J.M., In re, 92-106
| Decision Date | 12 March 1993 |
| Docket Number | No. 92-106,92-106 |
| Citation | 624 A.2d 362,160 Vt. 146 |
| Parties | In re J.M., Juvenile. |
| Court | Vermont Supreme Court |
Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Michael O. Duane, Asst. Atty. Gen., Waterbury, for plaintiff-appellee.
Robert Paolini of Martin & Paolini, P.C., Barre, for defendants-appellants.
Before ALLEN, C.J., and GIBSON, DOOLEY and JOHNSON, JJ.
The parents of J.M., a juvenile, appeal the termination of their residual parental rights, arguing that the family court failed to apply the proper legal test in concluding that their progress toward reunification with their daughter had stagnated and that they would not be able to resume custody within a reasonable time. The parents also contend that there was no clear and convincing proof that the best interests of the child under 33 V.S.A. § 5540 required termination. We affirm.
J.M. and her two siblings were placed in the legal custody of the Commissioner of Social and Rehabilitation Services (SRS) when J.M. was approximately three months old. J.M. and her siblings had suffered from severe physical and emotional neglect. J.M. was placed in a foster home in Orwell, and she has remained in that same home throughout the course of these proceedings.
The SRS case plan was aimed at the progressive reunification of each child, beginning with the oldest and ending with J.M. The oldest child was reunited with the parents in February 1990 and the next child in September 1990. SRS continued its plan to reunite J.M. with the family, and at the October 1990 case plan review, the goal was to reunite J.M. with her parents in six months or to begin termination proceedings. After the birth of their fourth child in December 1990, the parents missed numerous visitations with J.M. The parents told the SRS social worker that they wanted to delay reunification with J.M. until the newborn was six months old. The social worker explained that J.M. was approaching two years of age, was becoming more attached to the foster family, and could not wait that long.
Meanwhile J.M. thrived in her foster home. Although J.M. progressed while under the care of her foster parents, there was testimony that J.M. returned from visits with her biological parents hungry, unclean, and emotionally distressed.
In April 1991 the court conducted an 18-month dispositional review, pursuant to § 5531. SRS recommended that legal custody of J.M. remain with the Commissioner of SRS and that if J.M. were not reunified with her parents within three months, termination and adoption be pursued. Over the next six months, efforts to increase visitation between J.M. and her parents were not successful. As the trial court stated, "They would not be rude to the child but they continued to avoid visits as scheduled, giving a variety of justifications."
The court findings describe in detail numerous areas in which the parents responded inappropriately to J.M.'s needs during this period, although they demonstrated some improvement over past behavior and did succeed in reuniting with their two oldest children. SRS advised the family court, however, that J.M. "is a timid and fragile child and is very different from the [family's] other children in her behaviors and in her emotional and psychological needs." Moreover, a psychological evaluation concluded that the foster parents had become J.M.'s psychological parents. SRS based its petition to terminate on the inability of either biological parent to understand or meet J.M.'s particular needs. The trial court granted the SRS petition, and the present appeal followed.
When termination of parental rights is sought at a modification proceeding, 33 V.S.A. § 5532 requires the court to conduct a two-step analysis. In re J.R., 153 Vt. 85, 99, 570 A.2d 154, 161 (1989). First, the court must find a substantial change in material circumstances warranting modification. Id. Second, the court must find that the best interests of the juvenile require termination of parental rights under § 5540. Id. at 100, 570 A.2d at 161. Such findings will withstand Supreme Court review unless they are clearly erroneous. In re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890 (1990).
The first step in the analysis, a substantial change in material circumstances, is "most often found when the parent's ability to care properly for the child has either stagnated or deteriorated." Id. Stagnation can "be shown by the passage of time with no improvement in parental capacity to care properly for the child." In re J.R., 153 Vt. at 99, 570 A.2d at 161.
The parents argue that termination of parental rights is not supported by sufficient findings of risk to J.M. They contend that stagnation is...
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J.T., In re
...at ----, 679 A.2d at 895, but the court's findings in either situation will be upheld unless clearly erroneous. See In re J.M., 160 Vt. 146, 149, 624 A.2d 362, 363-64 (1993). Some confusion was created by the abbreviated July 27 hearing, which was originally intended to be a disposition hea......
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B.S., In re
...time. See 33 V.S.A. § 5540(3). The period of time must be viewed from the perspective of the needs of the child. See In re J.M., 160 Vt. 146, 150, 624 A.2d 362, 364 (1993). The Legislature has not called for an open-ended inquiry into how the parents might respond to alternative SRS service......
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A.W., In re, 96-481
...is sought at a modification proceeding, 33 V.S.A. § 5532 requires the court to conduct a two-step analysis. See In re J.M., 160 Vt. 146, 148, 624 A.2d 362, 363 (1993). First, the court must find a substantial change in material circumstances justifying modification. See id. If a substantial......
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