In re B.S.

In re B.S.  (96-137); 166 Vt. 345; 693 A.2d 716

[Filed 28-Mar-1997]

       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. 96-137


In re B.S., Juvenile                              Supreme Court

                                                  On Appeal from
                                                  Chittenden Family Court

                                                  November Term, 1996


James R. Crucitti, J.

       Robert Appel, Defender General, and William A. Nelson, Appellate
  Attorney, Montpelier, for appellant mother

       Charles S. Martin of Martin & Associates, Barre, for appellant
  juvenile

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


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


       DOOLEY, J.  The mother in this case appeals the termination of her
  parental rights with respect to her son, B.S., arguing that the family
  court (1) improperly allowed the Department of Social and Rehabilitation
  Services (SRS) to recommend the termination of her parental rights in
  violation of an agreement not to make such a recommendation, and (2) failed
  to resolve her claims under the Americans with Disabilities Act (ADA)
  before terminating her parental rights. We affirm.

       The mother is a moderately retarded woman with a verbal I.Q. of 75 and
  a performance I.Q. of 87.  She gave birth to her third child, B.S., on
  December 30, 1993.  On the same day, SRS intervened because the mother and
  the father had been found responsible for physical abuse of their two other
  children and those children had been removed from their home.  SRS
  initiated a petition alleging B.S. to be a child in need of care or
  supervision (CHINS) and successfully sought temporary custody of him.

 

       On January 13, 1994, SRS and the parents entered into a written
  agreement which kept B.S. in SRS custody, but placed him at the Lund Family
  Center to reside there with the mother. Both parents agreed to accept the
  extensive and intensive services of the Lund Family Center. On January 31,
  however, the mother left the Center to be with the father, leaving B.S. at
  the Center with no arrangements for his care.  SRS returned the child to
  foster care.

       At a merits hearing on March 29, 1994, the parties entered into an
  oral agreement (FN1) that: (1) the parents would not contest a merits
  adjudication of CHINS, (2) custody of B.S. would remain with SRS, (3)
  certain parts of the affidavit of the SRS worker in support of the CHINS
  petition would be stricken, (4) the family would be enrolled in intensive
  family-based services at the Baird Center, (5) the disposition hearing
  would be held in sixty days,(FN2) and (6) SRS would not recommend termination
  of parental rights at the first disposition hearing.  The court found CHINS
  "based upon the agreement of the parties and their admissions," and ordered
  a disposition hearing to be set in sixty days.

       Thereafter, the mother enrolled in the Intensive Family-Based Service
  Program at the Baird Center to learn parenting skills.  The parents were
  granted, under the supervision of the Baird Program, twenty hours of
  visitation each week.  Despite assistance from a social worker at the Baird
  Center, the mother made minimal progress in learning parenting skills.

       The initial disposition hearing was held on August 31, 1994,
  substantially beyond the sixty-day time period agreed to in March, due
  primarily to delays in obtaining SRS's disposition report and a report from
  the Baird Center.  SRS submitted the disposition report to the court on
  August 29 and, in compliance with the parties' agreement, did not recommend
  termination of

 

  parental rights.  Instead, SRS recommended that B.S. remain in the foster
  home where he had been living for several months.  The mother requested
  placement with B.S.'s paternal great aunt, who resided in New Hampshire. 
  SRS objected to this placement.

       In response to the mother's request, the court ordered a continuance
  of the disposition hearing to allow for a study by the New Hampshire
  Department of Children and Youth Services of the great aunt's home.  The
  SRS social worker requested, and was granted, permission to file a
  supplemental disposition report.

       By December 1994, it became apparent that the home study by the New
  Hampshire department would not be ready for several months.  At a status
  conference on December 6, the SRS caseworker indicated that he would be
  seeking termination of the mother's parental rights. As a result, the
  mother sought an immediate interim placement for the child with the
  mother's sister.  On January 15, 1995, SRS filed a supplemental disposition
  report, in which it recommended termination of parental rights. Combined
  hearings on disposition, the petition to terminate parental rights, and the
  mother's motion to transfer custody to the mother's sister were held on
  February 1, April 10, April 13, October 12 and October 13, 1995.  In a
  written order issued March 6, 1996, the court denied the mother's motion to
  transfer custody.  Finding that the mother's ability to care for her child
  had stagnated between August 1994 and October 1995, and that termination of
  parental rights would be in the best interests of the child, the court
  granted the State's petition to terminate parental rights and transferred
  all remaining residual rights to SRS.

