undergo urinalysis. He did not otherwise object to the court's ruling.

¶ 9. On May 29, the court resumed the temporary care hearing. The DCF caseworker represented to the court that father's roommate had a history of substance abuse and had voluntarily relinquished his own child in 2016. The caseworker had visited father's home and it appeared to be appropriate, although there were swords or machetes throughout the home that would need to be secured out of C.L.S.'s reach. She reported that father was on probation and was in substance-abuse counseling, but his attendance was sporadic. Earlier in May, father's urine had tested positive for marijuana, buprenorphine, and OxyContin

. He had refused to undergo urinalysis requested by DCF after the last hearing.

¶ 10. The court stated that these facts undermined its previous finding that allegations of father's substance abuse were not founded. The court stated that it was "pretty astounding" that father refused to participate in urinalysis after being specifically warned at the previous hearing that urinalysis would be a requirement of any conditional custody order. The court declined to issue a conditional custody order to father and continued DCF custody. It stated that father could seek reconsideration and an evidentiary hearing regarding DCF's representations. Father did not seek reconsideration or an evidentiary hearing. The court subsequently granted DCF's motion to suspend unsupervised visitation with father until he established a four-week period of abstinence.

¶ 11. In September 2018, after a contested disposition hearing, the court issued a disposition order continuing DCF custody and adopted a case plan calling for concurrent goals of reunification with either parent or adoption. Neither party appealed the disposition order. In January 2019, the State filed petitions to terminate mother's and father's parental rights.

¶ 12. The termination hearing took place in July 2019, following which the court issued a written order granting the petitions. The court found that parents' attendance at visits with C.L.S. was sporadic and they were frequently late. Each was asked to leave visits twice due to their behavior, mother for being loud and argumentative and father for suspected drug use. During one visit in October 2018, father was drooling, stumbling, and nearly incoherent. Neither parent engaged in substance-abuse treatment contemplated by the case plan. As of the summer of 2018, mother was smoking two packs of cigarettes a day, which concerned C.L.S.'s doctor due to the child's esophageal issue as well as the general dangers of secondhand smoke. After the State filed the termination petitions, parents were late for nearly every visit with C.L.S. even though they lived near the DCF office where visits occurred. Neither parent had provided requested urinalyses

since January 2019, when father tested positive for benzodiazepine. The court did not find father's explanation for this positive result—that he had been prescribed Percocet for dental pain—to be credible, as there was no corroborating evidence.

¶ 13. The court found that parents had stagnated in their progress toward the case plan goals. It found that neither parent was likely to be able to assume parental duties within a reasonable time due to their lack of progress toward addressing their substance abuse issues, mother's failure to address her mental health needs, and father's continued relationship with mother. The court concluded that termination of parental rights was in C.L.S.'s best interests and granted the petitions. Both parents appealed.

¶ 14. On appeal, neither parent challenges the court's findings or conclusions in the termination order. Rather, they assert that the court committed various errors at the temporary care hearings that require reversal of the merits determination and subsequent disposition orders.

They argue that: the court lacked authority to require a suitability assessment of father as a prerequisite to placing C.L.S. with him because father was a custodial parent at birth; the court violated father's constitutional rights to due process and equal protection by treating him as a noncustodial parent and presuming him to be unfit merely because he was unmarried; and the court lacked subject-matter jurisdiction to make a finding of CHINS based on a stipulation by mother alone or on pre-birth circumstances, making the CHINS adjudication and subsequent disposition orders void.

¶ 15. For these reasons, parents ask this Court to vacate the CHINS, disposition, and termination orders even though they did not contest the procedures followed by the court or its jurisdiction until this appeal, a year and a half later. Because the alleged errors took place prior to the initial disposition order, which parents did not appeal, we hold that they are precluded from raising these arguments now.

¶ 16. A CHINS merits determination becomes final and subject to appeal once the court issues the resulting disposition order. See 33 V.S.A. § 5315(g) (providing that CHINS merits adjudication "is not a final order subject to appeal separate from the resulting disposition order"); 33 V.S.A. § 5318(d) (stating disposition order is final order). Parties are generally precluded from collaterally attacking a final CHINS merits determination at a later stage of the proceedings. See In re C.P., 2012 VT 100, ¶ 28, 193 Vt. 29, 71 A.3d 1142 (recognizing, under prior version of statute, that CHINS determination cannot be collaterally attacked by parent at termination stage). Neither parent appealed the initial disposition order issued in September 2018. That order, and the associated CHINS merits determination, became final in October 2018.

¶ 17. Accordingly,...

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