In re J.B.

In re J.B.   (96-603); 167 Vt. 637; 712 A.2d 895

[Filed 27-Apr-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-603

                             FEBRUARY TERM, 1998


In re J.B., Juvenile            }     APPEALED FROM:
                                }
                                }
                                }     Franklin Family Court
                                }
                                }
                                }     DOCKET NO. 183-8-94Frjv


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

       The mother of J.B. appeals a Franklin Family Court order terminating
  her parental rights and responsibilities (TPR) as to the child, and
  transferring custody and guardianship to the Commissioner of Social and
  Rehabilitation Services (SRS) without limitation as to adoption.  We
  affirm.

       The State filed a petition in August 1994 alleging that the
  seven-week-old J.B. was a child in need of care and supervision.  The
  petition was based on mother's alleged sexual assaults on her
  twelve-year-old son, J.B.'s half-brother.  The court entered a CHINS order
  in December 1994, and disposition proceedings began on January 13, 1995. 
  Due to continuances requested by the parties, and mother's wish to complete
  a psychosexual evaluation, the final disposition hearing commenced on
  September 27, 1995.  The matter was then further continued at mother's
  request, and the continued disposition hearing was completed in September
  1996.

       We recount the relevant facts as found by the family court.  Mother,
  who was herself the victim of physical abuse as a child, was married in
  1981 to "a very abusive man who would threaten [her] with guns and knives." 
  A son, J.R., was born in 1982, and the marriage finally broke down in 1991
  when the husband struck both mother and J.R.  She obtained a temporary
  restraining order that year after stating that her husband had made death
  threats and was "into pornographic material."  This marriage subsequently
  ended in divorce.

       In 1992, mother and J.R. moved to Vermont, where she met a boyfriend
  by whom J.B. was born in July 1994.  A baby sitter subsequently advised SRS
  of alleged incidents of sexual abuse of J.R. by both J.R.'s mother and her
  boyfriend.  Under later questioning by an SRS investigator and a police
  detective, J.R. divulged numerous incidents of sexual abuse by his mother
  and her boyfriend, both of whom were subsequently arrested for sexual
  assault.

       The boyfriend pled guilty to two counts of sexual assault on a minor
  and was sentenced to a term of incarceration.  Mother pled guilty to sexual
  assault in October 1994, and was sentenced to serve five years, all
  suspended, and probation.  J.R. and J.B. were placed in foster care, with
  supervised visitation by mother.  Her conditions of probation included,
  among other things, that she participate in individual and
  self-esteem/relationship counseling and in outpatient sex-offender
  counseling.

       The court found that, as of May 1995, mother "continued to minimize
  her participation in and responsibility regarding the sexual abuse of
  [J.R.]."  As a result she was "still an

 

  untreated sex offender," and the court found that "[i]t was unclear as to
  how long it would take [mother] to complete this treatment."  The court
  also found that J.B.'s "attachment and long term emotional needs were of
  great concern.  His need to attach to his caregivers was of paramount
  importance to his healthy emotional growth and development.  This bond
  appeared to be already formed with the foster family."


       The court considered the criteria set forth in 33 V.S.A. § 5540 (FN1) and
  found that psychologically J.B. saw the foster parents as his parents, had
  a close relationship with the other children in the foster home, and did
  not derive the same comfort from his relationship with mother.  The court
  concluded with respect to § 5540(1) that "removing [J.B.] from this
  [foster] home to return to the care of [either parent] would mean a loss of
  these meaningful relationships."  The court concluded as to § 5540(2) that
  J.B. had adjusted so well to his foster home that "moving him from this
  environment . . . could put him at serious risk of long-term psychological
  harm."  As to § 5540(4), the court concluded that, despite clearly
  demonstrated love and affection for J.B. by his mother, the child had not
  established a close attachment with her.

       The final and overarching question for the court was to determine
  "[t]he likelihood that the natural parent will be able to resume his or her
  parental duties within a reasonable period of time."  Id. § 5540(3).  The
  court acknowledged that mother had made "substantial progress in dealing
  with her psychological difficulties," including individual therapy and sex
  offender counseling.  The court, however, also stressed specific areas in
  which mother had not progressed sufficiently:

     [Mother's] potential vulnerability to the influence of others remains
     a problem.  [She] has only just begun to understand and express
     assertive behavior and needs more time to practice these skills.
     She may be influenced by and vulnerable to outside negative
     influences and potentially abusive individuals.  Sex offender
     treatment is still ongoing and [J.B.] might be in some jeopardy if
     he were placed with [mother] at this time.

  The court ordered termination of mother's parental rights and
  responsibilities, and the present appeal followed.

 

       Mother's first argument is that the record lacks clear and convincing
  evidence to support the family court's finding that she would be unable to
  resume her parental duties within a reasonable time.  See id.  According to
  mother, the court's order punishes her for past bad behavior without taking
  account of the progress she has made since the time J.B. was removed from
  her custody.  While we agree with mother that the critical inquiry under §
  5540(3) is the parent's prospective ability to parent, see In re B.M., 165
  Vt. 331, 337, 682 A.2d 477, 480 (1996), we discern no error in the family
  court's finding.

