In re D.C.

IN_RE_DC.93-588; 163 Vt 517; 659 A.2d 1145

[Filed 14-Apr-1995]

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. 93-588


In re D.C.                                        Supreme Court

                                                  On Appeal from
                                                  Franklin Family Court

                                                  March Term, 1995


David A. Jenkins, J.

Charles S. Martin and Thomas Linzey, Law Clerk, of Martin & Paolini, Barre, for
  appellant father

Michael Rose, St. Albans, for appellee juvenile

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

C.C., pro se, Burlington, appellee mother


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


     ALLEN, C.J.   The father of D.C., a twelve-year-old boy, appeals the
family court's order terminating his parental rights.  He argues that the
court erred by (1) making crucial findings based solely on hearsay, (2)
admitting D.C.'s progress reports when the preparer of the reports was
unavailable for cross-examination, (3) making critical findings on D.C.'s
emotional state and need for permanence based on the opinion testimony of
unavailable or unqualified witnesses, and (4) determining D.C.'s best
interests without examining the potential detrimental effects of placing the
biracial child with caucasian foster parents.  We affirm. 

     The following facts summarize the family court's unchallenged findings. 
The mother, who was fifteen years old when she became pregnant with D.C.,
left Plattsburgh, New York for Vermont in 1983 shortly after her son was born
because appellant repeatedly abused her. Appellant provided no support for
the boy after his birth.  Appellant saw his son for only brief 

 

periods until the fall of 1987, when the mother sent D.C. to stay with
appellant and his wife. Four months later, D.C.'s mother brought D.C. back to
Vermont after learning that appellant was in jail for assaulting and raping
his wife.  In July 1988, the mother sent D.C. to appellant's home for another
stay that ended when appellant was jailed again, this time for threatening
his wife with a butcher knife.  During this period, the mother observed that
D.C. was fearful of his father, a fear also noted by D.C.'s foster father
later that year when the boy was placed in a foster home. 

     In July 1988, the mother informed the Department of Social and
Rehabilitation Services (SRS) that she could not handle D.C., who was
disruptive and threatening to other children. The caseworker assigned to D.C.
contacted a New York county social services agency and was told that
appellant was not an appropriate placement option because D.C. had been
abused in New York while staying with appellant, appellant had raped his wife
several times, appellant's wife and children had left him and were fearful of
being located by him, and appellant had moved in with a sixteen-year-old girl
and her two children.  Because appellant was not available as a placement
option and the mother could not cope with D.C.'s extraordinary needs, SRS
immediately sought a placement that had the potential for permanence. 

     In December 1988, D.C. was placed with a foster family that had
successfully adopted and cared for a biracial boy, then sixteen, who had
special medical needs.  Despite being notified, appellant did not attend the
November and December 1988 merits hearings on the petition alleging D.C. to
be a child in need of care and supervision (CHINS).  Appellant was also
notified of a continued merits hearing to be held on January 10, 1989, but
shortly before the hearing he was arrested for raping his estranged wife.  At
the initial disposition hearing in February 1989, SRS recommended that D.C.
be freed for adoption; instead, the court continued custody with SRS and
approved a plan of services for appellant.  At that time, the mother executed
an agreement to relinquish her parental rights to D.C. 

     In March 1989, appellant was convicted on the rape charge and sentenced
to two to six 

 

years to serve.  In April 1991, D.C.'s new case worker attempted to meet with
appellant to assess his progress in prison programs, but was unsuccessful in
doing so.  In December 1991, after being denied parole on two occasions,
appellant was released from prison.  Although appellant claimed to have
successfully participated in a prison program addressing violence and sexual
assault, neither he nor his attorney provided SRS with any documentation
confirming this claim.  Until he was released from prison, appellant did not
inform any of his family members that D.C. had been placed in SRS custody; by
that time, D.C. had been with the same foster family for two and one-half
years.  Appellant's mother and sister appeared at the first
termination-of-parental-rights (TPR) hearing before Judge Mahady in August
1991; at that time, the sister testified that she was not a placement option.
 A home study done by the New York social services agency confirmed SRS's
assessment that appellant's mother would be unable to cope with D.C.'s
extraordinary needs. 

     In early 1992, after nearly all of the evidence in the termination
proceedings had been presented, Judge Mahady became ill and then died. 
Because appellant refused to agree to have the case decided by a new judge
who would review of the transcripts, hearings on the TPR petition had to
begin anew.  Those hearings place between January and March of 1993.  In
March 1993, appellant's sister offered to take D.C. into her home.  No home
study had been done of the sister's living situation because none had been
requested.  At the time of the sister's offer, D.C. had been with the same
foster family for four and one-half years.  Although D.C. continued to suffer
from emotional problems, he had developed a loving relationship with his
foster family.  The court relied on these and other findings in concluding
that a substantial change of circumstances had occurred, and that D.C.'s best
interests warranted termination of appellant's parental rights. 

