In re A.W.

IN_RE_AW.94-418; 164 Vt 412; 670 A.2d 1265

[Filed 08-Dec-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. 94-418


In re A.W., Juvenile                                   Supreme Court

                                                       On Appeal from
                                                       Caledonia Family Court

                                                       June Term, 1995


David T. Suntag, J.

Michael Rose, St. Albans, for appellant mother

       Charles S. Martin of Martin & Paolini, Barre, for appellant father

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

       Robert Appel, Defender General, and William A. Nelson, Appellate
  Defender, Montpelier, for appellee juvenile


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


       GIBSON, J.  A.W.'s mother and father appeal a family court order
  terminating their residual parental rights to the boy.  We reverse.

       The Department of Social and Rehabilitation Services (SRS) first
  became involved with the family in October 1988 after receiving reports
  that father was sexually abusing his three-year-old stepdaughter, K.M.  In
  June 1989, the court ruled that K.M. was a child in need of care and
  supervision (CHINS) and removed her from her home.  In September 1989,
  while K.M. was in SRS's custody, mother gave birth to J.W.  At the age of
  three weeks, J.W. was hospitalized after losing seven ounces in three days
  due to a lack of proper nourishment.  After observing the parents with J.W.
  for several days and noting that they were unable to properly feed or
  otherwise care for the infant, SRS took the child into protective custody. 
  At a December 1989 merits hearing, the parents stipulated that J.W. was
  CHINS.  In February 1991, the parents agreed to

 

  termination of their parental rights to J.W. and K.M., which the court
  ordered.

       A.W. was born in March 1992.  Based on its prior experience with the
  family and fear that the parents were unprepared and unable to properly
  care for a child, SRS took A.W. into protective custody within two days of
  his birth.  Following a merits hearing, the court determined that A.W. was
  a child in need of care and supervision.  The court found that father had
  little, if any, parenting skills, and that he had been and remained a
  danger to abuse children both physically and sexually.  The court also
  found that, despite the significant number of social service programs made
  available to the parents over several years, they were incapable of
  providing A.W. with the minimum degree of health, safety, subsistence and
  care that he required.

       Although the court found A.W. to be CHINS, it explicitly refused to
  draw any negative inferences from mother's and father's stipulation to
  termination of their residual parental rights to K.M. and J.W.  Noting that
  at least part of the reason father and mother had agreed to give up their
  rights to K.M. and J.W. was the state's attorney's offer to dismiss pending
  criminal charges against father in exchange for the stipulation, the court
  concluded that there was "sufficient doubt on that matter as to preclude
  any finding here that [father and mother] voluntarily agreed to the
  severance of residual parental rights to [K.M.] and [J.W.]."

       At A.W.'s disposition hearing in September 1992, the parents
  stipulated that the child should remain in SRS custody in accordance with
  the disposition report and case plan.  Although not objecting to either the
  disposition report or case plan, the parents refused to sign the case plan. 
  Both the report and the case plan incorporated the court's merits findings
  that father had sexually abused K.M., and the case plan required that he
  participate in a psychosexual evaluation to address his continuing denial
  and lack of progress concerning his sexual abuse of K.M.  The case plan
  also required the parents to participate in a number of social service
  programs designed to improve their parenting skills and develop their
  capacity to care properly for a young child. The plan's goal was to reunite
  A.W. with his parents.  After an eighteen-month disposition review,
  however, A.W., through his attorney, filed a petition to terminate his
  parents' residual

 

  rights.  SRS joined in the petition.

       Before the termination hearing, SRS and A.W. moved to preclude
  relitigation of the issue of father's sexual abuse of K.M.  The court
  granted the motion, ruling that the issue of father's sexual abuse of K.M.
  was not material at A.W.'s termination hearing, and that, in any case, it
  was barred by the doctrine of collateral estoppel because of the parents'
  stipulation to SRS custody at A.W.'s disposition hearing.

       In July 1994, the court terminated the parents' residual rights to
  A.W., finding that although father and mother had generally participated in
  the services set out in the case plan, their progress in achieving the
  goals necessary for reunification was minimal.  The court found by clear
  and convincing evidence that the parents were not able to provide adequate
  food, hygiene, or security for A.W., that father presented an ongoing risk
  to the child as an untreated sex offender, and that mother would not be
  able to protect her child.  According to the court, despite a year of work
  with a counselor trained to assist sex offenders, father had made no
  progress in treating his sexual abuse of K.M. because of his steadfast
  denial that he had engaged in any sexually inappropriate behavior.  Both
  parents continued to deny that any sexual abuse ever occurred, and further
  denied that mother could not protect A.W. from father's abuse.  The court
  concluded that there was no reasonable possibility of the parents resuming
  parental duties in the future.

       A.W.'s parents argue that the court improperly granted SRS's motion to
  bar them from presenting evidence concerning father's alleged sexual abuse
  of K.M.  We agree.  In a termination proceeding, the court must first
  determine whether a substantial change in material circumstances has
  occurred.  In re H.S., 161 Vt. 83, 86, 632 A.2d 1106, 1107 (1993).  A
  substantial change in material circumstances may be proved through clear
  and convincing evidence of stagnation, i.e., proof that the parents'
  ability to care for the child has deteriorated or stagnated to the point
  that they are unable to resume parental duties within a reasonable period
  of time.  In re M.M., 159 Vt. 517, 521Ä22, 621 A.2d 1276, 1279 (1993). 
  Although both father

 

  and mother had deficient parental skills in areas unrelated to the
  sexual abuse issue, SRS's principal concern in this case, as reflected in
  the court's findings, was (1) father's refusal to take responsibility and
  accept treatment for his sexually and physically abusive behavior, and (2)
  mother's refusal to acknowledge father's abusive behavior, resulting in her
  inability to protect the child.  In this context, the issue of
  deterioration or stagnation of parental ability could not be adequately
  reviewed without there first having been a determination, by clear and
  convincing evidence, that the abuse had occurred.  See In re J.R., No.
  94Ä038, slip op. at 5 (Vt. Oct. 20, 1995) (new termination hearing required
  where court's findings regarding best interests of children were improperly
  based on CHINS finding of sexual abuse made by mere preponderance of
  evidence; issue of sexual abuse had to be reconsidered at higher
  clear-and-convincing-evidence standard).

       For similar reasons, we reject SRS's argument that the court's
  termination decision was supported by findings other than those concerning
  father's sexual abuse of K.M.  Although the court detailed the parents'
  lack of significant progress in developing parenting skills, the primary
  focus of the decision was father's failure to acknowledge and address
  issues of sexual abuse, and mother's inability to protect the children from
  father's abuse.  In short, we cannot be sure that the court would have
  terminated the parents' residual rights absent the extensive, underlying
  findings regarding father's sexual abuse of K.M.

       Nor can the parties' stipulation to termination of parental rights to
  K.M. or their stipulation to the disposition order substitute for a
  clear-and-convincing finding by the court that father had sexually abused
  K.M.  Although father and mother stipulated to termination of their rights
  to K.M. and J.W., the court found the voluntariness of that stipulation to
  be in doubt, and SRS does not challenge that finding here.  Further, while
  the parties' stipulation to SRS custody at A.W.'s disposition hearing
  precluded the parents from complaining that the court made no finding of
  parental unfitness, see In re J.H., 156 Vt. 66, 71, 587 A.2d 1009, 1012
  (1991), the stipulation did not indicate that the parents agreed with the
  sexual-abuse allegations in the CHINS

 

  petition or the sexual-abuse evidence at the merits hearing.  Although
  the parents agreed to proceed according to the case plan, which, among
  other things, required father to participate in a psychosexual evaluation
  and to address his continuing denial of having sexually abused K.M., they
  never conceded that sexual abuse had occurred.

       Moreover, the parents had little incentive to challenge the
  sexual-abuse allegations at the disposition hearing.  The stipulation to
  SRS custody at disposition had significantly less impact on their parental
  rights than the termination petition ultimately brought by the child and
  SRS, particularly considering that the case plan goal was reunification and
  that broad social service programs were to be made available to further
  that goal.  Thus, the incentive to litigate at disposition was
  substantially less than that at termination.

       In sum, the court's CHINS findings, including its findings regarding
  father's sexual abuse of K.M, were explicitly made by a preponderance
  standard.  A preponderance finding in a CHINS proceeding may not be relied
  upon in a termination proceeding, where findings must be based on clear and
  convincing evidence before parental rights may be terminated.  In re J.R.,
  slip op. at 5.  We make no judgment herein as to whether the sexual-abuse
  issue is a necessary component of the case.  But because the issue played a
  significant role in the 1994 proceeding and in the court's decision
  therein, we must remand the matter for further proceedings.

       Reversed and remanded.

                            FOR THE COURT:

                            __________________________________
                            Associate Justice