In re J.S. & S.S.

In re J.S. & S.S.  (97-201); 168 Vt. 572; 719 A.2d 865

[Filed 17-Jun-1998]


                             ENTRY ORDER

                    SUPREME COURT DOCKET NO. 97-201

                             MAY TERM, 1998


In re J.S. & S.S., Juveniles        }     APPEALED FROM:
                                    }
                                    }
                                    }     Franklin Family Court
                                    }
                                    }
                                    }     DOCKET NOS. 39/40-2-95Frjv


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

       Father and Mother appeal the family court's order terminating their
  parental rights with respect to their son, J.S.  We affirm.

       Father and mother were married in February 1989.  Their marriage was
  fraught with domestic violence from the beginning.  Father was convicted of
  domestic assault on three occasions in 1994 and 1995.  In 1995, he was also
  convicted of violating a relief-from-abuse order and violating pre-trial
  conditions of relief.

       Father and mother's daughter, S.S., was born in October 1989, and
  their son, J.S., was born in September 1992.  By the fall of 1994, the
  Department of Social and Rehabilitation Services (SRS) began receiving
  reports of suspected child abuse and neglect involving S.S. and J.S.  The
  Department referred the family to the New Horizons Program, an intensive
  home-based parent education program.  Shortly thereafter, a New Horizons
  caseworker observed bruises around S.S.'s eyes, which led to the filing of
  a CHINS petition.  Both children were taken into SRS custody in February
  1995.  Following a merits hearing, and based on the admissions of the
  parties, in April 1995 the family court found that both children had been
  neglected and abused and were in need of care and supervision (CHINS).  In
  May 1995, SRS filed a disposition report outlining a plan of services aimed
  at reunification.  After mother withdrew her admissions at the disposition
  hearing, a second merits hearing was held in September 1995, and the court
  found the children to be CHINS based on mother's admissions to neglect and
  her no-contest plea to abuse.  In November 1995, at a second disposition
  hearing, the court transferred custody to SRS and approved the updated case
  plan, which set forth the same goal and plan of services as contained in
  the original case plan.

       SRS changed the case plan goal from reunification to termination in
  February 1996 at the twelve-month administrative review.  The change was
  made based upon the parents' minimal participation and progress with
  respect to the required services, and the children's need for stability and
  permanence.  The Department filed for termination of parental rights in
  July 1996, and hearings were held in March and April 1997.

       Following the hearings, the family court adopted the State's detailed
  findings regarding (1) the abuse the children had suffered; (2) the
  parents' minimal progress in achieving the goals set forth in the plan of
  services; (3) the problems with visitation; and (4) the children's fragile
  condition and special needs.  The court found that the two young children
  had been in foster care for over two years, and yet the parents had still
  not made significant progress toward achieving

 

  the level of stability and parenting skills needed to provide for the
  children's special needs.  The court further found that the parents had not
  taken responsibility for the prior abuse, were still in denial regarding
  much of the abuse, and did not have a stable living situation suitable for
  the children.  Based on these and other findings, the court concluded that
  there was a substantial change in circumstances, and that the children's
  best interests required termination of parental rights.

       On appeal, father argues that (1) the State failed to prove by clear
  and convincing evidence that a substantial change in circumstances had
  occurred and that termination of his parental rights was in the best
  interests of J.S.; and (2) the trial court failed to exercise its
  discretion by adopting the State's proposed findings and conclusions before
  he had filed his own proposed findings and conclusions.  Mother joins in
  these arguments and also argues that (1) the court's finding of stagnation
  is unsupported in light of SRS's failure to make reasonable efforts to
  provide parent-education services; and (2) the termination order is an
  abuse of discretion because the effect of termination on J.S.'s best
  interests is speculative at best.

