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In Re D.C.

December 21, 2012


On Appeal from Superior Court, Washington Unit, Family Division

The opinion of the court was delivered by: ¶ 1. Dooley, J.

Supreme Court

In re D.C., Juvenile


2012 VT 108

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

Mother appeals the decision of the superior court, family division, terminating her parental rights to her son, D.C. We affirm.

¶ 2. D.C. was born in May 2005. He spent the first two years of his life with both parents, who were not married. When his parents separated in 2007, the father took D.C. to stay with him. Although a child-custody order granted mother parental rights and responsibilities, she allowed father to take the child because she had difficulty finding a residence and she knew that father had the support of his mother in caring for D.C. This arrangement lasted until the end of 2009, when mother obtained police assistance to assert her custodial rights over D.C.

¶ 3. Two weeks later, after mother had moved into a motel with D.C., the Department for Children and Families (DCF) filed a petition alleging that D.C. was a child in need of care or supervision (CHINS) due to a lack of proper parental care. The affidavit in support of the petition stated that: (1) five years earlier mother's parental rights had been terminated with respect to an older child because of unsafe and unsanitary living conditions and the child's exposure to the risk of being sexually abused; (2) mother had a relationship with a known, untreated sex offender who had been seen frequently with mother at her motel room; (3) the motel room was filthy and unsanitary; (4) D.C. was suffering from an untreated respiratory illness; and (5) school officials had reported D.C. arriving at school hungry and not dressed properly for the cold.

¶ 4. At a temporary care hearing, the family court issued a conditional custody order giving the father temporary legal custody of D.C. The parents entered into a merits stipulation that D.C. was in need of care or supervision. A disposition case plan was prepared, and at the April 1, 2010 disposition hearing, the parents and D.C. agreed to, and the court approved, an initial disposition plan that continued conditional custody with the father. Although the court approved a case plan goal of returning custody to the father, it did not enter a written disposition order.

¶ 5. In September 2010, DCF moved to amend the disposition plan on the grounds that the father had been arrested for aggravated assault and robbery, and had left D.C. in the custody of a person whose own children had been the subject of termination proceedings. At an October 2010 hearing on the motion, both parents agreed to conditional custody of D.C. with the father's mother.

¶ 6. At a periodic review hearing in September 2011, D.C.'s paternal grandmother indicated that she was interested in adopting D.C. Unfortunately, the grandmother died two months later, and D.C. was placed in DCF custody. Since January 2012, D.C. has been in the foster home of a woman who had been employed for the previous thirteen years in the public school system as a paraeducator for special-needs children.

¶ 7. DCF's February 2012 permanency plan for D.C. recommended termination of parental rights (TPR), and in April 2012, DCF filed a termination petition. The hearing on DCF's petition was held on June 28, 2012. At the beginning of the hearing, the father relinquished his parental rights. The family court noted that DCF's initial disposition case plan had not set forth a goal of reunification with mother and had not identified any expectations or services for mother. Rather, the plan merely noted that mother would have the opportunity to visit with D.C. and expressed the hope that she would begin to make better choices and be able to become more involved in D.C.'s life.

¶ 8. Although the State indicated that it was asking for termination as a modification of the disposition order, the court expressed uncertainty about how to analyze the question of whether there had been stagnation when DCF had never made mother the subject of any reunification efforts. D.C.'s counsel agreed that the procedural posture of the case was more akin to seeking termination of parental rights at initial disposition rather than modifying an earlier order. Opining that an initial-disposition analysis would place the highest burden on the State, the court asked mother's counsel for his opinion. He responded: "We agree."

ΒΆ 9. On July 12, 2012, the family court issued its decision terminating mother's parental rights. The court noted that the parties had agreed at the termination hearing that the appropriate procedural posture was to treat the case as a TPR petition at the initial disposition stage, given that the initial disposition plan had called for reunification only with the father, who had voluntarily relinquished his parental rights. The court then skipped over the threshold ...

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