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In re A.W.

Supreme Court of Vermont

February 20, 2014

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

Editorial Note:

This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic 2nd Reporter

Appeal from: Superior Court, Orleans Fam. Division. DOCKET NOS. 29/30-4-11 Osjv. Trial Judge: M. Kathleen Manley.

John A. Dooley, Associate Justice, Beth Robinson, Associate Justice, Geoffrey W. Crawford, Associate Justice.



[¶ 1] In the above-entitled cause, the Clerk will enter:

[¶ 2] Father appeals the termination of his parental rights with respect to his two daughters, Am.W. and Al.W. We affirm.

[¶ 3] Father does not challenge the lion's share of the findings made by the superior court, family division. The unchallenged findings reveal the following facts. Am.W. and Al.W. were born in July 2008 and September 2010, respectively. Two weeks after Al.W.'s birth, father, who had been living with the mother and Am.W. for the previous two years, was incarcerated in New York on drug and firearms charges. The mother was the primary caregiver during those two years. Both parents were abusing controlled substances, including heroin. In April 2011, the children were taken into state custody on an emergency basis due to unexplained bruising and lacerations on the head, face, gums, and legs of Al.W. Both the mother and her new companion were substantiated for physical abuse, and the children were found to be children in need of care or supervision (CHINS) and placed with a foster family, with whom they still live.

[¶ 4] In July 2011, Am.W. told her foster family that her paternal grandfather had touched her vagina in a manner that caused pain and bleeding. The Department for Children and Families (DCF) substantiated abuse by the grandfather, but the Human Services Board eventually overturned that substantiation. Shortly after Am.W.'s disclosure of sexual abuse, a medical examination revealed physical evidence of the abuse. The court credited the examiner's testimony that there was a high likelihood of sexual assault, but could not make a definitive finding on the identity of the perpetrator.

[¶ 5] Meanwhile, a disposition hearing that had commenced in July 2011 was continued to September 2011, by which time father had been released from prison based on a plea agreement. DCF's original disposition plan called for concurrent goals of reunification with the mother or adoption, but by the second day of the disposition hearing DCF was advocating for termination of parental rights. Father, however, requested an opportunity to reunite with the children, and DCF developed a new case plan that included reunification with him. In November 2011, the court approved the new plan, which required father to: (1) refrain from drug use, participate in a substance-abuse assessment, follow treatment recommendations, and sign all release forms to allow DCF to monitor his progress; (2) participate in a mental health assessment, obtain mental health counseling to help him process the abuse endured by the children and to understand how his own conduct had affected the children's lives, and sign all releases regarding his treatment; (3) visit the children regularly, meet with service providers to gain a better understanding of how to ease himself into the children's lives, and develop and maintain a healthy attachment with his children. Because of the children's young ages and the fact that they had already been in DCF custody for over six months, the plan anticipated father needing to achieve these goals within the next several months.

[¶ 6] Things went relatively well at first. Father visited the children regularly, and his supervised contact increased from one hour a week to two-to-three hours twice a week. He met with the family time coach, the foster parents, and a DCF social worker at monthly shared parenting meetings. He was living with his father at the time, however, which was an impediment to his having unsupervised visitation with his daughters at his home. Moreover, as his contacts with the children increased, Am.W. became more distressed, resisted going to the visits, had tantrums, and engaged in self-harming behaviors. Father had problems handling both children at the same time, and persisted in arguing with Am.W. about her allegations that his father had sexually abused her, even after service providers advised him to acknowledge her statements and assure her that she was safe rather than to question the truth of what she was saying. He focused more on his distress about the way Am.W was treating him than he did on trying to understand what was happening.

[¶ 7] In April 2012, father got his own apartment, and unsupervised visitation began, with the restriction that no one was to be in the apartment with father when the girls were visiting. Shortly after the unsupervised visits started, however, Am.W.'s anxieties increased, resulting in tantrums and vomiting before the contact began, nightmares, behavioral problems in school, and her retreating into a fantasy world. The visits were terminated in May 2012 after Am.W. reported that father had slapped Al.W. and that a man without a shirt on had been in the apartment. Father denied the accusations, and the court made no finding on whether the incidents actually occurred. Nonetheless, the court found that whatever happened during the three weeks of unsupervised visitation, it had created heightened anxieties for both children, to the extent that it negatively impacted their emotional and physical health.

[¶ 8] Contacts between father and the children in the community began again in June 2012. Both children resisted the contact, with Al.W screaming and crying that she did not want to get out of the car, and Am.W. acting angry and telling father that she did not want to be there. Father continued to struggle with how to interact with the children, and upset them by telling them that the foster parents were not their parents. During these visits, the children turned to the family time coach for reassurance and soothing.

[¶ 9] Throughout 2012 and 2013, Am.W. repeatedly talked about the sexual abuse and needed constant assurances that she was safe in various settings. Due to the level of Am.W.'s anxieties, DCF arranged for an evaluation to assess those anxieties and develop a plan to address them. The resulting assessment confirmed the observations of others that Am.W. had ongoing chronic trauma associated with a chaotic living environment, parental substance abuse, domestic abuse, and physical and sexual abuse, resulting in high anxiety levels, interrupted sleep patterns, dissociative fantasies, vomiting, and self-harming behaviors. The court found that Am.W.'s trauma required specialized ...

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