In re T.T., Juvenile

In re T.T., Juvenile (2004-465); 178 Vt. 496; 872 A.2d 334

2005 VT 30

[Filed 22-Feb-2005]
                                                                        
                                 ENTRY ORDER

                                 2005 VT 30

                      SUPREME COURT DOCKET NO. 2004-465

                             FEBRUARY TERM, 2005


  In re T.T., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
       	                               }	Rutland Family Court
                                       }	
  	                               }
                                       }	DOCKET NO. 158-9-01 RdJv

                                                Trial Judge: Paul F. Hudson

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

       ¶  1.  Mother appeals the family court's order terminating her
  parental rights with respect to her son T.T. and denying the motion for
  custody filed by T.T.'s paternal grandparent.  We affirm.

       ¶  2.  T.T. was born on September 7, 2001 and taken into custody a
  week later by the Department of Children and Families (DCF).  Mother was
  incarcerated at the time of T.T.'s birth.  The father denied paternity
  until genetic testing confirmed it in December 2001.  In February 2002, the
  family court declared T.T. to be a child in need of care or supervision
  (CHINS) based on the admissions of the father and mother, both of whom had
  histories of chronic substance abuse and incarceration.  At the initial
  disposition hearing in March 2002, the court adopted the Department's
  recommendation that DCF continue to have custody of T.T. while it pursued
  reunification with mother.  In August 2002, the Department changed its case
  plan goal to termination of parental rights (TPR) because mother was unable
  to overcome her substance abuse problems.  The Department filed its
  termination petition in January 2003, and in June of that year, the court
  granted the paternal grandfather's motion for party status.  The
  termination hearing was held May 10-12, 2004.  On the first day of hearing,
  the grandfather, who had been involved in the proceeding with respect to
  visitation issues, filed a motion for custody of T.T.  He had already been
  given custody of T.T.'s two siblings in 1999 and 2000 before he and his
  wife of twenty-six years divorced.
   
       ¶  3.  Following three days of testimony, the court terminated
  mother's parental rights and denied the grandfather's motion for custody. 
  With respect to the termination petition, the court examined the four
  criteria contained in 33 V.S.A. § 5540 and concluded, among other things,
  that (1) neither the father nor mother would be able to resume their
  parental duties within a reasonable time; and (2) both parents essentially
  conceded that they could not, and would not be able to, care for T.T.  As
  for the grandfather's motion, the court examined the options in 33 V.S.A. §
  5528(3) and concluded that he was not qualified to assume custody of T.T.
  because he delayed in seeking to be the foster care provider for T.T. at a
  time when the infant was bonding with his current foster family, and
  because he failed to appreciate T.T.'s needs concerning any proposed
  transfer of custody from the foster family to him.  According to the court,
  T.T.'s best interests required that he remain with the family who had
  provided him with security, stability, and care for most of his life.

       ¶  4.  Only mother has appealed the family court's order.  She first
  argues that the court's decision to terminate her parental rights does not
  comport with its objective of providing stability to T.T. while allowing
  him to continue a relationship with his siblings, who have already been
  placed in the grandfather's custody.  According to mother, the court's
  statement that the foster family had promised to continue T.T.'s
  relationship with his grandfather and siblings demonstrates the court's
  misunderstanding of the legal import of a termination order, which cuts off
  all legal ties between T.T. and his siblings.  In mother's view, given the
  court's acknowledgment that T.T. has benefitted from having a relationship
  with his grandfather and siblings, guardianship of some kind makes more
  sense than termination, which leaves T.T. exposed to the uncertainties of
  the foster care system.

