In re S.B.

In re S.B., Juvenile (2001-542); 174 Vt. 427; 800 A.2d 476

[Filed 02-May-2002]
   
                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-542

                              APRIL TERM, 2002


In re S.B., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
                                       }	Chittenden Family Court
                                       }	
                                       }
                                       }	DOCKET NO. 126-3-99 Cnjv

                                                Trial Judge: James R. Crucitti

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


       S.B., a sixteen-year-old juvenile, and her mother appeal the family
  court's order terminating   mother's residual parental rights with respect
  to S.B.  We affirm.

       S.B. was born on August 1, 1985.  Her half-sister, A.B., was born on
  April 3, 1992.  Mother  moved with her daughters from North Carolina to
  Vermont in 1998 to reestablish a relationship with  an old boyfriend. 
  Within a few months, the Department of Social and Rehabilitation Services
  (SRS)  began providing services to the family to address issues concerning
  neglect and abuse.  In 1999, S.B.  was sexually molested by mother's new
  husband.  This was at least the second time that S.B. had  been sexually
  abused while under mother's care.  Later that year, SRS substantiated that
  S.B. had  sexually abused A.B.  In June 1999, S.B. and A.B. were found to
  be children in need of care or  supervision (CHINS).  The parties
  stipulated to a plan of services with a goal of reunification, and  the
  family court incorporated the plan into a one-year protective supervision
  order.  The girls were  placed with the mother over SRS's objection.

       Mother left Vermont and returned to North Carolina in August 1999, in
  violation of the  protective order.  SRS enlisted the help of North
  Carolina police to locate the children.  Authorities  found the children
  living in a trailer behind a bar with friends of mother, who was in jail. 
  S.B. had  been suspended from school for striking a teacher, and both girls
  were infected with lice.  SRS  brought the children back to Vermont in
  February 2000 and sought approval for their placement in  North Carolina,
  but the North Carolina social services agency denied the request in August
  2000,  citing, among other things, mother's untruthfulness regarding her
  participation in services.  After the  denial of the North Carolina
  placement, mother refused to return to Vermont to participate in  services
  and work on a reunification plan.  In September 2000, SRS changed its case
  plan goal from  reunification to termination of parental rights.  The
  termination hearing was held in August 2001.

 

       S.B. experienced difficulty in foster care after returning to Vermont
  in February 2000.  The  sexual abuse she had suffered and her mother's
  lifestyle had left her with a number of emotional and  behavioral problems
  that were resistant to treatment.  She spent varying amounts of time at a 
  residential treatment facility for girls.  Shortly before the termination
  hearing, S.B. ran away from  her foster home, and was again placed at the
  residential treatment center.  At the time the termination  hearing was
  held, S.B. took no position as to whether mother's rights should be
  terminated.  She  indicated to her attorney and guardian ad litem that she
  would let the family court decide what  should happen to her.  After the
  hearing, but before the family court rendered its decision, S.B. met  with
  her mother.  Following the meeting, she notified the court that she opposed
  the termination of  mother's parental rights, and that she would not
  consent to being adopted by her foster parents.  In a  letter addressed to
  her attorney and the court, she stated that her mother had changed, and
  that she  wanted to go home to her.  Mother also filed a motion to reopen
  the proceedings to allow S.B. to  testify.

       In its November 21, 2001 decision, the court denied mother's request
  to reopen the  proceedings to allow S.B. to testify, noting that S.B.'s
  guardian had been opposed to S.B. testifying  during the hearing, and that
  the potential emotional toll on S.B. greatly outweighed the value of 
  testimony that was subject to extreme internal and external pressures.  The
  court indicated, however,  that it would consider S.B.'s request in
  examining the statutory "best interest" factors set forth in 33  V.S.A. §
  5540.  While recognizing that a girl of S.B.'s age would want to remain
  with her mother,  the court found it telling that after one visit with
  mother - the first in over eighteen months -  S.B.  believed that mother
  had changed, albeit at her own pace rather than in response to SRS's 
  expectations.  After examining the statutory factors, the court concluded
  that stagnation had  occurred, and that the child's best interests
  warranted terminating mother's parental rights.

