In re M.W.

• Decision Date: 18 March 2016
• Docket Number: No. 15–357.,15–357.
• Citation: 145 A.3d 1250,2016 VT 28
• Parties: In re M.W., Juvenile.
• Court: Vermont Supreme Court

145 A.3d 1250

2016 VT 28

In re M.W., Juvenile.

No. 15–357.

Supreme Court of Vermont.

March 18, 2016.

Motion for Reargument Denied April 19, 2016.

Michael Rose, St. Albans, for Appellant Father.

William H. Sorrell, Attorney General, and Elizabeth M. Tisher, Assistant Attorney General, Montpelier, for Appellee.

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

REIBER

, C.J.

¶ 1. Father appeals an order of the superior court, family division, terminating his parental rights with respect to his son, M.W. He contends that his extended pretrial incarceration cannot support the family court's termination order. We affirm.

¶ 2. The facts are not in dispute. M.W. was born in August 2010. M.W. lived with his young parents in the maternal grandparents' home for several months before moving into an apartment that the maternal grandfather built over a garage located fifty feet from the grandparents' home. During the approximately three years that the parents lived there, the mother and her parents were M.W.'s primary caregivers, as father worked two jobs and was away from the home much of the time.

¶ 3. On October 8, 2013, father was arrested and charged with four counts of aggravated sexual assault on minors under the age of thirteen and four counts of lewd and lascivious conduct with a child. Father was also charged with two counts of obstructing justice, one count of violating an abuse prevention order, and one count of violating conditions of release. M.W. was not the putative victim of any of the charged crimes. Ten of the twelve counts are felonies, the most serious of which—aggravated sexual assault on a minor under the age of thirteen—has a potential life sentence with a mandatory minimum of ten years to serve. The lewd-and-lascivious-conduct counts have a mandatory minimum sentence of two years to serve. The Department for Children and Families (DCF) substantiated father for abuse based on the conduct that led to the criminal charges. Father administratively appealed the substantiation, and that appeal has been stayed pending resolution of the criminal charges.

¶ 4. On two occasions, father was denied bail on his criminal charges, the first time based on the criminal division's conclusion that the evidence of guilt was great, and the second time, in February 2014, based on the criminal division's determination that the evidence of guilt was great and that there was clear and convincing evidence that father's release would pose a substantial threat of physical violence to someone. Father did not appeal the denial of bail, and he remained in jail awaiting trial at the time of the termination hearing in August 2015.

¶ 5. Meanwhile, in July 2014, the State filed a petition alleging that M.W. was a child in need of care or supervision (CHINS) due to the fact that he was the victim of unexplained, nonaccidental injuries while in the mother's care. That same month, the mother stipulated to an adjudication of CHINS. Custody of M.W. was transferred to DCF, and the boy was placed with the maternal grandparents, with whom he has lived ever since. DCF initially developed a disposition plan with concurrent goals of reunification with the mother or adoption. DCF later outlined an amended plan describing what father would need to do before being considered for reunification, including submitting to a psychosexual evaluation, engaging in parent education, and getting reintroduced to M.W. But before that plan was submitted to the family court for consideration, DCF changed the case plan to the singular goal of adoption.

¶ 6. At a December 2014 hearing, DCF and the juvenile's attorney opposed father-child contact, citing M.W.'s emotional state and the fact that M.W. had not seen father since a thirty-minute December 2013 prison visit. The parties agreed, however, that father could send M.W. letters that would be screened by DCF and forwarded to the grandparents for them to determine when it would be appropriate to show the letters to M.W. That same month, DCF filed a petition to terminate the mother's and father's parental rights. Mother voluntarily relinquished her parental rights conditioned on father's parental rights being terminated, and on August 26, 2015, the family court held an initial disposition hearing in which the State sought termination of father's parental rights.