       ¶  5.  We find these arguments unavailing.  When the family court is
  presented with a petition by DCF for custody of a child without limitation
  as to adoption, and the court finds changed circumstances, it is required
  by statute to weigh the best-interest-of-the-child factors contained in 33
  V.S.A. § 5540 to determine whether termination of parental rights is
  warranted.  Here, the court examined each of the statutory factors,
  including the most significant one-whether the parents would be able to
  resume their parental duties within a reasonable period of time, see In re
  M.M., 159 Vt. 517, 523, 621 A.2d 1276, 1280 (1993)-and determined that
  termination of parental rights was in T.T.'s best interests.  The evidence
  overwhelmingly supports the court's determination that the parents had
  failed to play a constructive role in T.T.'s life and that they would be
  unable to resume parental duties within a reasonable time.  See 33 V.S.A. §
  5540(3), (4).  Indeed, the father and mother conceded that they could not
  care for T.T. and would not be able to do so in the foreseeable future.

       ¶  6.  Further, the evidence with respect to § 5540's first two
  criteria-the child's relationship with his foster parents, siblings, and
  others and his adjustment to his home, school, and community-also supports
  the family court's termination decision.  As the court emphasized, the
  foster parents had cared for T.T. for most of his young life, nursing him
  through needed physical therapy and becoming his psychological parents in
  the process.  See In re J.M., 160 Vt. 146, 150, 624 A.2d 362, 364 (1993)
  (court's findings under § 5540(1) were not based on improper weighing of
  child's bond with foster family, but rather on testimony that biological
  parents were unable to care for child and that foster parents had become
  child's psychological parents).  The court found that the foster parents
  wanted to provide T.T. with the permanence he needed, while still
  maintaining a relationship between him, his siblings, and his grandfather. 
  In contrast, as the court noted, T.T.'s relationship with his grandfather
  and siblings was more in the nature of playmates rather than family.  In
  short, each of the statutory criteria supports the family court's
  termination order.
        
       ¶  7.  Mother's call for a guardianship arrangement is unconvincing,
  given T.T.'s tender age.  In any event, once the family court applies the
  criteria in § 5540 and determines that the child's best interests warrant
  giving the State custody of the child without limitation as to adoption,
  the court need not revisit the permanency hearing options contained in 33
  V.S.A. § 5531(d) and explain why it is choosing termination of parental
  rights over other options enumerated therein.  Having made its termination
  decision on the basis of clear and convincing evidence, the court was not
  required to address the alternative disposition of long-term foster care
  through a guardianship.  As for mother's concern that nothing is preventing
  the foster parents from backing out of their commitments to T.T.,
  "[j]uvenile proceedings often involve difficult predictions about the
  future.  Best judgment, rather than perfection, is our standard."  In re
  J.D., 165 Vt. 440,  444-45, 685 A.2d 1095, 1099 (1996).  Besides, an
  alternative placement is not a prerequisite to termination of parental
  rights.  See In re E.B., 158 Vt. 8, 14-15, 603 A.2d 373, 377 (1992).

       ¶  8.  Mother also argues that the family court's conclusions
  regarding the grandfather's perceived faults are unsupported by its
  findings and the evidence.  While we find support in the record for the
  court's conclusions that grandfather delayed in becoming involved in T.T.'s
  life and failed to appreciate fully the child's needs regarding any
  proposed change of custody, we need not address this issue because mother
  has no legal interest in challenging the court's denial of the
  grandfather's motion for custody.  Mother apparently believes that if the
  court erred in deciding that the children should be placed with the foster
  parents rather than the grandfather, that error should prevent termination
  of her parental rights.  In fact, the issues are separate, and claims about
  how the court evaluated the grandfather's request for custody should be
  addressed, if at all, in an appeal by the grandfather.  The grandfather did
  not, however, appeal the court's decision.  As explained above, the court's
  termination order is supported by clear and convincing evidence.  Hence,
  mother's legal interest in T.T. is terminated, and she has no legal basis
  for challenging the court's ensuing custody order.

       Affirmed.

                                       BY THE COURT:


                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned

                                       _______________________________________
                                       Ernest W. Gibson III, Associate 
                                       Justice (Ret.),Specially Assigned