In re Cr.M.

IN_RE_CrM.94-131; 163 Vt 542; 659 A.2d 1159

[Filed 12-May-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. 94-131


In re Cr.M., C.M., & M.M, Jr.,                   Supreme Court
Juveniles
                                                 On Appeal from
                                                 Windsor Family Court

                                                 February Term, 1995



John P. Wesley, J.

Charles S. Martin and Karen Cooper, Law Clerk, of Martin & Paolini, Barre, for
  appellant mother

Michael Rose, St. Albans, for appellant father

Jeffrey L. Amestoy, Attorney General, Montpelier, and Harrison B. Lebowitz,
 Assistant Attorney General, Waterbury, for appellee 


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


    ALLEN, C.J.   Mother and father appeal from an order of the Windsor
Family Court terminating their residual parental rights and responsibilities
to their three children.  We affirm. 

    The Department of Social and Rehabilitation Services (SRS) first became
involved with the family in 1991, after receiving a report that 15-day-old
M.M., admitted to the hospital for failure to thrive, had been removed from
the hospital against medical advice.  A short time thereafter, SRS opened a
case and offered services to the family after receiving a report that C.M.,
then age six, had been suffering a life-threatening chronic urinary tract
infection due to failure to receive prescribed medication.  She was also
suffering chronic constipation and was displaying extremely withdrawn
behaviors, which were diagnosed as an indication of intense emotional stress.

    SRS's efforts to help the family were unsuccessful due to the parents'
lack of cooperation

 

and denial of their children's medical problems.  A neglect petition was
filed in December 1991, and in January 1992 all three children were
adjudicated children in need of care and supervision (CHINS), based on the
stipulation of the parties. 

    The children remained in the home, and the court found that the parents
were initially more cooperative in accepting services and working within
community support systems available to assist their family.  A program of
full services was initiated looking toward allowing the children to remain in
the home.  A central element of the plan was the father's willingness to
undergo alcohol screening and treatment. 

    Two months later, SRS filed an emergency motion to transfer custody of
Cr.M., whose medical progress was stifled by profound emotional distress. 
Based on extensive, stipulated findings about the health and well-being of
the child, the court placed Cr.M. with SRS.  It also amended the protective
supervision order with respect to the other children, prohibiting alcohol
consumption in the children's presence and barring contact with the father
except under supervision of the mother. 
    
    The court approved an amended disposition report providing for weekly
visits with Cr.M., under SRS supervision, outpatient alcohol treatment for
the father, and individual and family therapy for the mother at a community
mental health center in July 1992.  Less than one month after the disposition
was amended, M.M. was hospitalized for failure to thrive.  After M.M. was
discharged in August 1992, the parents once again denied his existing medical
problems. 

    That same month, the mother obtained a relief-from-abuse order and
separated from the father.  The restraining order also prohibited contact
between the father and the children. Immediately following the abusive
episode, the mother began to demonstrate increasingly psychotic behavior, and
voluntarily admitted herself for in-patient psychiatric treatment.   At SRS's
request and the mother's consent, the court issued an order placing C.M. and
M.M. in SRS's custody.  The mother remained hospitalized until September, and
in October, moved into

 

a community care home.  A month later, she moved back home with the father. 
In October 1992, SRS revised the case plan to delete the goal of
reunification. Given the parents' lack of progress and their present crisis
situation, SRS recommended that the family undergo a family forensic
evaluation so SRS could develop an accurate long-term goal. The State's
motion for a family evaluation was granted. 

    The forensic family evaluation was completed in March 1993 and was
followed by case plan reviews for C.M. and M.M.  The evaluation discussed
several options, but indicated that permanent placement with the foster
parents was the safest option for the children.  Based on the evaluation's
recommendation and the parents' minimal compliance with the case plan, the
State moved to terminate the parents' residual parental rights, alleging that
the parents would not be able to resume their parental duties within a
reasonable time.  Relying on the testimony of the SRS case worker, a
physician, the foster mother of M.M., and the therapists for C.M. and M.M.,
the court granted the State's motion, finding that there had been stagnation
and deterioration of both parents' ability to care for and parent the
children.  The court referred specifically to the father's "serious drinking
problem which he has been unable to modify reliably, and which causes violent
episodes between himself and other family members."  The court added: 

   As to the mother, her mental disorder and her psychotic episodes
   have been treated only intermittently.  Given her extreme
   dependence on [the father], her mental illness profoundly affects
   her ability to adequately protect the children from the effects of
   their father's alcoholism, poor parental judgment, and propensity
   [for] violence.  There is no indication that either parent has the
   potential in the near future to improve their parenting skills, or to
   modify or remedy their behavior or lifestyle in order to become a
   responsible parent to the children.

The present appeals followed.

                            I. Mother's Appeal

    When a court considers terminating parental rights under 33 V.S.A. 
5532(a) it must conduct a two-step analysis:  first, the court must find
whether there has been a substantial

 

change in material circumstances; second, it must decide whether the best
interests of the child require termination of parental rights.  In re J.R.,
153 Vt. 85, 99-100, 570 A.2d 154, 161 (1989).  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.  If the court decides to terminate
parental rights, its findings must be supported by clear and convincing
evidence, and they 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 mother challenges only the court's finding of stagnation.  Her main
argument -- essentially her only argument -- is that the case plans were not
reasonably calculated to render her a fit parent because they did not
adequately address her needs as a battered woman or ensure her escape from
her husband's abuse.  She contends that her own parenting problems, the
family dysfunction, and the threats to the health and well-being of the
children, none of which she denies, all stemmed from the father's violent
behavior.  In support of her theory, she devotes much attention to explaining
the dynamics of the battered woman's syndrome, the concomitant problem of
"learned helplessness," and the need for maximum support once the battered
spouse has left the batterer.  Thus, she asserts: 

       That SRS's offer of services was refused was a typical response
       from a battered woman and one that SRS could have anticipated. 
       Under the circumstances, SRS should have taken stronger
       measures to help her escape and to resist the compulsion to return
       to the abusive environment.