       S.B. appeals the family court's order, and mother joins in her appeal
  without filing a separate  brief.  No party is challenging the termination
  of mother's parental rights with respect to A.B.  S.B.  argues that the
  family court issued a purposeless termination order as the result of its
  failure to give  due consideration to her desire to remain with her mother. 
  She complains that, without seeing her or  receiving any evaluations of the
  psychological impact of termination on her, the court dismissed her 
  preference against termination without giving it due consideration,
  notwithstanding that she was  sixteen years old and capable of knowing her
  own mind.  S.B. points out that, under Vermont law,  she cannot be adopted
  without her consent, see 15A V.S.A. § 2-401(c) (unless court dispenses with 
  minor's consent, petition to adopt minor fourteen years of age or older may
  be granted only if,  among other things, minor has consented to adoption),
  and thus the chances of the termination order  leading to her being adopted
  are slim at best.    She contends that the court's termination order 
  condemns her to a world of legal limbo, which neither provides permanency
  nor allows her contact  with her mother.  In her view, the order has no
  purpose and is likely to be counterproductive.

       In considering these arguments, we first note that this is not a
  custody case in which the   family court is weighing which parent or
  guardian will be best able to serve the needs of the child;  rather, this
  is a legislatively created termination proceeding in which the court is
  required to weigh  specified statutory factors when determining whether to
  grant a petition for termination of residual  parental rights.  See 33
  V.S.A. § 5540; see also In re B.L.L., 787 A.2d 1007, 1012-14 (Pa. Super.
  Ct.  2001) (comparing significance of child's preference in custody and
  termination proceedings).   Unlike statutes in some states, § 5540 does not
  specify whether the family court must consider the 

 

  preferences of older children.  Cf. Cal. Welf. & Inst. Code §
  366.26(c)(1)(B) (certain circumstances  constitute sufficient basis for
  termination of parental rights unless court finds compelling reason for 
  determining that termination would be detrimental to child for specified
  reasons, including that child  twelve years of age or older objects to
  termination); Iowa Code § 232.116(3)(b) (court need not  terminate parental
  rights if child is over ten years of age and objects to termination); Me.
  Rev. Stat.  Ann. tit. 22, § 4055(3) (court "shall consider, but is not
  bound by, the wishes of a child 12 years of  age or older in making order"
  in termination proceeding); Ohio Rev. Code Ann. § 2151.41.4(D)(2)  (in
  determining best interest of child at termination hearing, court shall
  consider all relevant factors,  including, but not limited to, child's
  wishes, giving due regard to child's maturity); Va. Code Ann. § 
  16.1-283(G) (residual parental rights shall not be terminated if child,
  fourteen years of age older or  otherwise of age of discretion, objects to
  such termination).

       We conclude that the family court may consider an older child's
  preference when it examines  the first and fourth factors set forth in §
  5540, which pertain to the child's relationship with her  natural and
  foster parents and the type of role that the natural parents have played in
  the child's life.   As we have stated on numerous occasions, however, the
  most important of the statutory factors is the  third one - whether the
  parents will be able to resume their parental duties within a reasonable
  period  of time.  See In re B.M., 165 Vt. 331, 336, 682 A.2d 477, 480
  (1996).  Undoubtedly, as the statutes  cited above suggest, there are those
  who believe that the preference of an older child should be a  significant
  consideration in termination proceedings.  But our Legislature has not
  emphasized that  factor among the stated statutory criteria, and thus we
  decline to give it inordinate weight,  particularly because its
  significance is an issue better resolved through the legislative process. 
  See  generally W. Mlyniec, A Judge's Ethical Dilemma: Assessing a Child's
  Capacity to Choose, 64  Fordham L. Rev. 1873 (1996) (discussing child
  development theory and children's decision-making  capacity, and
  recommending process for reaching ethical decisions concerning children's
  preferences  in court proceedings pertaining to custody, adoption,
  abortion, medical treatment, and delinquency).

