In re J.M.

On re J.M. (99-374); 170 Vt. 611; 750 A.2d 442

[Filed 22-Feb-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-374

                             JANUARY TERM, 2000

In re J.M.	                       }	APPEALED FROM:
                                       }
                                       }
    	                               }	Franklin Family Court
                                       }	
                                       }
                                       }	DOCKET NO. 251-11-94Frjv             
   	
             In the above-entitled cause, the Clerk will enter:


       Mother and stepfather appeal from a family court judgment terminating
  mother's residual parental  rights and denying stepfather's request for
  custody of the minor, J.M.  Stepfather contends the  court: (1) erroneously
  failed to treat him as a parent; and (2) made clearly erroneous findings of 
  fact.  Mother joins in stepfather's arguments, and further contends the
  court's findings and  conclusions concerning her physical condition were
  clearly erroneous.  We affirm.

       The family court's findings may be summarized as follows.  The family
  has a lengthy history with  the Department of Social and Rehabilitation
  Services dating from December 1992, when SRS filed  a petition alleging
  that J.M., who was then one month old, was a child in need of care and 
  supervision.  Mother and J.M.'s father separated during this period and
  were later divorced.   Mother began living with stepfather in early 1993. 
  They had four children together: two sons,  Se.Y. and Sc.Y., born in August
  1993 and September 1994, respectively, who were also the  subject of the
  TPR proceeding, and two daughters, born in May 1996 and December 1997, who 
  remain with the parents.  Mother and stepfather married in 1998.

       The parties stipulated to CHINS in January 1993, and the court ordered
  protective supervision and  required mother to participate in a variety of
  parent-education programs.  Following a merits  hearing in May 1995, the
  court found that J.M. and his two stepbrothers were CHINS based upon 
  evidence of filthy and unkempt conditions in the home that rendered it
  unsafe for the children.  SRS social workers observed no sheets in the
  cribs, dirty clothes and rotten food covering the  floors, potentially
  dangerous items within reach of the children, and one child with dried
  feces  caked to his lower back and bottom.  The court placed the children
  in stepfather's custody with  protective supervision, ordered mother to
  move out until she could safely transition back into the  home, and
  required both mother and stepfather to participate in parent-education
  services.

       During the next year, the three boys were removed periodically from
  the home as a result of  continued neglect.  They were removed for the last
  time in June 1996, and have remained in foster  care ever since.  Over the
  next year and a half, the caseplan continued to call for reunification and 
  parenting services for mother and stepfather.  SRS workers reported that
  mother did not cooperate  with the parenting program and that mother and
  stepfather were unable to safely supervise the  children during visits. 
  Although stepfather was working fulltime, he served as the primary 
  caretaker.  SRS workers reported that he had progressed in his parenting
  skills, but not enough  to safely parent the children.  

 

       In January 1998, SRS moved to terminate residual parental rights with
  respect to J.M., Se.Y., and  Sc.Y.  In May of that year, J.M. moved into a
  home with foster parents interested in adoption.  The court found that the
  foster parents have been a positive force in J.M.'s life, having 
  demonstrated an ability to deal with his special needs.  

       Stepfather moved to intervene in the proceeding to terminate mother's
  parental rights to J.M.,  noting that he had earlier been granted custody
  of the minor and arguing that he had effectively  functioned as the child's
  psychological parent.  The court consolidated the TPR proceedings 
  involving Se.Y., Sc.Y., and J.M., but denied the motion to grant stepfather
  party status as to J.M.  Pursuant to V.R.C.P. 54(b), the court granted
  stepfather's motion for a final judgment on his  claim for party status,
  and he thereupon appealed the ruling to this Court.  We dismissed the 
  appeal, noting that V.R.C.P. 54 does not apply to CHINS cases, and that the
  issue was not  unreviewable on appeal from a final judgment under V.R.A.P.
  5.1.  

       The TPR hearing took place over six days between January and March
  1999, and included the  testimony of numerous SRS caseworkers, service
  providers, visitation supervisors, foster parents,  a psychologist who had
  evaluated the family, mother, and stepfather.  During the course of the 
  hearing, stepfather moved for custody and guardianship of J.M.  The court
  issued extensive  written findings and conclusions in July 1999, granting
  the petition to terminate mother's residual  parental rights to J.M., and
  denying stepfather's request for custody.  This appeal followed.

