In re TR and LC

IN_RE_TR_AND_LC.93-308; 163 Vt 596; 653 A.2d 777

[Filed 13-Dec-1994]

                                    ENTRY ORDER

                          SUPREME COURT DOCKET NO. 93-308

                                OCTOBER TERM, 1994


In re T.R. and L.C., Juveniles            }         APPEALED FROM:
   and                         }
In re S.R. and C.R., Juveniles }
                               }          Franklin Family Court
                               }
                               }
                               }          DOCKET NO. F55/56-8-88FJv and
                                           F8/10-2-92FJv


                 In the above entitled cause the Clerk will enter:

 Mother and father appeal termination of residual parental rights to their
children, S.R. and C.R.  Mother argues that the family court's findings were
clearly erroneous, that the State failed to make reasonable reunification
efforts, and that long-term foster care was not considered.  Father
additionally contends that the Department of Social and Rehabilitation
Services (SRS) failed to comply with the Indian Child Welfare Act's notice
requirements, 25 U.S.C.  1912(a), and that SRS failed to provide sufficient
notice that it was seeking to terminate parental rights.  Father also appeals
termination of his residual parental rights to T.R. and L.C., his two other
children from a previous relationship.  He contends that absence of counsel
for T.R. and L.C. during the disposition hearing and the court's failure to
guarantee cross-examination of T.R. and L.C.'s foster mother require
reversal. (FN1) We affirm. 

 SRS received custody and guardianship of T.R. and L.C. following their
parents' stipulation to a finding that the juveniles were children in need of
care or supervision (CHINS). SRS subsequently petitioned the court for
termination of residual parental rights.  T.R.'s and L.C's mother voluntarily
agreed to the termination of her rights and does not join in this appeal.
Under the Indian Child Welfare Act, and based on the best information father
could provide concerning his Indian parentage, SRS sent notice of the
juvenile court proceedings to regional tribes, the United States Bureau of
Indian Affairs, and the Canadian office for Indian and Northern Affairs. 
Responses indicated that father's Indian parentage and eligibility for tribal
membership could not be established. 

 

 Before the evidentiary hearings on the termination of father's rights to
T.R. and L.C. concluded, SRS filed a CHINS petition on behalf of the father's
youngest children, S.R. and C.R.  After the parents stipulated to a finding
of CHINS, SRS recommended termination of parental rights to S.R. and C.R. 
The court consolidated the disposition hearings for all four children.  When
T.R.'s and L.C.'s attorney was absent one day, the court asked S.R.'s and
C.R.'s attorney to assume representation for all four children.  The  
guardians ad litem agreed.  The family court found that the parents abused
and neglected the children, failed to protect them, were hostile to SRS's
intervention, and were unwilling to change even when faced with the prospect
of permanently losing their children.  It ordered the termination of parental
rights to the four children. 

 We address mother's argument that the family courts' findings were clearly
erroneous, and the father's arguments that SRS failed to comply with the
Indian Child Welfare Act and failed to provide sufficient notice that it was
seeking to terminate parental rights.  We decline to address the parents'
other arguments because they did not raise them before the court below, and
hence, they did not preserve them for appeal.  In re B.L., 145 Vt. 586, 590,
494 A.2d 145, 147 (1985). 

 We will uphold the court's factual findings if, when viewed in the light
most favorable to the prevailing party, they are "supported by reasonable or
credible evidence, even if contrary evidence exists."  Community Feed Store,
Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 154-55, 559 A.2d 1068, 1069
(1989).  First, the mother claims that the court premised many of its
findings on misconceptions about battered women leading, she argues, to an
erroneous finding that she would not be able to resume her parenting duties
in a reasonable time.  During the hearings, the mother denied that she was a
battered woman.  Nonetheless, the court concluded that her relationship with
the father had resulted in violence to herself and her children, and that she
was, indeed, a battered woman.  The court's findings and conclusion are
substantiated by testimony regarding father's abuse towards mother, mother's
resulting physical injuries, and her inability to make protecting her
children a priority over her relationship with her husband.  The court
determined that there could be no real progress toward reunification until
mother was able to acknowledge and avoid conduct that put herself and her
children at risk. The court's finding that mother would not be able to resume
parenting duties in a reasonable time was not clearly erroneous. 

