In re. H.S.

IN_RE_HS.93-042; 161 Vt. 83; 632 A.2d 1106

[Filed 08-Oct-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. 93-042


 In re H.S.                                   Supreme Court

                                              On Appeal from
                                              Windsor Family Court

                                              June Term, 1993


 Amy Marie Davenport, J.

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Martha Csala,
   Assistant Attorney General, Waterbury, for plaintiff-appellee

 Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant


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


      ALLEN, C.J.   A mentally retarded mother appeals from an order of the
 family court terminating residual parental rights and responsibilities with
 respect to her son and transferring custody and guardianship to the
 Commissioner of Social and Rehabilitation Services (SRS).  She claims that
 SRS unreasonably failed to provide her training and assistance tailored to
 her special needs as a retarded person, and that this prevented her from
 resuming parental responsibilities within a reasonable time.  We affirm.
      The mother, S.S., has a low IQ but is capable of independent living and
 does not have a legal guardian.  Her son, H.S., was born in February 1987.
 Following a number of reports about possible physical abuse by S.S. and
 inadequate supervision of the child, SRS opened a protective services case
 in 1989, starting with day care services for H.S.  In August 1989, the

 

 family was referred to a parent educator, Janice Whyman, who worked with the
 family until April 1990.  Whyman, who was not specially trained to deal with
 mentally retarded adults, worked with S.S. on basic parenting skills,
 including toilet training, nutrition, safety, and protection issues.  When
 Ms. Whyman ended her services, she believed she had not been effective in
 teaching basic parenting skills to S.S., who, the court found, had great
 difficulty retaining information and would ask questions about a particular
 issue as though for the first time, even though the topic had arisen
 before.  S.S. rejected Whyman's suggestion that she sign up for a program
 providing volunteer parent aides.
      Two events prompted SRS to seek custody of H.S.  In August 1990, the
 child fell from the back of a moving pickup truck and sustained extensive
 injuries.  A few days later, SRS received a report that S.S. had grabbed her
 son and had hit him in the chest.  After a contested merits hearing, the
 court found that H.S. was a child in need of care and supervision (CHINS).
 The disposition order gave SRS custody of H.S. and required participation by
 his mother and father in a "parents-in-distress" program, together with
 vocational rehabilitation and substance abuse screening and treatment for
 S.S.  Joanne Thompson, an SRS caseworker, was assigned to the family and
 supervised most of the weekly visits between H.S. and his parents between
 February 1991 and January 1992.
      SRS also provided a parent educator, Leslie Richardson, who met with
 the parents for one hour before their weekly meeting with H.S. between
 February and June 1991.  Usually, Richardson was present during some or all
 of each visit.  Richardson had a bachelor's degree in psychology and had
 worked extensively with families and children as a parent educator and case

 

 manager.  She had no specific training with low-IQ adults, but did seek
 advice from knowledgeable colleagues.  The court found that she attempted to
 keep her teaching as simple and practical as possible, using repetition and
 concrete examples.  Despite a good relationship with Richardson, S.S. was
 unable to retain new information, could not apply examples, and "had trouble
 staying focused on the topic being discussed."
      The court concluded that S.S. had not made any progress in her
 parenting skills, despite a generally cooperative attitude.  As to her
 contention at trial that her lack of progress was attributable to SRS's
 failure to provide her with appropriate services, the court pointed to the
 lack of evidence that such training was available in Vermont, or that S.S.
 could benefit from it.  The court found clear and convincing evidence of
 stagnation in the relationship between S.S. and H.S. and lack of improvement
 in her capacity to parent him.  Based on the evidence of stagnation, the
 court found that there had been a real, substantial and unanticipated change
 in circumstances since the original disposition order and that S.S. would
 not be able to resume her parental duties within a reasonable time.  The
 court specifically concluded that termination would be in the best interests
 of H.S., and that removing the child from his foster home would prove
 "disastrous."  After a 12-month administrative review hearing in September
 1991, the court terminated S.S.'s residual rights.
      In a termination proceeding, the trial court first must conclude that
 a substantial change in material circumstances has occurred.  In re S.R.,
 157 Vt. 417, 420, 599 A.2d 364, 366 (1991); see 33 V.S.A. { 5532.  If this
 threshold criterion is met, the court then determines whether termination of
 parental rights is in the best interest of the child.  In re S.R., 157 Vt.

 

 at 420, 599 A.2d  at 366.  Factual findings must be supported by clear and
 convincing evidence and will be upheld on review unless clearly erroneous.
 In re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890, cert. denied, 498 U.S. 861
 (1990).  If supported by the findings, the court's conclusions of law will
 be affirmed.  Id., 572 A.2d  at 891.
      S.S. does not contest the factual findings that she is unable to
 assume parental rights and responsibilities, but argues that SRS caused the
 stagnation in the parent-child relationship by failing to provide services
 reasonably appropriate for her needs and abilities.  In essence, S.S.
 contends that, despite the accuracy of the findings of fact, the court
 improperly used them in reaching the threshold conclusion of a substantial
 change in material circumstances.  We disagree.
      SRS has considerable freedom to fashion a flexible case plan, subject
 to court approval that the plan promotes the best interest of the child.
 See In re L.T., 149 Vt. 473, 476-77, 545 A.2d 522, 524 (1988); In re J.S.,
 153 Vt. 365, 373, 571 A.2d 658, 663 (1989).  Given this flexibility, it
 cannot be said that as a matter of law SRS must provide S.S. with counselors
 specifically certified to train retarded persons in parenting skills.
 Therefore, her claim of error has merit only if the trial court erred in its
 conclusion that the services actually provided were reasonable.
      The trial court's findings reflect a detailed examination of the
 experience and credentials of those assigned to work with S.S.  Prior to
 termination, SRS worked intensively with S.S. to improve her parenting
 skills.  Both parent educators were well aware of S.S.'s limitations, and
 both used teaching methods that the court found appropriate, such as
 repetition and focusing the instruction on basic skills.  They dealt with

 

 nothing more abstract than toilet training, appropriate discipline, and
 basic nutrition.  In light of its findings, the trial court could reasonably
 conclude that SRS had made appropriate, reasonable efforts to assist S.S. in
 her attempt to resume parental duties.
      Based on evidence from well-qualified parent educators, caseworkers, an
 adult protective service worker, and the team evaluating the potential for
 family reunification, the trial court concluded that there had been no
 improvement in the ability of S.S. to improve her skills or to provide a
 safe environment and care properly for H.S.  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 re H.A., 153 Vt. at 515, 572 A.2d  at 890.
      Affirmed.
                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice