In re E.B.

IN_RE_EB.92-551; 162 Vt. 229; 647 A.2d 1001

[Opinion Filed February 28, 1994]

[Motion for Reargument Denied June 23, 1994]

 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. 92-551


 In re E.B. & M.B., Juveniles                 Supreme Court

                                              On Appeal from
                                              Franklin Family Court

                                              December Term, 1993


 Ronald F. Kilburn, J.

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Alexandra N. Thayer,
   Assistant Attorney General, Waterbury, for appellee SRS

 Daniel Albert, Public Defender, St. Albans, for appellee juveniles E.B. and
   M.B.

 Michael Rose, St. Albans, for appellant C.B.


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


      ALLEN, C.J.   Appellant C.B. appeals the termination of parental rights
 and responsibilities for his children M.B. and E.B.  We affirm.
      This case was consolidated with In re M.B., No. 90-444 (Vt., filed
 Sept. 12, 1990), in which both parents appealed the trial court's order
 transferring custody and guardianship of the children to the Department of
 Social and Rehabilitation Services (SRS) after a finding that they were
 FN1)  While that appeal was
 pending, SRS petitioned for termination of residual parental rights and

 

 responsibilities, and the trial court granted the petition on October 30,
 1992.  Custody and guardianship over M.B. and E.B. were transferred to SRS
 without limitation as to adoption.  The mother, M.R., has not appealed the
 termination order.  Therefore, her appeal in No. 90-444 of the CHINS
 disposition order is moot.  See In re H.A., 148 Vt. 106, 108, 528 A.2d 756,
 757 (1987) (case is moot if no "live" issue is presented or if parties lack
 legally cognizable interest in result).
      The disposition order appeal brought by the father, C.B., stands on
 different ground.  In essence, the father alleged that the disposition order
 was invalid because the trial court erroneously used hearsay evidence alone
 to make a finding that he was unfit and demonstrably incapable of providing
 an appropriate home for the children.(FN2) Hearsay evidence is admissible in a
 disposition hearing, 33 V.S.A. { 5527(d), but "where a timely objection is
 made, hearsay evidence alone may not be used as a basis for a finding of
 parental unfitness."  In re C.L., 151 Vt. 480, 487 n.1, 563 A.2d 241, 246
 n.1 (1989), cert. denied, 493 U.S. 1026 (1990).  Faced with a lack of
 sufficient credible, nonhearsay evidence of the father's unfitness,
 ordinarily we would reverse the disposition order and remand to the trial
 court for additional findings based on appropriate evidence.  But in this
 case, additional hearings were held for the termination of parental rights,

 

 which involved the taking of evidence on issues virtually identical to those
 in the disposition proceeding.
      To justify termination, the trial court must find, by clear and
 convincing evidence, that termination is in the best interests of the child,
 and, in particular, whether the parent will be able to "'resume . . .
 parental duties within a reasonable period of time.'"  In re J.R., 153 Vt.
 85, 100, 570 A.2d 154, 161 (1989) (quoting 33 V.S.A. { 667(3), recodified at
 33 V.S.A. { 5540(3)).  As in the disposition hearing, hearsay evidence is
 admissible in termination proceedings, but alone it cannot provide the basis
 for the conclusion that an individual is an unfit parent.  In re R.B., 152
 Vt. 415, 424, 566 A.2d 1310, 1314 (1989), cert. denied sub nom. Appleby v.
 Young, 493 U.S. 1086 (1990).  There must also be "credible, nonhearsay
 evidence of parental unfitness."  Id.  Therefore, in light of the identical
 standards for use of hearsay evidence and the higher burden of proof the
 State must bear to secure a termination of parental rights, if the
 termination order is affirmable, the father's appeal of the disposition
 order is also moot.  We turn, then, to the father's appeal of the
 termination order, No. 92-551.
      The father alleges a number of errors warranting a reversal of the
 termination order:  (1) ineffective assistance of counsel; (2) the trial
 court erroneously found that he was an unfit parent; (3) the trial court
 failed to review the evidence carefully in making its findings of fact and
 conclusions of law; (4) the court should have ordered something less drastic
 than termination of his residual parental rights.  We examine each claim in
 order.