       The mother's first claim of error is that the court improperly allowed
  SRS to recommend termination of her parental rights (TPR) in its
  supplemental disposition report of January 1995 in violation of the oral
  agreement under which she admitted B.S. was CHINS.  She seeks specific
  performance of the SRS's agreement not to recommend TPR, or in the
  alternative, an order vacating the CHINS adjudication.  SRS responds that
  it fulfilled the terms of the stipulation because it did not recommend
  termination at the first disposition hearing held in

 

  August 1994.  The court concluded that changed circumstances relieved SRS
  of its obligation not to recommend termination of parental rights.

       We need not decide whether SRS violated the agreement between the
  parties because we agree with the family court that the agreement was
  subject to modification and could be modified in this case.  We have
  consistently held that agreements involving the interests of children are
  subject to the overriding supervision of the family court to protect the
  children's interests.  See Barbour v. Barbour, 146 Vt. 506, 509, 505 A.2d 1217, 1219 (1986); White v. White, 141 Vt. 499, 503, 450 A.2d 1108, 1110
  (1982).  Thus, we held in White:

     A stipulation between husband and wife on matters pertaining to
     child support merely reflects what the parties have settled on as an
     arrangement agreeable to them.  Its incorporation into a divorce
     decree indicates that at the time of the decree the trial court found
     that what the parties had already settled upon was a just and
     reasonable sum.  That judgment, however, does not affect the trial
     court's later ability to modify its order when such modification is
     shown to be equitable under the circumstances.

  141 Vt. at 503, 450 A.2d  at 1110 (citations omitted).

       We adopted a similar rule for CHINS proceedings in In re Proceedings
  Concerning a Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972), where a
  parent stipulated to CHINS in return for an agreement that she would retain
  residual parental rights, but not physical custody. We held that the
  stipulation could not be given greater stature than a judgment, which is
  subject to modification for changed circumstances.  Id. at 536, 296 A.2d  at
  257.  We conclude that Neglected Child applies here in order to protect the
  continuing interests of the child.  The agreement had no greater force than
  a judgment that adjudicated B.S. as CHINS and limited the disposition for
  some period.  The stipulation was subject to modification for changed
  circumstances.

       The circumstances in this case demonstrate the wisdom of the rule. 
  The March 1994 agreement was based on the expectation that the parents
  would participate in an intense parenting program and would make progress
  in learning to parent B.S.  If the parents did not improve,

 

  the parties contemplated a speedy disposition hearing that could adopt a
  different case plan. Neither of these expectations was met.  Meanwhile,
  almost a year later, SRS, which by law is required to present an
  "assessment of the child's medical, psychological, social, educational and
  vocational needs," 33 V.S.A. § 5527(b)(1), and a proposed disposition and
  case plan, id. § 5527(b)(4), was put in the position of offering a
  dishonest assessment and recommendation that was not in the best interest
  of the child if it followed the mother's interpretation of the stipulation.

       Any disposition order may be "amended, modified, set aside or
  terminated . . . on the ground that changed circumstances so require in the
  best interests of the child."  33 V.S.A. § 5532(a).  Findings in support of
  changed circumstances will be affirmed unless they are clearly erroneous. 
  See In re B.W., 162 Vt. 287, 291, 648 A.2d 652, 654 (1994).  The conclusion
  will be affirmed if supported by the findings.  See In re M.M., 159 Vt.
  517, 522, 621 A.2d 1276, 1279 (1993).  We hold that the court's ruling that
  changed circumstances existed was adequately supported by the findings,
  particularly in light of the failure of the Baird Center program and the
  passage of time without progress.  The modification to allow SRS to
  recommend termination, assuming it was necessary, was within the court's
  discretion.

       The mother's second claim of error is that the court improperly
  terminated her parental rights without addressing her claims under Title II
  of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134. 
  She relies on the fact that she is mentally retarded and mental retardation
  is a disability within the meaning of the ADA.  See 42 U.S.C. § 12102(2)
  (defining "disability"); 28 C.F.R. § 35.104(1)(ii) (mental retardation is a
  disability); Howard v. Department of Social Welfare, 163 Vt. 109, 115 n.1,
  655 A.2d 1102, 1106 n.1 (1994) (learning disability is impairment under
  ADA).  She argues that, with help, she has the capacity to care for her
  child and is therefore a qualified person eligible for accommodation under
  the ADA. See 42 U.S.C. § 12131(2) (defining "qualified individual with a
  disability").  She claims that SRS has failed to accommodate her disability
  and, as a result, has discriminated against her in

 

  the provision of the services needed to parent her child.

