In re K.F.

In re K.F., Juvenile (2003-477); 176 Vt. 636; 852 A.2d 584

2004 VT 40

[Filed 28-Apr-2004]

                                 ENTRY ORDER

                                 2004 VT 40

                      SUPREME COURT DOCKET NO. 2003-477

                              APRIL TERM, 2004

  In re K.F., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
      	                               }	Chittenden Family Court
                                       }	
                                       }
                                       }	DOCKET NO. 484-10-02 CnJv

                                                Trial Judge: David Jenkins

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Father appeals from the family court's order terminating his
  residual parental rights over K.F.  He argues that the court erred by
  failing to recognize that the Department of Social and Rehabilitation
  Services bore substantial responsibility for the circumstances alleged to
  support the termination order.  We affirm.  

       ¶  2.  Mother and father, who have never married, are the parents of
  K.F, born in October 2002.  Shortly after K.F.'s birth, father was
  incarcerated on probation violations related to domestic violence toward
  mother.  December 2002, K.F. was adjudicated as a child in need of care and
  supervision.  At that time, mother admitted that she did not possess all of
  the skills necessary to provide appropriate care and supervision to K.F. 
  In December 2002, mother was accepted into the Lund Family Center's
  Residential Program where she was joined by K.F. for a trial reunification. 
   
       ¶  3.  In January 2003, the family court held an initial disposition
  hearing.  SRS indicated that it was seeking to assist mother in developing
  parenting skills so that she could live independently with K.F.  SRS noted,
  however, that mother had demonstrated an inability to incorporate new
  learning into her care of K.F. and she had shown resistance to the parent
  education offered at Lund.  Given this, and K.F.'s age and fragile
  stability, SRS explained that it concurrently planned to seek the
  termination of mother and father's parental rights if significant progress
  was not made within two months.  Father did not object to SRS's case plan. 
  In March 2003, mother was discharged from Lund, and K.F. was placed in
  emergency foster care.  Shortly thereafter, father was released from
  prison, and he contacted SRS seeking visitation with K.F.  The SRS
  caseworker sent a letter to the court, with a copy provided to father,
  explaining why she did not support visitation.  The caseworker stated that
  since his release, father had been living with mother despite a no-contact
  order, father had not engaged in any type of parent education services
  since being incarcerated, and father had seen K.F. on only one occasion. 
  Based on this information, and because SRS was filing a petition for
  termination of parental rights, the caseworker expressed her belief that
  contact between father and K.F. was not in K.F.'s best interests.  In
  response to the letter, the family court indicated that there would be no
  hearing on visitation except on motion. 

       ¶  4.  In April 2003, SRS filed a petition to terminate parental
  rights.  In its petition, SRS stated that over the past six months, mother
  had demonstrated her inability to parent K.F. in a consistently safe and
  appropriate manner and she continued to struggle with self care.  SRS noted
  that father had been in prison from November 2002 through March 2003, and
  he had previously been charged with domestic assault, disorderly conduct,
  and numerous probation violations. 

       ¶  5.  Two months later, at a June 2003 status conference, father's
  attorney asked the family court to impose visitation with K.F. "today." 
  The court responded that, given its earlier order, father needed to file a
  motion to establish visitation.  Father's attorney then made an oral motion
  for visitation, and the court stated that the matter could be set for a
  hearing.  Father's attorney responded that he did not see the necessity for
  a hearing when "we're so close to a termination."  It does not appear that
  the question of visitation was set for a separate hearing.  Father returned
  to jail in June 2003; he remains incarcerated. 

       ¶  6.  In August 2003, mother voluntarily relinquished her residual
  parental rights.  After a hearing, the court terminated father's residual
  parental rights.   The court found that father had not assumed any
  caretaking responsibilities for K.F. nor provided any financial or parental
  support after her birth.  While in jail, he did not participate in any
  programming with the Department of Corrections, nor did he contact SRS to
  inquire about K.F.'s well-being or play any role in her life.  When he was
  released from prison, he failed to keep in consistent contact with K.F.'s
  caseworker.  Shortly after his release, he was charged with numerous
  violations of an abuse prevention order, and with violating probation, and
  he returned to jail.  The court found that father had seen K.F. only twice
  since her birth, and that SRS had been unable to set up any consistent
  contact between father and K.F. due to father's frequent incarceration. 
  The court also noted that father's parental rights had recently been
  terminated over another child, A.C., due in part to his substantial failure
  to comply with the requirements of SRS's case plan.  Based on its findings,
  the court concluded that there was no likelihood that K.F. could be
  reunited with father in the foreseeable future.  The court stated that
  father had demonstrated a pattern of unavailability due to incarceration,
  criminal behavior, and nonparticipation in Corrections programming, and he
  had not played a constructive role in K.F.'s life.   The court recognized
  that K.F. had a need for stability, and that she was thriving with her
  foster parents.  The court thus concluded that termination of father's
  parental rights was in K.F.'s best interests.  Father appealed.      

       ¶  7.  On appeal, father asserts that the family court erred by
  failing to take into account that SRS "in substantial part engineered the
  circumstances alleged to support termination." Father maintains that SRS
  failed to shoulder its responsibility to provide services to him, and it
  denied him visitation with K.F.  Under these circumstances, father argues,
  his lack of contact and his lack of a bond with K.F. cannot be held against
  him. 
        
