In re B.M.

In re B.M.  (95-087); 165 Vt 331; 682 A.2d 477

[Opinion Filed 05-Jul-1996]

[Motion for Reargument Denied 5-Jul-1996]

       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. 95-087


In re B.M., Juvenile                         Supreme Court

                                             On Appeal from
                                             Chittenden Family Court

                                             April Term, 1996


Ronald F. Kilburn, J.

       Robert Appel, Defender General, and William A. Nelson, Appellate
  Attorney, Montpelier, for appellant father

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Barbara L.
  Grippen, Assistant Attorney General, Waterbury, for appellee Department of
  Social and Rehabilitation Services

       Charles S. Martin of Martin and Paolini, Barre, for appellee Juvenile


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


       JOHNSON, J.   This termination-of-parental-rights case poses painfully
  difficult questions.  Father, who did not play a significant caretaking
  role in this child's early life, has overcome substance abuse problems and
  stabilized his life, and now believes he can act as a parent to his young
  daughter.  The child, now almost nine years old, has been in the custody of
  the Department of Social and Rehabilitation Services (SRS) for over five
  years, living with the same foster parents for that time.  In such cases,
  there are no good solutions, but this case is particularly troubling given
  the prolonged uncertainty that this child has endured.  Father raises
  salient criticisms of the family court's decision, which we address and to
  some extent accept.  Nonetheless, we affirm the court's order terminating
  father's residual parental rights.(FN1)

                                I.

 

       SRS first became involved with this family in the summer of 1990, when
  the child was almost three.  Her mother reported to SRS that the child had
  been abused by a family friend. SRS opened a voluntary protective services
  case because of concerns that the child was not adequately supervised and
  that mother had problems with substance abuse.  For the next few months, an
  SRS social worker made monthly home visits and met with mother.  Father was
  sometimes present during these visits, but made no effort to talk with the
  social worker and was not identified as a primary caregiver for the child. 
  During this time, father was on probation following a burglary conviction,
  and repeatedly tested positive for cocaine.  He was also charged with
  assaulting mother, but the charges were dropped when the state's attorney
  was unable to subpoena mother to testify.

       In April 1991, the situation became critical.  A police officer was
  called to mother's home on a charge of unlawful trespass, and  found father
  there visibly intoxicated.  Mother was also intoxicated, and the police
  confiscated evidence of cocaine use. Neighbors reported that the parents
  were constantly drinking and abusing drugs, and that the child was left
  unsupervised. The next morning, the social worker and a police detective
  visited the home and found it in total disarray, with trash, garbage, and
  beer cans strewn throughout the apartment.  Both parents were visibly hung
  over, and mother admitted that they had been partying for several days. 
  The child was filthy and hungry.  She was taken into protective custody,
  and an emergency detention order was issued the same day.

       The child was found to be in need of supervision by agreement of the
  parties.  Neither parent appeared for a scheduled disposition hearing.  The
  first disposition report prepared by SRS recommended substance abuse
  treatment for both parents, participation in a parent education program,
  and father's  successful completion of probation.  At father's request, the 
  report was amended to focus more on reunification with him, because of
  mother's lack of cooperation.  The primary goal set  for both parents was
  attaining sobriety.  The plan anticipated reunification by mid-November of
  1991.

 

       At that time father was not complying with either his probation
  requirements or the case plan.  He disappeared for a time in September, not
  showing up for his job, not reporting to his probation officer, not showing
  up for visits with the child, and not going to his treatment program at the
  University of Vermont. He later resumed treatment, but continued to test
  positive for cocaine and was discharged from the program for noncompliance
  in November 1991.  He re-entered the program the next month, again testing
  positive for cocaine, and no-showed for most of his urine tests in January
  1992.  Also in January, he was arrested and charged with aggravated assault
  based on an incident involving mother's new boyfriend.  In February, the
  SRS  caseworker decided that the case plan goal should be changed to
  termination of parental rights because of the child's need for  permanence
  and the parents' failure to engage in treatment.  That  change was made in
  April 1992, at the twelve-month plan review.

       SRS waited six months, however, to file the petition for termination
  of parental rights. Father pursued an administrative appeal of the case
  plan goal but was unsuccessful.  The court proceedings were delayed for
  almost two years due to a number of pretrial motions.  The court did not
  begin hearings on the petition for termination of parental rights until
  April 1994. The hearings concluded in August 1994, and the court issued its
  decision five months later.

