In re E.B.

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                                 No. 90-402


 In re E.B., Jr. and J.B.,                    Supreme Court
 Juveniles
                                              On Appeal from
                                              District Court of Vermont,
                                              Unit No. 2, Franklin Circuit

                                              November Term, 1991




 Michael S. Kupersmith, J.

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

 E. M. Allen, Defender General, and William A. Nelson, Appellate Attorney,
   for defendant-appellant P.B.

 Michael Rose, St. Albans, for defendant-appellant E.B.

 Charles S. Martin of Martin & Paolini, Barre, for juveniles



 PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ., and Peck, J. (Ret.),
           Specially Assigned



      GIBSON, J.   The parents and the guardian ad litem of two boys appeal
 from the juvenile court's order terminating residual parental rights.  We
 affirm.
                                     I.
      In March of 1987, the Department of Social and Rehabilitation Services
 (SRS) filed a petition alleging that the boys, then one-and-one-half and
 two-and-one-half years of age, were children in need of care and supervision
 (CHINS) because of their parents' instability and failure to meet their
 medical and physical needs.  At the merits hearing, the parties signed a
 stipulation stating that the boys were CHINS, that SRS would assume custody
 of the children, and that the boys would be placed with the parents as soon
 as the parents found appropriate housing.  It was further agreed that the
 parents would maintain stable housing and employment, attend parenting
 classes, visit with the children as scheduled, attend alcohol counseling
 sessions, and comply with a medical plan as recommended by the children's
 physician.  Pursuant to the stipulation, the boys were adjudicated CHINS,
 and SRS assumed custody in July of 1987.
      That same month, SRS placed the boys with their parents and referred
 the parents to various social programs to assist them in providing for the
 children's medical needs, developing parenting skills, and coping with
 alcohol abuse.  In January of 1988, SRS removed the boys from the home
 because of the parents' failure to follow up on the children's eye problems
 and early education needs, and because of a number of unexplained bruises
 found on the boys.  SRS informed the parents that reunification would still
 be possible if they participated in the social programs suggested by the
 case plan and visited the children regularly.  Despite encouragement from
 SRS, the father did not enroll in an alcohol treatment program, the mother
 dropped out of the family support program, and neither parent visited the
 boys on a regular basis.
      In June of 1988, the parents moved to Arizona without seeing the
 children first or informing SRS of the move.  A few weeks later, the parents
 asked SRS to send the boys to Arizona or, in the alternative, to allow them
 to work on the case plan through Arizona agencies.  SRS insisted on working
 toward reunification with the parents in Vermont.
      In August of 1988, the parents returned to Vermont for the eighteen-
 month dispositional review hearing, wherein it was decided that SRS would
 retain custody of the children while the parents continued regular
 visitation and participated in certain social services programs.  Between
 August of 1988 and January of 1989, when the parents again left the state
 without informing SRS or seeing the boys, the parents' visits with the
 children were sporadic.  In mid March of 1989, the mother informed SRS that
 she and her husband were in Florida.  In the next nine months, the parents
 moved from Florida to Arizona, and then to Utica, New York.  During that
 time, the mother contacted SRS two or three times to inquire about the
 children.
      In August of 1989, citing the parents' failure to participate regularly
 in the required programs or to contact the children on a regular basis, SRS
 petitioned for termination of residual parental rights.  Hearings were held
 on three days between January and May of 1990.  Noting that, as a direct
 result of the parents' actions or inaction, the relationship between the
 boys and their parents had deteriorated between the time SRS assumed custody
 of the children and the time of the termination hearing, the juvenile court
 concluded that the best interests of the children required the termination
 of residual parental rights.  On appeal, appellants argue (1) that SRS
 violated the parents' constitutional right to travel by not allowing them to
 work with out-of-state agencies on their case plan; (2) that the court's
 decision was improperly based on its findings regarding the positive envi-
 ronment of the preadoptive foster home; and (3) that the court improperly
 terminated residual parental rights without first making a determination
 that both parents are unfit and incapable of caring for their children.
                                     II.
      Appellants first argue that SRS's refusal to work with the parents on