       ¶  8.  When the termination of parental rights is sought, the trial
  court must conduct a two-step analysis.  In re B.W., 162 Vt. 287, 291, 648 A.2d 652, 654 (1994); 33 V.S.A. § 5532(a).  The court must first find that
  there has been a substantial change in material circumstances; second, the
  court must find that termination of parental rights is in the child's best
  interests.  In re B.W., 162 Vt.  at 291, 648 A.2d at 654-55; 33 V.S.A. §
  5532(a).  We will uphold the trial court's findings of fact unless they are
  clearly erroneous, and we will uphold the court's conclusions of law if
  supported by the findings.  In re D.C., 168 Vt. 1, 4, 712 A.2d 902, 904
  (1998). 

       ¶  9.  In this case, the family court did not explicitly find that
  there had been a material change in circumstances.  Neither party argues
  that this requirement was not met, however, and it is evident from the
  record that a material change in circumstances had occurred since the
  initial disposition order.  See In re H.A., 153 Vt. 504, 515, 572 A.2d 884,
  890 (1990) ("the changed circumstances test is met when the findings in the
  case are replete with facts sufficient to meet the required standard")
  (internal quotation marks and citation omitted).  Since that time, mother,
  with whom reunification had been contemplated, had voluntarily relinquished
  her residual parental rights.  Additionally, because father was
  incarcerated at the time of the initial disposition hearing, SRS did  not
  contemplate his reunification with K.F.  Father did not object to SRS's
  case plan, nor did he appeal the family court's initial disposition order. 
  After father was released from prison, he attended a case plan meeting
  where he was informed by a SRS caseworker of minimal expectations that
  would facilitate his reunification with K.F., i.e., law-abiding behavior
  and maintaining contact with SRS.  As the family court found, although
  father appeared to understand these requirements, he failed to meet them. 
  Thus, the record reflects that a material change in circumstances with
  respect to the father had occurred since the initial disposition order.  

       ¶  10.  When there has been a substantial change in material
  circumstances, the court must next assess whether termination of parental
  rights is in a child's best interests.  To determine the best interests of
  the child, the court must consider four statutory factors.  See 33 V.S.A. §
  5540.  The most important factor in the court's analysis is the likelihood
  that the natural parent will be able to resume his or her parental duties
  within a reasonable period of time.  See In re B.M., 165 Vt. 331, 336, 682 A.2d 477, 480 (1996).  As long as the court applied the proper standard, we
  will not disturb its findings on appeal unless they are clearly erroneous;
  we will affirm its conclusions if they are supported by the findings.  In
  re G.S., 153 Vt. 651, 652, 572 A.2d 1350, 1351 (1990) (mem.).

       ¶  11.  Father essentially argues that the family court erred in
  concluding that termination of his residual parental rights was in K.F.'s
  best interests because the court's conclusion rested on factors that were
  beyond his control, i.e., SRS's failure to provide him with services and
  its denial of his request for visitation with K.F.  Father does not
  challenge any of the family court's factual findings as clearly erroneous,
  however, nor does he argue that the court failed to apply the proper
  statutory standard.  Instead, he asserts that the court erred by "fail[ing]
  to be mindful" of SRS's substantial responsibility for the circumstances
  alleged to support termination of his residual rights. 
        
       ¶  12.  We find father's argument without merit.  The family court
  considered the statutory factors in arriving at its conclusion, and its
  findings are supported by the evidence.  As the family court found, SRS was
  unable to set up any consistent contact between father and K.F. due to
  father's frequent incarceration.  Father was informed by an SRS caseworker
  at a case plan meeting that it was essential that he keep in contact with
  SRS and comply with the law.  Although father appeared to understand these
  requirements, he failed to meet them.  Father has demonstrated a pattern of
  unavailability due to incarceration, criminal behavior, and
  nonparticipation in  Corrections programming.  He has not played a
  constructive role in K.F.'s life, and there is no likelihood that K.F.
  could be reunited with him in the foreseeable future.  Father's rights over
  another minor child were terminated based on similar considerations.  See
  In re A.C., Docket No. 2003-100 (May 29, 2003) (mem.) (3-justice panel)
  (affirming family court's termination order based on court's findings that
  father had no relationship with A.C., had not played a constructive role in
  A.C.'s life, it was unlikely that father would be able to resume his
  parental duties within a reasonable time, father continued to abuse drugs,
  had no residence, was not employed, was unable to refrain from illegal
  conduct leading to imprisonment, had not completed or even engaged in
  domestic-violence and substance-abuse treatment or parenting education, had
  failed to stay in contact with SRS, and had not demonstrated an interest in
  A.C.'s well-being).  Father has not demonstrated that the court based its
  conclusion on factors "beyond his control," and we thus find his reliance
  on In re S.R., 157 Vt. 417, 421-22, 599 A.2d 364, 367 (1991) misplaced.  In
  this case, father bears sole responsibility for his frequent incarceration,
  his failure to maintain consistent contact with SRS, and his lack of a bond
  with K.F.  Indeed, we note that father did not formally request visitation
  with K.F. until two months after SRS filed its termination petition. 
  Shortly after his request was made, father returned to prison, where he
  remains.  As the family court found, father has not been available as a
  parental resource to K.F. for eleven months and he continues to be
  unavailable due to his incarceration.  The family court did not abuse its
  discretion in concluding that termination of father's residual parental
  rights was in K.F.'s best interests.

       Affirmed.


                                  BY THE COURT:


                                  _______________________________________
                                  John A. Dooley, Associate Justice

                                  _______________________________________
                                  Denise R. Johnson, Associate Justice

                                  _______________________________________
                                  Marilyn S. Skoglund, Associate Justice

                                  _______________________________________
                                  Paul L. Reiber, Associate Justice

                                  _______________________________________
                                  Ernest W. Gibson III, Associate Justice (Ret.)
                                  Specially Assigned