    The State objects to our consideration of the battered woman's syndrome,
because that subject was not raised below.  See In re M.M., 159 Vt. 41, 44,
613 A.2d 713, 715 (1992) (failure to raise arguments below amount to a
waiver).  We agree.  The time to present this

 

argument and evidence was at the termination proceedings or the disposition
hearings.  The court reviewed SRS's plans of services and adopted the case
plans for reunification based on the consent of all parties.  The mother
never challenged the dispositions and stipulated to the case plans she now
challenges as inadequate.  Because the mother was represented by counsel at
all stages and has never raised a claim of ineffective assistance of counsel,
she should be bound by her stipulations.  See In re J.H., 156 Vt. 66, 71, 587 A.2d 1009, 1012 (1991) (mother bound to stipulation giving custody to SRS
that was made at initial disposition hearing). 

    Additionally, the court's findings strongly confirm that SRS's case plans
recognized the mother's victimization, attempted to safeguard her rights, and
maximized her chances of resuming the parental role.  The plans provided for
SRS support and monitoring, ongoing medical exams, individual and family
mental health counseling, and assistance from a local family services agency,
including temporary housing and abuse counseling.  The record also indicates
that SRS responded immediately to the mother's changing needs following the
August 1992 battering episode and supported her recovery efforts through the
fall.  There is strong support in the record for these findings, and the
mother's argument that the SRS case plan did not address her needs is without
merit. 

    Moveover, the plans' lack of success did not mean that they were
unreasonable.  See People in Interest of L.G., 737 P.2d 431, 434 (Colo. Ct.
App. 1987) (fact that agency personnel could not improve mother's ability to
parent child and that treatment plan failed did not mean plan was
inappropriate).  The court found that: 

    32. [The mother] has been offered other supportive services,
    including those of the New Beginnings Support Network and Adult
    Protective Services, since her disclosure in August, 1992 that she
    had been recently abused by [the father], and had also suffered
    severe abuse in the past.  [The mother] refused all services and has
    recanted the statements she made regarding abuse by her husband. 
    The court finds that [the mother] has been abused in the past, and
    that her renunciation of the abuse, her inability to protect herself
    from her husband's violent behavior, and her unwillingness to seek
    assistance are strongly indicative of her inability to protect her
    children.

 

The court added that "neither parent was willing to accept homemaking or
child care services, and that neither parent was willing to accept employment
counseling."  The court also found that the mother's progress was hindered by
her recurring psychotic episodes and an untreated mental disorder.  There is
ample evidence to support these findings.  Therefore, the court's conclusion
that there was a substantial change in circumstances based on stagnation is
not erroneous. 

    Finally, the mother may not challenge the court's decision by assigning
primary blame for the family's dysfunction to the father.  It may well be
that one parent contributes more to the family's breakdown than the other
parent, but the controlling standard under 33 V.S.A.  5532(a) is the best
interests of the child, not the fault of the parent.  See In re Bishop, 521 N.E.2d 838, 840 (Ohio Ct. App. 1987).  The mother's shortcomings, even if a
product of the father's abuse, were fairly considered by the court in
determining whether a substantial change in circumstances had occurred in
terms of her individual ability to parent her children and whether
termination was in the best interest of the children.  See In re M.M., 159
Vt. 517, 524, 621 A.2d 1276, 1281 (1993) (Although sympathetic with mother's
challenge, "we are compelled to elevate the best interest of the dependent
child above the mother's interests when the mother has made insufficient
progress in parenting skills, and when her ability to act independently is
many months away."). 

    In sum, the court's findings provide clear and convincing support for its
conclusions that the mother was unable to resume her parenting duties within
a reasonable period of time and that the termination of her parental rights
and responsibilities was proper. 

                            II. Father's Appeal

    Father does not challenge the family court's findings of fact or
conclusion that there was a substantial change in circumstances supporting
the SRS petition to terminate parental rights. Rather, he argues that the
court had a duty under 33 V.S.A.  5532(a) to treat the issue of visitation
separately from the issue of termination of parental rights and
responsibilities and to

 

make a separate finding by clear and convincing evidence that visitation
should be denied. 

    As we pointed out in In re L.A., 154 Vt. 147, 160, 574 A.2d 782, 789
(1990), "since visitation is a residual parental right, the termination of
such rights necessarily eliminates the parent's right to visit the child. 
Indeed, we cannot see how a child can start a new life with a new family if
the former parents retain visitation rights."  See also In re E.B., ___Vt.
___, ___, 647 A.2d 1001, 1007, cert. denied, ____ U.S. ___, 115 S. Ct. 519
(1994) ("As a matter of law . . . a termination of parental rights applies to
all parental rights, including visitation."). 

    Affirmed.

    FOR THE COURT:



    _______________________________________
    Chief Justice