In re T.E.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-411


In re T.E., Juvenile                         Supreme Court


                                             On Appeal from
                                             District Court of Vermont,
                                             Unit No. 2, Franklin Circuit

                                             May Term, 1990


Kilburn, J. (termination-of-rights proceeding); Costes, J. (motion to
   modify and vacate)

Jeffrey L. Amestoy, Attorney General, Montpelier, and Barbara L. Crippen,
   Special Assistant Attorney General, Waterbury, for plaintiff-appellee
   State of Vermont

Martin & Paolini, Barre, for defendant-appellant mother

Steve Dunham, Public Defender, St. Albans, for defendant-appellee T.E.



PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.



     GIBSON, J.   The mother of T.E. appeals from a denial by the Franklin
District Court, sitting as a juvenile court, of her motion to modify and
vacate an order terminating her residual parental rights with respect to her
daughter.  We affirm.
     As a seven-year-old, T.E. was taken into custody by the Department of
Social and Rehabilitation Services (SRS) on September 15, 1980, pursuant to
an emergency detention order.  The SRS complaint alleged that appellant was
a substance abuser who had left T.E. and her brother unsupervised on
numerous occasions.  She was in the process of being evicted, and the trial
court found that "[s]he had no prospects of obtaining a suitable residence
and refused to acknowledge her substance abuse problem and to seek treatment
therefor."  T.E. was placed in the home of her maternal aunt and uncle, and
the court subsequently found T.E. to be in need of care and supervision,
placing her in the custody of SRS for six months.
     At a juvenile court review hearing on May 21, 1981, the court ordered
T.E. to remain in SRS custody, without objection from appellant.  As the
trial court later found, it was made clear to appellant at the May 21, 1981
hearing that "if sufficient progress were not made by her, then SRS would
seek a termination of her parental rights."   Appellant did not thereafter
make that progress in the view of SRS, and T.E., who had stabilized in
foster care, had meanwhile expressed a desire to be adopted.  SRS filed a
petition to terminate residual parental rights, and a three-day hearing on
that petition was conducted in October and November of 1983, resulting in a
March 2, 1984 decision terminating appellant's rights.  The trial court
found that appellant's pattern of instability had not changed, though her
"nomadic lifestyle had at least temporarily stabilized to some extent."  The
court found that T.E. was ready for adoption, "believing her mother could no
longer take care of her," that there was "virtually no likelihood" that
appellant would be able to resume her parental duties, that reunification
efforts had "long since reached a level of complete and total stagnation,"
and that continued efforts in this direction would "impair the future
healthy development" of T.E.  The court concluded, based on clear and
convincing evidence, that it would be in T.E.'s best interest to terminate
appellant's residual parental rights.
     Appellant filed a timely motion to amend the findings, and a hearing on
the motion was held on April 5, 1984.  Inexplicably, that motion was not
decided until March 10, 1987, nearly three years later, an appalling delay.
Prior to the decision, appellant filed a motion to modify and vacate the
1984 order, as permitted by 33 V.S.A. { 659(a).  Because of its inordinate
delay in deciding the motion to amend, the court apologized to the parties
and offered appellant an opportunity to reopen the matter before a different
judge.  On March 31, 1987, appellant filed an amended motion, asking that
all prior orders be vacated.  After a two-day hearing before a second judge
in July and August of 1987, and prior to a decision, appellant moved for a
third hearing, alleging prejudice because T.E.'s attorney had represented
both T.E. and her brother during the 1984 hearing, when the two siblings had
conflicting desires regarding termination of the parental relationship.  The
court denied that motion.  In deciding the motion to modify and vacate, the
court found that appellant had not established a stable living arrangement
or employment since the 1984 decision, that her emotional problems remained,
and that "it is not clear whether she is drug free."  The court also found
that appellant had not made a substantial change in her material
circumstances, and it therefore denied her motion.  The present appeal
followed.
     Appellant contends first that the trial court erred by imposing on her
the burden of proving her case by clear and convincing evidence, when the
burden should simply have been a preponderance of the evidence.  It is
settled law that a state's initial burden of proof in seeking to terminate
residual parental rights is by clear and convincing evidence.  Santosky v.
Kramer, 455 U.S. 745, 747-48 (1982); In re M.B., 147 Vt. 41, 44, 509 A.2d 1014, 1016 (1986).  The State argues, however, that once an order has been
entered establishing by clear and convincing evidence that termination of
parental rights is in the child's best interests, a parent seeking to modify
or vacate that order should be required to bear the same burden of proof.
Alternatively, the State contends that the trial court did not require
appellant to prove her case by clear and convincing evidence, and that if
there was error, it was harmless.  We conclude that the proper standard of
proof for appellant herein was a preponderance of the evidence, that if
there was error by the trial court, it was harmless, and that the court
properly denied appellant's motion to modify and vacate for failure to
sustain her burden of proof.
     As we have noted, due process requires that a higher standard -- clear