¶ 7. At the termination hearing, the State presented testimony from father, M.W.'s maternal grandfather, and M.W.'s DCF caseworker. Father also testified briefly on his own behalf and presented testimony of the DCF caseworker who had been assigned to him when he was in DCF custody. Father testified that he did not know when he would be brought to trial on the pending charges. A trial date in father's criminal case was scheduled for October 29, 2015, at the time of the termination hearing, but previously scheduled trial dates had been continued on a number of occasions, and in fact his trial is now scheduled for mid-April 2016. At the termination hearing, a DCF caseworker testified, among other things, that M.W., who had been severely traumatized, was fearful of leaving his grandparents and did not remember father. She opined that M.W. needed to know that he was going to be able to remain with his grandparents, with whom he was “joined at the hip.”

¶ 8. Following the presentation of evidence, the family court made findings and conclusions from the bench before determining that terminating father's parental rights was in M.W.'s best interests. The court focused on the most critical of the best-interests criteria—whether father would be able to resume his parental duties within a reasonable period of time from the perspective of M.W. See 33 V.S.A. § 5114(a)

(stating best-interests criteria); see also In re B.M., 165 Vt. 331, 337, 682 A.2d 477, 480 (1996) (stating that “we have repeatedly emphasized” that whether parental rights can be resumed within reasonable time from child's perspective is “the most critical factor in a termination-of-parental-rights case”).

¶ 9. The court found that the two years during which M.W. had not seen father was a significant period of time for M.W., considering the child's age and needs. The court pointed out that even if father's trial were held as scheduled on October 29 and father was acquitted of all twelve charges, he would still face the substantiation of abuse that he had administratively appealed. The court further stated that if the substantiation was upheld on appeal, father would be required to undergo a psychosexual evaluation, and, in any event, would have to engage in parent education before being reintroduced to M.W. Indeed, as the court noted, father himself acknowledged in his testimony that he would not be able to assume primary care of M.W. in the immediate future in the event that the termination petition was denied.

¶ 10. Thus, the court concluded that even under the best case scenario for father, it would take a significant amount of time from the date of the termination hearing for him to reach the point where he could care for M.W., who had already spent much of his formative life with his maternal grandparents, with whom he was now thriving. Moreover, the court stated that much of M.W.'s life had been in turmoil, and that he had an absolute need for stability and permanency to feel safe. In the court's view, even if the charges against father were eventually dismissed or he was acquitted following a trial, and he immediately undertook the case plan recommended by DCF, an unreasonable period of time from M.W.'s perspective would have passed, given M.W.'s past traumatization and his immediate need for stability.

¶ 11. Father appeals the termination order, arguing that: (1) the bail hearing findings in connection with father's criminal case and DCF's substantiation of abuse provide no competent or relevant evidence to support the family court's termination order; and (2) the court terminated his parental rights solely based on factors beyond his control.

¶ 12. Regarding his first argument, father cites 13 V.S.A. § 7553a

, which provides that a person charged with a felony involving violence, as he has, “may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person's release poses a substantial threat of physical violence to any person.” He points out that the clear-and-convincing-evidence standard in § 7553a applies only to whether the defendant poses a substantial threat of violence to another person, and that the criminal division's role at a bail hearing is not to resolve “conflicts between inculpatory or exculpatory facts,” but rather to “decide if the State has substantial, admissible evidence legally sufficient to sustain a verdict of guilty.” State v. Turnbaugh, 174 Vt. 532, 534, 811 A.2d 662, 665 (2002) (mem.). In father's view, because a bail hearing is not an adjudication on the merits in a criminal prosecution, the criminal division's bail findings had no relevance to the termination proceeding. By the same token, father asserts that because a substantiation of abuse does not satisfy the clear-and-convincing-evidence standard required in a termination hearing, see In re Selivonik, 164 Vt. 383, 388, 670 A.2d 831, 835 (1995) (stating that “agencies investigating reports of suspected child abuse need not apply a preponderance of evidence standard to their determinations”), it is not competent evidence in a termination hearing. Compare Siegel v. Misch, 2007 VT 116, ¶ 6, 182 Vt. 623, 939 A.2d 1023 (mem.) (stating that court is not required “to give deference to or follow DCF substantiation decisions”) with In re A.W., 164 Vt. 412, 416, 670 A.2d 1265, 1267 (1995) (stating that finding of stagnation based in part on father's refusal to accept treatment for sexually abusive behavior could not be adequately reviewed absent finding, by clear and convincing evidence, that abuse actually occurred).

¶ 13. We need not address father's...