In re B.W.

IN_RE_BW.93-263; 162 Vt. 287; 648 A.2d 652

[Opinion Filed July 1, 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. 93-263


 In re B.W., Juvenile                         Supreme Court

                                              On Appeal from
                                              Windham Family Court

                                              March Term, 1994


 Ellen Holmes Maloney, J., motion to compel

 Paul F. Hudson, J., termination proceedings

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Harrison B. Lebowitz,
    Assistant Attorney General, Waterbury, for appellee Department of Social
    and Rehabilitation Services

 Robert M. Paolini of Martin & Paolini, P.C., Barre, for appellant R.W., Jr.


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


      GIBSON, J.   Father appeals from an order of the Windham Family Court
 terminating his parental rights and responsibilities with respect to his
 daughter, B.W.  We affirm.
      B.W., born in 1982, came into the custody of the Commissioner of Social
 and Rehabilitation Services (SRS) in August 1990, when the court issued first
 an emergency detention order, then a decision finding her to be  a child in
 need of care and supervision (CHINS).  She has remained in SRS's custody ever
 since.  The court found that B.W. had been sexually abused, starting at age 7,
 by her brothers, then ages 13 and 9, and that the father had failed to protect

 

 his daughter because he was abusing drugs to such a degree that he was either
 unaware of the sexual misconduct or just did not care.
      Disposition proceedings did not immediately follow the CHINS determin-
 ation, due in part to father's admission to the Vermont State Hospital (VSH)
 after taking a drug overdose.  Following hearings on disposition, the family
 court transferred legal custody and guardianship of B.W. to the Commissioner
 of SRS on April 2, 1991, and adopted a plan of services for her.
      On May 28, 1992, SRS filed a petition to terminate residual parental
 rights (TPR).  During discovery, father opposed the production of records
 from VSH regarding his therapy and from a youth services agency that had
 assisted the family.  Following a hearing, the court ordered release of the
 records.  The TPR hearing was conducted thereafter over a four-day period in
 January and February 1993.
      The case plan originally approved by the court contemplated reunifica-
 tion of B.W. and her father, who throughout her placement with SRS adamantly
 rejected counseling, treatment and services offered to him and other members
 of the family, maintaining that he did not need to change, nor did his sons,
 and that B.W.'s victimization was really her own fault.  At the TPR hearing,
 the court found, based on the testimony of a number of expert witnesses, that
 father would be unable to resume parenting within a reasonable period of time.
 The court found further that, since coming into SRS's custody, B.W. had
 improved both academically and socially, had grown in self-confidence, and was
 a happier child.  The court also found that her behavior deteriorated
 following visits with her father, but improved considerably after contact with
 her father ceased altogether.

 

      The court found troubling the fact that B.W. still felt the sexual abuse
 while in the family household was her own fault and that there was nothing to
 prevent her from being revictimized in father's home.
      There was abundant evidence of father's unyielding refusal to comply
 with the case plan.  A few months before the disposition hearing, he entered
 therapy, one of the plan's recommended services, but progress was slow.  The
 court found that even if father came into total compliance with the case plan,
 it would take two to three years before visits could be resumed because of his
 entrenched attitudes about B.W.'s victimization.  The court concluded that
 father's two years of opposition to services made "the likelihood of thera-
 peutic resolution [of the sexual abuse issue] either uncertain or so far in
 the future as to be against the permanency and best interests" of B.W.
      The court granted the TPR petition, concluding that the evidence sup-
 porting termination was "completely overwhelming."  The court also terminated
 parental rights as to B.W.'s mother, but only the father has appealed the
 court's order.
                             I. Release of Records
      Father argues first that the court erred in ordering release of his
 therapy and medical records, contending that the court erroneously relied on
 the implied waiver of physician-patient privilege set forth in In re M.M.,
 153 Vt. 102, 105, 569 A.2d 463, 465 (1989), cert. denied, 494 U.S. 1059
 (1990).  Father is correct that following this Court's decision in In re M.M.,
 subsection (7) was added to V.R.E. 503(d) to "overrule the implied waiver
 analysis" of that case.  Reporter's Notes, V.R.E. 503(d)(7).  But his
 suggestion that the court relied on In re M.M., rather than the rule, in
 releasing the records is erroneous.  The court fully addressed the procedural