       For purposes of this issue, we will assume most of the mother's
  argument is correct. Indeed, the family court was highly critical of SRS's
  conduct towards the parents in this case. The court noted that the parents

     were treated with far less respect and compassion than this court
     is comfortable with.  Through the actions of [the SRS caseworker]
     and the foster parents, the [parents] were intimidated and ignored
     during their visitation periods with their child.  [The caseworker]
     failed to adequately respond to concerns raised by counsel for the
     mother regarding nicknames for the child used by the foster
     parents in front of the [parents]. [The mother] repeatedly made
     attempts to obtain approval from [the caseworker] to bring her
     mother, the child's grandmother, to visit the child.  She was
     forced to tell her mother, a number of times, that she had to check
     with [the caseworker] to obtain approval.  Likewise, a number of
     requests to take a family photograph . . . were ignored.  Although
     these requests were apparently considered trivial by SRS, they
     could have been accomplished with little effort and the denial by
     lack of acknowledgement was demeaning to the [parents].

  The issue is not, however, whether SRS properly treated the parents or
  treated them consistent with the requirements of the ADA.  The issue
  instead is whether SRS's alleged violation of requirements of the ADA may
  be raised as a defense to a TPR petition.  The family court ruled that ADA
  noncompliance is not a defense.  We agree.

       We conclude that the ADA does not directly apply to TPR proceedings. 
  The goals of the ADA are "to assure equality of opportunity, full
  participation, independent living, and economic self-sufficiency" for
  persons with disabilities.  42 U.S.C. § 12101(8).  The act encompasses
  three areas: employment, public services, and public accommodations offered
  by private entities.  Title II, which deals with public services, provides
  that "no qualified individual with a disability shall, by reason of such
  disability, be excluded from participation in or be denied the benefits of
  the services, programs, or activities of a public entity."  Id. § 12132
  (emphasis added).  TPR proceedings are not "services, programs or
  activities" within the meaning of Title II of the ADA, 42 U.S.C. § 12132. 
  See Buhl v. Hannigan, 20 Cal. Rptr. 2d 740, 746 (Cal. Ct. App. 1993) (ADA
  does not apply to law mandating that motorcyclists wears

 

  helmets); Aquaro v. Zoning Bd. of Adjustment, 673 A.2d 1055, 1061 (Pa.
  Commw. Ct. 1996) (zoning ordinance does not fall within definition of
  public "services, programs or activities"). Thus, the anti-discrimination
  requirement does not directly apply to TPR proceedings.

       Even if the ADA applied directly to TPR proceedings, there is no
  specific discrimination against disabled persons in the TPR process. 
  Mental retardation is not, by itself, a ground for terminating parental
  rights.  In deciding whether to terminate parental rights, the court must
  determine the best interests of the child in accordance with four criteria
  set out in 33 V.S.A. § 5540: (1) the interaction and interrelationship of
  the child with the child's natural parents, foster parents, siblings, and
  others who may significantly affect the child's best interests, (2) the
  child's adjustment to home and community, (3) the likelihood the natural
  parent will be able to resume parental duties within a reasonable period of
  time, and (4) whether the natural parent has played and continues to play a
  constructive role in the child's welfare.  See In re J.R., 153 Vt. 85, 100,
  570 A.2d 154, 161 (1989) (third factor is most important).  A mentally
  retarded parent is capable of meeting these criteria.

       Recognizing that the TPR process is not itself discriminatory, the
  mother argues for an indirect method of considering her disability.  The
  logic of her argument goes as follows: (1) SRS is responsible for providing
  her services that will enable her to resume her parental duties within a
  reasonable period of time, (2) SRS failed to do so in a manner that would
  be effective in light of her retardation, (3) SRS therefore discriminated
  against her in the extension of services in violation of the ADA, 42 U.S.C.
  § 12132, and (4) the TPR court cannot conclude that she cannot resume her
  parenting duties within a reasonable period of time because her parenting
  deficiencies are caused in whole or in part by SRS.  We reject the fourth
  step in her argument.

       The primary concern of the family court, when acting as a juvenile
  court, is to protect the welfare of the child.  In re R.B., 152 Vt 415,
  420, 566 A.2d 1310, 1312-13 (1989), cert. denied sub nom. Appleby v. Young,
  493 U.S. 1086 (1990); see also 33 V.S.A. § 5501.  The

 

  juvenile court is one of limited jurisdiction, and its jurisdictional grant
  must be strictly construed.  In re R.L., 163 Vt. 168, 171, 657 A.2d 180,
  183 (1995); 4 V.S.A. § 454 (jurisdiction of family court).  Thus, we have
  routinely held that the court cannot consider side issues that do not
  directly concern the status of the juvenile before it.