 Second, mother claims that the court's findings were clearly erroneous
because they lacked support.  The only finding unsupported by the evidence is
that the mother called the children names.  There is ample evidence to
support the court's other findings and to support the court's conclusion that
termination of parental rights was appropriate.  The court's unsupported
finding was not critical to the outcome. 

 Finally, mother claims that the court ignored or overlooked testimony of
several credible witnesses.  The trial court is "entitled to draw reasonable
inferences from the testimony it receives" and to judge witnesses'
credibility.  In re Nash, 158 Vt. 458, 462, 614 A.2d 367, 369 (1991).  Mother
refers to a parent educator who, she claims, "found much to be right about
S.R.'s care."  The overwhelming portion of the educator's testimony, however,
expressed concern about the children's condition, and the court discussed
that portion of the educator's 

 

testimony.  No error occurred.

 Mother also cites her cousin's testimony that father is the sole impediment
to improving her parenting abilities.  Although the court may have found some
of the cousin's testimony to be credible, it was not required to find that
all of his testimony was credible, particularly when the cousin may have been
biased in mother's favor.  See Id.  The court's conclusion that the parents
were unlikely to resume parenting duties within a reasonable amount of time
is amply supported by reasonable and credible evidence of the parents' abuse
and neglect, their own destructive relationship, and resistance to
counselling.  Community Feed Store, Inc., 151 Vt. at 154-55, 559 A.2d  at
1069.  The court's findings were not clearly erroneous. 

 Father contends that the family court failed to comply with the notice
requirements of the Indian Child Welfare Act, 25 U.S.C.  1912(a) (1994),
during S.R.'s and C.R.'s termination proceedings.  The Act requires that
notice be sent to the parent, or the Indian custodian and the Indian child's
tribe, or the Secretary of the Interior if no one else can be identified,
when "the court knows or has reason to know that an Indian child is
involved."  Id.  SRS properly complied with these requirements, based on the
best information of the children's ancestry that father could provide, during
T.R.'s and L.C.'s termination proceedings.  The court received responses
indicating that the father, children, or ancestors could not be identified as
tribal members, and consequently concluded that they were not entitled to
register as Indians under the Act.  These responses made similar notice
regarding S.R.'s and C.R.'s proceedings unnecessary.  Because father did not
provide additional information about his ancestry, the court had no reason to
believe that S.R. and C.R. were Indian children under the Act. 

 Finally, although father did not preserve his argument that SRS failed to
provide adequate and sufficient notice of its intent to terminate his
parental rights to S.R. and C.R., In re B.L., 145 Vt. at 590, 494 A.2d  at
147, we caution SRS that recommendation of termination of parental rights on
the last page of a disposition report may inadequately apprise parents of the
gravity of the interests at stake.  V.R.F.P. 3(a) recognizes "the seriousness
of terminating parental rights and the need for adequate time for every party
to adequately prepare for the hearing."  Reporters Notes, V.R.F.P. 3(a).  SRS
should notify the parents "that termination of parental rights in fact is
being sought."  Id.; see also V.R.F.P. 3(a) (requiring notice to be in
writing and in the form of a petition, motion, or request).   Notice should
include an explanation of the consequences of such a determination, the
parents' right to counsel, and the availability of state-provided counsel. 
There is no error here because the parents were represented by counsel and
SRS's petitions regarding T.R. and L.C. gave adequate notice of the
termination proceedings and its consequences before the two cases were
consolidated. 

 Affirmed. 

                      BY THE COURT:

                      _______________________________________
                      Frederic W. Allen, Chief Justice

                      _______________________________________
                      Ernest W. Gibson III, Associate Justice


                      _______________________________________
                      John A. Dooley, Associate Justice


                      _______________________________________
                      James L. Morse. Associate Justice


                      ______________________________________
                      Denise R. Johnson, Associate Justice


[ ] Publish

[ ] Do Not Publish


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                                Footnotes

   On appeal, SRS moved to strike father's arguments that SRS failed to provide sufficient notice regarding
termination and that the trial court failed to guarantee cross-examination of the foster mother.  Father, in turn, filed
a motion to quash his former attorney's affidavit, which stated that he chose not to cross-examine the foster mother.
In light of the disposition on the merits, we deny SRS's motion to strike and grant father's motion to quash.