       Stepfather renews his claim that the court erred in declining his
  request to be accorded party status  as J.M.'s de facto parent and in
  failing, accordingly, to apply the statutory criteria for the  termination
  of residual parental rights under 33 V.S.A. § 5540.  Because the statutory
  scheme  governing juvenile proceedings does not expressly define "parent,"
  stepfather contends the  common law governs, and that under the common law
  one who stands in loco parentis to a child  acquires the status of a parent
  in a termination proceeding.  The claim overlooks the distinction  between
  parents and stepparents that runs throughout our statutory scheme.  See,
  e.g., 15A  V.S.A. §§ 4-101-113 (setting forth requirements for stepparent's
  adoption of stepchild); 15  V.S.A. § 293 (setting forth provision for
  courts to award custody where parents or stepparents  live separately); 15
  V.S.A. § 296 (setting forth stepparent's duty to support stepchild residing
  in  same household).  Absent a clear legislative directive, we decline to
  judicially expand the meaning  of parent to subsume a stepparent,
  psychological parent, or any other person claiming in loco  parentis
  authority in a TPR proceeding.  See Titchenal v. Dexter, 166 Vt. 373, 385,
  693 A.2d 682, 689 (1997) (declining to recognize custody and visitation
  right of de facto parents where "the  Legislature is better equipped to
  deal with the problem"); see also In re Agnes P., 800 P.2d 202,  204-205
  (N.M. Ct. App. 1990) (declining to extend parental status in termination
  proceeding to  persons claiming in loco parentis standing).   

       The several cases upon which stepfather relies do not suggest
  otherwise.  Paquette v. Paqette, 146  Vt. 83, 85-88, 499 A.2d 23, 26-27
  (1985) construed 15 V.S.A. § 652 to allow a court to award  custody to a
  stepparent in a divorce proceeding where the statutes otherwise allowed
  such an order  when the stepparent and natural parent were still married or
  had separated.  In re Fowler, 130 Vt.  176, 180, 288 A.2d 463, 466 (1972)
  recognized that a stepparent standing in loco parentis to his  stepchildren
  could operate to disqualify the children from receiving welfare benefits. 
  Ormsby v.  Rhoades, 59 Vt. 505, 511, 10 A. 722, 725-26 (1887) held that a
  nephew could not recover for  services from his uncle, who stood in loco
  parentis to the nephew.  None of these decisions even 

 

  remotely supports a potentially limitless interpretation of the term parent
  to include any third  person claiming in loco parentis status in a TPR
  proceeding.  

       In ruling on stepfather's claim, we do not address whether he should
  have been accorded party  status in support of mother's rights.  The record
  indicates that stepfather did not seek such status,  but instead sought a
  parental right of his own that had to be terminated within the proceeding. 
  In any event, as the father of Se.Y. and Sc.Y., he was able to participate
  in the termination  proceeding, and any denial of party status as to J.M.
  was therefore harmless.    

       Stepfather also claims that the court made several clearly erroneous
  findings which resulted in the  denial of his motion for custody of the
  child.  In this regard, stepfather appears to argue at the  threshold that
  he was presumptively entitled to custody because he stood in loco parentis
  to the  child.  We discern no statutory requirement or other authority,
  however, for the court to exercise  a preference in favor of anyone other
  than the child's parents, a status which -- as noted -- did not  apply to
  stepfather.  The court's findings in a termination proceeding will be
  upheld unless they  are clearly erroneous, and its conclusion will be
  affirmed if supported by the findings.  In re B.S.,  166 Vt. 345, 350, 693 A.2d 716, 719 (1997).  Stepfather challenges the court's finding that he 
  was not in a position to take on the responsibility of caring for J.M. and
  attending to the child's  special needs, in part, because stepfather had
  extensive other responsibilities working fulltime,  caring for his
  mother-in-law, and also attending to the special needs of mother and their
  two  young daughters.  The testimony of numerous service providers and
  other experts, however,  amply supported these findings.  Father's
  speculative testimony that he would have been willing  to quit his job if
  awarded custody did not undermine these findings. 