       By the time of the hearings, father had made significant positive
  changes in his life.  He had been sober for over two years, was regularly
  employed, and had been discharged from drug treatment and from probation. 
  He had married in 1993, and he and his wife were in the process of buying a
  house.  Nonetheless, SRS continued to prosecute the
  termination-of-parental-rights petition, maintaining that father's
  improvement had come too late  given the child's need for permanency, and
  that at any rate  father was still unable to adequately parent his daughter
  because of her special needs.

       Two procedural issues in this case merit special attention. First,
  although we draw our description of the facts from the family court's
  findings, we are concerned that the court in this difficult and close case
  chose to adopt SRS's proposed findings  essentially verbatim.  Even the 

 

  conclusions of law were altered only slightly from the proposed conclusions
  submitted by SRS. A court's adoption of a party's proposed findings is not
  error, and the findings shall not be set aside unless clearly erroneous.
  See V.R.C.P. 52(a)(2).  Nonetheless, this was, in the court's words, a
  "tough case," one that the court took five months to decide.  Under these
  circumstances, it would have been better for all concerned, including this
  Court, if the decision below reflected the court's independent evaluation
  of the case.

       The length of time the court took to issue the decision raises the
  other troubling procedural issue: the unreasonable and unconscionable delay
  that this child has endured while waiting for a final decision about her
  future and her relationship with her natural father.  The problem began
  with SRS's inexplicable  six-month delay in filing the petition for
  termination of parental rights, and continued with the numerous pretrial
  motions that slowed the progress of this case.  The five days of hearings
  were held over a five-month span, and as already mentioned, the court did
  not issue a decision until another five months had passed.  Nor has the
  appeal progressed as rapidly as possible, because of extensions of time for
  filing the briefs. Each of the parties contributed to this problem, and the
  court system must also take its share of the blame.  The tragic result,
  however, is that our decision issues more than five years after this child,
  then only three, was removed from her home and placed with foster parents. 
  The harm that this child has suffered by remaining in limbo for so many
  years cannot be undone.

       We also recognize that, at this writing, nearly two years have passed
  since the hearings were held.  To some extent, we have assumed that the
  status quo has continued, specifically that the child still lives with the
  same foster parents and that father has continued to abstain from drug use. 
  We have no way of knowing what has happened in the past two years, however,
  and base our decision only on the evidence before the family court.

                                     II.

       Termination of residual parental rights at a modification hearing
  requires a two-step analysis.  In re M.M., 159 Vt. 517, 521, 621 A.2d 1276,
  1279 (1993).  In order to modify the 

 

  existing disposition order, the court must first find that "changed 
  circumstances so require in the best interests of the child."  33  V.S.A. §
  5532(a).  Modification is warranted where there has been a substantial
  change in material circumstances, which is "`most  often found when the
  parent's ability to care properly for the  child has either stagnated or
  deteriorated.'"  In re M.M., 159  Vt. at 521, 621 A.2d  at 1279 (quoting In
  re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890 (1990)).  A finding that a
  parent has made some progress does not, however, preclude a finding of
  changed circumstances.  In re A.F., 160 Vt. 175, 181-82, 624 A.2d 867, 871
  (1993).

       The court must also determine whether the best interests of the child
  require termination of all parental rights, in light of the criteria set
  out in 33 V.S.A. § 5540.  The critical factor is whether the natural parent
  will be able to resume parental duties within a reasonable period of time. 
  Id. at 177, 624 A.2d  at 869. "The court's conclusion that a parent will be
  unlikely to resume  [his] parental duties must be supported by clear and
  convincing evidence."  Id. at 177-78, 624 A.2d  at 869.

       This is a difficult case in many ways, not least because it does not
  easily fit within our usual framework for analyzing
  termination-of-parental-rights cases.  As one example, the delay between
  the filing of the petition and the hearings raises the question of how to
  measure stagnation.  There was a lengthy period of stagnation, and even
  deterioration, in this case. Because of the numerous delays, however, by
  the time of the hearing father had made significant progress.  In deciding
  whether stagnation has occurred, should the court consider only the period
  of time before the termination petition was filed, or should it also look
  at father's overall progress up until the  hearing?  From the child's
  perspective, at least, the earlier  period of stagnation is not necessarily
  wiped out by the later improvement.  The harm may have been done. 
  Moreover, we recently recognized that where some parental improvement has
  occurred, the "question is whether the improvement substantially conformed
  with  the expectations at the time of the CHINS adjudication and with SRS's
  case plan."  In re D.B., 161 Vt. 217, 220, 635 A.2d 1207,  1210 (1993).  Here, although father's progress is substantial,
  it  has come much later than anticipated.