 

 and substantive requirements of V.R.E. 503(d)(7), 42 U.S.C. {{ 290dd-3
 (confidentiality of alcohol-abuse patient records), 290ee-3 (confidentiality
 of drug-abuse patient records), and 42 C.F.R. {{ 2.54-2.64 (disclosure of
 substance-abuse patient records without patient consent or under court
 order),(FN1) finding that the requirements of both V.R.E. 503(d)(7) and the
 federal law had been met.
      Father also contends that the records were more than one year old at the
 time of hearing and that their prejudicial impact outweighed any probative
 value.  It is clear that the court knew the records were a year old, and took
 due account of that fact.  In any event, the evidence supporting the court's
 TPR decision was overwhelming, apart from the therapy and medical records.
 The central focus of the court was the pervasive abuse of B.W. over a lengthy
 period of time and father's unyielding resistance to any plan proposed to meet
 B.W.'s needs and to enhance his own personal development and parenting capa-
 bilities.  The expert evidence evaluating the total family, separate and
 apart from father's medical and therapy records, was substantial and clear.
 The father's own records provided corroboration, but were not essential to the
 court's determination.
                          II. Change of Circumstances
      Father argues next that the trial court erred in concluding that there
 had been a substantial change in material circumstances, since there had not
 been sufficient evidence of "stagnation" on the part of father.  As we have
 often stated, when termination of parental rights is sought, 33 V.S.A. {

 

 5532(a) requires the court to conduct a two-step analysis:  First, the court
 must find that there has been a substantial change in material circumstances;
 second, the court must find that the best interests of the juvenile require
 termination of parental rights.  In re J.R., 153 Vt. 85, 99-100, 570 A.2d 154,
 161 (1989).  Such findings must be supported by clear and convincing evidence
 and will withstand review in this Court unless they are clearly erroneous.  In
 re S.R., 157 Vt. 417, 421, 599 A.2d 364, 367 (1991).
      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 over the passage of time."
 In re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890, cert. denied, 498 U.S. 861
 (1990).  Stagnation may 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.  But as we stated in In re A.F, ___ Vt. ___, ___, 624 A.2d 867, 871 (1993), "the mere fact that a parent has shown some progress in
 some aspects of his or her life does not preclude a finding of changed circum-
 stances warranting modification of a previous disposition order."  Accord In
 re M.M., 159 Vt. 517, 522-23, 621 A.2d 1276, 1279-80 (1993); In re J.J., 143
 Vt. 1, 5-6, 458 A.2d 1129, 1131-32 (1983).
      In the present case, the trial court concluded that there had been a
 substantial change of material circumstances, as evidenced by the passage of
 two and one-half years of SRS custody and no improvement in father's parental
 abilities.  The court found that father was not ready to take responsibility
 for parenting and protecting B.W. and that "it will take too long for him to
 recover his parenting skills to resume his relationship with his daughter."
 The court's findings were amply supported by clear and convincing evidence.

 

                       III. Best Interests of the Child
      Finally, father contends that SRS did not present clear and convincing
 evidence that termination of parental rights was in B.W.'s best interest,
 pursuant to the factors enumerated in 33 V.S.A. { 5540.  He maintains that he
 will be able to resume his parental duties within a reasonable time.  This
 second prong of the test, like the first, must be supported by clear and
 convincing evidence.  See In re S.R., 157 Vt. at 421, 599 A.2d  at 367.  That
 standard was met in the present case.
      Against voluminous evidence that father has not begun to fathom the
 trauma visited on his daughter, he points to limited evidence that some
 supervised visits were appropriate for consideration under 33 V.S.A. {
 5540(1).  Such evidence, however, relates to visits occurring early in SRS's
 custody.  Unmentioned are incidents of unpermitted contacts and inappropriate
 behavior by him that traumatized B.W., reactivated symptoms of victimization,
 caused her to act out inappropriately, and put her at renewed risk.  He also
 omits mention of his daughter's request that contacts with him end.  The
 evidence strongly supports the court's conclusion that "[B.W.'s] interaction
 and relationship with her father has been overtly destructive" and that
 termination of father's parental rights is in her best interest.  Under the
 most optimistic scenario, involving a level of cooperation not to be assumed
 from the evidence, reunification with B.W. is years away, if it can be
 accomplished at all.  The evidence was clear and convincing evidence that
 termination of parental rights is in the best interest of B.W.

 

      Affirmed.


                                         FOR THE COURT:


                                         __________________________________
                                         Associate Justice



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                                  Footnotes

FN1.    Federal law was implicated because of the issue of whether either of
 the two record-keeping institutions was a substance-abuse treatment center
 receiving federal funds, which would bring them under federal confidentiality
 rules.  42 U.S.C. {{ 290dd-3 and 290ee-3 have recently been consolidated at 42
 U.S.C. { 290dd-2 (Supp. 1994).