In re D.F., 18-198

• Decision Date: 14 December 2018
• Docket Number: No. 18-198,18-198
• Court: Vermont Supreme Court
• Parties: IN RE D.F., H.F., M.F. and D.F., Juveniles

204 A.3d 641

IN RE D.F., H.F., M.F. and D.F., Juveniles

No. 18-198

Supreme Court of Vermont.

October Term, 2018

December 14, 2018

Reargument Denied January 4, 2019

Sarah R. Star of Sarah R. Star, P.C., Middlebury, for Appellant Father.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Martha E. Csala, Assistant Attorney General, Waterbury, for Appellee Department for Children and Families.

PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Grearson, Supr. J., Specially Assigned

ROBINSON, J.

¶ 1. Father appeals termination of his parental rights to his four children. On appeal, father raises three arguments regarding the court's termination decision: (1) the termination of parental rights (TPR) petition was premature because the three-month period for reunification provided for in the case plan had not expired and the Department for Children and Families (DCF) had not made reasonable efforts to reunify father with the children insofar as it refused to make the children available for expanded visitation that would have enabled reunification to occur; (2) the evidence does not support the court's determinations that father's progress had stagnated and that father would not be able to parent in a reasonable period of time; and (3) several specific findings are unsupported by the evidence. He separately appeals the trial court's "reasonable efforts" finding. We affirm.

¶ 2. The relevant procedural and factual background is as follows. Father and mother were married for ten years and had four children, Dy.F., born in April 2006, H.F., born in March 2007, M.F., born in February 2009, and Da.F., born in February 2010. DCF has been involved with the family since the children were born.

¶ 3. In June 2016, the State filed a petition alleging that the children were in need of care or supervision (CHINS) due to allegations of medical neglect, unsanitary conditions in the home, neglect of the children's hygiene, verbal abuse of the children by father, and verbal and physical abuse of mother by father.

¶ 4. The court transferred custody to DCF. In August 2016, parents stipulated to the merits of the CHINS petition, agreeing that they were not meeting the children's medical needs, that mother's unmet mental-health issues left her unable to protect the children from risk of harm, and father's preoccupation with mother prevented him from meeting the children's needs. DCF's proposed disposition case plan called for concurrent goals of reunification with mother or adoption. By the time of the initial case plan, mother was residing separately from father and living with a boyfriend in New Hampshire. The plan of services called for father to, among other things, complete a batterer's intervention program during which it would be expected that he would acknowledge his history of violence and demonstrate how to safely parent his children without the use of violence. Although father did not oppose many of the expectations in the case plan, he denied that he engaged in domestic abuse and would not agree to the proposed case plan requiring that he complete domestic-violence programming.

¶ 5. After a contested disposition hearing, on December 22, 2016, the court found by a preponderance of the evidence that father engaged in a pattern of domestic abuse, directed primarily at mother, that father on at least one occasion physically abused mother, and that there was a "clear pattern of emotional abuse and controlling behavior." Consequently, the case plan adopted by the court at disposition called for father to complete the Domestic Violence to Responsible Choices (DVRC) program, in addition to more than a dozen other expectations. The concurrent case-plan goals approved by the court were reunification with mother or with father or adoption.¹

¶ 6. Father engaged in the required programming and attended weekly visits supervised by WomenSafe. At the post-disposition review at the end of February 2017, father, through his lawyer, expressed a desire to increase visitation time, perhaps on the weekends with members of his family supervising, so that they were not constrained by the limits on available independent supervisors. The State represented to the court that DCF had concerns about relying on members of father's family as supervisors because father's family continued to minimize or deny that there was any kind of domestic abuse. The court urged the parties to work together, and invited father to file a motion if he felt DCF was being unreasonable.

¶ 7. In late March 2017, DCF convened a safety-planning meeting in response to concerns expressed by the respective foster parents that father was showing up at locations where he knew the children or their foster families would be outside of set visitation times. Following that meeting, DCF provided father with written guidelines that provided, among other things, that father was authorized to have contact with the children only through the scheduled visitation and phone calls; father was not to be in any community location in which it would be reasonable to assume that the children might be unless preapproved by DCF; that father should not, without preapproval from DCF, go to any venue or event where the foster parents would likely be, and should leave without having to be asked if he found himself at a venue or event with them; and that father should not be in the physical vicinity of either foster home.

¶ 8. In April 2017, father formally requested additional visits with the children, to be supervised by specified relatives. At the time, father had one visit a week with all four children for two-and-a-half hours supervised by Easter Seals.

¶ 9. The court held a hearing on May 30, 2017 to consider father's motion and to have a permanency-planning hearing. At the hearing all parties agreed that DCF made reasonable efforts to finalize the permanency plan and stipulated to a new case plan with an anticipated reunification goal of three months. The court and the parties spent most of the time discussing father's request for additional visits supervised by his relatives. The State was not averse to eventually increasing father's visit time with supervision by a specified family member but did not support an immediate order providing for such visits. The State noted that father had only had one Family Time visit supervised by Easter Seals, had just finished his first visit with all four children at once in over a year, represented that the clinical treatment team did not support extended-family supervised visits at all, said it would defer to the treatment providers as to when the children were ready for extended-family visits, and emphasized that if father wanted extended family to serve as supervisors, then those family members needed to make contact with the children by letter. The children's attorney indicated that the children wanted more time with their father and urged that when Easter Seals and DCF concluded that the visits had progressed with father to the point where he could have some weekend time, the additional visits take place in Middlebury, rather than Newfane, where father's grandmother lived. Father emphasized that increased visits were essential for him to realistically meet the three-month permanency goal approved by the court that day and advocated for an order that provided for the additional visits beginning at a date certain, rather than an open-ended order deferring to other providers. In response to father's concerns about the short window he faced for reunification, the State reassured father and the court that father did not have to be prepared for reunification by that time; he only needed to demonstrate significant progress moving forward.

¶ 10. At the close of the hearing, the court summarized the collective plan, explaining that DCF was to: provide a letter summarizing the expectations father would have to meet to progress to visitation beyond the Easter Seals regime, including continued progress in DVRC; provide notice of the expectation that any potential supervisor from father's family make some kind of communication so the kids would be comfortable with that person in a supervisory role; and convene a team meeting by June 30 that parents, counsel, and any extended family supervisor could attend to check in concerning the parties' progress. The court set a status conference for July 11, with the expectation that by then enough progress would be made to allow the court to approve additional supervised visits.

¶ 11. In June, after the boys' foster mother secured a temporary stalking order against father in a different docket, the State, with the support of the juveniles, filed a motion for a juvenile protective order restricting father's contact.² Father responded with a request for a juvenile protective order against the foster parent, as well as a request to transfer custody of the boys to his aunt. He alleged that foster mother's conduct in filing a stalking complaint against him was detrimental to the boys, and that the boys had become alienated from him and that visits had been canceled. In his motion, father indicated that he would be filing a modified motion to transfer custody of the girls from a different foster-care provider to his aunt, but explained that the situation with the boys' foster mother required urgent, rather than gradual, action.

¶ 12. At the June 30 hearing on the respective requests, the boys' foster mother testified about various instances in which father had appeared at or near events where foster mother and the boys were present and described the impact of father's presence at various places on the boys' sense of security. Father offered a mix of harmless explanations for his presence on such occasions and a denial of some of the secondhand reports to which foster mother had alluded in her own testimony. The court did not make findings because the parties did not finish presenting their evidence, but at the end of the hearing father...