       Regardless, the key question in this case, and the only argument
  raised by father, is whether the court's conclusion that father  would be
  unable to resume his parental duties in a reasonable time was supported by
  clear and convincing evidence.  The court essentially gave two separate
  grounds for this conclusion, emphasizing father's past failure to progress
  during the first year following the CHINS determination, but also finding,
  based on expert testimony, that father was presently incapable of parenting
  the child.  Father challenges both grounds.

       First, the court stated that, although father made substantial
  progress towards reunification, his progress did not occur within a
  reasonable time for the child's needs. Specifically, father did  not make
  substantial progress during the twelve-month period before SRS changed the
  case plan goal to termination.  Father maintains that under this approach,
  any progress that he made after the case plan goal was changed to
  termination, and any progress he might make in the future, is irrelevant
  because his fate was sealed before the termination petition was even filed.
  He argues that the court erred by focusing on the past, because the statute
  requires the court to consider whether the natural parent "will be able to
  resume his parental duties within a  reasonable period of time."  33 V.S.A.
  § 5540(3) (emphasis  added).

       We agree with father that the inquiry required by § 5540(3), which we
  have repeatedly emphasized as the most critical factor in a
  termination-of-parental-rights case, is forward-looking. See In re J. &
  J.W., 134 Vt. 480, 484, 365 A.2d 521, 524 (1976) (petition for modification
  and termination of parental rights must be based on deterioration or
  "stagnation coupled with a  prospective inability for improvement")
  (emphasis added).   Although a "reasonable period of time" must be measured
  in terms of the child's needs, the court cannot beg the question by 
  concluding that a reasonable period of time ended years before the
  termination-of-parental-rights hearing.  The court must consider the
  parent's prospective ability to parent the child.

 

       This does not mean, however, that past events are not relevant to
  whether the parent can resume parental duties.  In this case, for example,
  the most important fact may be that the child does not have and has never
  had a significant relationship or bond with her father.  He was not the
  child's primary caretaker before she  was removed from the home.  Father
  was incarcerated several times while the child was young, including a
  ten-month period when the child was two years old.  The child also
  witnessed domestic violence between her parents, and that experience
  threatens her perception of safety when her father is present.  Past
  circumstances that have affected the parent-child relationship will of
  course be relevant to whether a parent can resume a caregiving role.  The
  focus of the termination hearing, however, should be the future of the
  parent-child relationship.

       Despite its conclusion that a reasonable period of time had already
  passed, the court did turn its attention to father's  present ability to
  resume his parental responsibilities. Unfortunately, in concluding that
  father's parenting skills are  inadequate and that he will not be able to
  properly care for the child in the immediate or foreseeable future, the
  court relied heavily on the results of psychological testing.  The expert
  witness who evaluated father, Dr. Nash, administered two tests, the
  Minnesota Multiphasic Personality Inventory (MMPI) and the Parenting
  Awareness Skills Survey (PASS).  Based on these tests, Nash testified that
  father had a "pervasive lack of empathy" and an egocentric approach to
  parenting.  Nash testified, and the court found, that if the child were
  returned to father's custody,  he would likely "react to her in ways which
  meet his needs rather  than hers .  .  . with damaging consequences [to the
  child]."   Father characterizes the test results as the "only evidence" of
  inadequate parenting skills, and objects to the use of psychological tests
  as the basis for an order terminating parental rights.(FN2)

 

       We agree with father that the court's emphasis on psychological 
  testing is disturbing. Such tests, when relied on by expert witnesses, may
  have a small place in the overall evaluation of a person's parenting
  ability.  Parents facing the loss of parental  rights, however, must be
  judged on their conduct, not on their test-taking skills or psychological
  traits.  In this case, for example, the court first labeled father, based
  on his MMPI results, as "a person with hedonistic, narcissistic and
  impulsive  tendencies and over controlled hostilities."  The court then 
  linked these personality traits to likely behaviors, noting that "[s]uch
  persons typically seek immediate gratification, blame  others for their own
  problems, and manipulate others for their own desires, experiencing little
  guilt about the effects of their actions on others."  Finally, the court
  closed the door on  possible changes or improvements, finding that "these
  are  consistent and pervasive traits which no form of intervention will
  change."  Although recognizing that parenting skills can be  learned, the
  court nonetheless found that "in times of stress  [father] will fall back
  on his inherent personality traits."