 an out-of-state basis, or to refer their case plan to social service
 agencies in the states where the parents were located, led to the conditions
 that resulted in the termination of parental rights and violated the
 parents' constitutional right to travel freely from state to state.  We
 disagree.
      In the stipulation transferring custody of the boys to SRS, the parents
 made a commitment to obtain and maintain stable housing and employment, to
 visit the children regularly, and to attend various counseling programs.
 The parents failed to meet any of these commitments, and, on at least two
 occasions, they left for another state without contacting SRS and without
 seeing their children.  Under these circumstances, SRS was justified in
 refusing to work toward reunification while the parents were far away from
 the children and without the funds to visit them on a regular basis.  See
 Rowsey v. Rowsey, 329 S.E.2d 57, 61 (W. Va. 1985) (paramount concern for
 child welfare may supersede the right to travel).
      SRS defended its refusal to work toward reunification while the parents
 were out of state by pointing out that family stability and frequent contact
 with the children is the key toward reunification.  Appellants argue that
 the need for "bonding" between parents and children is not a compelling
 enough reason for SRS to insist that the parents work toward reunification
 in the state where the children live.  In support of this argument, appel-
 lants cite In re J. & J.W., 134 Vt. 480, 365 A.2d 521 (1976), wherein this
 Court reiterated that "loss of the psychological parent relationship between
 natural parent and child by itself does not establish" a sufficient change
 of circumstances to warrant termination of parental rights.  Id. at 484, 365 A.2d  at 524.
      In re J. & J.W. does not stand for the proposition that "bonding"
 between parent and child is not important, or that SRS may not insist on
 regular contact between parents and child in order to work toward
 reunification.  Rather, it admonishes against the termination of parental
 rights solely on the basis that the child's primary psychological
 relationship is not with the natural parent at the time of the hearing.
 Pointing out that the mother regularly visited the children, prepared
 additional accommodations in anticipation of longer visitations, established
 a stable marital situation, continued a regular medical treatment program,
 and found stable employment, the Court concluded that overall the mother had
 improved her circumstances and the State had not proved a "deterioration or
 a stagnation coupled with prospective inability for improvement."  Id. at
 484-85, 365 A.2d  at 524.  The Court emphasized that "the best interest of
 the child is the paramount concern."  Id. at 485, 365 A.2d  at 524.  Given
 the circumstances of the instant case, we cannot say that SRS did not act in
 the best interest of the children when it refused to work toward
 reunification while the parents were out of state.
      Citing In re L.A., 154 Vt. 147, 574 A.2d 782 (1990), appellants also
 argue that SRS should have worked actively toward reunification while the
 parents resided in the State of New York, despite the fact that SRS had
 petitioned for termination of parental rights.  Appellants misconstrue L.A.,
 which held that a court may terminate parental rights prior to the existence
 of a permanent placement for the children if it is in their best interests.
 Id. at 160, 574 A.2d  at 789.  The case does not stand for the proposition
 that SRS must actively work for reunification until the termination order is
 issued.  We merely pointed out that, if SRS changes its goal, it must keep
 in mind that the court may decide not to accept the change in goal and may
 require reunification.  Id.
                                    III.
      Next, appellants argue that the juvenile court improperly based its
 decision to terminate parental rights on its findings regarding the quality
 of the boys' preadoptive home.  We acknowledge that parental rights cannot
 be terminated simply because a child might be better off in another home.
 See In re N.H., 135 Vt. 230, 236, 373 A.2d 851, 856 (1977); In re J. & J.W.,
 134 Vt. at 485-86, 365 A.2d  at 525 (Larrow, J., concurring).  In determining
 whether the best interests of the child require the termination of parental
 rights, the most important issue is whether the parents "will be able to
 resume [their] parental duties within a reasonable period of time."  In re
 J.R., 153 Vt. 85, 100, 570 A.2d 154, 161 (1989); see 33 V.S.A. { 5540(3).
 Among other factors, however, the court must consider the child's
 relationship with his or her foster parents.  33 V.S.A. { 5540(1).  In this
 case, the court's findings and conclusions reflect the proper priority of
 these factors.  The vast majority of the court's thirty-one findings address
 the history of the parents' lack of progress toward meeting the goals set
 out by the case plan.  Further, the court's conclusions extensively detail
 the parents' inability to turn their lives around or create an environment
