In re J.M.

IN_RE_JM.92-106; 160 Vt. 146; 624 A.2d 362


[Filed 12-Mar-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-106


 In re J.M., Juvenile                         Supreme Court

                                              On Appeal from
                                              Addison Family Court

                                              January Term, 1993



 Edward J. Cashman, J.

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane,
   Assistant Attorney General, Waterbury, for plaintiff-appellee

 Robert Paolini of Martin & Paolini, P.C., Barre, For defendants-appellants


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


      ALLEN, C.J.    The parents of J.M., a juvenile, appeal the termination
 of their residual parental rights, arguing that the family court failed to
 apply the proper legal test in concluding that their progress toward
 reunification with their daughter had stagnated and that they would not be
 able to resume custody within a reasonable time.  The parents also contend
 that there was no clear and convincing proof that the best interests of the
 child under 33 V.S.A. { 5540 required termination.  We affirm.
      J.M. and her two siblings were placed in the legal custody of the
 Commissioner of Social and Rehabilitation Services (SRS) when J.M. was
 approximately three months old.  J.M. and her siblings had suffered from
 severe physical and emotional neglect.  J.M. was placed in a foster home in
 Orwell, and she has remained in that same home throughout the course of
 these proceedings.
      The SRS case plan was aimed at the progressive reunification of each
 child, beginning with the oldest and ending with J.M.  The oldest child was
 reunited with the parents in February 1990 and the next child in September
 1990.  SRS continued its plan to reunite J.M. with the family, and at the
 October 1990 case plan review, the goal was to reunite J.M. with her parents
 in six months or to begin termination proceedings.  After the birth of their
 fourth child in December, 1990, the parents missed numerous visitations with
 J.M.  The parents told the SRS social worker that they wanted to delay
 reunification with J.M. until the newborn was six months old.  The social
 worker explained that J.M. was approaching two years of age, was becoming
 more attached to the foster family, and could not wait that long.
      Meanwhile J.M. thrived in her foster home.  Although J.M. progressed
 while under the care of her foster parents, there was testimony that J.M.
 returned from visits with her biological parents hungry, unclean, and
 emotionally distressed.
      In April 1991 the court conducted an 18-month dispositional review,
 pursuant to { 5531.  SRS recommended that legal custody of J.M. remain with
 the Commissioner of SRS and that if J.M. were not reunified with her parents
 within three months, termination and adoption be pursued.  Over the next six
 months, efforts to increase visitation between J.M. and her parents were not
 successful.  As the trial court stated, "They would not be rude to the child
 but they continued to avoid visits as scheduled, giving a variety of
 justifications."
      The court findings describe in detail numerous areas in which the
 parents responded inappropriately to J.M.'s needs during this period,
 although they demonstrated some improvement over past behavior and did
 succeed in reuniting with their two oldest children.  SRS advised the family
 court, however, that J.M. "is a timid and fragile child and is very
 different from the [family's] other children in her behaviors and in her
 emotional and psychological needs."  Moreover, a psychological evaluation
 concluded that the foster parents had become J.M.'s psychological parents.
 SRS based its petition to terminate on the inability of either biological
 parent to understand or meet J.M.'s particular needs.  The trial court
 granted the SRS petition, and the present appeal followed.
      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 warranting
 modification.  Id.  Second, the court must find that the best interests of
 the juvenile require termination of parental rights under { 5540.  Id. at
 100, 570 A.2d  at 161.   Such findings will withstand Supreme Court review
 unless they are clearly erroneous.  In re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890 (1990).
      The first step in the analysis, a substantial change in material
 circumstances, is "most often found when the parent's ability to care
 properly for the child has either stagnated or deteriorated."  Id.
 "Stagnation can be shown by the passage of time with no improvement in
 parental capacity to care properly for the child."  In re J.R., 153 Vt. at
 99, 570 A.2d  at 161.
      The parents argue that termination of parental rights is not supported
 by sufficient findings of risk to J.M.  They contend that stagnation is
 properly defined as a situation where there has been a complete lack of
 movement toward reunification.
      Although it was undisputed that the parents improved their generalized
 parenting skills, the court found that these skills had not improved their
 ability to meet the unique needs of J.M.  The testimony of early neglect and
 its special impact on J.M. was extensive.  J.M. was particularly fragile and
 vulnerable.  The court's findings are based on the parents' lack of
 improvement in capacity to care for J.M., and these findings are based on
 clear and convincing evidence in the record.
      The second step of the analysis requires consideration of the four
 factors set forth in 33 V.S.A. { 5540 in determining whether J.M.'s best
 interests mandate termination of appellants' parental rights and
 responsibilities.  The parents argue that the court's analysis gave undue
 weight to the psychological bond with the foster family.  The court,
 however, first considered the interaction of J.M. with her biological
 parents under { 5540(1) and found:
         The parents made only minimal physical contact with the
         child during visits.  Neither parent would hold the
         infant for any period of time.  They made no attempt to
         understand or seek information on the child's develop-
         ment or needs.  Despite repeated advice and offers of
         information from the foster parents and the social
         worker of the child's inherent reticence to communicate
         her needs, neither parent demonstrated [an] interest or
         desire to learn.

 The court then considered the interaction of J.M. with her foster parents
 under { 5540(1), finding:
         "J" continued to thrive in the foster home setting.  She
         developed physically and emotionally, approaching her
         chronological age targets.  She overcame the withdrawn
         rag doll appearance, now beginning to walk and to
         verbalize her needs.  She began smiling and laughing.

 Therefore, the court's findings under { 5540(1) were not based upon an
 improper weighing of J.M.'s bond with her foster family but on testimony
 that her biological parents were unable to care for J.M. and that her foster
 parents had become her psychological parents.
      The parents also contend that because they were making considerable,
 even dramatic, progress in improving their parenting skills, the court erred
 in concluded that they would not be able to resume parental duties within a
 reasonable time under { 5540(3).  In re R.W., 154 Vt. 649, 650, 577 A.2d 253, 253 (1990)(mem.)(interpreting identical provision of prior codification
 of same statute); In re L.A., 154 Vt. 147, 158, 574 A.2d 782, 788
 (1990)(same).  The weight of the evidence, however, demonstrated that the
 degree of improvement, even if continued, would not allow reunification of
 J.M. with her parents in time to prevent very significant harm to J.M.,
 whose needs were markedly different from those of the other children in the
 family.  The trial court concluded that parental improvement had come too
 late and that the best interests of the child were served by termination.
 That conclusion is amply sustained by the record.
                                         Affirmed.

                                         FOR THE COURT:




                                         Chief Justice