In re J.L., Juvenile

In re J.L., Juvenile (2006-388)

2007 VT 32

[Filed 25-Apr-2007]

                                 ENTRY ORDER

                                 2007 VT 32

                      SUPREME COURT DOCKET NO. 2006-388

                             JANUARY TERM, 2007


  In re J.L., Juvenile                }          APPEALED FROM:
                                      }
                                      }
                                      }          Chittenden Family Court
                                      }  
                                      }
                                      }          DOCKET NO. F415-8-04 CnJv

                                                 Trial Judge:  Linda Levitt

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

       ¶  1.  Mother and father appeal termination of their parental
  rights.  We affirm.

       ¶  2.  The following facts were established at the termination
  hearing.  At the time of the hearing, mother and father had been in a
  relationship for approximately nine years.  Father had provided mother with
  drugs throughout the course of their relationship.  Mother and father had a
  child, J.L., who was born on August 8, 2004.  J.L. is mother and father's
  third child.  J.L. tested positive for drugs at the time she was born.

       ¶  3.  Mother and father lived separately at the time of J.L.'s
  birth.  Shortly after J.L.'s birth, the Department for Children and
  Families (DCF) placed J.L. with her father due to mother's drug use. 
  Mother was not to have any unsupervised contact with J.L.  Unbeknownst to
  DCF, however, mother moved in with father after J.L. was placed in the
  home.  Father and mother were using and selling drugs and not attending to
  the children's needs.  In January 2005, police searched the residence
  pursuant to a warrant and found drugs in the home.  The couple's three
  children were present in the home at the time of the police action, as were
  two of father's children from another relationship.  Father was charged
  with and convicted of drug possession, conspiracy to receive stolen
  property, and simple assault, and was sentenced to serve two-to-ten years. 
  His earliest possible release date is July 2007.
   
       ¶  4.  After the drugs were found in father's home, J.L. and her
  siblings were found to be children in need of care and supervision (CHINS),
  and placed into DCF custody.  The DCF disposition report set reunification
  as a goal but established a three-to-six-month time frame for mother and
  father to make "consistent and significant progress" on multiple issues
  including addressing their drug use and the domestic violence between them,
  as well as establishing a safe and stable home for the children.  J.L. was
  placed with a foster family, where she remained at the time of the August
  2006 termination hearing.

       ¶  5.  Following the two-day hearing, the family court terminated
  both parents' residual parental rights.  The court found that while mother
  had improved her parenting skills to some extent between September 2005 and
  September 2006, this improvement came too late to salvage mother's
  relationship with J.L., who was twenty-four months old at the time of the
  termination hearing and had been with her foster parents for eighteen of
  those months.  The family court concluded that there were changed
  circumstances due to the stagnation of mother's parenting skills.  The
  court opined that mother would have to have been ready to parent J.L. by
  "mid-2005" to preserve any chance of forming a positive relationship with
  J.L.; instead mother was homeless, jobless, and using drugs at that time. 
  Regarding father, the court noted that he had engaged in minimal services
  related to drug use and parenting skills, and, in any case, would be
  incarcerated until mid-2007 - too long for J.L. to wait to have a stable
  placement.  In concluding that termination was in J.L.'s best interests,
  the family court noted that she had thrived on many levels in the care of
  her foster parents.

       ¶  6.  Mother and father raise separate arguments on appeal.  In
  reviewing the family court's decision, "[o]ur role is not to second-guess
  the family court or reweigh the evidence, but rather to determine whether
  the court abused its discretion" in terminating parental rights.   In re
  S.B., 174 Vt. 427, 429, 800 A.2d 476, 479 (2002) (mem.).  Furthermore, we
  may affirm a decision of a trial court on any legal basis supported by the
  record, even if it was not the theory relied on by the trial court.  See
  Larkin v. City of Burlington, 172 Vt. 566, 568, 772 A.2d 553, 556 (2001).

       ¶  7.  To support a decision to terminate parental rights, the
  family court must first conclude that there has been a substantial and
  material change in circumstances permitting modification of the goal of
  reunification.  In re A.G., 2004 VT 125, ¶ 17, 178 Vt. 7, 868 A.2d 692
  (citing 33 V.S.A. § 5532; further citation omitted).  A substantial and
  material change can be shown "when a parent's ability to care for a child
  has either deteriorated or stagnated" over time.  Id. ¶ 19 (citation
  omitted).  The court must then conclude that termination "serves the
  child's best interests under the criteria of [33 V.S.A.] § 5540."  Id. ¶
  17.
        
