In re S.R.

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                                No. 90-379


In re S.R., Juvenile                         Supreme Court

                                             On Appeal from
                                             District Court of Vermont,
                                             Unit No. 3, Caledonia Circuit

                                             June Term, 1991


Dean B. Pineles, J.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Martha Csala,
  Assistant Attorney General, and Keith Aten, Law Clerk (On the Brief),
  Waterbury, for plaintiff-appellee

Christopher Jeffrey, Montpelier, for defendant-appellant mother

Michael Rose, St. Albans, for defendant-appellant father


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


     ALLEN, C.J.   The parents of S.R., a juvenile, appeal the termination
of their residual parental rights.  We affirm.
     S.R.'s mother argues that the juvenile court's findings concerning her
mental illness and conditions in the home did not warrant the  termination.
She also claims that the court's findings of risk to S.R. were not supported
by clear and convincing evidence.  Finally, she claims that stagnation in
parental capacity was caused primarily by the Vermont Department of Social
and Rehabilitation Services (SRS) rather than by fault on her part.
     S.R.'s father joins the arguments advanced by the mother.  He also
raises separate challenges to the sufficiency of the evidence and the
court's findings in support of termination of his rights.  In addition, he
argues that the findings regarding the quality of the preadoptive foster
home are irrelevant and violate his constitutional rights.
     We hold that the juvenile court's findings are sufficiently supported
by the evidence and that those findings in turn support the conclusion that
termination of parental rights is in the best interests of S.R.  We also
find that the court's inquiry into the quality of the preadoptive foster
home was relevant and did not violate the father's constitutional rights.
For these reasons, we affirm the juvenile court's order terminating the
rights of both parents.
                                    I.
     S.R., a child with special needs, is the daughter of parents who never
married but have lived together for over ten years.  Her father has an
alcohol problem which causes stress and discord in her relationship with
him.  Her mother suffers from seizures.
     In 1986, when S.R. was nine months old, the juvenile court found her to
be a child in need of care and supervision and transferred custody to SRS.
This disposition was based on a diagnosis by a psychologist at Boston
Children's Hospital that her mother suffered from a rare psychological
disorder known as Munchausen syndrome by proxy.  It causes a parent, usually
the mother, to report or cause a serious illness or injury in her child in
order to gain the attention and sympathy of the medical community.  This
illness, recognized in the psychiatric community and by the courts (see,
e.g., People v. Phillips, 122 Cal. App. 3d 69, 77-79, 175 Cal. Rptr. 703,
707-09 (1981) and In re Colin R., 63 Md. App. 684, 690, 493 A.2d 1083, 1086
(1985)), can be fatal to the child.  In this case, the mother caused
breathing difficulties in S.R. requiring extensive medical evaluation of
S.R. prior to the Munchausen syndrome by proxy diagnosis.
     During the three and one-half years prior to the termination of
residual parental rights, SRS provided appropriate and extensive services
for S.R. and her parents designed to reunify the family.  These services
included counseling for the mother, family counseling, parent education,
special education for S.R., supervised home visits, and one period of home
placement during which S.R. sustained several injuries.  These services were
largely ineffective because the parents did not acknowledge the diagnosis of
Munchausen syndrome by proxy or fully avail themselves of the services
offered by SRS to improve their parenting skills.  After S.R. left her
parents' home in 1988, SRS continued its efforts to reunify the family by
continuing to provide counseling and parent education for the mother.
Attempts to involve the father in the counseling or to address his alcohol
problem were unsuccessful.  Seeing no improvement in the capacity of either
parent to resume parental duties, SRS sought to terminate both parents'
residual rights through the modification of S.R.'s disposition order.
                                    II.
     When termination of parental rights is sought at a modification
proceeding, 33 V.S.A. { 5532 requires the court to conduct a two-step
analysis.  In re J.R., 153 Vt. 85, 99, 570 A.2d 154, 161 (1989).  First, the
court must find a substantial change in material circumstances.  Id.
Second, the court must find that the best interests of the juvenile require
termination of parental rights.  Id. at 100, 570 A.2d  at 161.  Title 33
V.S.A. { 5540 sets forth four factors for the court to consider when
evaluating the best interests of the child:
         (1)  The interaction and interrelationship of the child
         with his natural parents, his foster parents if any, his
         siblings, and any other person who may significantly
         affect the child's best interests;
         (2)  The child's adjustment to his home, school, and
         community;
         (3)  The likelihood that the natural parent will be able
         to resume his parental duties within a reasonable period
         of time; and
         (4)  Whether the natural parent has played and continues
         to play a constructive role, including personal contact
         and demonstrated love and affection, in the child's
         welfare.