       The court was apparently further persuaded by the correlation of
  father's test results, finding that the "PASS results [and] MMPI  scores
  reinforce each other and show a pervasive lack of empathy."  We are unable
  to share the court's confidence in this  fact, as the findings and the
  record lack a meaningful explanation of the purposes, appropriate uses, or
  scoring methods for these tests.  For example, expert testimony and the
  court's  findings emphasize that father's PASS results were "clinically 
  low."  According to the PASS manual, however, the PASS is scored 
  subjectively, by the individual evaluator.  B. Bricklin, Parent Awareness
  Skills Survey Manual 6 (1990).  There is no evidence in the record to
  explain the expert's scoring decisions 

 

  or standard  for comparison, or to justify reliance on the test score in a
  proceeding to terminate parental rights.(FN3)

       The "awesome power" of the State to terminate parental rights, In re
  J.M., 131 Vt. 604, 607, 313 A.2d 30, 31 (1973), cannot be exercised on the
  basis of "inherent personality traits" revealed by psychological tests. 
  Whether the tests are accurate enough for such use is an open question; any
  such test raises concerns of cultural, educational, and socioeconomic bias.
  Moreover, characterizing individuals as bad parents based on "pervasive 
  traits which no form of intervention will change" is inconsistent  with the
  goal of fostering parental improvement. That kind of reasoning suggests
  that SRS should simply administer these tests immediately after a child is
  removed from the home, and pursue reunification only with those parents who
  test well.

       The Oregon Court of Appeals, in refusing to terminate a mother's 
  parental rights based on MMPI scores that correlated with parental abuse,
  stated the obvious:  "The existence of a prognosis that a person will, at
  some time in the future, turn out to be a poor parent should not, standing
  alone, serve as the basis for terminating parental rights."  In re Wyatt,
  579 P.2d 889, 891 (Or. Ct. App. 1978) (en banc).  In this case there are
  other, valid reasons for terminating father's parental rights.   We are
  nonetheless deeply concerned by SRS's emphasis on psychological testing at
  trial, and by the willingness of the court to base its findings and
  conclusions on evidence of such questionable value.  We therefore take this
  opportunity to

 

  unambiguously reject the use of psychological testing as the sole basis for
  an order terminating parental rights.

                              III.

       Although we agree with father's criticisms of the court's decision, we
  cannot accept his statement that the test scores are the "only evidence"
  supporting the order terminating his parental rights.  The problem in this
  case is not a lack of evidence but an improper emphasis. We will not
  reverse the order terminating father's parental rights simply because some
  of the court's findings are erroneous; rather, we must "determine `whether
  the  findings that were supported by the evidence were sufficient to
  support the court's decision.'"  In re B.M., 7 Vt. L.W. 131, 134  (1996)
  (quoting In re C.M., 157 Vt. 100, 103, 595 A.2d 293, 294 (1991)).  If the
  court has made findings sufficient to support its decision, and those
  findings are supported by the record, we will affirm.  Id.  We conclude
  that in this case, there are adequate findings to sustain the decision.

       SRS presented substantial evidence concerning the absence of a
  meaningful connection between the child and her father.  The child's
  therapist, Dr. DiBlasio, testified that although the child has a strong
  bond with her biological mother, she does not have a bond with father. 
  This lack of a relationship indicates that father was not a primary
  caregiver for the child.  Other evidence supports this conclusion.  The
  early years of a child's  life are critical to forming a parent-child bond,
  and because of his incarcerations, father was absent for long periods of
  time when the child was young.  Moreover, when SRS first became involved
  with this family before the child was removed from the home, father did not
  speak to the social worker or display any interest in the child's
  situation.  In therapy, the child often  talks about her foster parents and
  makes references to her mother, but she does not talk about father or
  spontaneously mention her visits with father and his wife.

       The evidence also indicates that the child does not feel safe in
  father's presence and that the possibility of reunification with  father
  has increased her feelings of anxiety.  She described

 

  incidents of domestic violence to her therapist, Dr. DiBlasio, including
  one occasion when her mother was hit by father and then asked the child to
  call 911.  During her therapy sessions, the child frequently acted out
  themes of parental violence and substance abuse, specifically expressing
  concern for babies at risk of harm from an unidentified man.  The
  references to violence stopped for some time, but began again soon after
  the court increased visitation pending the resolution of the case. DiBlasio
  testified, and the court found, that the change in visitation increased the
  child's anxiety, and that the child's memory of early childhood incidents
  of violence affected her perception of safety in father's presence.

       The child's behavior reinforces this conclusion.  When father and  his
  wife talked to the child about fixing up a room for her in their house, she
  began having nightmares, enuresis and other somatic complaints on visit
  days.  She also became very clingy with her foster parents, and began to
  make excuses and tell lies to avoid speaking to father or his wife on the
  telephone. References by father and members of his family to the
  possibility that she will "come home" to live with father have been very
  upsetting for the child.