and convincing evidence -- be imposed on the State whenever it seeks
permanently to sever what has been described as "[t]he fundamental liberty
interest of natural parents in the care, custody, and management of their
child . . . ."  Santosky, 455 U.S.  at 747-48, 753.  If a parent is able,
however, to show by a preponderance of the evidence that there has been a
substantial change in circumstances and that the best interests of the child
require an amendment, modification or vacation of a termination order, see
33 V.S.A. { 659(a), the State no longer can maintain the claim that clear
and convincing evidence exists to justify the severance of parental rights.
Proof by a preponderance of the evidence is thus sufficient to sustain a
parent's motion to modify or vacate filed pursuant to { 659, unless there
has been an intervening adoption of the child, bringing into the picture a
new set of parents whose rights must be considered.  That situation does not
confront us here.
     The confusion herein comes from the trial court's statement that
"[b]ased on clear and convincing evidence she [appellant] has not made a
substantial change in her material circumstances and in her ability to
provide a permanent home, stable environment, and ability to provide
emotional and financial support to her child."  Appellant contends that the
statement erroneously adopts clear and convincing evidence as her burden of
proof.  Considering the record as a whole, however, we conclude that the
evidence does not support appellant's motion regardless of which standard of
proof is used, that appellant has therefore not been unduly prejudiced, and
that if there was error, it was harmless.
    In a separate reference to the evidence presented by appellant, the
court stated:  "The court concludes that T.E.'s mother has not shown a
substantial change in circumstances that would require modification of the
court termination order of March 1984."  No standard of proof was there
stated.  Moreover, there is nothing in the record or in the court's findings
to suggest that appellant might have prevailed by a preponderance of the
evidence, while failing to meet the higher burden of clear and convincing
evidence.  The undisputed findings, based largely on evidence adduced by the
State, strongly suggest that appellant had not even been successful in
meeting her burden of producing some evidence of a change in circumstances.
At the time of the 1987 hearing, she still had no permanent living
arrangements and no job.  She had failed to complete a vocational program
because of the employer's dissatisfaction with her work.  The contacts
between appellant and T.E. in the three years between hearings were
sporadic.  Meanwhile, T.E. in this period had become well adjusted to home,
school, and community.  In this context, the court's reference to "clear and
convincing evidence" seems more logically to say that the evidence was clear
and convincing that appellant had not made the required change in circum-
stances.  In any event, it is clear that the undisputed findings would not
support a grant of appellant's motion whichever standard the court used;
accordingly, appellant has not been unduly prejudiced, and if there was
error, it was harmless.  See V.R.C.P. 61; Board of Medical Practice v.
Perry-Hooker, 143 Vt. 268, 269-70, 465 A.2d 291, 292 (1983); Ordinetz v.
Springfield Family Center, Inc., 142 Vt. 466, 470-71, 457 A.2d 282, 284-85
(1983).  The court properly denied appellant's motion.
     Appellant next contends that the trial court in its 1987 decision erred
in requiring her to demonstrate an ability to resume parental responsi-
bilities "in the near future" rather than in a "reasonable amount of time."
While in some cases the use of the phrase "in the near future" might signal
the use of a standard more stringent than a "reasonable amount of time," the
trial court's decision, taken as a whole, evinces no such  distinction.  The
evidence before the court reflected a very lengthy period of time during
which there was little or no solid evidence of improvement in appellant's
personal resources or capabilities to care for T.E. in accordance with the
minimal legal standards.  With T.E. nearing her majority and still eager to
be adopted, "in the near future" was the functional equivalent of in a
"reasonable amount of time," though, again, we limit this conclusion to the
context of this case.
     Finally, appellant contends that her motion for a new hearing should
have been granted because the attorney for T.E. had also represented T.E.'s
brother during earlier proceedings, resulting in a conflict of interest.  If
we apprehend the argument fully, appellant suggests that allowing the same
attorney to represent both of her children tended to prejudice her parental
rights in T.E.'s sibling.  Because T.E. sought to be adopted, the attorney
was strongly motivated, in appellant's view, to prove her incapacity as a
parent.  That zeal would tend to spill over to the litigation concerning her
son and hence resulted in a conflict.  But the conflict, if any, related to
the 1984 proceedings, not the hearing on the motion to modify in 1987,
because the later motion related only to T.E., not her brother.  Consequent-
ly, there was no reason to grant yet another hearing, following the 1987
proceedings.  Moreover, it appears that the public defender's office had
represented both of appellant's children only during the time when it
appeared that their interests coincided.  When questions arose about the
pursuit of adoption for T.E.'s brother, separate lawyers represented the
siblings and continued to do so during all subsequent proceedings, including
the hearing from which the present appeal has been taken.  There was no
error.
     Affirmed.



                                        FOR THE COURT:


                                        _______________________________
                                        Associate Justice