In re S.W.

In re S.W. (2003-278); 176 Vt. 517; 833 A.2d 879

2003 VT 90

[Filed 02-Oct-2003]

                                 ENTRY ORDER

                                 2003 VT 90

                      SUPREME COURT DOCKET NO. 2003-278

                             OCTOBER TERM, 2003


  In re S.W., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
       	                               }	Bennington Family Court
                                       }	
  	                               }
                                       }	DOCKET NO. 233-12-01 Bnjv

                                                Trial Judge: Ellen H. Maloney

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

       ¶  1.  Father appeals from the family court's order terminating his
  residual parental rights over his daughter S.W.  Father argues that the
  court erred in concluding that his progress toward parenting had stagnated
  even though he had substantially complied with the services and
  expectations of the case plan.  We affirm.

       ¶  2.  S.W. was born in December 1999.  Father was thirty-one at the
  time of S.W.'s birth; mother was seventeen and in SRS custody.  S.W. has
  been in and out of SRS custody since April 2000 based on mother's lack of
  parenting skills.  Father has been incarcerated since December 2001 for
  assaulting mother.  In June 2002, S.W. was adjudicated a child in need of
  care and supervision (CHINS) and placed with her current foster family.  In
  its initial case plans, SRS sought reunification of S.W. with mother.  The
  case plans did not contemplate S.W.'s reunification with father. SRS
  prepared a disposition plan in August 2002 that contained the same goal of
  S.W.'s reunification with mother as well as a requirement that father
  complete any programming required by the Department of Corrections and
  maintain regular contact with S.W.'s social worker. 
   
       ¶  3.  In November 2002, SRS changed its case plan goal from
  reunification to adoption and filed a petition to terminate parental
  rights.  Mother voluntarily relinquished her parental rights, and after a
  hearing, the family court terminated father's rights.  The court concluded
  there had been a substantial change in material circumstances because
  father's progress had stagnated.  The court found that father had shown
  little improvement in his parenting ability during the fifteen months since
  S.W. had been adjudicated CHINS.  The court rejected father's assertion
  that his ongoing compliance with the case plan precluded a stagnation
  finding.  First, the court explained, father had not complied with the case
  plan because he had not completed the programming required by the
  Department of Corrections and would not be able to do so until at least
  February 2005.  The court found the completion of these programs essential
  to father's ability to parent.  Second, the court explained that father's
  to-date compliance with prison programming did not necessarily signify a
  meaningful improvement in his ability to properly care for S.W.  The court
  found that even if father showed some improvement, a finding of stagnation
  was appropriate because it was unlikely that father could resume parental
  duties within a reasonable period of time due to his incarceration, his
  vulnerability for reincarceration, his need for substantial parenting
  education, and the lack of any parent-child bond.  Thus, the court
  concluded that a change in material circumstances had occurred, and after
  weighing the factors set out in 33 V.S.A. § 5540, it concluded that
  termination was in S.W.'s best interests.  Father appealed.      

       ¶  4.  When the termination of parental rights is sought, the trial
  court must conduct a two-step analysis.  In re B.W., 162 Vt. 287, 291, 648 A.2d 652, 654-55 (1994); 33 V.S.A. § 5532(a).  The court must first find
  that there has been a substantial change in material circumstances; second,
  the court must find that termination of parental rights is in the child's
  best interests.  Id.  A substantial change in material circumstances is
  most often found when a parent's ability to care for a child "has either
  stagnated or deteriorated over the passage of time."  Id. (internal
  quotation marks and citation omitted).  "Stagnation may be shown by the
  passage of time with no improvement in parental capacity to care properly
  for the child."  Id. (internal quotation marks and citation omitted). 
  However, "the mere fact that a parent has shown some progress in some
  aspects of his or her life does not preclude a finding of changed
  circumstances warranting modification of a previous disposition order." 
  Id.  (internal quotation marks and citations omitted).  On appeal, we will
  affirm the trial court's findings in support of changed circumstances
  unless they are clearly erroneous, and we will affirm its conclusion if
  supported by the findings.  In re B.S., 166 Vt. 345, 350, 693 A.2d 716, 719
  (1997).
   
       ¶  5.  Father argues that the court erred in concluding there was
  stagnation because he has fully complied with the court-approved case plan. 
  He argues that there were no findings or evidence that his pace of
  compliance or the pace and direction of progress were other than originally
  expected.  Therefore,  he argues, the court's conclusion was unsupported
  and erroneous as a matter of law.

       ¶  6.  We disagree.  First, the trial court found that father had
  not substantially complied with the case plan.  Contrary to father's
  assertion, his continued participation in DOC programming does not preclude
  the court from concluding that there was insufficient progress.  We
  explained in In re D.B., 161 Vt. 217, 219, 635 A.2d 1207, 1209 (1993), a
  case on which father relies, that the change in circumstances that will
  result in a finding of stagnation is the failure of the expectation that
  parental ability will improve within a reasonable time after the CHINS
  adjudication. We explained that the question is not whether the parent has
  shown any improvement in their parenting skills, but instead "whether the
  improvement substantially conformed with the expectations at the time of
  the CHINS adjudication and with SRS's case plan."  Id. at 220, 635 A.2d  at
  1209-1210.  We note that the case plan involved here did not contemplate
  S.W.'s reunification with father, but was related solely to reunification
  with mother.  
        
       ¶  7.  The family court determined that father's parenting ability
  had not improved during the fifteen months since S.W. was adjudicated
  CHINS, and it was unlikely that he would be able to resume his parenting
  abilities within a reasonable period of time.  This conclusion is supported
  by the evidence.  As the trial court found, father has been incarcerated
  since S.W. was one and a half years old.  He will not be released from
  prison until at least February 2004, and the likelihood that he will be
  sent back to prison is not remote.  Father has a history of committing
  violent offenses, including assaulting S.W.'s mother in S.W.'s presence. 
  Father has not yet completed programming deemed essential to his ability to
  adequately parent S.W.  Father argues that his inability to complete the
  DOC programming as of the date of the termination hearing was a factor
  beyond his control, and thus was an inappropriate basis for finding
  stagnation.  However, the trial court found that, even if father were to
  meet and complete his Department of Corrections requirements, there were
  other ingredients to parenting, such as a substantial amount of parenting
  education and education on child development, as well as the establishment
  of a parent-child bond, that would be required before S.W. could be safely
  placed with father.  As the trial court pointed out, the controlling
  standard under 33 V.S.A. § 5532(a) is the best interests of the child.  See
  In re Cr. M., 163 Vt. 542, 547, 659 A.2d 1159, 1163 (1995).  The record
  supports the court's finding that fifteen months had passed with little
  expectation that father would be able to parent S.W. within a reasonable
  period of time.  See In re B.W., 162 Vt. at 291-292, 648 A.2d  at 655.  The
  court's conclusion was supported by the evidence.

       Affirmed.    


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice