In re JM

• Decision Date: 22 February 2000
• Docket Number: No. 99-374.,99-374.
• Citation: 750 A.2d 442
• Parties: In re J.M.
• Court: Vermont Supreme Court

750 A.2d 442

In re J.M.

No. 99-374.

Supreme Court of Vermont.

February 22, 2000.

Present AMESTOY, C.J., and DOOLY, MORSE, JOHNSON and SKOGLUND, JJ.

Entry Order

Mother and stepfather appeal from a family court judgment terminating mother's residual parental rights and denying stepfather's request for custody of the minor, J.M. Stepfather contends the court: (1) erroneously failed to treat him as a parent; and (2) made clearly erroneous findings of fact. Mother joins in stepfather's arguments, and further contends the court's findings and conclusions concerning her physical condition were clearly erroneous. We affirm.

The family court's findings may be summarized as follows. The family has a lengthy history with the Department of Social and Rehabilitation Services dating from December 1992, when SRS filed a petition alleging that J.M., who was then one month old, was a child in need of care and supervision. Mother and J.M.'s father separated during this period and were later divorced. Mother began living with stepfather in early 1993. They had four children together: two sons, Se.Y. and Sc. Y., born in August 1993 and September 1994, respectively, who were also the subject of the TPR proceeding, and two daughters, born in May 1996 and December 1997, who remain with the parents. Mother and stepfather married in 1998.

The parties stipulated to CHINS in January 1993, and the court ordered protective supervision and required mother to participate in a variety of parent-education programs. Following a merits hearing in May 1995, the court found that J.M. and his two stepbrothers were CHINS based upon evidence of filthy and unkempt conditions in the home that rendered it unsafe for the children. SRS social workers observed no sheets in the cribs, dirty clothes and rotten food covering the floors, potentially dangerous items within reach of the children, and one child with dried feces caked to his lower back and bottom. The court placed the children in stepfather's custody with protective supervision, ordered mother to move out until she could safely transition back into the home, and required both mother and stepfather to participate in parent-education services.

During the next year, the three boys were removed periodically from the home as a result of continued neglect. They were removed for the last time in June 1996, and have remained in foster care ever since. Over the next year and a half, the caseplan continued to call for reunification and parenting services for mother and stepfather. SRS workers reported that mother did not cooperate with the parenting program and that mother and stepfather were unable to safely supervise the children during visits. Although stepfather was working fulltime, he served as the primary caretaker. SRS workers reported that he had progressed in his parenting skills, but not enough to safely parent the children.

In January 1998, SRS moved to terminate residual parental rights with respect to J.M., Se.Y., and Sc.Y. In May of that year, J.M. moved into a home with foster parents interested in adoption. The court found that the foster parents have been a positive force in J.M.'s life, having demonstrated an ability to deal with his special needs.

Stepfather moved to intervene in the proceeding to terminate mother's parental rights to J.M., nothing that he had earlier been granted custody of the minor and arguing that he had effectively functioned as the child's psychological parent. The court consolidated the TPR proceedings involving Se.Y., Sc.Y., and J.M., but denied the motion to grant stepfather party status as to J.M. Pursuant to V.R.C.P. 54(b), the court granted stepfather's motion for a final judgment on his claim for party status, and he thereupon appealed the ruling to this Court. We dismissed the appeal, nothing that V.R.C.P. 54 does not apply to CHINS cases, and that the issue was not unreviewable on appeal from a final judgment under V.R.A.P. 5.1.

The TPR hearing took place over six days between January and March 1999, and included the testimony of numerous SRS caseworkers, service providers, visitation supervisors, foster parents, a psychologist who had evaluated the family, mother, and stepfather. During the course of the hearing, stepfather moved for custody and guardianship of J.M. The court issued extensive written findings and conclusions in July 1999, granting the petition to terminate mother's residual parental rights to J.M., and denying stepfather's request for custody. This appeal followed.

Stepfather renews his claim that the court erred in declining his request to be accorded party status as J.M.'s de facto parent and in failing, accordingly, to apply the statutory criteria for the termination of residual parental rights under 33 V.S.A. § 5540. Because the statutory scheme governing juvenile proceedings does not expressly define "parent," stepfather contends the common law governs, and that under the common law one who stands in loco parentis to a child acquires the status of a parent in a termination proceeding. The claim overlooks the distinction between parents and stepparents that runs throughout our statutory scheme. See, e.g., 15A V.S.A. §§ 4-101-4-113 (setting forth requirements for stepparent's adoption of stepchild); 15 V.S.A. § 293 (setting forth provision for courts to award custody where parents or stepparents live separately); 15 V.S.A. § 296 (setting forth stepparent's duty to support stepchild residing in same household). Absent a clear legislative directive, we decline to judicially expand the meaning of parent to subsume a stepparent, psychological parent, or any other person claiming in loco parentis authority in a TPR proceeding. See Titchenal v. Dexter, 166 Vt. 373, 385, 693 A.2d 682, 689 (1997) (declining to recognize custody and visitation right of de facto parents where "the Legislature is better equipped to deal with the problem"); see also In re Agnes P., 110 N.M. 768, 800 P.2d 202, 204-05 (Ct.App.1990) (declining to extend parental status in termination proceeding to persons claiming in loco parentis standing).

The several cases upon which stepfather relies do not suggest otherwise. Paquette v. Paquette, 146 Vt. 83, 85-88, 499 A.2d 23, 26-27 (1985), construed 15 V.S.A. § 652 to allow a court to award custody to a stepparent in a divorce proceeding where the statutes otherwise allowed such an order when the stepparent and natural parent were still married or had separated. In re Fowler, 130 Vt. 176, 180, 288 A.2d 463, 466 (1972), recognized that a stepparent standing in loco parentis to his...