In re A.F.

IN_RE_AF.91-226; 160 Vt. 175; 624 A.2d 867


[Filed 19-Mar-1993]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 91-226


 In re A.F., B.F., and C.F.,                  Supreme Court
    Juveniles
                                              On Appeal from
                                              Windsor Family Court

                                              January Term, 1993


 George F. Ellison, J.

 Jeffrey L. Amestoy, Attorney General, Montpelier, Barbara L. Crippen,
    Assistant Attorney General, and Harrison B. Lebowitz, Special Assistant
    Attorney General, Waterbury, for plaintiff-appellee

 Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant


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


      JOHNSON, J.   The mother of three juveniles appeals from the family
 court's order granting the petition of the Commissioner of Social and
 Rehabilitation Services (SRS) to terminate residual parental rights.
 Appellant argues that (1) numerous findings and conclusions are unsupported
 by the record, (2) certain crucial findings and conclusions are based
 solely on hearsay, and (3) the finding of changed circumstances was not
 supported by clear and convincing evidence.  We affirm.
      The three boys, C.F., A.F. and B.F., were born in July 1981, December
 1982 and June 1985, respectively.  SRS's involvement with the family dates
 back to 1984, when it opened a voluntary protective services case in
 response to substantiated reports of abuse and neglect of the children.  In
 April 1988, SRS took custody of the children at the request of appellant,
 who was unable to protect them from the father.  The children were found to
 be in need of care and supervision, and the family court transferred legal
 guardianship and custody to SRS at the disposition hearing in July 1988.
 Residual rights remained with the parents, with an ultimate goal of
 reunification.  The court ordered that the children be placed outside the
 home in a structured and safe environment, the father obtain substance
 abuse evaluation, the mother participate in mental health counseling, and
 both parents participate in a family assessment regarding past abuse and
 the potential to resume parenting responsibilities.
      SRS changed its case goal from reunification to termination of parental
 rights at the twelve-month review.  The Department sought termination of
 parental rights because it believed, based on information received from
 caseworkers and other professionals offering services in the case, that the
 children needed stability and a permanent home, and that appellant would not
 be able to provide either in the foreseeable future, if ever.  The eight-day
 termination hearing took place between August and December of 1990.  The
 court concluded that the mother had made only minimal progress toward
 reunification, and that there was no reasonable possibility that she would
 be able to resume her parental duties in the near future.  The present
 appeal ensued.
      Before terminating parental rights in a modification hearing, the court
 must find that there has been a substantial change in material circumstances
 since the disposition order, and that termination is in the best interest of
 the children.  In re S.R., ___ Vt. ___, ___, 599 A.2d 364, 366 (1991).  A
 substantial change in material circumstances is "most often found when the
 parent's ability to care properly for the child[ren] has stagnated or
 deteriorated."  In re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890 (1990).  In
 determining the best interests of the children, the court must consider (1)
 the children's interaction with the natural parents, foster parents,
 siblings, and other persons who may significantly affect their lives; (2)
 the children's adjustment to their home, school and community; (3) the
 likelihood that the natural parent will be able to resume parental duties
 within a reasonable period of time; and (4) whether the parent continues to
 play a constructive role in the children's welfare.  33 V.S.A. { 5540.  The
 third criterion is the most critical factor.  In re J.R., 153 Vt. 85, 100,
 570 A.2d 154, 161 (1989).
      The court's conclusion that a parent will be unlikely to resume her
 parental duties must be supported by clear and convincing evidence.  In re
 H.A., 153 Vt. at 513, 572 A.2d  at 889.  Individual findings of fact will
 stand unless clearly erroneous, and conclusions of law will be upheld if
 supported by the findings.  Id. at 515, 572 A.2d  at 891.  When findings are
 attacked on appeal, our role is limited to determining whether they are
 supported by credible evidence.  See In re B.B., 155 Vt. 365, 368-69, 584 A.2d 1126, 1128 (1990); In re C.L., 151 Vt. 480, 484, 563 A.2d 241, 244
 (1989).  We leave it to the sound discretion of the family court to
 determine the credibility of the witnesses and to weigh the evidence.  See
 In re B.B., 155 Vt. at 369, 584 A.2d  at 1128.
      Appellant first argues that fourteen findings and five conclusions made
 by the court are not supported by evidence.  The principal findings objected
 to are that (1) the mother's physical disabilities -- cerebral palsy and
 epilepsy -- would impair her ability to work and to parent; (2) she suffers
 from a dependent personality disorder; (3) she failed to make substantial
 progress in working toward reunification despite support from SRS and other
 agencies; (4) she has persistently denied any role in the abuse and neglect
