M.B., In re

• Decision Date: 28 February 1994
• Docket Number: Nos. 90-444,92-551,s. 90-444
• Citation: 162 Vt. 229,647 A.2d 1001
• Parties: In re M.B. and E.B. In re E.B. and M.B., Juveniles.
• Court: Vermont Supreme Court

Page 1001

647 A.2d 1001

162 Vt. 229

In re M.B. and E.B.

In re E.B. and M.B., Juveniles.

Nos. 90-444, 92-551.

Supreme Court of Vermont.

Feb. 28, 1994.

Motion for Reargument Denied

June 23, 1994.

Certiorari Denied Nov. 14, 1994. See 115 S.Ct. 519.

Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Alexandra N. Thayer, Asst. Atty. Gen., Waterbury, for appellee SRS.

Daniel Albert, Public Defender, St. Albans, for appellee juveniles E.B. and M.B.

Michael Rose, St. Albans, for appellant C.B.

Robert Andres, Burlington, for appellant M.R.

Before ALLEN, C.J., and GIBSON, DOOLEY and JOHNSON, JJ.

ALLEN, Chief Justice.

Appellant C.B. appeals the termination of parental rights and responsibilities for his children M.B. and E.B. We affirm.

This case was consolidated with In re M.B., No. 90-444 (Vt., filed Sept. 12, 1990), in which both parents appealed the trial court's order transferring custody and guardianship of the children to the Department of Social and Rehabilitation Services (SRS) after a finding that they were children in need of care or supervision (CHINS). ¹ While that appeal was pending, SRS petitioned for termination of residual parental rights and responsibilities, and the trial court granted the petition on October 30, 1992. Custody and guardianship over M.B. and E.B. were transferred to SRS without limitation as to adoption. The mother, M.R., has not appealed the termination order. Therefore, her appeal in No. 90-444 of the CHINS disposition order is moot. See In re H.A., 148 Vt. 106, 108, 528 A.2d 756, 757 (1987) (case is moot if no "live" issue is presented or if parties lack legally cognizable interest in result).

The disposition order appeal brought by the father, C.B., stands on different ground. In essence, the father alleged that the disposition order was invalid because the trial court erroneously used hearsay evidence alone to make a finding that he was unfit and demonstrably incapable of providing an appropriate home for the children. ² Hearsay evidence is admissible in a disposition hearing, 33 V.S.A. § 5527(d), but "where a timely objection is made, hearsay evidence alone may not be used as a basis for a finding of parental unfitness." In re C.L., 151 Vt. 480, 487 n. 1, 563 A.2d 241, 246 n. 1 (1989), cert. denied, 493 U.S. 1026, 110 S.Ct. 732, 107 L.Ed.2d 751 (1990). Faced with a lack of sufficient credible, nonhearsay evidence of the father's unfitness, ordinarily we would reverse the disposition order and remand to the trial court for additional findings based on appropriate evidence. But in this case, additional hearings were held for the termination of parental rights, which involved the taking of evidence on issues virtually identical to those in the disposition proceeding.

To justify termination, the trial court must find, by clear and convincing evidence, that termination is in the best interests of the child, and, in particular, whether the parent will be able to " 'resume ... parental duties within a reasonable period of time.' " In re J.R., 153 Vt. 85, 100, 570 A.2d 154, 161 (1989) (quoting 33 V.S.A. § 667(3), recodified at 33 V.S.A. § 5540(3)). As in the disposition hearing, hearsay evidence is admissible in termination proceedings, but alone it cannot provide the basis for the conclusion that an individual is an unfit parent. In re R.B., 152 Vt. 415, 424, 566 A.2d 1310, 1314 (1989), cert. denied sub nom. Appleby v. Young, 493 U.S. 1086, 110 S.Ct. 1151, 107 L.Ed.2d 1055 (1990). There must also be "credible, nonhearsay evidence of parental unfitness." Id. Therefore, in light of the identical standards for use of hearsay evidence and the higher burden of proof the State must bear to secure a termination of parental rights, if the termination order is affirmable, the father's appeal of the disposition order is also moot. We turn, then, to the father's appeal of the termination order, No. 92-551.

The father alleges a number of errors warranting a reversal of the termination order: (1) ineffective assistance of counsel; (2) the trial court erroneously found that he was an unfit parent; (3) the trial court failed to review the evidence carefully in making its findings of fact and conclusions of law; (4) the court should have ordered something less drastic than termination of his residual parental rights. We examine each claim in order.