       Regarding the finding of changed circumstances, we conclude that the
  record supports the court's determination that the parents' minimal
  progress in achieving the goals set forth in the plan of services
  constituted stagnation.  The parents' situation need not regress for
  stagnation to occur.  Changed circumstances occur when any improvement in
  parenting skills fails to conform to the expectations and goals set forth
  in the case plan.  See In re D.B., 161 Vt. 217, 220, 635 A.2d 1207, 1210
  (1993).  Here, notwithstanding father's claims to the contrary, clear and
  convincing evidence in the record supports the court's findings that father
  had failed to meet case plan goals and had made, at best, minimal progress
  toward achieving reunification.  Father and mother completed an active
  parenting class that met once a week for six weeks.  They also participated
  in, but did not complete, a nutrition program.  Father failed to attend
  domestic abuse counseling until he was required to do so as a condition of
  being paroled.  He did not participate in anger-management classes.  He
  completed a drug and alcohol evaluation, but did not follow through with
  the resulting recommendations.  Neither parent followed through with
  individual psychological counseling.  In short, father's claim of
  substantial compliance with case plan services is an exaggeration.

       Nor do we agree with mother's assertion that the stagnation was caused
  by factors beyond the parents' control.  Mother points to a
  parent-education service that was cut off when the parents failed to show
  up for a session during a four-week trial period.  She asserts that because
  she was unexpectedly arrested on an outstanding warrant while she and
  father were hitchhiking to the session, their failure to appear at the
  session was beyond their control.  This argument is unavailing.  Because of
  the parents' history of not following through with recommended services,
  and because other families were on a waiting list for the parent educator's
  services, the parents were forewarned that their absence from any of the
  sessions during the trial period would terminate their participation in the
  program.  Further, assuming that the parents' failure to show could be
  characterized as being beyond their control, stagnation in this case
  resulted from the parents' deficiencies and failure to follow through with
  services in a number of areas besides parent education.

       The record also supports by clear and convincing evidence that
  termination of parental rights was in J.S.'s best interests.  The
  psychologist who performed a forensic family evaluation in the fall of
  1996, nearly two years after the children had been taken from the parents
  and a full year after the second disposition hearing, testified that (1)
  the parents' psychological and parenting deficiencies, both individually
  and as a couple, were severe and long-standing; (2) neither parent had done
  much in the past two years to address those deficiencies; (3) both parents

 

  continued to minimize the past violence between themselves and their abuse
  of the children, which posed a future risk to the children should the
  family be reunited; and (4) the seriously troubled children were not in a
  position to wait any longer for the parents to make the changes necessary
  to allow them to provide for their children's extraordinary needs.  Based
  on this testimony and other evidence, the court determined that termination
  of parental rights was plainly warranted, particularly given the children's
  tender age and exceptional needs, and the parents' continued failure to
  effect meaningful changes in their lives and to demonstrate insight into
  the extent and effect of their abusive behavior.  See In re B.M., 165 Vt.
  194, 199, 679 A.2d 891, 895 (1996) (polestar in disposition proceedings is
  best interests of children, with most important factor being likelihood
  that parents will be able to resume parental duties within reasonable
  time).

       We find no merit to father's argument that the court improperly
  focused on the past and not the future.  Clear and convincing evidence
  supported the court's findings and conclusions that in the two years that
  S.S. and J.S. had been in SRS custody, the parents had made little progress
  in achieving the skills necessary to parent the children or even coming to
  grips with the reasons why the children had been taken from them.  As the
  court found and the evidence amply demonstrated, a reasonable time for
  reunification had already passed, considering the age of the children, the
  length of time that they had been separated from their parents, and their
  need for stability and permanence.  Even assuming that a reasonable time
  had not passed at that point, the evidence indicated little hope that in
  the near future the parents would overcome their deeply-ingrained and
  long-standing problems and develop the skills necessary to parent a
  severely emotionally disturbed child such as J.S.  The court's findings
  detailing the parents' almost complete lack of effort to avail themselves
  of case plan services before February 1996 appropriately demonstrated that
  the parents delayed too long before making limited progress toward
  complying with the case plan.  In any event, the court also found that even
  up until the time of the termination hearing the parents continued to deny
  and minimize the abuse that had traumatized their children, and thus would
  be unable to resume parental duties in the near future.

