In re A.W.

In re A.W.  (96-481); 167 Vt. 601; 708 A.2d 910

[Filed 21-Jan-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-481

                             OCTOBER TERM, 1997


In re A.W., K.W. & A.T., Juveniles  }   APPEALED FROM:
                                    }
                                    }
                                    }     Caledonia Family Court
                                    }
                                    }
                                    }     DOCKET NO. 79/80/81-9-93CaJv


       In the above-entitled cause, the Clerk will enter:

       Mother appeals from a Caledonia Family Court decision terminating
  mother's residual parental rights to her three children and transferring
  custody and guardianship of the children to the Department of Social and
  Rehabilitation Services (SRS) without limitation as to adoption.(FN1)
  Mother contends that the court erred (1) in finding sufficient evidence to
  warrant a determination of stagnation and, therefore, justify an order to
  terminate her parental rights, (2) in relying on the merits findings, which
  were based on a preponderance of the evidence standard, to make findings to
  terminate parental rights (TPR), which are required to satisfy the stricter
  standard of clear and convincing evidence, and (3) in relying on the
  findings of sexual abuse from the disposition order.   We affirm.
  
       Mother has three children, A.W., K.W., and A.T., ages ten, eight, and
  five, respectively.  In September 1993, SRS received information that one
  of the children had been sexually molested and, after a detention hearing,
  the children were placed in SRS custody on an emergency detention order. 
  Prior to the merits hearing in April 1994, the State gave notice that it
  intended to introduce statements made by K.W. and A.W. to others concerning
  the alleged sexual abuse of K.W. and A.W. by A.T.'s father.  At a
  competency hearing, K.W. and A.W. were found to be incompetent to testify. 
  The court accordingly ruled inadmissible any hearsay statements of the
  children referring to the allegation of sexual abuse and excluded any
  reference to sexual abuse from the merits proceeding.  At the merits
  hearing, the children were found by a preponderance of the evidence to be
  children in need of care and supervision (CHINS) because they were (1)
  physically abused within the meaning of 33 V.S.A. § 5502(a)(12)(A) and (2)
  without proper parental care within the meaning of § 5502(a)(12)(B).

       A disposition hearing, presided over by a different judge than the
  judge who conducted the merits hearing, was held on September 1 and
  November 10, 1994.  Prior to the disposition hearing, the children's
  attorney gave notice that she intended to present evidence concerning the
  alleged sexual abuse and requested that the competency of K.W. and A.W. be
  reevaluated. Over mother's objection, the court held a second competency
  hearing and determined that both

 

  K.W. and A.W. were competent and available witnesses.  After determining
  that the criteria of V.R.E. 804a were met, the court allowed hearsay
  statements of the children to be presented as substantive evidence of the
  alleged sexual abuse.  Neither K.W. nor A.W., however, were called as
  witnesses.  After sixteen witnesses testified, the court concluded that
  there was clear and convincing evidence that mother was "unfit and
  demonstrably incapable of providing an appropriate home for the three
  children and that separation is necessary for the children's welfare."  In
  addition, the court concluded that there was clear and convincing evidence
  to find that A.T.'s father had sexually abused K.W. and that mother's
  inability or unwillingness to recognize any danger to her daughters from
  A.T.'s father demonstrated that she could not protect her daughters from
  further sexual abuse.  The court concluded, based on all the evidence, that
  the mother was an unfit parent and incapable of providing a home free of
  the danger of sexual abuse to the children.  Therefore, based on the
  findings of both physical and sexual abuse of the children and mother's
  unfitness, the court ordered the transfer of legal custody and guardianship
  of the children to the SRS.

       Mother appealed the disposition order to this Court contending that
  the court erred by reopening the sexual abuse issue and finding that K.W.
  had been sexually abused.  In an unpublished entry order, we found it
  unnecessary to "decide the issue regarding the evidence of sexual abuse"
  because we concluded that "the evidence of physical abuse and neglect was
  sufficient alone to support removal of the children" and was adequately
  supported by the evidence and findings.  In re A.W., No. 94-256, slip op.
  at 2 (Vt. Mar. 20, 1996).

       Following the placement of the children in SRS custody, SRS developed
  several case plans.  The goal of the first two case plans, dated February
  and August, 1994, was reunification of the children with mother and A.T.'s
  father.  Mother and SRS counsellors worked for a number of months with no
  or minimal improvement in mother's parenting skills.  Furthermore, although
  mother attended an individual counselling intake meeting in April 1994, she
  did not start meaningful individual counselling sessions until September
  1994, about the same time the disposition hearing was commenced.  In
  February 1995, due to mother's lack of progress in improving her parenting
  skills and abiding by the requirements of SRS case plans, SRS changed the
  case plan goals for each of the children to TPR.

       A TPR hearing was conducted on September 23, 1996 and was presided
  over by a third judge.  In its TPR order the court concluded that
  "[e]xhaustive, prolonged and reasonable efforts were made under the terms
  of reasonable case plans, to provide the parents with an opportunity for
  reunification with the children who had been very seriously and chronically
  abused and neglected while within their care" and it was in the best
  interest of the children to terminate all of the residual parental rights
  with the children.  This appeal followed.