       If this decision were based on a simple weighing of the factors in 33
  V.S.A. § 5540 to determine the best interests of the child, the result
  would be easy to reach.  The evidence showed that the child has a strong
  and positive relationship with her foster parents and foster brother, and
  is well-adjusted in that community.  Her relationship with her father is
  weak and fraught with anxiety, and despite his obvious concern and love for
  her, father has not played a constructive role in the child's life.  
  Consistent with constitutional requirements, however, we have interpreted
  this statute to require proof, by clear and convincing evidence, that the
  natural parent will not be able to resume parental duties in a reasonable
  period of time.  In re M.M., 159 Vt. at 523, 621 A.2d  at 1280; see In re
  A.D., 143 Vt. 432, 435, 467 A.2d 121, 123 (1983) (noting that Santosky v.
  Kramer, 455 U.S. 745, 747-48 (1982), requires use of clear and convincing
  evidence standard in cases involving permanent termination of parental
  rights).

 

       The question of whether this stringent standard has been met cannot
  readily be answered by reference to our precedents.  We have at times
  downplayed the importance of a "psychological  parent" relationship, and
  emphasized more concrete factors, like  regular participation in visitation
  and stable employment and living situations.  In re J. & J.W., 134 Vt. at
  484-85, 365 A.2d  at 524.  But we have also upheld a decision terminating a
  mother's parental rights where the court found that the mother  could not
  meet the child's emotional needs, and that the child no  longer accepted
  the biological mother as her parent.  In re J.R., 153 Vt. 85, 100-01 570 A.2d 154, 161-62 (1989).  And we have recognized that "[p]ublic policy . .
  . does not dictate that the  parent-child bond be maintained regardless of
  the cost to the child."  In re M.B., 162 Vt. 229, 238, 647 A.2d 1001, 1006 
  (1994).  In this case, where father has never had a meaningful bond with
  the child and the child displays great anxiety at the possibility of
  reunification, the court correctly concluded that father would not be able
  to resume his parental duties in a reasonable period of time.

       Nor is our conclusion inconsistent with In re J. & J.W., where we held
  that the "loss of the psychological parent relationship  between natural
  parent and child by itself does not establish a substantial change in
  material circumstances."  134 Vt. at 484,  365 A.2d  at 524.  This is not a
  case in which the State disrupted a parent-child relationship by removing
  the child from the home, and then argued that the subsequent weakening of
  the parent-child bond should be grounds for termination.  Here, when SRS
  removed the child from the home, father and child did not have a
  significant relationship.  The child's move into foster care was  not
  responsible for weakening the parent-child bond, because that bond had
  never been formed.

       We are impressed, as was the family court, with father's  substantial
  personal achievement in improving his own life.  But this child cannot be
  treated as a prize for good behavior.  The focus of this case is not merely
  father's present circumstances,  but his present ability to act as this
  child's parent.  Father's potential to adequately fulfill that role has
  been drastically reduced by his lack of a relationship with his daughter
  and his failure to play a caregiving role in her 

 

  early life.  His progress has come too late to redress these past
  shortcomings. We agree with the family court that the best interests of the
  child favor termination of father's residual parental rights.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



  -------------------------------------------------------------------------
                                  Footnotes


FN1.  The court also terminated the parental rights of mother, who has
  not appealed.

FN2.  SRS argues that father did not object to the admission of the
  test results at trial, and that this Court should therefore not address the
  issue absent "glaring error."  See In re A.C., 144 Vt. 37, 39 n.2, 470 A.2d 1191, 1192 (1984).  We agree with father that SRS has mischaracterized his
  argument.  Father does not claim that the test results were inadmissible or
  invalid for all purposes.  Rather, father argues that the evidence as a
  whole, including the psychological testing, was insufficient to support the
  court's decision.

FN3.  SRS filed the manual with the Court as an appendix.  The manual
  provides little help in understanding the test scores, however, because the
  scoring is subjective and because the scores given for father, father's
  wife, and the foster parents do not correspond to the suggested scoring
  scales.  According to the manual, responses to each of the eighteen
  questions should be graded "2," "1," or "0."  The manual notes that the
  test was previously scored on a scale of one to ten for each question. 
  Neither scale matches the given test scores of 32.7 for father, 11.7 for
  father's wife, 65 for the foster father and 81.5 for the foster mother. 
  Father's wife's score would be impossible on the older scale, and the
  foster parents' scores are both too high for the new scale.  B. Bricklin,
  Parent Awareness Skills Survey Manual 11 (1990) & Supp. I at 2 (1991).