I.

The father first claims that he was denied effective assistance of counsel in the termination hearing. ³ This stems from trial counsel's attempt to withdraw from representation on the sixth day of merits hearings, which spanned seven days over several months in 1992. The record shows that for the first five days, in which SRS presented its case for termination, appellant's attorney pursued his case with appropriate zeal and competence. He cross-examined the State witnesses extensively and effectively on all relevant issues, including reports that the father had sexually abused E.B. and M.B. Just before the fifth day of the hearing, the attorney learned that C.B. had been formally charged with sexually abusing his two young stepchildren, allegations against the father similar to those made by E.B. and M.B.

The father's attorney moved for permission to withdraw because he no longer felt he could "truthfully" present the father's case. The motion was heard and denied by a judge not otherwise associated with the proceedings. When the hearing resumed, counsel for the children informed the court of the charges pending against the father, and the father's attorney admitted that these new allegations of sexual abuse had caused him to seek withdrawal from the case. The allegations also compelled the father's counsel to reconsider the fairly lengthy list of witnesses he had planned to call in presenting the father's case in chief. Ultimately, he called only the father, a fairly recent acquaintance of the father, and the foster parents of E.B. and M.B., who had consented to adopting the children should termination of parental rights be ordered. The direct examinations of all of the father's witnesses were brief; counsel verified on direct examination of the foster parents that they would be willing to proceed with adoption. On appeal, the father contends that he was prejudiced by trial counsel's admission to the court that he had serious doubts about the father, and the brevity of the presentation of the father's case.

To establish a claim of ineffective assistance of counsel, the father must show by a preponderance of the evidence that (1) counsel's conduct fell short of the prevailing standard of a reasonably competent attorney, and (2) this incompetence was sufficiently prejudicial to create "a reasonable probability" of a different result. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); accord In re Ringler, 158 Vt. 118, 121, 605 A.2d 522, 526 (1992). ⁴ In this case we assume, without deciding, that counsel failed to meet the standard of reasonable competence in the termination hearing. Therefore, we will reverse for ineffective assistance of counsel only if the father demonstrates a reasonable probability that, absent the prejudicial effect of counsel's representation, his parental rights and responsibilities would not have been terminated.

Termination of parental rights after disposition involves a two-step process, in which the trial court first makes a threshold finding of a substantial change in material circumstances, and then determines whether termination serves the best interests of the child. In re J.R., 153 Vt. at 99-100, 570 A.2d at 161. Appellant has not challenged the threshold finding of a substantial change in material circumstances.

The best interests of the children must be considered in accordance with the four criteria set forth in 33 V.S.A. § 5540:

(1) The interaction and interrelationship of the child with his natural parents, his foster parents if any, his siblings, and any other person who may significantly affect the child's best interests;

(2) The child's adjustment to his home, school, and community;

(3) The likelihood that the natural parent will be able to resume his parental duties within a reasonable period of time; and

(4) Whether the natural parent has played and continues to play a constructive role, including personal contact and demonstrated love and affection, in the child's welfare.

The most important of the four criteria is the third, concerning resumption of parental duties. In re J.R., 153 Vt. at 100, 570 A.2d at 161.

In the first five days of the hearing, SRS presented extensive evidence outlining the troubled history of the father and his children. From the outset, SRS personnel working with the mother and father emphasized the need for a safe and stable home environment for young children such as E.B. and M.B. Social workers and mental health professionals described a situation in which neither parent had proven capable of providing a proper, nurturing environment for E.B. and M.B. The court found that the father had been given a number of opportunities over several years to care for the children. He also had been afforded but never took advantage of services to help him with the children, including welfare benefits, parenting classes, and training to enhance his employability. Nevertheless, a pattern developed in which, due to a variety of personal, marital, and financial difficulties, the father kept the children for only relatively brief periods before returning them to SRS for placement with their mother or in temporary foster care. When the termination hearing commenced on April 29, 1992, neither child had been in his care for the preceding ten months.

Shuttled between their parents and foster homes, E.B. and M.B. did not fare well. The court found that M.B. especially exhibited serious emotional and behavioral problems that neither parent was competent to address. M.B. was placed in a foster home in April 1991; E.B. was placed in the...