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In re A.W.

Supreme Court of Vermont

November 1, 2013

In re A.W. and J.W., Juveniles

Motion for Reargument Denied November 14, 2013.

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Lamoille Unit, Family Division. A. Gregory Rainville, J.

Michael Rose, St. Albans, for Appellant.

William H. Sorrell, Attorney General, Montpelier, and Joseph L. Winn, Assistant Attorney General, Waterbury, for Appellee.

Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Burgess, J. (Ret.), Specially Assigned.

OPINION

Page 509

SKOGLUND, J.

[¶ 1] Father appeals the family court's denial of his motion to modify a final order terminating his parental rights to his children, A.W. and J.W., born in November 2000 and October 2006, respectively. On appeal, father argues that there are changed circumstances sufficient to modify or set aside the termination decision and that the court's basis for denial in this case lacked evidentiary support. We affirm.

[¶ 2] In August 2012, the family court issued an order terminating father's parental rights to his daughters, A.W. and J.W., and denying termination as to father's older child, a son, E.W. The court acknowledged that father had made improvements by engaging in substance-abuse treatment and counseling. However, the court noted his extensive criminal history and past history of failed supervision and that his inability to maintain compliance with the requirements of release on furlough created a substantial risk he would reoffend and again be unable to care for the children.[1] Moreover, the court found that father's relationship with his daughters was " not entirely positive" and needed substantial work for which there was insufficient time because of the girls' need for permanency in their lives. The court found that the girls had an excellent connection with and adjustment to their current home with their grandmother. The court concluded that father would not be able to parent the children within a reasonable period of time.[2] Father appealed the termination of his parental rights to his daughters, and this Court affirmed. In re A.W., No. 2012-321, 64 A.3d 1249, 2013 WL 2631291 (Vt. April 10, 2013) (3-Justice unpub. mem.).

[¶ 3] Two days before this Court's decision issued, father filed a motion to modify or set aside the termination order. Father argued that one year had elapsed since evidence was taken at the termination hearing and that his positive " turnaround" had continued since that time. Father requested a modification of the termination decision to allow him to " strengthen the bond with his two youngest children." The family court denied the motion based on this Court's affirmance of the termination decision. Father then filed a motion to reconsider with an accompanying affidavit. Father averred that he was maintaining his sobriety and employment, and had established a strong and positive relationship with A.W. and J.W. through visits two or three times a week. On May 2, 2013, the court denied the motion without a hearing, stating that it was " not in the children's best interest, after living a stable and nurtured relationship for two and a half years with their grandmother, to be returned to the custody of their father." The court noted father's significant progress, but explained that there was still a substantial risk that father would relapse or reoffend, resulting in incarceration. Father appeals.

[¶ 4] A provision in the juvenile statutes, 33 V.S.A. § 5113, delineates when an existing order in a child-neglect proceeding may be modified. Section 5113(a) states that an order of the court may be set aside in accordance with Vermont Rule of Civil Procedure 60. In addition, " the Court may amend, modify, set aside, or vacate an ...


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