       ¶  8.  Regarding the threshold finding of changed circumstances,
  mother argues that the evidence did not support the family court's
  conclusion that her parenting skills had stagnated.  Specifically, she
  argues it was error for the family court to require mother to be ready to
  parent J.L. by "mid-2005" when DCF's case plan gave mother until September
  2005 to demonstrate her improved ability to parent.  In support of the
  family court's decision, the State emphasizes that the termination hearing
  was held in August 2006 - seventeen months after the disposition report was
  issued - and while the court found that mother's life had improved in the
  last year, after she served a brief incarcerative sentence for drug
  possession, the court also found that mother's improved life skills came
  too late to benefit J.L.  Accordingly, whether mother had shown a
  particular level of improvement as of mid-2005 was not of great importance
  in August 2006 when the termination hearing was held.  As of that date, the
  court concluded that J.L. "does not see [m]other as a supportive, parental
  figure [and] she would not miss [m]other's presence in her life if visits
  with her were to end" because mother had never been able to meet J.L.'s
  needs during her young life.  Thus, the court's decision was premised on
  the evidence that mother had no existing parent-child relationship with
  J.L., and had not progressed sufficiently toward developing one.  This was
  properly considered to be changed circumstances.

       ¶  9.  Mother also claims that the family court failed to make a
  finding regarding 33 V.S.A. § 5540(3) - that mother would be unable to resume
  parenting J.L. in a reasonable period of time - and argues that the family
  court erred in exclusively looking at J.L.'s relationship with her foster
  family to determine whether termination was in J.L.'s best interests. 
  While the family court's findings on this issue were dispersed throughout
  the opinion, the court clearly found and considered that mother had not
  made sufficient progress in the prior seventeen months to support the
  conclusion that she would be able to parent J.L. in a reasonable period of
  time.  The ultimate assessment that mother would not be able to resume
  parenting J.L. in a reasonable period of time is further supported by the
  fact that the "reasonableness" of the time period must be judged from the
  perspective of J.L. - a rapidly developing two year old who had been in
  foster care since she was six months old.  In re B.M., 165 Vt 331, 337, 682 A.2d 477, 480 (1996) ("reasonable period of time" must be viewed from
  perspective of child's needs).  Further, while the conclusion of the
  opinion did address J.L.'s relationship with her foster family, the opinion
  as a whole encompassed all the factors required to be considered under 33
  V.S.A. § 5540.

       ¶  10.  Father argues that his due process rights were violated
  because the family court did not provide him with direct notice of the
  termination hearing, as required by our decision in In re M.T., 2006 VT
  114, ¶ 10, ___ Vt. ___ (mem.).  The family court mailed notice to the
  last address provided by father, but the notice was returned.  Apparently
  father failed to notify the court of his change of address, although he had
  properly notified the court of an address change at least once previously
  in the same case.  The court then sent the notice to father's attorney. 
  Father, who was incarcerated in Kentucky at the time, was told - apparently
  by his attorney - to call into the court on the morning of the termination
  hearing, and father did so.  But after father was put on hold while the
  court and attorneys discussed procedural matters, father hung up.  Father's
  attorney objected to going forward without father being physically present,
  but made no objection to the notification process.  On the second day of
  hearing, father's attorney unsuccessfully tried to reach father in the
  Kentucky prison.  He objected to the hearing going forward without his
  client present, but again made no claim that insufficient notice of the
  proceedings had been provided to father.  At the close of the evidence,
  father's counsel asked that the record be kept open for seven days so that
  his client would have the opportunity to present evidence.  The court
  granted the request.  No party presented any further evidence and on August
  24, 2006, the court granted the termination of both parents' residual
  parental rights.   In the order, the court found that, although father was
  given an opportunity to participate in the termination hearing by phone, he
  "chose not to do so."   

       ¶  11.  The State responds that M.T. does not require actual notice
  or an assurance that the parent fully appreciates the gravity of the
  termination proceedings.  In addition, the State asserts that fault lies
  with father for not keeping a current address on file with the family
  court.
        