 in which they could reunite with their sons.  Although the court properly
 points out that the boys have adjusted well to a healthy environment
 provided by the foster parents, the focal point of the court's decision is
 the parents' conduct over the two years preceding the termination hearing.
                                     IV.
      Appellants also argue that the court improperly terminated parental
 rights without first making a specific finding, supported by clear and
 convincing evidence, that the parents are unfit and incapable of caring for
 their children.  See In re M.B., 147 Vt. 41, 45, 509 A.2d 1014, 1017 (1986)
 (permanent termination of parental rights requires a clear and convincing
 showing of parental unfitness).  We disagree.  The court's findings and
 conclusions, which are amply supported by the record, clearly indicate not
 only that the parents are incapable of adequately caring for their children
 at the present time, but that it is unlikely that they will be able to care
 for the children anytime in the near future. (FN1)
      Considering the history of this case, the court's conclusion at the
 termination hearing that the parents had regressed in their ability to care
 for their children does constitute a finding of parental unfitness.  In
 1987, the parents signed a stipulation acknowledging that the boys were in
 need of care and supervision because of unmet medical needs, frequent family
 moves, and physical neglect.  Cf. In re Y.B., 143 Vt. 344, 346, 348, 466 A.2d 1167, 1168, 1170 (1983) (where mother accepted CHINS stipulation on the
 condition that it could not be used to find fault, and stipulation simply
 stated that her child was "without proper care necessary for her well-being
 at this time," stipulation could not support a finding of parental
 unfitness).  In order to remedy the situation, the parents agreed to find
 stable housing and employment and to participate in parenting classes,
 alcohol counseling sessions, and other support programs.  Because the
 parents did not follow through on the case plan, the boys were placed in a
 foster home.  After that time, the parents did not maintain regular contact
 with the children, even when they had an opportunity to do so, nor did they
 otherwise comply with the agreement.
      The court also found at the termination hearing that the parents did
 not have the ability "to organize and regulate the most basic elements of
 day-to-day living," that they were unable "to give proper priority to the
 well-being of their children," and that they "have failed over the past two
 years to play any constructive role in the boys' welfare or to demonstrate
 any love or affection for them."  The court concluded that "[b]ecause of the
 parents' complete failure to maintain regular contact with the boys and
 their highly unstable and unpredictable lifestyle, it is not likely that
 they will be able to resume their parental duties toward these children
 within a reasonable period of time, if ever."  It is difficult to imagine
 how the court, without saying the magic words, could more clearly have
 pronounced the parents unfit and incapable of caring for their children.
 Cf. In re G.V., 136 Vt. 499, 502, 505, 394 A.2d 1126, 1128-29 (1978)
 (findings determining best interests of children need not be couched in
 precise language of statute; termination of parental rights was proper where
 parents were unable to create a healthy or stable home environment or show
 ability to care for their children's welfare in the future).
                                     V.
      Finally, the boys' guardian ad litem seeks reversal of the court's
 order because SRS has rejected the foster parents as adoptive parents.  As
 noted above, termination of residual parental rights does not depend on the
 existence of an alternative placement.  In re L.A., 154 Vt. at 160, 574 A.2d 
 at 589.  Further, the court's decision focused on whether the parents were
 capable of resuming their parental duties within a reasonable period of
 time, rather than on the quality of the preadoptive home.  See In re J.R.,
 153 Vt. at 100, 570 A.2d  at 161.  We fail to see how the rejection of the
 foster parents as adoptive parents undermines the court's conclusion that
 the natural parents are incapable of caring for their sons.
      Affirmed.


                               FOR THE COURT:



                               ____________________________________________
                               Associate Justice





FN1.   Because we conclude that the court's findings, which are supported by
clear and convincing evidence, adequately demonstrate that the parents are
incapable of caring for the two boys, we need not resolve the parties'
dispute as to whether the parents' CHINS stipulation discharged the State's
burden of proving parental unfitness at the termination hearing.  Cf. In re
J.H., ___ Vt. ___, ___, 587 A.2d 1009, 1012 (1991) (parental unfitness test
must be met before SRS can be awarded custody of a child; where mother had
stipulated to SRS custody, she could not later complain that she had never
been found to be unfit).

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