In re D.B.

IN_RE_DB.92-539; 161 Vt. 217; 635 A.2d 1207

[Filed 10-Dec-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. 92-539


 In re D.B., T.B., J.B., and S.B.,            Supreme Court
 Juveniles
                                              On Appeal from
                                              Chittenden Family Court

                                              October Term, 1993

 Michael S. Kupersmith, J.

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane,
    Assistant Attorney General, Waterbury, for plaintiff-appellee

 Paul D. Jarvis of Jarvis & Kaplan, Burlington, for defendant-appellant
    father

 Norman R. Blais, Burlington, for defendant-appellant mother


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

      MORSE, J.   Biological parents appeal the family court's order
 terminating their residual rights to parent their four daughters.  33 V.S.A.
 {{ 5532, 5540 (TPR proceeding).  At the time of hearing, the girls were aged
 12, 8, 6, and 5.  The parents take issue with the court's essential finding
 that their progress was insufficient to warrant further rehabilitation
 efforts toward reuniting the family.  They also maintain that less drastic
 alternatives to termination of parental rights were not adequately explored
 and that the court improperly denied them a hearing on motions to reopen the
 evidence.  We affirm.
      In February 1990, all four girls were adjudicated children in need of
 care and supervision (CHINS), pursuant to 33 V.S.A. { 5501(12)(A), (B), in
 part because of sexual abuse, including an older brother's sexual contact

 

 with two of the girls and three of the girls viewing pornographic acts in
 their parents' presence and with their encouragement.  Consequently, legal
 custody and guardianship of the daughters were transferred to the Department
 of Social and Rehabilitation Services (SRS).  In January 1992, after multi-
 ple foster care placements, the girls were placed together with foster
 parents willing to adopt them.  In May 1992, SRS brought termination pro-
 ceedings, which resulted in termination of parental rights with respect to
 all four girls.
      In early 1990, SRS's case plan was designed to reunite the girls with
 their parents by providing for psychological evaluation of the parents,
 parental education in properly disciplining and protecting the children, and
 counseling for all family members.  Then, in August 1990, two of the girls
 alleged their father had sexually abused them, behavior that was later
 confirmed by his admission.  Mother admitted she was involved in the abuse
 by encouraging the girls to touch father's penis on numerous occasions.  In
 October 1990, the parents moved to Florida, despite SRS's attempt to dis-
 suade them because of the adverse impact the move would have on rehabili-
 tation efforts.  The children remained in foster care in Vermont.  Mother
 returned a few months later while father remained in Florida.
      Meanwhile, father had been charged here with lewd and lascivious
 behavior with two of his daughters and sexual assault on a relative.  When
 he eventually returned from Florida in January 1991, he was incarcerated
 until spring when the criminal charges were resolved by plea agreement.  He
 was placed on probation with conditions aimed at controlling his sex
 offending.  Mother admitted using cocaine but refused treatment until
 February 1992, when she entered a drug program.  At the time of the May 1992

 

 hearing, she had experienced alternating periods of abstinence and relapse,
 but had been cocaine-free for the five previous days.  Father began general
 counseling in March 1991 and sex offender treatment in August 1991, but,
 given his parenting deficiency, the family court determined he would need "a
 minimum of one and up to two years" of treatment to develop parenting
 capacity.  Moreover, for father "to realistically reassume or assume his
 parental responsibilities at the end of that time," mother would have to be
 free of drug addiction.  The court concluded that "for (father) to parent
 the children successfully, he must have the assistance of the children's
 mother . . . they must function as a unit or not at all."
      During the time between the transfer of the girls' custody to the
 State and the TPR hearing, progress toward unification of the family was
 hampered by the parents' erratic visits and their inconsistent commitment to
 treatment.  The court found the girls have adapted well to the family wish-
 ing to adopt them and that the children need to settle down with responsible
 parents.  The family court concluded that any further delay would exacerbate
 their emotional instability and would not be in their best interests.
      A court may terminate parental rights at a modification hearing if it
 finds that there has been a substantial change in material circumstances
 since the disposition order and that termination is in child's best
 interests.  In re A.F., ___ Vt. ___, ___, 624 A.2d 867, 869 (1993).  The
 child's best interest is to be determined by the criteria in 33 V.S.A. {
 5540.  "Stagnation" of parental ability is often the change in circumstances
 alleged in these cases.  Id.; In re H.A., 153 Vt. 504, 515, 572 A.2d 884,
 890 (1990).  The change in circumstances is the failure of the expectation
 that parental ability to care for a child will improve within a reasonable