       ¶  12.   In M.T., the mother claimed that the family court had not
  acquired personal jurisdiction over her because service of the termination
  petition was defective.  She asserted that a termination proceeding was a
  petition to modify a previous order and thus, pursuant to 33 V.S.A. § 5532,
  notice and hearing were required as for a petition filed under § 5516. 
  When a petition is filed under § 5516, thereby commencing a CHINS
  proceeding, the family court is  required to "direct the issuance of a
  summons" to the parents or guardian, among others, "requiring them to
  appear before the court at the time fixed to answer the allegations of the
  petition." Id. § 5519(a).  This Court held that the statutes do not require
  the court to provide notice as if an entirely new proceeding had commenced
  any time a party moves to modify a prior order.  M.T., 2006 VT 114, ¶ 9. 
  Rather, the Court held that there must be direct notice from the court, as
  opposed to the parent's attorney or DCF, to the parents of a scheduled
  termination hearing.   Id. ¶¶ 8, 11.  Thus, even though the mother in
  M.T. had received actual notice from DCF - she returned receipts for
  certified mailings - this was not considered adequate.  The  Court opined
  "[w]e cannot presume that mother recognized the full import of the
  proceeding without receiving direct notice of the termination hearing from
  the court empowered to take her child from her."  Id. ¶ 12.  

       ¶  13.  Here, the family court did send notification directly to
  father of the termination hearing.  It was his failure to update the court
  as to his change of address that resulted in the failure of the notice to
  reach him.  It is clear that father was aware of his obligation to keep a
  current address on file and knew how to update his address with the court
  because he had done so previously in this same proceeding.  Upon return of
  the notice to the court, it was sent to father's attorney. Thus, he did
  subsequently receive the notice from his attorney.  Further, unlike the
  situation in M.T., here, father initially participated in the termination
  hearing.  That he hung up the phone, for whatever reason,  and thus ended
  his participation, should not deprive the court of jurisdiction over him to
  go forward and determine the fate of the child in this case.   The court
  did what we required in M.T., and we find no error.

       ¶  14.  Even if there were error in the process of providing notice
  to father, the family court subsequently left the record open for an
  additional seven days at the request of father's counsel.  This provided
  ample opportunity for father to either supplement the record, request an
  additional opportunity to participate, or explain what happened when he
  hung up the phone during the prior proceeding.  But no such steps were
  taken.

       ¶  15.  Finally, father argues that the evidence does not support the
  court's finding that he lacked parenting skills.  The court found that, at
  the time the child was placed in foster care, father was using and selling
  drugs and that he and mother were not attending to the child's emotional
  and physical needs.   The court found that, although DCF expected him to
  complete domestic - assault treatment services in 2005, he had failed to do
  so before being incarcerated.  Further, the court found he "made no effort
  to improve his parenting skills" and had had no contact with J.L. since his
  incarceration, concluding "[h]is ability to care for J.L. has stagnated." 
  Father claims that the evidence of current drug abuse was lacking and that
  there was "no evidence of drug use having an adverse impact on his
  parenting ability." 
        
       ¶  16.  Father does not dispute he will not be eligible for release
  until July 2007 at the very earliest, almost a full year after the
  termination hearings.  Given the child's young age and father's lack of a
  relationship with her, his lengthy incarceration alone supports the court's
  ruling terminating his parental rights.  See In re K.F., 2004 VT 40, ¶
  12, 176 Vt. 636, 852 A.2d 584 (mem.) (affirming termination of parental
  rights where father had been unavailable due to repeated incarceration, had
  not played a constructive role in child's life, and there was no likelihood
  of reunion in foreseeable future).  This was, in fact, the basis for the
  family court's conclusion that father could not resume parenting in a
  reasonable period of time.   Further, the fact that J.L was removed from
  father's home because father was in possession of illegal drugs and selling
  same at a time when the child was present argues against him having basic
  parenting skills.  

       Affirmed.  
  BY THE COURT:

       _________________________________________
  Paul L. Reiber, Chief Justice
  _________________________________________
  John A. Dooley, Associate Justice

       " Publish  _________________________________________
  " Do Not Publish  Denise R. Johnson, Associate Justice
  _________________________________________
  Marilyn S. Skoglund, Associate Justice