       Mother argues that because J.S. had been placed in a number of foster
  homes and expert testimony indicated that the child's tantrums following
  visits with his parents could have resulted from his feelings of loss and
  sadness at leaving persons with whom he remained bonded, the court's
  determination that termination was in the child's best interest was
  speculative.  We disagree.  In the spring of 1997, between the two
  termination hearings, a psychiatrist examined J.S. at the request of SRS
  for the purpose of determining the cause of the child's tantrums and
  recommending what could be done about it.  In her report, she wrote that
  J.S. was suffering from Post Traumatic Stress Disorder, and recommended
  that parental visits be stopped, given that his outbursts tended to
  coincide with parental visits.  When asked during cross-examination at the
  termination hearing whether the outbursts could have been caused by the
  fact that parental visits were ending rather than occurring, the
  psychiatrist, who had never met the parents, stated that that was possible. 
  We do not doubt mother's contention that no one can be certain of the
  reason behind the child's outbursts.  Certainly, mother's hypothesis is at
  best speculative.  But whatever the reason for the outbursts, clear and
  convincing evidence demonstrated that termination was in J.S.'s best
  interests.

       Finally, father complains that the court failed to exercise its
  discretion by adopting the State's proposed findings and conclusions
  verbatim before he filed his own findings and conclusions.  We disagree. 
  At the end of the April 7, 1997 termination hearing, the State's attorney
  informed the court that the State would file its proposed findings by two
  weeks from the coming Friday, which would have been April 25.  Father's
  attorney requested an additional seven days after the State's attorney
  filed its findings.  The court stated, "So by May 2nd." Father's attorney
  responded, "By May 2d."  The State filed its proposed findings on May 1. 
  On

 

  May 9, the court issued its termination order.  Three days later, on May
  12, father's attorney filed his proposed findings.  The court did not act
  improperly in issuing its decision before receiving father's proposed
  findings.  As demonstrated by the colloquy at the end of the termination
  hearing, the court gave the parties a common deadline of May 2 to file
  their proposed findings, and father did not meet that deadline.

       Nor do we find support for father's assertion that the court's
  wholesale adoption of the State's findings resulted in numerous erroneous
  findings and demonstrated the court's failure to carefully examine the
  evidence.  "Findings of fact shall not be set aside unless clearly
  erroneous, notwithstanding the verbatim adoption by the court of a party's
  proposed findings."  V.R.C.P. 52(a)(2); V.R.F.P. 2(a) (Rule 52 is among
  civil rules applicable in termination proceedings). Here, the court did not
  adopt the State's proposed findings verbatim, but rather made numerous, if
  minor, changes that reflected the court's interpretation of the evidence. 
  Further, none of the examples of findings cited by father are clearly
  erroneous or indicate that the court failed to review the evidence in the
  case.

       Nevertheless, we are troubled by the court's near verbatim adoption of
  the State's proposed conclusions of law.  Conclusions of law reflect the
  court's considered application of the law to the facts of a particular
  case.  When the court merely repeats the conclusions offered by one of the
  parties, confidence in the court's independent judgment is diminished.
  Accordingly, the better approach in contested termination cases is for the
  family court not to rely on proposed conclusions in explaining its
  decision.  Here, however, we find no basis for overturning the termination
  order.

       Affirmed.




                                  BY THE COURT:



                                  _______________________________________
                                  John A. Dooley, Associate Justice

                                  _______________________________________
                                  James L. Morse, Associate Justice

                                  _______________________________________
                                  Denise R. Johnson, Associate Justice

                                  _______________________________________
                                  Marilyn S. Skoglund, Associate Justice

                                  _______________________________________
                                  Nancy Corsones, Specially Assigned