     Appellant first argues that the termination order must be reversed
because hearsay evidence was the sole basis of five findings that were
crucial to the court's decision to terminate his parental rights.  The five
findings stated that (1) D.C. described seeing appellant hold a knife 

 

to his wife's throat while "humping" her; (2) D.C. described his father
burning his feet in an incident that required the boy to go to the hospital;
(3) D.C. witnessed appellant assault D.C.'s mother when she tried to pick the
boy up after the burn incident; (4) D.C. expressed fear of his father to his
first case worker; and (5) a doctor not available for cross-examination
concluded in a forensic evaluation that D.C.'s troubling behavior resulted
from his exposure to, and suffering from, verbal and sexual abuse.  We find
no reversible error.  Some of the challenged findings were based on
first-hand personal observations of witnesses who testified at the
termination proceeding.  But even if we were to exclude all five findings,
the court's remaining findings that were not based on hearsay, some of which
are summarized above, easily support the court's conclusions that a
substantial change of circumstances had occurred and that D.C.'s best
interests called for terminating appellant's parental rights.  See In re
B.S., No. 94-036, slip op. at 9 (Mar. 31, 1995) (in appeal from termination
order, erroneous admission of evidence is grounds for reversal only if
appealing party demonstrates that findings of court, apart from challenged
findings that were based on improper evidence, did not support court's
conclusions). The evidence here plainly shows that the father will be unable
in the foreseeable future to assume parenting duties over his emotionally
disturbed son. 

     Next, appellant argues that the court erred by admitting certain
progress reports without requiring the preparer of the reports to be
available for cross-examination.  We find no merit to this argument. 
Appellant challenges disposition reports prepared by D.C.'s first caseworker,
who testified and was cross-examined by appellant's attorney during the first
termination proceeding held before Judge Mahady.  Appellant himself offered
these transcripts into evidence after the court denied his request to compel
the caseworker, who was living out of state, to testify again.  Thus,
appellant had an opportunity to cross-examine the caseworker regarding the
reports, and that cross-examination was admitted into evidence.  Appellant
also challenges the admission of two reports that were prepared pursuant to
D.C.'s educational treatment programs. There is no indication that the court
relied on either of the reports in its findings or conclusions, 

 

and, in any event, appellant has failed to show how he was prejudiced by
their admission, assuming they were erroneously admitted. 

     Appellant also challenges the court's admission of an exhibit containing
a doctor's psychological evaluations of D.C. and of certain testimony by two
SRS employees.  According to appellant, the court's conclusion that D.C.
required stability and permanence in his life was formed by the evaluations
of a doctor who was not available for cross-examination, and by the testimony
of social workers who were not qualified to testify on the subject.  Again,
we find no merit to this argument.  First, even if the information contained
in the doctor's evaluations was not cumulative, appellant did not object to
the exhibit's admission.  See O'Brien v. Island Corp., 157 Vt. 135, 141, 596 A.2d 1295, 1298 (1991) (if no objection made to admission of testimony, issue
is not before Court on review).  Further, as the court found, evidence of
D.C's emotional problems and need for stability was recognized by virtually
every witness that testified, including appellant. 

     Nor do we find that the court abused its discretion in permitting the
challenged testimony of the two SRS workers.  An SRS supervisor, who had
sixteen years experience with the Department and had been a house parent and
foster parent, testified that (1) it would not be appropriate for a child to
have contact with a parent that the child feared, (2) violence in the home
can have a serious impact on children witnessing it, and (3) given D.C.'s
need for stability, appellant's incarceration for rape reaffirmed the
Department's initial decision to seek a permanent adoptive home for D.C.  The
other witness, who had a degree in psychology and six years experience as a
social worker, testified that taking a special needs child from the family
with which the child had bonded would have negative therapeutic implications
for the child.  The court did not abuse its discretion in determining that
these experienced social workers were competent to comment on the above
subjects.  See State v. Bubar, 146 Vt. 398, 402, 505 A.2d 1197, 1200 (1985)
(competency of expert witness is question to be determined by trial court
within its sound discretion); Reporter's Notes, V.R.E. 702 (language of rule
on expert testimony 

 

embraces not only witnesses having technical expertise, but also those having
any relevant special knowledge). 

     Finally, we reject appellant's argument that the court's termination
order must be reversed because the court failed to examine the detrimental
effects of placing a biracial child in the home of caucasian foster parents. 
The court expressed its awareness of problems D.C. had experienced and would
continue to face because of his African-American ancestry.  The court found
that SRS placed D.C. with foster parents who over the past eleven years had
successfully raised their biracial adopted son, and that the older boy would
be a positive role model for D.C.  The court also found that D.C. would be
exposed to other minority children through the foster family's contact with
out-of-state in-laws and through D.C.'s educational programs.  The evidence
supports the trial court's conclusion that D.C.'s best interests will be
served by terminating appellant's parental rights and allowing the boy to
remain with people who have demonstrated a commitment to address his
significant emotional needs. 

     Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Chief Justice