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In Re C.P.

December 7, 2012


On Appeal from Superior Court, Orleans Unit, Family Division September Term, 2012 Robert R. Bent, J.

The opinion of the court was delivered by: Dooley, J.

In re C.P. (2012-057 and 2012-191)

2012 VT 100

Supreme Court

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

¶ 1. This decision resolves two consolidated appeals related to family division proceedings involving juvenile C.P. First, mother and father appeal termination of their parental rights to their son C.P., born in November 2009. Father argues that the court lacked subject matter jurisdiction to adjudicate the termination proceeding. Mother joins father's jurisdictional argument and also contends that the evidence and findings do not support the conclusion that termination is in C.P.'s best interests. Second, father challenges the court's post-termination order striking a sentence of the termination decision, and finding that the Department for Children and Families (DCF) made reasonable efforts toward achieving the permanency plan goal of reunifying C.P. with his parents. We affirm.

¶ 2. C.P. was born in Plattsburgh, New York, which is about twenty miles south of Mooers, the rural community in New York state where mother and father live. Mother and father reside at father's mother's home with several adult family members, all of whom are disabled to some degree and one of whom has a history of sexually abusing others. Mother was known to the New York Department of Social Services (DSS) prior to C.P.'s birth because she has some emotional dysregulation and receives adult protective services. During mother's pregnancy, DSS employees observed mother having an emotional meltdown. DSS then worked with mother to develop a safety plan to be implemented following the baby's birth. The plan required father's mother to provide supervision for mother and baby and precluded mother from being left alone with the baby. The plan was imposed following C.P.'s birth. On April 19, 2010, an altercation occurred between mother and father's mother, and the police responded. Father's family reported that mother had grabbed C.P.'s arm and had covered C.P.'s mouth with hers to stop him from crying.

¶ 3. Mother left that home and initially went to stay with her mother, but she was unable to remain there. Because mother could not care for the baby on her own, DSS sought a placement for C.P. DSS contacted mother's sister in Morgan, Vermont, and she agreed to take in both mother and C.P. On April 21, C.P.'s aunt traveled to New York and signed an agreement, which explained that because mother could become easily frustrated and anxious with the baby, she could not be left as the sole caretaker of C.P. The aunt, C.P., and mother then returned to Vermont with the intent that the child would reside indefinitely in the aunt's home. During mother's stay, C.P.'s aunt observed that mother was unwilling to attend to C.P. and focused more on reestablishing her relationship with father. C.P.'s aunt and her teenage daughter took care of C.P., changing his diapers and feeding him.

¶ 4. On April 24, the aunt learned that father and his mother planned to pick up mother and take her back to father's mother's home in New York. Apparently, mother and the aunt were not getting along. When father arrived, the aunt told father to take mother, but that based on her understanding of the agreement she had signed with DSS, she could not let father take C.P. The aunt called Vermont DCF, and the DCF investigator spoke to both mother and the aunt. When the DCF investigator came to the house, mother was already gone, but C.P. remained. On April 26, DCF filed a petition for custody and an emergency care order, which was granted based on mother's abandonment of C.P. At the temporary care hearing a couple of days later, the court established father's paternity of C.P., continued DCF custody and granted parents visitation.

¶ 5. DCF filed a petition alleging that C.P. was a child in need of care or supervision (CHINS) based on two grounds--mother's abandonment of C.P. and her failure to provide parental care. In October 2010, mother stipulated that C.P. was CHINS because she had not arranged for proper medical care when she left C.P. with his aunt. The preliminary case plan set concurrent goals of reunification and adoption. It called for mother and father to find appropriate work, to visit C.P. regularly, to work with a parent educator, and to obtain mental health counseling. A disposition report filed in November 2010 recommended termination of the parental rights of both the mother and father. DCF followed up with a formal petition to terminate in the disposition order.

¶ 6. During the period leading up to the disposition hearing, visits between parents and C.P. took place in Newport, Vermont, which is 90 to 110 miles from where parents live--about a two-hour drive. Initially, the visits were scheduled for an hour twice a week, but due to parents' unreliable transportation and difficulty finding a supervisor, the visits were changed to two hours once a week. Parents had problems securing transportation to the visits and missed 41% of their visits between July 2010 and July 2011.

¶ 7. A developmental assessment of C.P. was conducted in May 2010. It concluded that C.P. had delayed physical development. Within three weeks of being at the aunt's house, he made three months' worth of progress. By a year later, a similar assessment indicated that C.P. was developing normally, except for speech and language difficulties that were being addressed.

¶ 8. A forensic psychologist evaluated mother and father in the spring of 2011. The psychologist concluded that mother "would not be able to adapt her mode of parenting as the child grew" and "would find it difficult to take the negative 'feedback' an unhappy child would express, and that she would require a substantial degree of external support." The psychologist concluded that mother and father would both need assistance in completing daily skills and would need to be monitored. The psychologist determined that father could not successfully care for C.P. without "substantial supports."

¶ 9. The court held a disposition/termination hearing over two days in August and September 2011. At the hearing, testimony was presented by the DSS case worker, C.P.'s aunt and uncle, father's mother, a parent educator, mother and father. In addition, the court received deposition testimony from the forensic psychologist.

¶ 10. Based on the evidence, the trial court concluded that termination of parental rights was in C.P.'s best interests. The court examined the statutory best-interests factors, including C.P.'s relationship with parents and caregivers, C.P.'s adjustment to his current situation, the role parents play in C.P.'s life and the likelihood parents will be able to resume parenting within a reasonable period of time. See 33 V.S.A. § 5114 (listing best-interests factors). The court found that C.P. has a close bond with his foster family, particularly his aunt and teenage cousin. In contrast, the court found that C.P. does not have a strong relationship with his parents and sees them "as strangers." C.P. is well adjusted to his current home and would need "very competent and supportive parenting" to adapt to a new family without substantial harm. C.P.'s parents love him, but do not play a constructive role in his life. Finally, parents will not be able to resume parental duties within a reasonable period of time. The court explained that although mother had made some personal strides forward, her relationship with C.P. has suffered and parents lack a suitable home for C.P. Thus, the court granted termination of the parental rights of both mother and father on January 5, 2012.

ΒΆ 11. The court's order also stated "This Court does not find that DCF used reasonable efforts to reunify [C.P.] with his parents. If the Department wishes further hearing on this issue it may so request." On February 17, 2012, DCF moved for an additional hearing. The court discussed the matter at a February 27 permanency planning review and again on April 9, 2012. No additional evidence was taken on the matter. On April 27, 2012, the court issued an order, finding based on the evidence submitted during the termination hearing that DCF had made reasonable efforts to finalize a concurrent permanency plan for C.P. As to the efforts to reunify C.P. with his parents, the court listed the following acts by DCF: facilitating parent-child contact, providing parents with a parent educator, completing an assessment of C.P. for developmental delays, having an interstate home study of parent's home in New York ...

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