 of her children; (5) she is detached from her children and is unable to put
 their needs before her own; (6) her behavior toward the children during
 visits has not changed over a long period of time; (7) reunification with
 C.F., who has ambivalent feelings concerning his mother, would exacerbate
 his confusions and his tendency toward a quasi-spousal relationship with
 her; and (8) it will take several years for her to reach a point where she
 can reasonably care for her children.  The challenged conclusions stem from
 these findings.
      Our review of the record reveals support for all of the challenged
 findings and conclusions except for the court's finding that the mother's
 physical disabilities -- cerebral palsy and epilepsy -- impair her ability
 to function as a mother and an employee.  The mother's testimony regarding
 her physical disabilities indicated that those disabilities have affected
 her ability to work but did not suggest the disabilities have impaired her
 ability to parent.  The deletion of this finding and that portion of the
 conclusions based on the finding do not alter the court's conclusion.  The
 remainder of the court's findings, which are supported by the record, are
 sufficient to sustain the decision to terminate the mother's parental
 rights, as a matter of law.  See In re C.M., 157 Vt. 100, 103, 595 A.2d 293,
 294-295 (1991) (citing cases for proposition that erroneous finding does not
 require reversal where other evidence supported termination of parental
 rights or ruling that children were in need of protection).
      The court's finding that the mother has minimized her role in the
 children's abuse is well supported by the evidence.  The father was
 responsible for most of the abuse within the family, both physical and
 sexual.  Nevertheless, there was credible evidence that the mother had
 physically abused her children and had been unable to prevent the sexual
 abuse of them.  A relative, who was a frequent visitor to the household,
 testified that he had seen both parents physically abuse the children, and
 there was further evidence of specific incidents of abuse and neglect by the
 mother.  Despite this evidence, various social workers and therapists
 testified that the mother either refused to acknowledge, or downplayed, her
 role in the neglect and abuse of her children.
      There is also credible evidence in the record supporting the court's
 findings regarding the mother's behavioral problems, her dependency on
 others, and her inability to understand or cope with her children's
 extraordinary needs.  Several expert witnesses acknowledged that appellant
 had made some progress in coping with her own life by divorcing her husband
 and obtaining a driver's license, but most of them agreed that these strides
 did not indicate that she would be able to resume parental duties in the
 near future.
      Appellant contends that she was never given a chance to follow through
 on the plan for reunification, and that the court improperly relied on
 evidence of her behavior prior to the time SRS took custody of her children
 in 1988 to support its conclusion that she had not followed through on the
 reunification plan.  While it is true that the court noted appellant's
 failure to take advantage of services provided or arranged by SRS since
 1984, the record discloses that appellant did not successfully participate
 in various programs from the time SRS assumed custody of the children until
 the termination hearing.  SRS took custody of the children in April 1988.
 An evaluation to determine the mother's parenting capacity was not completed
 until November 1988 because the parents missed a number of appointments.
 The evaluation concluded that the long-term prognosis for reunification was
 "extremely guarded," and recommended that, before a reunification plan could
 be implemented, the mother, among other things, would have to attend a
 variety of therapies, including individual counseling and parenting classes.
 The evaluation concluded that progress in parenting skills and interpersonal
 growth should be apparent in three to six months, and that failure to
 demonstrate progress in those areas during that time would suggest that she
 is not capable of meeting her children's complex emotional needs.
      Although appellant attended twenty-three therapy sessions over a period
 of four months beginning in December 1988, the therapist concluded that
 appellant had declined to address or make significant progress regarding the
 issues and goals that were set for her in the initial evaluation.  Further,
 her attendance at other counselling programs was sporadic, and she gained
 little from them.  Thus, the court's conclusion that she had not followed
 through on the reunification plan was supported by the findings.
      Appellant claims, however, that her lack of progress in therapy was the
 result of her inability to develop a rapport with the therapist because of
 the presence of the case social worker.  Further, she states that she missed
 meetings in the other programs because of transportation problems or because
 she felt out of place at parenting meetings without her children.  There was
 scant evidence, however, indicating that her difficulties in successfully
 completing the programs were brought to the attention of SRS early on or
 were the result of a lack of support from SRS.  The record does not support
 her contention that she was not given the opportunity to follow through on