       Our role is not to second-guess the family court or to reweigh the
  evidence, but rather to  determine whether the court abused its discretion
  in terminating mother's parental rights with respect  to S.B.,
  notwithstanding S.B.'s stated opposition to termination.  See In re A.W.,
  K.W., & A.T., 167  Vt. 601, 603, 708 A.2d 910, 913 (1998) (mem.) (family
  court's termination order resulting from  modification proceeding will be
  upheld if clear and convincing evidence supports findings, which, in  turn,
  support conclusions); In re R.F., 135 Vt. 275, 276, 376 A.2d 38, 40 (1977)
  (family court's  decision in modification proceeding will not be set aside
  absent showing that court's discretion was  exercised on grounds clearly
  untenable or to extent clearly unreasonable).  The court's unchallenged 
  findings demonstrate that (1) mother substantially neglected the girls over
  the years, thereby  exposing them to physical and sexual abuse and
  resulting in significant harm to their emotional and  psychological
  well-being; (2) mother has consistently resisted participating in services
  aimed at  addressing family problems and repairing the relationships
  between family members; (3) mother has  demonstrated no insight into the
  negative impact she has had on her children; and (4) since the  children
  were returned to Vermont in February 2000, mother has visited them only
  once and spoken  to them by telephone only inconsistently, despite having
  the time and resources to visit and  communicate with them on a more
  regular basis.  Based on these and other findings, the court 

 

  concluded that mother has never played, at least for any substantial period
  of time, a constructive  role in the children's lives.

       The court carefully weighed each of the statutory best-interest
  factors, keeping in mind S.B.'s  stated desires, and ultimately concluded
  that termination of mother's parental rights was in S.B's  best interests. 
  The court acknowledged the understandable turmoil S.B. was experiencing,
  but noted  that S.B. was asking to go home with her mother - clearly not a
  possibility in the near future - based  on the belief, reached after one
  meeting with mother, that mother had changed.  S.B. cannot point to  any
  evidence presented at the termination hearing, however, demonstrating that
  mother had in fact  changed or made any progress toward reunification. 
  Upon review of the record, we conclude that the  court acted within its
  discretion in terminating mother's parental rights with respect to S.B., 
  notwithstanding S.B.'s stated opposition to termination and her desire to
  reunite with her mother.   Cf. Cameron v. Cameron, 137 Vt. 12, 14, 398 A.2d 294, 295 (1979) (children's preferences must  yield to paramount
  consideration of their well-being); In re Frederick P., 779 A.2d 957, 962
  (Me.  2001) (after considering older children's doubts as to termination of
  their mother's parental rights,  trial court acted within its discretion in
  determining that termination would be in children's best  interest because
  of adverse effect mother would have on children in light of her
  manipulative nature  and self-centered focus).

       The situation here is unlike that in In re M.P., 542 N.W.2d 71 (Minn.
  Ct. App. 1996), a case  relied upon by S.B.  There, the court reversed and
  remanded a termination order because "the trial  court did not make even
  conclusory findings tying the termination decision with the children's best 
  interests," and, more specifically, failed to indicate how it factored into
  its termination decision the  stated desire of the 15-year-old juvenile
  that her mother's parental rights not be terminated.  Id. at 75.  The court
  concluded that, without findings, it was unable to review the juvenile's
  claim that the trial  court failed to give her preference sufficient
  weight.  Id.  A year later, in another case, the same court  rejected a
  similar argument, stating that, unlike the trial court in M.P., the trial
  court in that case  considered, but rejected, the juvenile's preference
  against termination.  In re D.J.N., 568 N.W.2d 170, 177 (Minn. Ct. App.
  1997) (trial court's findings, including finding that termination order 
  would allow juvenile to enjoy remaining four years of his childhood without
  acting as surrogate  parent, demonstrated that court examined juvenile's
  best interests while considering his stated  preference against
  termination).  As in D.J.N., the family court here considered, but
  ultimately  rejected, S.B.'s stated preference.

       As for S.B.'s claim that the termination order serves no purpose, the
  family court expressed its  belief that its order concluding the
  termination proceedings would allow S.B. to get beyond the  turmoil she had
  been experiencing and to refocus on school and her community.  S.B.
  contends the  termination order will not free her for adoption because she
  can refuse to be adopted.  That may be  so, but S.B.'s feelings about
  adoption may change with time.  In any event, we have repeatedly  stated
  "that a valid termination of parental rights does not depend on the
  availability of permanent  foster care or adoption."  In re D.M., 162 Vt.
  33, 40, 641 A.2d 774, 778 (1994); see In re E.B. &  J.B., 158 Vt. 8, 15,
  603 A.2d 373, 377 (1992) (termination of residual parental rights does not 
  depend on alternative placement).

 

       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