 

 time after the CHINS adjudication.  The key factor affecting the child's
 best interests is the likelihood that the biological parent or parents will
 "be able to resume . . . parental duties within a reasonable period of
 time."  33 V.S.A. { 5540(3); see In re E.G., 139 Vt. 171, 173, 423 A.2d 1197, 1198 (1980) (whether family can be reunited in a reasonable time is
 now prime consideration in termination proceeding).
      The parents claim there is no clear and convincing evidence supporting
 a finding of stagnation because the court found the issue was "an
 exceedingly close call" and there was "some improvement in the father, and
 some efforts on the part of the mother, albeit belated, to improve her
 condition as well."  Father's therapist had concluded that progress in
 treatment had been "substantial."  They argue that, for stagnation to occur,
 improvement must be nonexistent and, in support, cite In re J.R., 153 Vt.
 85, 99, 570 A.2d 154, 161 (1989) (stagnation may be shown by "passage of
 time with no improvement in parental capacity to care properly for the
 child") (emphasis added).
      Our more recent cases, however, do not support the parents'
 interpretation of J.R..  In In re J.M., ___ Vt. ___, ___, 624 A.2d 362, 364
 (1993), parents whose rights were terminated contended that "stagnation is
 properly defined as a situation where there has been a complete lack of
 movement toward reunification."  We held, to the contrary, that stagnation
 may be found even though a parent's generalized parenting skills improve.
 Id.; see also A.F., ___ Vt. at ___, 624 A.2d  at 871, and cases cited therein
 (that parent showed some progress does not preclude finding of changed cir-
 cumstances if it is unlikely that parent will be able to resume parental
 duties in a reasonable time).  Rather, the question is whether the improve-

 

 ment substantially conformed with the expectations at the time of the CHINS
 adjudication and with SRS's case plan.  If the expectation of improvement
 has been met, there is no change in circumstances.  If, however, the
 expected improvement has not occurred, there may be a change in circum-
 stances; if such a change is shown, the inquiry shifts to what outcome will
 be in the child's best interests.
      The court's conclusions, that the children's lives would be adversely
 affected by maintaining the status quo and that adoption was in their best
 interests, were supported by the evidence.  The court stated:
             At the time of disposition the parents were totally
           unfit to have custody of their children.  As discussed
           above, the likelihood that either parent will be able
           to resume parental duties within a year of the hearing
           is nil.  At the end of one year it may be possible to
           determine the time frame for resumption of parental
           duties.

      The parents quarrel with this statement about the time necessary for
 resumption of parental duties, contending that father's expert had contra-
 dicted the court's finding.  There was no contradiction, and even if there
 had been, the court is not required to accept an expert's statement.
 Father's expert, after seeing father for a year, stated that he had only
 recently begun to work on father's parenting skills and he had not had the
 opportunity to see him interact with his children.  He further stated that,
 although it would be "reasonable to assume some progress will be made," he
 would like to see father assessed in a year.  The expert was not entirely
 clear about what level he expected father to be able to achieve by the end
 of the second year, and the court's finding that it would be one to two
 years before father could begin to parent the girls was not clearly
 erroneous.  Further, even this modest prediction remained contingent on

 

 mother's recovery from her cocaine addiction, which the court, in an
 unchallenged finding, stated would require her complete abstinence for a
 year.  Thus, there was no error in the court's findings.
      The parents also argue that the court failed to investigate less
 drastic alternatives to terminating parental rights.  They assert that such
 an investigation would have culminated in the court's finding that temporary
 placement outside the home would be adequate to serve the best interest
 until it was possible to reunite the family.  See In re E.G., 139 Vt. 171,
 173, 423 A.2d 1197, 1198 (1980).  The court, however, specifically found
 that continuing to live in a temporary foster-care arrangement would have
 been unacceptably harmful to the children.  Thus, the court did find that
 temporary placement outside the home was not an adequate alternative to
 severing residual parental rights.  Because the evidence supported termin-
 ation and because the court considered and rejected the only alternative
 urged by the parents, continuation in foster care, we find no error.
      Finally, the parents claim the court erred in not conducting a hearing
 on their motions to reopen the evidence, which were filed after the termin-
 ation hearing but prior to the court's issuing its termination order.
 During this period, each parent moved to reopen the evidence to show that
 they had made progress in their respective treatment regimens.  Mother
 proposed to show that she would be able to resume her parental responsi-
 bilities soon because she had remained drug-free for two months.  Father
 wanted to show that he was making similar progress because he was about to
 begin the parenting skills component of his treatment plan.
      In construing V.R.C.P. 78(b)(2)(disposition of written motions), we
 have held that where there has been a trial on the merits the decision to

 

 hold an evidentiary hearing on a posttrial motion is within the discretion
 of the trial court.  Williams v. Williams, 158 Vt. 574, 576, 613 A.2d 200,
 201 (1992).  This rule also applies to motions to reopen the evidence after
 the close of a proceeding passing on the merits of an action to terminate
 parental rights.  Our standard for reviewing a trial court's decision not to
 hold a hearing on a Rule 78(b)(2) motion is narrow and depends on an affir-
 mative showing that the court abused or withheld its discretion.  Id.  Rule
 78(b)(2) does not require a hearing when what is alleged, even if proven,
 would not change the result.  What was alleged as "improvement" in the
 motions did not necessitate a different view of the merits as expressed in
 the family court's opinion.
      Affirmed.



                                    FOR THE COURT:


                                    ____________________________
                                    Associate Justice