       A number of relevant decisions explain the purpose and limitations of
  juvenile proceedings.  In R.B. we rejected the use of a suppression remedy
  to protect the rights of the parents because "[u]se of such a remedy would
  elevate the parent's rights over those of the child to the point where
  serious damage could be done to the child."  152 Vt. at 423-24, 566 A.2d  at
  1314.  In In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989), a brother of the
  juvenile sought the court's intervention to prevent SRS from interviewing
  him with respect to the parents' abuse of the juvenile.  We held that the
  court had no power to act on this request, explaining "that rigid adherence
  to the limits on the powers of the juvenile court expressed in the statute
  is necessary to ensure a singe-minded focus on the juvenile before the
  court."  Id. at 303, 571 A.2d  at 642.  Pursuant to the policy expressed in
  R.B. and M.C.P., we have also held that a parent may not raise violations
  of requirements of the federal Adoption Assistance Act on parental
  reunification as defenses to a TPR proceeding.  See In re K.H., 154 Vt.
  540, 542, 580 A.2d 48, 49 (1990) cert. denied sub nom. D.H. v. Vermont
  Dep't of Social & Rehabilitation Servs., 488 U.S. 1070 (1991); see also In
  re J.S., 153 Vt. 365, 370, 571 A.2d 658, 661 (1989) (because of limited
  jurisdiction of juvenile court, juvenile may not challenge SRS placement
  decision on ground that process of arriving at it violated provisions of
  the Adoption Assistance Act).

       As in M.C.P., the juvenile court in this case was required to focus on
  the needs of the child.  The Legislature has directed that the juvenile
  court examine whether the parents will resume parental duties within a
  reasonable period of 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 services and
  why those services have not been provided.  Such an inquiry ignores the
  needs of the child and diverts the attention of the court to disputes
  between SRS and the parents.

       We further note that nothing in the ADA suggests that denial of TPR is
  an appropriate remedy for an ADA violation.  Under analogous circumstances,
  other courts have refused to graft ADA requirements onto unrelated
  statutes.  See Buhl, 20 Cal. Rptr. 2d  at 746; Pack v. Arkansas Valley
  Correctional Facility, 894 P.2d 34, 39 (Colo. Ct. App. 1995); Aquaro, 673 A.2d  at 1061.  This is not to say that the mother is without a remedy if
  SRS has violated the ADA.  The ADA provides for a private right of action
  for Title II violations, 42 U.S.C. § 12133, and its regulations require
  public entities to adopt and publicize grievance procedures, 28 C.F.R. §
  35.107, and outline a federal complaint procedure, id. § 35.170.  Pursuant
  to these provisions, the mother could have filed a complaint or brought a
  civil action to obtain relief.

       The mother argues that the existence of a private right of action in
  the ADA nonetheless entitles her to raise the ADA as a defense.  She
  attempts to distinguish K.H., which holds that violations of the Adoption
  Assistance Act (AAA) cannot be raised in a TPR proceeding, on the ground
  that the AAA has no private enforcement mechanism.  See 154 Vt. at 542-43
  n.2, 580 A.2d  at 49 n.2.  The mother argues that since the ADA does have a
  private enforcement remedy, the reasoning of K.H. means that the ADA can be
  raised as a defense to TPR.  Her argument would be valid if the remedy, by
  its terms, extended to a defense to TPR.  Because it does not, she is in
  the identical position of the parent in K.H.  With no federal remedy, the
  limited jurisdiction of the family court precludes the relief she seeks. 
  See id. at 542, 580 A.2d  at 49.

       For the above reasons, we conclude that the mother may not raise
  violations of the ADA as a defense to the TPR proceeding.  The two other
  courts that have considered the question have reached the same result.  See
  Stone v. Daviess County Div. of Children and Family Servs., 656 N.E.2d 824,
  830 (Ind. Ct. App. 1995) ("any alleged noncompliance with the ADA . . .
  [is]



  a matter separate and distinct from the operation of our [parental]
  termination statute"); In re Torrance P., 522 N.W.2d 243, 244 (Wis. Ct.
  App. 1994) ("alleged violation of the ADA is not a basis to attack TPR
  proceedings").  We are particularly persuaded by the reasoning of Stone
  because it deals with a statutory scheme similar to ours.

       By this holding, we do not mean to suggest that parents lack any
  remedy for SRS's alleged violations of the ADA.  We hope that the effect of
  this decision is to encourage parents and other recipients of SRS services
  to raise complaints about services vigorously and in a timely fashion.  If
  that had happened in this case, the complaints could have been acted upon
  years ago and may have helped to bring about the reunification the parents
  sought, without holding the interests of the child hostage to disputes
  between the parents and SRS.

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



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                                  Footnotes




FN1.  The agreement was never reduced to writing, nor was there a
  common oral statement of the agreement.  We derive the elements of the
  agreement from the statements of the lawyers for SRS, the mother and B.S.


FN2.  The normal time limit for holding a disposition hearing is
  thirty days.  See 33 V.S.A. § 5526(b).  The court may order a continuance
  for a reasonable period to receive reports and other information bearing on
  disposition.  Id. § 5527(e).