       When termination of parental rights is sought at a modification
  proceeding, 33 V.S.A. § 5532 requires the court to conduct a two-step
  analysis.  See In re J.M., 160 Vt. 146, 148, 624 A.2d 362, 363 (1993). 
  First, the court must find a substantial change in material circumstances
  justifying modification.  See id.  If a substantial change is found, then
  the court must find that the best interests of the juvenile require
  termination of parental rights under § 5540.  See id. at 148-49, 624 A.2d 
  at 363.  If the findings in both steps of the analysis are supported by
  clear and convincing evidence, they will be upheld on review.  See In re
  H.A., 153 Vt. 504, 515, 572 A.2d 884, 890 (1990).  Furthermore, the court's
  conclusions of law will be affirmed if supported by the findings.  See id.
  at 515, 572 A.2d  at 891.

       In the present case, the court based its finding of a substantial
  change in material circumstances on mother's stagnation.  See In re J.R.,
  153 Vt. 85, 99, 570 A.2d 154, 161 (1989) (stagnation "shown by the passage
  of time with no improvement in parental capacity to

 

  care properly for the child").  In its TPR order, the court concluded that
  mother's progress showed no "significant" and "reasonable" improvement in
  her parenting ability.  The court found that since the first disposition
  hearing (1) mother was unable "to make reasonably necessary progress" in
  improving her parenting skills, (2) mother continually denied that the
  children were abused and neglected and that this denial "has remained
  untouched . . . despite prolonged and exhaustive interventions," (3) mother
  constantly minimized the effect that the physical abuse had on the
  children, (4) mother continued to maintain a relationship with A.T.'s
  father, (5) mother's participation in a parenting group was minimal, and
  (6) mother failed to develop "the ability to manage the children's
  oppositional behaviors or to control her own frustrations in the face of
  these behaviors, in order to avoid escalation into emotionally or
  physically abusive behaviors to the children."  Because the conclusion of
  stagnation is based on findings supported by clear and convincing evidence,
  we find no error and uphold the court's conclusion.

       With the threshold requirement satisfied, the court next determined
  the children's best interest, with reference to the factors set forth in 33
  V.S.A. § 5540.  The court found that (1) due to mother's stagnation, mother
  would be unable to resume her parenting duties within a reasonable period
  of time, (2) all three children have suffered stress and anxiety from
  visits with their mother since they were placed into SRS custody, (3) all
  three children have done markedly better in all areas, including social and
  academic, since being removed from mother's custody, and (4) "that in order
  for the girls to make sustained progress with their special needs, they
  must have permanency of placement and parenting now, without any further
  delay or uncertainty." Because "[i]t is patently unreasonable in
  consideration of the record of these cases to subject the children to
  further uncertainty or delay," the court concluded that it was in the best
  interest of the children to terminate mother's residual parental rights. 
  There was sufficient evidence to support the court's findings, and
  therefore, we find no error in the court's order to terminate mother's
  parental rights.

       Mother contends that the court erred by relying on the merits
  findings, which were based on a preponderance of the evidence standard, to
  make findings to terminate mother's residual parental rights.  Mother's
  argument has no merit.  "It is settled law that a state's initial burden of
  proof in seeking to terminate residual parental rights is by clear and
  convincing evidence." In re T.E., 155 Vt. 172, 175, 582 A.2d 160, 162
  (1990) (citing Santosky v. Kramer, 455 U.S. 745, 747-48 (1982)).  From the
  135 thoughtful and thorough findings made by the court in its TPR order,
  mother points to only two that make reference to the original merits
  findings to support her argument.  She ignores the fact that the court, in
  its disposition order, made independent findings of physical abuse,
  neglect, and mother's failure to protect the children, all by clear and
  convincing evidence.  Furthermore, she ignores the fact that in the TPR
  order the court took notice of the earlier disposition findings and, after
  assessing all of the evidence, determined that there was no basis to call
  into question or reject for lack of factual foundation any of these
  findings of fact -- including the findings of sexual molestation by A.T's
  father. Finally, she ignores the fact that the court, based on evidence
  presented at the TPR hearing, used the clear and convincing evidence
  standard and made independent findings of chronic parental unfitness in its
  TPR order.  Thus, the court made its determination based on evidence
  produced at the termination hearing and applied a clear and convincing
  evidence standard. There was no error.

       Mother next contends that the court erred by (1) relying on the
  findings of sexual abuse in the TPR order to terminate mother's parental
  rights and (2) finding stagnation because the case plan included sexual
  abuse issues, which was in direct violation of the merit-hearing judge's
  order.  We do not reach these issues because there was sufficient evidence
  of mother's stagnation in dealing with the physical abuse and neglect of
  the children to show "changed circumstances."  Accordingly, any error in
  finding stagnation in dealing with the sexual abuse

 

  of the children would not affect the determination to terminate mother's
  parental rights.  See In re B.S., 163 Vt. 445, 454, 659 A.2d 1137, 1143
  (1995) (in juvenile case, reversal is not required because of improper
  admission of evidence if findings not based on erroneously admitted
  evidence are sufficient to support conclusions).

       Affirmed.

                              BY THE COURT:



                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn R. Skoglund, Associate Justice

                              _______________________________________
                              Frederic W. Allen, Chief Justice (Ret.)
                              Specially Assigned




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                                  Footnotes


FN1. The court also terminated the residual parental rights of the
  father of the two oldest children and the residual parental rights of the
  father of the youngest child.  Neither father appeals the decision.