The court's findings must be supported by clear and convincing evidence and
such findings will withstand Supreme Court review unless clearly erroneous.
In re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890 (1990).  The lower court's
conclusions of law, if supported by the findings, will be affirmed.  Id.
     Both parents argue that termination of parental rights is not
supported by sufficient findings of risk to S.R.  The detailed and extensive
findings of the trial court, as well as the record upon which they are
based, sufficiently support the termination order.  The court found that
S.R. was at risk due to her mother's Munchausen syndrome by proxy and the
failure of both parents to acknowledge that disorder.  The court also found
that S.R. faced risks of injury and developmental harm due to the inadequacy
of her parents' supervision, their inability to assist in the delivery of
necessary special services, her mother's seizure disorder, and problems
between the mother and father which were exacerbated by the father's
drinking problem.  These findings all find support in the record from ample
credible evidence.  For example, the psychologist who diagnosed the
Munchausen syndrome by proxy testified that S.R. faced a ten-to-twenty
percent chance of death based on her parents' denial of that disorder.  He
also testified that the risk to S.R. due to that denial increased with the
level of stress in the home.
     The mother and father also argue that the court based its modification
of S.R.'s case plan on changed circumstances that were the fault of SRS
rather than the parents.  When the state seeks modification of a juvenile
case plan, the court may find a substantial change in material circumstances
based on "stagnation."  In re J.R., 153 Vt. at 99, 570 A.2d  at 161.  Stag-
nation is the passage of time with no improvement in parental capacity to
care properly for the child.  Id.  While stagnation caused by factors beyond
the parents' control could not support termination of parental rights, the
claim that SRS caused stagnation in this case is without merit.  Prior to
termination, SRS worked with S.R.'s parents for well over three years pro-
viding services in an effort to effect reunification.  In spite of those
efforts, the trial court concluded that there had been no improvement in the
ability of either parent to provide a safe environment or to care properly
for S.R.  The court specifically found that the parents refused to partic-
ipate in regular counseling or provide transportation for S.R. to attend
special early education classes.  More significantly, they both failed to
acknowledge the role of the mother's Munchausen syndrome by proxy.  The
findings in support of stagnation are well supported by the evidence and we
will not disturb the court's conclusion based on those findings.
     In addition to joining the arguments made by S.R.'s mother, the father
advances two arguments of his own.  First, he argues that the conclusion
that he is incapable of properly caring for S.R. was not sufficiently
supported by the findings or the evidence.  Specifically, he claims that his
alcohol problem was not shown to affect S.R. adversely and is therefore
irrelevant, that his failure to acknowledge B.M.'s Munchausen syndrome by
proxy is not relevant, that the lack of a safe home environment is not
attributable to him, and that his use of corporal punishment was not
unreasonable.  Second, he argues that findings regarding the quality of the
preadoptive foster home are irrelevant and violate his constitutional
rights.
     Concerning the father's first argument, the court found that the
father's alcohol problem caused stress in the home, including frequent
arguments and occasional separations, and that this stress had a negative
impact on S.R.  Similarly, the court found that both parents' failure to
acknowledge the Munchausen syndrome by proxy posed a direct threat to the
health and safety of S.R., which increased with the level of stress in the
home.  Both findings are well supported by credible evidence.  Furthermore,
these findings are but two of several factors upon which the court based its
decision to terminate the father's parental rights.  The record also sup-
ports the finding of lack of safety in the home, which is equally attribut-
able to the father and the mother.  Finally, the court below placed no
reliance upon the father's use of corporal punishment.  It relied on a
broader finding of lack of parental ability to care properly for S.R.  We
find extensive evidence in the record to support the court's findings
regarding the father's inability to parent.  These findings, in turn,
support the conclusion that the father is incapable of properly caring for
his daughter.
     The father's second argument is that the court's consideration of the
quality of S.R.'s preadoptive foster home is irrelevant and violates his
constitutional rights.  At modification proceedings, the statute requires
the court to consider the interaction of the juvenile with foster parents.
33 V.S.A. { 5540(1).  Given this statutory requirement, the father's argu-
ment that such inquiry is irrelevant and prejudicial is not well founded.
     Furthermore, consideration of the preadoptive home does not, as the
father argues, violate his fundamental right to care for S.R. in the context
of the family.  As mentioned above, 33 V.S.A. { 5532 requires the court to
conduct a two-step analysis prior to modifying a disposition order.  Here,
the court first found a change in material circumstances based on stagnation
of the parents' ability to properly care for S.R.  The father's inability to
provide a safe home and care for his daughter finds ample support in the
record.  Only after satisfying this prerequisite did the court consider
whether modification was in the best interest of S.R.  As part of this
analysis, the court was required by 33 V.S.A. { 5540(1) to consider the
relationship between S.R. and her foster parents.  The father's reliance on
In Re N.H., 135 Vt. 230, 373 A.2d 851 (1977), is misplaced.  In that case,
we held that our statutes do not "allow for intervention simply because a
child might be better off somewhere else."  Id. at 236, 373 A.2d  at 856.
We based our decision, however, on the "absence of any convincing proof that
the appellant [was] an unfit parent, demonstrably incapable of providing an
appropriate home for his child."  Id. at 237, 373 A.2d  at 857.  Here, the
court properly followed the required two-step analysis and found the
incapacity of both parents before considering the preadoptive home as part
of its analysis of the best interests of S.R.
     This Court has long recognized the awesome power involved in term-
inating parental rights.  In re H.A., 153 Vt. at 513, 572 A.2d  at 889.  This
power is constrained by procedures set forth in 33 V.S.A. Chapter 55 and
the holdings of this Court.  In this case, the trial court properly
followed both.  It made appropriate findings based on clear and convincing
evidence.  These findings are not clearly erroneous and support the court's
conclusion that the best interests of S.R. require the termination of her
parents' residual rights.
     Affirmed.

                                        FOR THE COURT:




                                        Chief Justice