In re W.S.
| Decision Date | 24 April 2017 |
| Docket Number | SUPREME COURT DOCKET NO. 2016-435 |
| Court | Vermont Supreme Court |
| Parties | In re W.S. & J.S., Juveniles |
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
Superior Court, Essex Unit, Family Division
DOCKET NO. 7/8-7-15 Exjv
Trial Judge: Robert R. Bent
In the above-entitled cause, the Clerk will enter:
Father appeals from an order terminating his parental rights in his sons W.S. and J.S. Mother voluntarily relinquished her rights. Father attempts to challenge the court's determination that the children were in need of care or supervision (CHINS) as well as the disposition order. These orders are not on appeal and we do not address these arguments. Father also asserts that the court erred in finding that he had stagnated in his ability to parent and that termination of his rights was in the children's best interests. We affirm the court's decision.
The following summary is drawn from the record and the trial court's findings. The Department for Children and Families (DCF) became involved with the family in November 2014 after mother reported to police that father had sexually assaulted J.S. J.S. was five months old at the time; W.S. was two-and-a-half years old. The family was living with the children's maternal grandmother. Mother told police that the family was in bed together and parents were having sex. Father lost his erection and mother began manually stimulating him. Father started to regain his erection, and when mother looked over at him, father was groping J.S. Mother confronted father, and father offered various explanations for his conduct. Father spoke to grandmother about the incident. He told grandmother he had been sexually abused as a child. Grandmother told father to leave; father became distraught, picked up a gun, and threatened to kill himself. Mother also reported to investigators that father masturbated frequently while the children were in bed with him. In January 2015, father was charged with lewd and lascivious conduct with a child. Father ceased contact with the children after January 2015.
Mother obtained a relief-from-abuse (RFA) order against father, which satisfied DCF that steps were being taken to protect the children. Mother and father reunited, however, and in early July 2015, DCF learned that mother had dismissed the RFA order and was allowing contact between father and the children. Mother had also initiated a parentage action and stipulated to unsupervised contact between father and the children. Mother was reportedly using drugs and alcohol. In July 2015, the children were taken into emergency DCF custody. At an August 2015 hearing attended by parents and their attorneys, mother stipulated that the children were CHINS. Specifically, mother agreed that "W.S. and J.S. are [CHINS] because they were without proper parental care for their well-being because after making allegations against father regarding misconduct between father and J.S., mother [] signed a parental rights stipulation allowing unsupervised visits between J.S. and W.S. and their father [], and after DCF requested her not to allow contact, she did so." Father did not object to this stipulation, nor did he appeal from the court's CHINS decision.
The court held a disposition hearing over two days in the fall of 2015. Parents attended with their attorneys. The disposition plan contemplated either adoption or reunification with mother. Father expressly did not seek reunification with him given his pending criminal charge. His lawyer explained, "[h]e would like to be considered as a person for reunification, but we understand with the current situation of his charges still pending that at this time that's not an argument we would make at this time."
The case plan required father, among other things, to have a psychosexual evaluation and to follow any treatment recommendations. Whatever reservations father might have had on the first day of the disposition hearing, his attorney made clear to the court on the second day that he, like mother, had no objections to the plan with the exception of whether the children should be placed with maternal grandmother. His counsel specifically stated, "[a]t this point he's not in disagreement with the plan as a whole," but instead only contested DCF's proposed placement of the children. The disposition hearing thus focused on whether grandmother was a suitable placement option.1 At the close of the hearing, the court considered placing the children with grandmother but determined that it was in their best interest to remain in DCF custody.
Following its placement ruling, the court also discussed the disposition plan with the parties on the record, including the requirement that father have a psychosexual evaluation. Father's attorney specifically acknowledged that father was required to get a psychosexual evaluation and follow any of the treatment recommendations. The court explained to the parties that if they objected to something DCF asked them to do, they should raise that issue with their lawyers rather than simply not complying. The court signed a disposition order consistent with its on-the-record statements on November 24, 2016. The date-stamped order is in the trial court file. Father did not appeal from the disposition order. In early January 2016, DCF changed the disposition goal for the children to adoption.
Around the time of the disposition hearing, DCF also moved to terminate father's parent-child contact because the children were experiencing great distress after visits. The court held a hearing on this issue in July 2016, which included the submission of a trauma assessment conducted through the Northeastern Family Institute (NFI). The NFI evaluation showed, and the court found by clear and convincing evidence, that both children had been affected by developmental trauma and they were in a pathological state. Contact with father triggered hyperarousal in the children, which did not let their stress level return to an acceptable range. While the boys had made progress in their foster home, contact with father continued to slow down their healing. The court found that the current harm to the children from visits warranted a suspension of contact.
DCF subsequently moved to terminate parents' rights, and following a hearing, the court granted its request. In addition to the findings noted above, the court found that the children had developmental delays; W.S.'s delays were substantial. The boys also exhibited concerning behaviors, including a consistent inability to sleep. W.S. also would sexually hump a ball after visiting with father, and makehumping motions on the couch and in the bathtub. He would have tantrums, throwing himself on the ground, and he was aggressive toward others. After visits with father stopped, the boys began sleeping better and they seemed happier, more energetic, and less preoccupied.
The court found that father visited the children weekly until visitation was suspended. Father did not timely attend to the other case plan requirements, however, including completing a psychosexual evaluation and a mental health assessment. Father finally contacted a mental health/substance abuse clinic for an assessment in April 2016, although DCF was not advised of these appointments until after the TPR hearing commenced. The assessment recommended that father abstain from all substances and attend individual substance abuse and mental health counseling. There was no evidence that father continued therapy beyond two visits, and father did not advise his therapist of the facts underlying the pending case or the allegations involved. Father did not complete a psychosexual evaluation. The court found it unclear whether DCF ever assisted father in setting one up or how it proposed to process or implement an evaluation given father's pending criminal charges. Father flatly denied inappropriate touching at the TPR hearing. The court did not credit his denial of physical contact with J.S. as described by mother, nor did it credit mother's recantation of those allegations. It did credit the evidence that father said that he had been sexually abused as a child.
As to the children, the court found that they were doing very well in their foster placement and that their behavior had greatly improved. The foster parents sought to adopt the boys if they were freed for adoption.
Based on these and numerous additional findings, the court found that father had stagnated in his ability to parent. He had done nothing, or very little, toward meeting the conditions set forth in the case plan. The boys were particularly vulnerable and needed a parent equipped with sufficient skills and sound mental health to attend to their needs. Father's failure or refusal to engage in any of the requested mental health and/or psychosexual evaluations created a standoff as to how the case could move forward. The impasse was not surmounted, although the court found it within father's power to do so. The court determined that it was father's failure to act on the recommendations for evaluations that created stasis in the case. By failing to cooperate with DCF, father failed to progress beyond weekly supervised visits. In short, the court saw no improvement in father's capacity to care for the children.
Turning to the statutory best-interest factors, the court concluded that they all supported termination. As to the most important factor, the court found no likelihood that father could resume parental duties within a reasonable period. He had made no progress toward answering the question of whether he posed a sexual risk to his children. His failure to timely engage in mental health and substance abuse assessments, as well as his failure to make headway in following the treatment recommendations, left the court unable to reach conclusions about his parenting capacity for such injured children and whether it...
To continue reading
Request your trial