 the reunification plan.
      Appellant points out that she made progress with another therapist that
 she began seeing in April 1989.  She further points out that in August 1989
 this therapist recommended, in conjunction with the children's therapists,
 that SRS postpone its decision to terminate the mother's parental rights for
 another six months.  There was countervailing evidence, however.  A follow-
 up evaluation of appellant in December 1989 by the clinical social worker
 who prepared the initial evaluation, and a psychiatric evaluation in May
 1990, both concluded that appellant had not made sufficient progress to
 indicate that she would be able to resume parental duties within the near
 future, if ever.  It was the court's prerogative to weigh the evidence.  We
 conclude that its findings and conclusions are supported by the record.
      Appellant next argues that only hearsay evidence supports the court's
 finding that she failed to avail herself of services provided or arranged by
 SRS after it took custody of the children, and that without such a finding
 termination could not be justified.  Hearsay evidence is admissible in
 termination proceedings as long as it is not the sole basis for termination
 of parental rights.  In re C.L., 151 Vt. at 486-88, 563 A.2d  at 246-47.
 That was not the case here.  Our review of the record reveals that there was
 non-hearsay testimony that defendant did not satisfactorily avail herself of
 services provided or arranged by SRS.  Indeed, as noted, appellant does not
 deny that her attendance at some of the programs was inconsistent or that
 her initial therapy was unsuccessful.  The court's decision to terminate
 parental rights was based on extensive non-hearsay evidence, including the
 testimony of approximately fifteen witnesses.
      Finally, appellant argues that because she had made some progress in
 her parenting skills between the time of the disposition order and the
 termination hearing, one of the prerequisites for termination of parental
 rights -- a substantial change of material circumstances -- did not exist.
 We conclude that clear and convincing evidence in the record demonstrates a
 substantial change in material circumstances, thereby justifying termination
 of parental rights.
        As noted, a substantial change in material circumstances is most
 often shown by demonstrating that the parent's ability to care for the child
 has not improved over time.  In re J.R., 153 Vt. 85, 99, 570 A.2d 154, 161
 (1989).  But the mere fact that a parent has shown some progress in some
 aspects of his or her life does not preclude a finding of changed
 circumstances warranting modification of a previous disposition order.  See
 In re M.M., No. 92-68, slip op. at 8-9 (Vt. Jan. 15, 1993) (though mother
 had made some progress toward reunification, finding of changed
 circumstances was upheld where mother had made insufficient progress in
 parenting skills, and her ability to act independently was many months
 away); In re J.J., 143 Vt. 1, 5-6, 458 A.2d 1129, 1131-32 (1983) (though
 trial  court found that father had made a "marked improvement" in turning
 his life around by temporarily stopping a drinking habit and seeking
 counseling, termination of parental rights was justified where evidence
 supported court's conclusion that there was no likelihood he would be able
 to resume parental duties within a reasonable period of time); In re E.G.,
 139 Vt. 171, 174, 423 A.2d 1197, 1198-99 (1980) (though mother's argument
 that she has shown some improvement in coping with her problems has "great
 force," it is counterbalanced by expert opinion that this improvement will
 not result in her ability to parent her child within a reasonably
 foreseeable time).
      Here, the mother's therapist testified that the mother had made
 substantial progress in understanding her deficiencies and the needs of her
 children, and that termination was premature.  Other expert witnesses, how-
 ever, including the two witnesses that had written psychological evaluations
 of appellant, disagreed.  While acknowledging progress appellant had made in
 gaining some control over her own life, they agreed that she had not made
 substantial progress in acquiring the skills necessary to deal with her
 children's extraordinary needs.  This determination, when considered along
 with evidence that appellant did not consistently attend or successfully
 participate in counseling sessions, and that the children were suffering
 psychologically from the uncertainty over their future, was clear and
 convincing evidence of a substantial change in material circumstances.  Cf.
 In re J. & J.W., 134 Vt. 480, 484-85, 365 A.2d 521, 524 (1976) (though
 mother had ceased to be the psychological parent of her children and had not
 yet demonstrated a readiness to fully provide for the children's extra-
 ordinary needs, there was no showing of stagnation where mother had
 established a stable marital situation, had continued a regular medical
 treatment program, had become employed in a job that involved supervision of
 children, had visited the children as often as allowed, and had prepared
 additional accommodations in her home to allow more extended visits with the
 children).

      Affirmed.



                                    FOR THE COURT:

                                    _________________________________
                                    Associate Justice