In re A.S.

In re A.S. (2000-157); 171 Vt. 369; 764 A.2d 1188 

[Filed 20-Oct-2000]
[Motion for Reargument Denied 17-Nov-2000]


       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. 2000-157


In re A.S. & K.S., Juveniles	                 Supreme Court

                                                 On Appeal from
                                                 Caledonia Family Court

                                                 September Term, 2000


Shireen Avis Fisher, J.

Michael Rose, St. Albans, for Appellant.

William H. Sorrell, Attorney General, Montpelier, and Barbara L. Crippen, 
  Assistant Attorney General, Waterbury, for Appellee SRS.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, 
  Montpelier, for Appellees-Juveniles.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       MORSE, J.   Father D.S. appeals from the order of the Caledonia Family
  Court terminating  his parental rights with respect to his two daughters,
  A.S. and K.S. (FN1)  On appeal he argues that the  court failed to properly
  consider the alternative of a "planned permanent living arrangement" to 
  termination or to make findings regarding the viability of this
  alternative.  He also argues that this  Court should remand the case to the
  Family Court for reconsideration of its disposition in light of 

 

  the recently enacted Permanent Legal Guardianship Act.  We affirm.

       A.S. and K.S., currently ages 11 and 13 respectively, were taken into
  State custody on May 1,  1998, and thereafter determined to be Children in
  Need of Care and Supervision (CHINS).  They  were in their mother's custody
  at the time pursuant to mother and father's divorce decree.  Mother, 
  subsequently given a probable diagnosis of bipolar illness and
  post-traumatic stress disorder with the  possibility of other elements of a
  psychotic disorder, appeared to be suffering from delusions at the  time,
  most likely related to her diagnosis of bipolar illness.  She spoke with a
  counselor from the  girls' school and indicated that she was hearing voices
  and that she thought she was being watched.   The counselor also noted that
  the family appeared to be in chaos: there was graffiti on the walls of 
  their apartment, and all the children appeared to be sleeping in the living
  room with their mother  despite the existence of upstairs bedrooms.

       A.S. and K.S. were also exhibiting extreme behavior at school,
  including banging desks,  screaming during class, running through the halls
  and threatening other students.  The police were  called on several
  occasions, and K.S. had expressed suicidal thoughts to the school
  counselor.  K.S.  also disclosed previous incidents of sexual abuse
  involving a babysitter and an older sister's  boyfriend.  After being taken
  into custody, the children received placement in a therapeutic foster 
  home.  They continued to manifest extreme behavior, including throwing
  furniture and attempting to  physically hurt themselves, but eventually
  their behavior moderated.  K.S. has needed respite care  throughout her
  foster placement. 

       Initially, and following early case reviews, the goal for A.S. and
  K.S. was reunification with  their mother.  Because father supported this
  goal, he did not seek the appointment of an attorney  during his early
  participation in the process, nor did he contest the case plans for the
  girls.  The

 

  representative from Intensive Family Based Services Program, the group
  providing support services  towards reunification, also indicated that
  father was not considered as a placement for the children  because he had
  previously been incarcerated and because IFBSP was under the impression
  from both  SRS and other family members that he had little to no contact
  with the children and provided no  financial support to the family. 

       Father was incarcerated in 1989 for aggravated sexual assault
  involving an adult female.   K.S. was four years old at the time, and A.S.
  was six months old.  He was released in December  1993, and has been on
  parole since that time.  His parole is set to end July 1, 2004.  Testimony
  at the  termination hearing revealed, however, that the girls' mother
  brought them to visit their father in  prison regularly and that he both
  called them and wrote letters to them while he was in prison.   Following
  his release, father continued to visit with the children on a regular
  basis.  Furthermore,  following his release, father sought to initiate
  payment of child support, and he has paid it regularly  to the children's
  mother since 1993 with the exception of a short period of time when he was
  unable  to meet the financial obligation. 

       With respect to his progress since his release in 1993, the girls'
  father has been completely  compliant with his extensive parole conditions. 
  He has consistently participated in support services  related to his status
  as a sex offender, including services related to substance abuse.  He has
  remained  employed with one exception and has held his most recent position
  working for a wood products  company for four years.  Nevertheless,
  father's parole officer expressed concern about the father's  ability to
  handle the stress of children who had significant parenting needs beyond
  those of average  children.  The social worker who leads father's sex
  offender support group also stressed that father  would need a significant
  support system if he were to be a placement for the girls and that the
  girls  

 

  would need ongoing counseling as well.  

       A.S. and K.S. have been identified as having significant and
  specialized parenting needs.   Both girls receive special education
  services based on their emotional and behavioral issues.  Both  girls have
  been diagnosed with oppositional defiant disorder, and A.S. has been
  diagnosed with  anxiety disorder, not otherwise specified.  A.S.'s and
  K.S.'s therapists both testified that the girls have  an urgent and
  immediate need for permanency.  A.S.'s therapist indicated that A.S. needs
  more than  average parenting, and K.S.'s therapist testified that K.S.'s
  return to either of her biological parents  would be very rough on her. 
  The caseworker from Northeast Kingdom Mental Health who works  with
  therapeutic foster homes stated that both children need more that normal
  parenting, that a  particular expertise is required to maintain their
  current emotional and developmental state and that  the girls' improvement
  in those areas is attributable to their current foster parents' expertise
  regarding  the girls' specialized parenting needs, as well as the stability
  their home affords the girls.  A.S.'s  therapist also testified that she
  would not support long-term foster care simply to continue visitation  with
  her parents given the instability of the arrangement. 

       Dr. Philip Massad, a psychologist, performed assessments of both
  mother and father.   Although his assessment of the girls' father revealed
  nothing significant regarding whether father  would pose a danger to the
  two children, he concluded, based on the results of the testing performed, 
  that father's parenting skills were merely fair.  He noted that father did
  not possess the specialized or  sophisticated skills that A.S. and K.S.
  demanded and opined that father would be taxed and  potentially overwhelmed
  by the parenting demands of the children, especially with respect to K.S.'s 
  needs. 

       At the close of the four-day hearing, the family court discussed with
  the parties the various 

 

  options available for the girls.  Ultimately, the court concluded that,
  given the available alternatives,  termination of parental rights was in
  the best interests of the children.  The court noted that the  children
  have a serious and urgent need for permanency and that the foster parents
  expressed a  willingness to facilitate appropriate continuing contact with
  the girls' biological parents.  The court  expressed frustration at being
  forced to choose between two less-than-ideal dispositions, but  concluded
  that termination of the parents' residual parental rights was the best
  alternative available  when compared to the instability of continuing
  foster care.  Father now appeals that decision to this  Court.

       Father argues that the family court did not properly consider the
  alternative of a "planned  permanent living arrangement" referenced in 33
  V.S.A. § 5531(d)(4), the statute governing  permanency hearings, or make
  findings regarding this alternative to termination.  The statutory 
  language of § 5531, however, plainly reflects that such a living
  arrangement is the least desirable  alternative to the various dispositions
  available for children in the State's custody.  The statute  provides that,
  following a permanency hearing, the trial court should adopt a permanency
  plan that  includes whether and, if applicable, when:

     (1) the child will be returned to the parents;
     (2) the child will be released for adoption;
     (3) the child will be referred for legal guardianship; or
     (4) the child will remain in the same or be placed in another planned 
     permanent living arrangement because the commissioner has 
     demonstrated to the satisfaction of the court a compelling reason that 
     it is not in the child's best interests to return home, to have residual 
     parental rights terminated and be released for adoption or placed with 
     a fit and willing relative or legal guardian.

  33 V.S.A. § 5531(d) (emphasis added).

       Furthermore, when considering a petition to terminate residual
  parental rights, the trial court 

 

  is under no obligation to make negative findings regarding less drastic
  alternatives to termination.   Cf. In re M.B., 162 Vt. 229, 238, 647 A.2d 1001, 1006 (1994) (noting that public policy does not  dictate that
  parent-child contact be maintained at a cost to the child and that § 5540
  recognizes that  the severance of that bond may be in the child's best
  interests).  Rather, the trial court must make  findings regarding whether
  there has been a substantial change in material circumstances and  whether
  termination is in the best interests of the child.  See In re Cr. M., 163
  Vt. 542, 545, 659 A.2d 1159, 1161 (1995).  The court did so in this case,
  and  we must affirm unless the findings are clearly  erroneous.  See In re
  J.M., 160 Vt. 146, 149, 624 A.2d 362, 363-64 (1993).

       Father argues in the alternative that this case should be remanded in
  light of the recently  enacted legislation allowing for permanent
  guardianship, which he contends applies to pending cases  because the
  legislation is remedial in nature.  We need not determine whether the
  recently passed  legislation should apply to pending cases, however,
  because the legislation by its own terms limits its  application to cases
  in which adoption of the child or return to the child's parents is not
  reasonably  likely.  See 1999, No. 162 (Adj. Sess.), § 2 (codified at 14
  V.S.A. § 2664(a)(2)) (requiring court to  determine by clear and convincing
  evidence that neither returning child to parents nor adoption is 
  reasonably likely before issuing an order for permanent guardianship).  In
  this case, the foster family  has expressed a willingness and a desire to
  adopt both girls.  The trial court also has found that return  of the girls
  to their father can not occur within a reasonable time, thereby making
  adoption a likely  possibility for the girls.

       The wisdom of limiting the option of ordering a permanent guardianship
  to cases only in which adoption is not an available alternative is a
  question to be resolved by the Legislature.  In its statement of policy
  accompanying the act, the Legislature stated:

 

    The creation of a permanent guardianship for minors will provide
    the  opportunity for a child, whose circumstances make adoption or
    return  to the care of the parents not reasonably possible, to be
    placed in a  stable and nurturing home for the duration of the
    child's minority.   The creation of permanent guardianship offers
    the additional benefit  of permitting continued contact between a
    child and the child's  parents.  A permanent guardianship would be
    a last resort only when  the options of return to the parents and
    adoption have been fully  explored and ruled out based on clear
    and convincing evidence.

  1999, No. 162 (Adj. Sess.), § 1 (emphasis added).  The court in this case
  expressed frustration at its  inability to order a permanent placement for
  the girls that would not be subject to modification, but  would allow for
  continuing contact with the parents.  We note that the Legislature will
  have the  opportunity to revisit the question of its limitation on the
  availability of permanent guardianship in  the near future, for the Act
  contained a sunset provision terminating the Act on June 30, 2003.  See 
  1999, No. 162 (Adj. Sess.), § 3.  However, as it stands, the statute
  plainly would not apply to the  facts of this case. 

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  The mother's rights were also terminated, and she has not appealed
  from the court's  decision.