 



                                     I.
      The father first claims that he was denied effective assistance of
 counsel in the termination hearing.(FN3) This stems from trial counsel's
 attempt to withdraw from representation on the sixth day of merits hearings,
 which spanned seven days over several months in 1992.  The record shows that
 for the first five days, in which SRS presented its case for termination,
 appellant's attorney pursued his case with appropriate zeal and competence.
 He cross-examined the State witnesses extensively and effectively on all
 relevant issues, including reports that the father had sexually abused E.B.
 and M.B.  Just before the fifth day of the hearing, the attorney learned
 that C.B. had been formally charged with sexually abusing his two young
 stepchildren, allegations against the father similar to those made by E.B.
 and M.B.
      The father's attorney moved for permission to withdraw because he no
 longer felt he could "truthfully" present the father's case.  The motion was
 heard and denied by a judge not otherwise associated with the proceedings.
 When the hearing resumed, counsel for the children informed the court of the
 charges pending against the father, and the father's attorney admitted that
 these new allegations of sexual abuse had caused him to seek withdrawal from

 

 the case.  The allegations also compelled the father's counsel to reconsider
 the fairly lengthy list of witnesses he had planned to call in presenting
 the father's case in chief.  Ultimately, he called only the father, a fairly
 recent acquaintance of the father, and the foster parents of E.B. and M.B.,
 who had consented to adopting the children should termination of parental
 rights be ordered.  The direct examinations of all of the father's witnesses
 were brief; counsel verified on direct examination of the foster parents
 that they would be willing to proceed with adoption.  On appeal, the father
 contends that he was prejudiced by trial counsel's admission to the court
 that he had serious doubts about the father, and the brevity of the
 presentation of the father's case.
      To establish a claim of ineffective assistance of counsel, the father
 must show by a preponderance of the evidence, that (1) counsel's conduct
 fell short of the prevailing standard of a reasonably competent attorney,
 and (2) this incompetence was sufficiently prejudicial to create "a
 reasonable probability" of a different result.  Strickland v. Washington,
 466 U.S. 668, 694 (1984); accord, In re Ringler, 158 Vt. 118, 121, 605 A.2d 522, 526 (1992).(FN4)  In this case we assume, without deciding, that counsel
 failed to meet the standard of reasonable competence in the termination
 hearing.  Therefore, we will reverse for ineffective assistance of counsel
 only if the father demonstrates a reasonable probability that, absent the
 prejudicial effect of counsel's representation, his parental rights and
 responsibilities would not have been terminated.

 

      Termination of parental rights after disposition involves a two-step
 process, in which the trial court first makes a threshold finding of a
 substantial change in material circumstances, and then determines whether
 termination serves the best interests of the child.  In re J.R., 153 Vt. at
 99-100, 570 A.2d  at 161.  Appellant has not challenged the threshold finding
 of a substantial change in material circumstances.
      The best interests of the children must be considered in accordance
 with the four criteria set forth in 33 V.S.A. { 5540:
         (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 most important of the four criteria is the third, concerning resumption
 of parental duties.  In re J.R., 153 Vt. at 100, 540 A.2d  at 161.
      In the first five days of the hearing, SRS presented extensive
 evidence outlining the troubled history of the father and his children.
 From the outset, SRS personnel working with the mother and father emphasized
 the need for a safe and stable home environment for young children such as
 E.B. and M.B.  Social workers and mental health professionals described a
 situation in which neither parent had proven capable of providing a proper,
 nurturing environment for E.B. and M.B.  The court found that the father had
 been given a number of opportunities over several years to care for the

 

 children.  He also had been afforded but never took advantage of services to
 help him with the children, including welfare benefits, parenting classes,
 and training to enhance his employability.  Nevertheless, a pattern
 developed in which, due to a variety of personal, marital, and financial
 difficulties, the father kept the children for only relatively brief periods
 before returning them to SRS for placement with their mother or in temporary
 foster care.  When the termination hearing commenced on April 29, 1992,
 neither child had been in his care for the preceding ten months.
      Shuttled between their parents and foster homes, E.B. and M.B. did not
 fare well.  The court found that M.B. especially exhibited serious
 emotional and behavioral problems that neither parent was competent to
 address.  M.B. was placed in a foster home in April 1991; E.B. was placed in
 the same home in December of that year.  For the first time, M.B. described
 to her foster mother incidents of sexual abuse by her father and mother
 while in their respective households.  In the course of an investigation of
 these claims, E.B. made similar allegations.  The court found that the
 combination of abuse and the lack of a stable family life exacted a
 significant psychological toll on the children.
      The court concluded that the father would not be able to resume his
 parental duties for E.B. and M.B. within a reasonable period of time.  The
 children's relationship with their father had significantly deteriorated, to
 the point where the children requested from "the state lady" protection if
 they were placed with him.  The father had demonstrated an inability to
 provide a safe, stable, nurturing home.  Despite the father's protestations
 of love and concern for his children, the court found that he had not proven
 capable of translating his professed feelings into action beneficial to E.B.

 

 or M.B.  The court found, in contrast, that the children had responded well
 to the care provided in their foster home, and would continue to improve
 with the efforts of skilled foster parents capable of devoting considerable
 time and energy.
      The record contains clear and convincing evidence on all the relevant
 criteria of 33 V.S.A. { 5540, evidence that supports the termination of the
 father's parental rights.  The father fails to specify how trial counsel's
 presumed incompetence prejudiced his case sufficiently to create the
 reasonable probability of a different outcome.  He argues that trial
 counsel's motion to withdraw and presentation of his case qualifies as
 prejudice as a matter of law sufficient to warrant reversal.  We acknowledge
 that, in certain cases, it may be obvious that ineffective assistance of
 counsel has resulted in prejudice sufficient to reverse, but this does not
 relieve a party of the burden of demonstrating a reasonable probability of a
 different result in all cases, even if the prejudice is obvious.  See In re
 Fisher, 156 Vt. 448, 462, 594 A.2d 889, 897 (1991).  The father has not met
 that burden by simply alleging prejudice as a matter of law.
      The record shows that trial counsel vigorously and extensively cross-
 examined all of the State's witnesses, particularly on issues of
 inappropriate discipline and the substantiated reports of sexual abuse.
 The father fails to specify what additional, relevant evidence would have
 been provided by the witnesses that counsel opted not to call in light of
 the new allegations of the father's sexual abuse of his stepchildren.  Even
 if the father had presented testimony from a number of witnesses that he
 loved his children and wanted them with him, this would not have
 controverted the extensive testimony that he had not been capable of

 

 providing a stable home environment and showed no evidence of being able to
 do so within a reasonable period.  Moreover, had the father offered evidence
 to rebut the claims of sexual abuse of E.B. and M.B., this would not have
 changed the result.  As the trial court noted in its conclusions:
            Despite extensive SRS efforts to assist the father in
         gaining the skills and attributes necessary to parent
         [the children], and repeated opportunities to care for
         them separate from their mother, the father has
         repeatedly abandoned both . . ., and has engaged in
         child rearing and child care practices that resulted in
         physical and verbal abuse to the [children].  These
         problems alone, persisting after years of intervention
         and assistance to the father are a change in
         circumstance that warrants termination of the father's
         parental rights.  In addition, the father has sexually
         abused each [child] and remains untreated and in denial
         to the current time.
 (Emphasis added.)  The findings of sexual abuse were not necessary in the
 decision to terminate the father's parental rights.  Therefore, we hold
 that the father has not demonstrated prejudice from trial counsel's
 incompetence sufficient to create a reasonable probability that the result
 of the termination proceedings would have differed.
                                     II.
      The father's second claim of error pertains to the trial court's
 finding of parental unfitness.  Though he acknowledges that hearsay is
 admissible in termination proceedings, In re R.B., 152 Vt. at 424, 566 A.2d 
 at 1314, the father alleges that the trial court erred by basing its
 conclusion on hearsay evidence of sexual abuse.  The father's argument
 skirts the fact, however, that the court based its determination not on
 hearsay evidence of sexual abuse alone, but on five days of nonhearsay
 testimony from qualified professionals who detailed other reasons to support

 

 the finding of unfitness.  In addition, as noted above the decision to
 terminate would have been made even absent the findings of sexual abuse.
      The father further contends that the court shirked its duty to exercise
 independent judgment by finding that SRS had substantiated the allegations
 of sexual abuse.  He fails, however, to demonstrate that the findings are
 clearly erroneous.  See V.R.C.P. 52(a)(2) (applicable in family court
 proceedings pursuant to V.R.F.P. 3(a), 2(a)).  Therefore, we will not
 disturb the trial court's findings on sexual abuse.
      The father also takes issue with other findings supporting the
 termination of parental rights:  that he was unwilling to be a custodial
 parent, and that he disciplined the children excessively while they were in
 his care.  As to the first, he argues he is not an unfit parent simply
 because he chose a noncustodial parental role, and as a matter of public
 policy, contact between parent and child should be promoted to the extent it
 furthers the best interests of the child.  Public policy, however, does not
 dictate that the parent-child bond be maintained regardless of the cost to
 the child; 33 V.S.A. { 5540 recognizes that severance of that bond may be in
 the child's best interest.
      In this case, the court found that the best interests of the children
 would be served by securing for them a stable home environment with adults
 capable of addressing their special needs.  The father was given a number of
 opportunities over several years to provide that environment, and was
 offered but refused help with the demanding task of parenting E.B. and M.B.
 Since the question of a stable home life is a proper, if not critical,
 inquiry in the decision to terminate parental rights, In re R.W., 154 Vt.
 649, 650, 577 A.2d 253, 254 (1990), a demonstrated inability to provide that

 

 stability is relevant to the determination of whether to terminate parental
 rights.
      The father also alleges that the trial court had no basis to conclude
 he subjected the children to excessive discipline.  In its conclusions of
 law, the court stated that the father "has engaged in child rearing and
 child care practices that resulted in physical and verbal abuse to the
 girls."  On review, we will disturb this conclusion only if it is not
 supported by findings of fact, or if the findings themselves are clearly
 erroneous.  In re J.R., 153 Vt. at 94, 570 A.2d  at 158.  The father
 acknowledges that evidence was presented that he had spanked the children
 and imposed "strict discipline."  There was also testimony that he expected
 a level of behavior difficult for young children to achieve.  In light of
 the other findings of sexual abuse and the father's pattern of accepting the
 children and then returning them to their mother or to foster care, the
 court reasonably could have concluded that his child-rearing practices were
 abusive to E.B. and M.B.
                                    III.
      The father's third claim of error is that the trial court did not
 carefully consider the evidence in making its findings of fact and
 conclusions of law.  The father asserts that the court adopted most of the
 proposed findings of fact submitted by SRS, including inconsistent citations
 to the same case, which suggests that the trial court failed to review all
 testimony and supporting law thoroughly.  We find no merit to this argument.
 The trial court may adopt a party's proposed findings of fact verbatim.  See
 V.R.C.P. 52(a)(2) (applicable in family court proceedings pursuant to
 V.R.F.P. 3(a), 2(a)).  The findings stand on review unless they are clearly

 

 erroneous.  Id.  The father's vague and conclusory allegation of error here
 falls far short of demonstrating clear error.  As for the court's
 conclusions of law favoring termination of parental rights, as noted above,
 they were based on clear and convincing evidence that termination was in the
 best interests of the children, and are supported by valid findings of fact.
 See In re J.R., 153 Vt. at 94, 570 A.2d  at 158.  There is no merit to the
 father's claim that the trial court did not carefully examine the evidence.
                                     IV.
      Finally, the father argues that termination of his parental rights was
 unnecessary.  The trial court found, however, by clear and convincing
 evidence, guided by the criteria of 33 V.S.A. { 5540, that the best
 interests of the children required termination of his rights to make it
 possible for them to remain in a stable, nurturing and safe home
 environment, free from fear of the unpredictable dislocations that have
 characterized their lives thus far.  On appeal, the father has failed to
 demonstrate error in this decision, and therefore the termination order must
 stand.
      Assuming termination of parental rights is warranted, the father
 believes that the trial court should have considered whether continued
 contact between him and his daughters in the form of regular visitation
 would have been in their best interests.  As a matter of law, however, a
 termination of parental rights applies to all parental rights, including
 visitation.  In re L.A., 154 Vt. 147, 160, 574 A.2d 782, 789 (1990).  Since
 appellant lost all legally enforceable rights to contact with the children,
 the trial court was not obliged to consider visitation.

 

      Because we uphold the termination order, the father's appeal of the
 disposition order is rendered moot.
      No. 92-551, the father's appeal of the order terminating his parental
 rights and granting custody and guardianship of the minor children E.B. and
 M.B. to SRS, is affirmed.  No. 90-444, the mother's and father's appeals of
 the disposition order granting custody of E.B. and M.B. to SRS, are
 dismissed as moot.
                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice



------------------------------------------------------------------------------
                               Footnotes


FN1.    The merits order in the CHINS determination was affirmed.  See In re
 M.B., 158 Vt. 63, 605 A.2d 515 (1992).

FN2.    The father also argues that the court made an erroneous finding of
 fact in its merits order.  An order on the merits of a CHINS petition is
 final and, therefore, appealable.  See 33 V.S.A. { 5526 (providing for entry
 of merits order and mandate of further hearings if child found to be CHINS);
 In re L.S., 147 Vt. 36, 38, 509 A.2d 1017, 1019 (1986) (bifurcated CHINS
 proceeding requires separate orders on merits and disposition).  Only the
 mother appealed the merits order in this case; the father did not.  See In
 re M.B., 158 Vt. 63, 605 A.2d 515 (1992).  Therefore, the father has waived
 any objection to the merits order, and we do not address his argument on
 this point.

FN3.    Neither party briefed or discussed the issue of whether, in a civil
 proceeding, ineffective assistance of counsel may be raised to challenge a
 judgment terminating parental rights.  We express no opinion here on the
 viability of such a claim, or of the appropriate procedure to hear it.  Cf.
 State v. Davignon, 152 Vt. 209, 222, 565 A.2d 1301, 1308 (1989) (due to need
 to develop evidentiary record, ineffective assistance of counsel claims
 should first be brought in post-conviction relief proceedings, not as part
 of defendant's direct appeal from conviction).  We consider the father's
 claim in this case only because:  (1) our resolution does not require
 evidence about the trial counsel's competence, and (2) we conclude the claim
 has no merit.

FN4.    Because the father argues ineffective assistance under the standard
 of Strickland and In re Ringler, which dealt with claims in the context of a
 criminal prosecution, we evaluate his claim accordingly.  We express no
 opinion on whether a different test may apply in civil termination of
 parental rights proceedings.