       Vermont law makes plain that a family court may terminate parental
  rights only when it finds by clear and convincing evidence that to do so is
  in the best interests of the child as determined by consideration of four
  statutory factors in 33 V.S.A. § 5540.  See B.M., 165 Vt. at 336, 682 A.2d 
  at 478-80.  The most important factor for the court to consider is the
  likelihood that the parent will be able to resume parental duties within a
  reasonable time.  See In re M.M., 159 Vt. 517, 523, 621 A.2d 1276, 1280
  (1993).  Parents are safeguarded from arbitrary or erroneous state action
  by "a general policy that total termination of parental rights will not be
  ordered in the first instance if there is a reasonable possibility that the
  causes and conditions which led to the filing of the petition can be
  remedied and the family restored within a reasonable time."  In re D.R.,
  136 Vt. 478, 481, 392 A.2d 951, 953 (1978).  This Court will uphold
  findings by the family court unless they are clearly erroneous.  See In re
  H.A., 153 Vt. 504, 515, 572 A.2d 884, 890 (1990).  The family court's
  conclusions will be upheld if they are supported by the findings.  See In
  re J.R., 153 Vt. 85, 94, 570 A.2d 154, 158 (1989).

       As evidence that she has made good progress since the time when J.B.
  was taken into SRS custody, mother notes that she admitted responsibility
  for past sexual abuses, attended every visitation with J.B. which was
  provided, save one which was beyond her control, and participated in every
  service mandated in her case plan.  She points to the court's statement
  concerning her "substantial progress" in dealing with her psychological
  difficulties.  According to mother, the court's termination order is
  inconsistent with the undisputed evidence that she was meeting the
  expectation of her case plan.

       As did the family court, we recognize mother's progress since the time
  J.B. was removed to SRS custody.  Yet the primary consideration is whether
  a parent will be able to resume her parental duties within a reasonable
  period of time, not merely whether there has been identifiable progress
  since the child was originally removed from the household.  We do not agree
  with mother's contention that the family court may not terminate parental
  rights if the parent has made progress.  See In re A.F., 160 Vt. 175,
  181-82, 624 A.2d 867, 871 (1993) (although parent had made progress in
  parenting skills, finding that parent would not be able to resume parenting
  within a reasonable time was supported by the evidence and not erroneous).

       In the instant case, the record amply supports the family court's
  conclusion that mother's progress -- commendable as it might be given her
  life experience -- had not brought her to a point where she could safely
  resume parenting within a reasonable time.  The litany of abusive incidents
  involving mother both as victimizer and victim was extensive and graphic. 
  Early in the case, mother was diagnosed as having an adjustment disorder
  with depressed mood, and described by evaluators as being in a pattern of
  co-dependence in relationships with abusive, substance-dependent men.  With
  respect to mother's subsequent treatment progress, the court considered
  reports from a psychologist and social workers, and found that mother "is
  still vulnerable to getting into another abusive relationship," and that

     [i]t is difficult to estimate when [mother] will be psychologically
     healthy enough to safely parent [J.B.].  A `reasonable period of

 

     time' for parenting to occur in this case has already expired. . . .
     Removing him after this period of time from an environment
     where he has strong attachments and feels secure and safe would
     not be in his best interests.

       Mother is correct that past conduct itself is no barrier to resuming
  parental responsibilities.  Nonetheless, we cannot say that the court
  erred, in light of the detailed evidence about the extent of mother's past
  behavioral problems and the lack of certainty about the extent of her
  progress.  See B.M., 165 Vt. at 337, 682 A.2d  at 480 ("a `reasonable period
  of time' must be measured in terms of the child's needs").

       Mother next argues that the family court erred by giving undue weight
  to what she calls the "psychological parent role that the foster parents
  have come to play in J.B.'s life."  Mother cites In re J. & J.W. for the
  proposition that a child's strong psychological parent-child relationship
  with his foster parents should not provide the primary basis for
  terminating parental rights, particularly when the parent is making marked
  improvement.  See 134 Vt. 480, 484-85, 365 A.2d 521, 524 (1976).  We do not
  agree with mother's argument because we find no inconsistency between our
  holding in J. & J.W. and the family court's decision in this case.  In J. &
  J.W., the Court held that a strong psychological parent-child bond between
  the child and the foster parents, standing alone, could not provide a basis
  for finding the "changed circumstances" necessary to modify an existing
  order and terminate parental rights.  See id. at 484, 365 A.2d  at 524. 
  Instead, the Court was careful to point out that the lower court must
  consider all of the statutory factors applicable to termination proceedings
  and that the applicable standard is the best interests of the child.  See
  id. at 482-83, 365 A.2d  at 523.  The evidence in the present case related
  to all of the § 5540 factors, and the court was clear that the lodestar
  criterion was § 5540(3), "[t]he likelihood that the natural parent will be
  able to resume his [or her] parental duties within a reasonable period of
  time."  Moreover, the Court in J. & J.W. spelled out strong evidence
  supporting mother's readiness for resumption of parental duties -- divorce
  from an assaultive husband, establishment of a stable marital situation,
  treatment for and remission of her mental illness, and employment in a
  part-time position which in part involved supervision of children.  See id.
  at 484-85, 365 A.2d  at 524.  Though comparisons between lives is a
  difficult undertaking, we cannot say that, in this case, the court's
  guarded and limited findings about mother's personal progress rose to the
  level of the evidence discussed in J. & J.W.  There was no error.

       Affirmed.




                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice


                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice




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                                  Footnotes



FN1.  33 V.S.A. § 5540 states in relevant part:

  [A]ny time a petition is filed by the department of social and
  rehabilitation services for custody of a minor without limitation as to
  adoption, the court shall consider the best interests of the child in
  accordance with the following:

       (1) The interaction and interrelationship of the child with his
  natural parents, his foster parents if any, his siblings, and any other
  person who may significantly affect the child's best interests;
       (2) The child's adjustment to his home, school, and community;   
       (3) The likelihood that the natural parent will be able to resume his
  parental duties within a reasonable period of time; and
       (4) Whether the natural parent has played and continues to play a
  constructive role, including personal contact and demonstrated love and
  affection, in the child's welfare.