       Stepfather further contends the evidence failed to support the court's
  finding that he was unable  to read, and challenges the relevance of his
  literacy to the best interests of the child.  The record  evidence, which
  included a forensic evaluation by Dr. John Donnelly, a clinical
  psychologist,  fully supported the court's finding that stepfather's
  borderline cognitive abilities, in part illustrated  by his limited ability
  to read or write, coupled with stepfather's extensive other
  responsibilities,  rendered him unable to care for J.M.  These findings
  were supported by the evidence and plainly  relevant to the best interests
  of the child.    

       Stepfather also challenges the court's finding that he was unable to
  set limits for J.M.  Again, the  testimony of various service providers
  amply attested to the chaos that prevailed in the home.   Finally,
  stepfather challenges a number of "potentially material" findings,
  including the court's  findings that there was "garbage" in the home during
  one visit by an SRS caseworker (stepfather  claims that it was actually
  laundry), that one of J.M.'s siblings drank from a bottle of Tylenol  found
  on the floor (stepfather claims that the child never actually drank from
  the bottle), that SRS  encountered difficulty in getting stepfather to
  follow through on service recommendations, and  that stepfather showed
  sporadic compliance with the SRS caseplan.  The record discloses 
  conflicting testimony as to whether the bags observed by the service
  provider contained laundry  or garbage, and the SRS worker acknowledged
  that she did not actually see the child drink the  Tylenol, but only
  observed him attempt to drink from the bottle.  Any slight inaccuracy in
  the  court's findings in this regard, however, are more than offset by the
  extensive other evidence  demonstrating the parties' extreme neglect of the
  children's welfare, safety, and cleanliness.  See  In re L.A., 154 Vt. 147,
  157,  574 A.2d 782, 788 (1990) (we will not reverse decision absent 
  showing that prejudice flowed from

 

  error).  Furthermore, although the court candidly acknowledged that
  stepfather had made  sporadic progress in his parenting skills at various
  points in time, the overall record amply  supported its conclusion that he
  had not made sufficient progress to adequately care for the child. 
  Accordingly, we find no error in the court's findings warranting reversal.

       In a separate appeal, mother contends that the court's findings
  reflect a lack of understanding of,  and hostility toward, her disability. 
  Mother suffers from a disorder of nerve and muscle function  known as
  myotonic dystrophy, which causes weakness and fatigue, and affects motor
  skills.   Mother cites several of the court's findings that referred to
  testimony by service providers  concerning mother's physical inertia, and
  claims that the court improperly relied on such  testimony as evidence of
  "bad parenting."  Nothing in the record or the findings supports this 
  claim.  The court's conclusions were based upon findings, amply supported
  by the record,  indicating that she had not come close to conforming with
  the expectations in the caseplans, that  she had stubbornly refused to
  maintain a clean and safe home, and that she had exhibited a  "global"
  pattern of deficiencies which rendered her incapable of resuming her
  parental  responsibilities within a reasonable period of time.

       Mother also contends that the evidence failed to support the court's
  finding that mother's  perception of her medical condition limited her
  ability to perform day-to-day tasks.  Contrary to  mother's claim, the
  court's finding did not suggest that mother's perception was inaccurate, or 
  that mother used her disability as an illegitimate excuse for inactivity. 
  Mother also contends the  court's finding that she demonstrated a stubborn
  refusal to maintain a clean home was unsupported  by the evidence,
  demonstrated gender bias (implying that it was her responsibility to do
  so), and  again reflected a misunderstanding of her disability.  The record
  and findings do not support  mother's claims.  The record was replete with
  evidence of filth, clutter, and hazardous home  conditions that the court
  characterized as appalling, and with testimony concerning mother's 
  persistent refusal to cooperate with service providers, to participate in
  parenting programs, or to  assist stepfather, who was forced to attempt the
  role of primary care provider while working  fulltime.  This was the basis
  of the court's decision. There is no evidence to support mother's  claim
  that the court blamed her for her physical limitations, or burdened her
  with unreasonable  or stereotyped expectations.  Accordingly, we find no
  error.


       Affirmed.


                                       BY THE COURT:

                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice