In re. D.M.

IN_RE_DM.93-050; 162 Vt. 33; 641 A.2d 774

[Opinion Filed April 1, 1994]

[Motion for Reargument Denied May 5, 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. 93-050


 In re D.M.                                   Supreme Court

                                              On Appeal from
                                              Orleans Family Court

                                              January Term, 1994



 Amy Marie Davenport, J.

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Barbara L. Crippen,
   Assistant Attorney General, Waterbury, for plaintiff-appellee

 Henry Hinton, Appellate Defender, Montpelier, for juvenile

 Michael Rose, St. Albans, for defendant-appellant father

 Robert Paolini and Charles Martin of Martin & Paolini, Barre, for defendant-
   appellant mother


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


      ALLEN, C.J.   J.M., the father, and G.M., the mother, of D.M. appeal
 the termination of their residual parental rights.  We affirm.
      In November 1987, D.M., then age nine, reported to a neighbor that she
 had been physically abused by both parents and sexually abused by her
 father.  D.M. was placed in the custody of the Department of Social and
 Rehabilitation Services (SRS) and lived with the neighbor for one month.  A
 medical examination uncovered evidence that the child had suffered physical
 and sexual abuse.
      Based on this evidence, the father was charged with lewd and lascivious
 conduct, and SRS petitioned to have D.M. declared a child in need of care or

 

 supervision (CHINS).  The father was convicted in May 1988.  By stipulation
 of all concerned parties, the merits order in the CHINS proceeding was
 entered contingent on the father's conviction being upheld on appeal.
      Originally, the SRS case goal called for eventual reunification of
 parents and child.  To that end, in the disposition order issued September
 14, 1988, the court mandated individual therapy for D.M., and supervised
 social and therapeutic visits between D.M. and her mother and siblings.  By
 agreement of the parties at the disposition hearing, the order also
 precluded contact between D.M. and her father until he had successfully
 participated in sex offender therapy.  While incarcerated pending his
 appeal, the father refused to participate in any treatment programs for sex
 offenders, because they required him to admit the abusive acts.
      An administrative review of the SRS case plan was held in November
 1989.  Reports showed that the therapeutic visits between mother and
 daughter had not been entirely productive, because the mother refused to
 believe D.M.'s allegations of abuse and implicitly blamed her for upsetting
 the family and causing her father to be jailed.  The goal of the plan
 remained reunification, but with the caveat that a permanent plan, which
 might include adoption, would be developed if six months passed without
 significant progress in the mother-daughter therapy sessions.  Rather than
 improve, the relationship deteriorated further after the mother explicitly
 and angrily blamed D.M. for the family's problems.  D.M. became depressed
 and expressed thoughts of suicide.
      At the next administrative review in May 1990, the SRS case plan was
 altered to reflect a goal of adoption instead of reunification.  The plan
 called for individual therapy for the mother and D.M., dropping the joint
 therapy sessions originally recommended.  D.M. continued occasional visits

 

 with her mother and siblings under the condition that no mention be made of
 the abuse, court proceedings, or adoption.  The second eighteen-month case
 review, in October 1990, continued to call for adoption.
      The father's conviction was reversed in February 1991, and the case
 was dismissed in January 1992.  As stipulated, the CHINS finding was vacated
 and a new merits hearing was held in the spring and summer of 1991.  In an
 order dated October 8, 1991, the family court again ruled D.M. to be a CHINS
 based on findings that her father had sexually abused her.  By that time,
 D.M. had been in foster care for four years.  In preparation for the
 disposition hearing, SRS filed a report proposing a goal of long-term foster
 care and eventual adoption, "because reunification would not be in the best
 interest" of D.M.  The family court issued a disposition order dated
 November 22, 1991, in which the court found that the parents did not believe
 D.M.'s allegations, were mentally incapable of coping with her, and did not
 want her in their home.  The court concluded that the parents were unfit and
 demonstrably incapable of providing an appropriate home for D.M., and that
 separation was necessary for the child's welfare.  Custody and guardianship
 of D.M. was transferred to SRS.
      At an administrative review hearing in April 1992, SRS changed its case
 goal to termination of residual parental rights.  On October 23, 1992, the
 father filed a motion for relief from the October 8, 1991 merits order,
 alleging that justice required reconsideration of the order in light of
 newly discovered evidence.  The family court denied the motion without a
 hearing.  In an order dated January 12, 1993, the family court terminated
 the residual parental rights of the mother and father.  The court found
 sufficient stagnation in the child's relationship with each parent to

 

 qualify as a substantial change in material circumstances, and that
 termination would be in the best interest of D.M.
      On appeal, both parents challenge the conclusion of a substantial
 change in circumstances, but for different reasons.  The father does not
 disagree with the finding of stagnation, but argues that SRS was the cause,
 and therefore the finding cannot serve as the basis for termination of his
 parental rights.  The mother contends that any stagnation in her
 relationship with her daughter falls short of a substantial change in
 circumstances.  She also takes issue with the conclusion that termination of
 her rights is in D.M.'s best interest.
                                     I.
      Before turning to the appeals of the termination order, we first
 address the father's argument that the family court improperly denied his
 motion for relief, and that at the very least he was entitled to a hearing
 on the matter.  The motion was filed pursuant to V.R.C.P. 60, which in
 relevant part provides
           On motion and upon such terms as are just, the court may
           relieve a party . . . from a final . . . order . . . for
           the following reasons:  (2) newly discovered evidence
           which by due diligence could not have been discovered in
           time to move for a new trial . . .; or (6) any other
           reason justifying relief from the operation of the
           judgment.

 V.R.C.P. 60(b)(2), (6) (applicable to family court proceedings under
 V.R.F.P. 3, 2).  We review the trial court's decision on this motion for
 abuse of discretion only.  Slansky v. Slansky, 150 Vt. 627, 629, 556 A.2d 94, 95 (1988).  The father bears the burden of demonstrating that the family
 court has abused its discretion.  See Perrott v. Johnston, 151 Vt. 464, 465,
 562 A.2d 459, 460 (1989).

 

      The father based his motion on evidence that the neighbor to whom D.M.
 first reported sexual abuse has since been charged with what he terms crimes
 of moral turpitude.  In both CHINS merits hearings, he contended that this
 neighbor manipulated D.M. into fabricating stories about physical and sexual
 abuse for personal gain.  He asserts that this new evidence would undermine
 her credibility significantly, and would invalidate the original CHINS
 determination and the subsequent termination order.
      After reviewing the long history of the case, the family court noted
 that significant evidence other than the neighbor's original report to SRS
 supported the finding of sexual abuse.  A medical examination corroborated
 the child's complaints of inappropriate contact.  D.M. has never wavered
 from her story, despite the efforts of both parents to force her to recant
 and the prospect of losing contact with her siblings until she reaches
 majority.  The court found, and the record shows, that D.M. has had no
 contact with the neighbor since the month after the abuse was first
 reported to SRS.
      Based on this evidence, the court held that the father's proffered
 evidence would not alter the result upon rehearing, even if the neighbor
 were convicted of the charges.  The family court reasonably determined that
 the father's motion was meritless, and therefore did not abuse its
 discretion in denying the motion.  Moreover, it was within the trial
 court's discretion to deny the motion without a hearing.  Blanchard v.
 Blanchard, 149 Vt. 534, 537, 546 A.2d 1370, 1372-73 (1988).
                                     II.
      The father next claims that the termination order cannot stand because
 the stagnation in his relationship with his daughter, which constituted a
 substantial change in material circumstances, was caused by SRS.  When the

 

 original disposition was made, the father was appealing his conviction for
 the same acts underlying the then-pending CHINS proceeding.  He argues that
 SRS failed to provide him with the opportunity for effective therapy to
 facilitate reunification when it slated him for sex offender treatment that
 required he admit the abuse and thereby incriminate himself.  In effect, he
 believes the SRS treatment plan thrust upon him a Hobson's choice between
 his freedom and his daughter, and that termination exacts an insupportable
 penalty for his exercise of a constitutional right.
      The decision to terminate parental rights is committed to the
 discretion of the family court, and requires a threshold determination that
 a substantial change in material circumstances has occurred.  In re D.B., 4
 Vt. L.W. 347, 348 (Dec. 10, 1993).  If the change in circumstances has been
 established, the court may order termination only upon concluding that
 severance of the parent-child bond is in the best interest of the child.  33
 V.S.A. { 5540.(FN1) The court's findings must be supported by clear and
 convincing evidence, and such findings will withstand review unless they are
 clearly erroneous.  In re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890 (1990).

 

 If supported by the findings, the court's conclusions of law will be
 affirmed.  Id. at 515, 572 A.2d  at 891.
      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. 85, 99, 570 A.2d 154, 161 (1989).  Stagnation is
 also found in cases in which parenting skills improve, yet the improvement
 is so insignificant that it is unlikely the parent will be able to resume
 parental duties in a reasonable time.  In re D.B., 4 Vt. L.W. at 348.
 However, the court cannot base a conclusion of a substantial change in
 circumstances on stagnation caused by factors beyond a parent's control.  In
 re S.R., 157 Vt. 417, 421-22, 599 A.2d 364, 367 (1991).
      The evidence shows that the father has made no effort to work toward
 reunification, despite the therapy made available to him over the past six
 years.  Even assuming he could not participate in sex offender therapy
 because it would have caused him to incriminate himself, the father had
 ample opportunity after January 1992, when the criminal charges were
 dropped, to participate in appropriate sex offender treatment.  The family
 court found, and the father does not contest, that the father steadfastly
 has denied any responsibility for abusing D.M., and considers himself the
 innocent victim of his daughter's accusations.  These findings support the
 conclusion that it is unlikely he will be capable of resuming parental
 responsibilities within a reasonable time, and that the stagnation in
 father-daughter relations was caused by factors within the father's control.
 Therefore, the family court did not abuse its discretion in concluding that
 the threshold substantial change in material circumstances had been met.

 

      In the alternative, the father argues that SRS prematurely set a case
 goal of termination of parental rights.  He asserts that this deprived him
 of any genuine opportunity to work toward reunification, and that SRS failed
 to facilitate any progress in that direction.  His claims of error, however,
 do not find support in the record.  SRS did set a goal of adoption before
 the second merits order was entered in October 1991, but this was done over
 two years after the first reports of abuse and recommended therapy for the
 father.  The second merits order was based on findings of physical and
 sexual abuse of D.M. virtually identical to those made in the first merits
 hearing.  Under the circumstances, the call for termination of parental
 rights was not premature.
      Unlike the father, who contends that he was not responsible for the
 substantial change in circumstances, the mother argues that no substantial
 change in circumstances has occurred in her relationship with D.M.  Though
 she admits to some stagnation, she believes it does not rise to the level of
 the substantial change prerequisite to the termination of parental rights.
 In the mother's view, "stagnation" means "substantial stagnation" or "a
 complete lack of movement toward reunification," not what she characterizes
 as slow but discernible improvement in her relations with D.M.
      The mother's argument runs counter to established law.  In termination
 proceedings, a showing by a parent of some progress does not preclude a
 finding of changed circumstances if it is unlikely that the parent will be
 able to resume parental duties in a reasonable time.  In re D.B., 4 Vt. L.W.
 at 348.  In this case, the trial court's findings amply support the
 determination of stagnation.
      Despite therapy, the mother has shown no sign of accepting D.M.'s point
 of view regarding the sexual abuse, much less of believing her daughter.

 

 She continues to pressure D.M. to withdraw the allegations and blames D.M.
 for the disruption in their family life.  According to D.M.'s therapist,
 even if the mother accepted that her daughter was abused, D.M. has been
 through too much for reunification to become a goal that would be in her
 best interest.  Notwithstanding the mother's claim of slow progress toward
 understanding and accepting D.M.'s feelings, the court's finding of
 stagnation was warranted because the evidence shows that there was no
 reasonable possibility of reuniting the mother and D.M. within a reasonable
 period of time.  In re J.J., 143 Vt. 1, 6, 458 A.2d 1129, 1131 (1983).  The
 court's findings clearly demonstrate that although the mother has made some
 progress in individual therapy, the progress is minute and does not
 "preclude a finding of changed circumstances warranting modification of a
 previous disposition order."   In re A.F., ___ Vt. ___, ___, 624 A.2d 867,
 871 (1993).
      The mother next argues that termination of her parental rights is not
 in D.M.'s best interest.  She asserts that the possibility of reunification
 within a reasonable period of time exists, and should be given the chance
 for realization until an alternative, permanent placement arises.  Our law
 is clear, however, that a valid termination of parental rights does not
 depend on the availability of permanent foster care or adoption.  In re
 E.B., 158 Vt. 8, 15, 603 A.2d 373, 377 (1992).  Therefore, we review only
 the family court's determination that the mother fails to meet the third
 criterion of 33 V.S.A. { 5540, which requires the court to determine whether
 she will be able to resume her parental duties within a reasonable period of
 time.
      The record demonstrates that the mother has erected the greatest
 obstacle to reunification.  She refuses to accept that her husband abused

 

 D.M. and persists in blaming D.M. for the family problems attendant to the
 father's prosecution and the family court proceedings.  The mother shows no
 sign of changing her mind within the foreseeable future.  D.M.'s counsellor
 testified that even if the mother came to believe D.M., enough significant
 damage had accrued to militate against reunification.  Based on this
 evidence, the family court properly found it unlikely that the mother would
 be able to resume her parental duties within a reasonable time.  D.M. has
 been in state custody for over six years, living with the possibility that
 she would be returned to a home environment inimical to her physical,
 emotional and mental well-being.  At this point in her life, permanency and
 stability are in her best interest, and we agree with the family court that
 this will be possible only through severance of the remaining legal bonds
 between D.M. and her parents.
      Affirmed.
                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice



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                              Footnotes

FN1.    Section 5540 requires that the court consider the best interests of
 the child according to the following four criteria:
     (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.
 33 V.S.A. { 5540.