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In re D.S.

Supreme Court of Vermont

April 25, 2014

In re D.S., Juvenile; In re M.H., Juvenile

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, Franklin Unit, Family Division. James R. Crucitti, J.

Michael Rose, St. Albans, for Appellant (13-311).

Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Appellant (13-312).

William H. Sorrell, Attorney General, and Martha E. Csala, Assistant Attorney General, Montpelier, for Appellee.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.

OPINION

Reiber, C.J.

[¶1] Mark, the father of D.S., and Todd, the father of M.H., appeal from the trial court's order terminating their residual parental rights.[*] We affirm the court's decision.

[¶2] D.S. was born in December 2007. M.H. was born in May 2009. The children share the same mother. Both fathers have extensive criminal records and have been incarcerated for most of their children's lives.

[¶3] The Department for Children and Families (DCF) became involved with the family in December 2008 based on concerns of substance abuse, sexualized behavior, domestic violence, and neglect. DCF opened a case and began working with mother to address these and other issues. In January 2012, the children were taken into custody pursuant to an emergency care order. Shortly thereafter, the court issued a temporary care order continuing DCF custody. At the time, both fathers were incarcerated and facing numerous criminal charges.

[¶4] In July 2012, mother stipulated that the children were in need of care or supervision. An amended disposition report provided a concurrent goal of reunification with mother and adoption. All parties, including the fathers, agreed to this plan at the disposition hearing. DCF subsequently moved to terminate parents' rights. Shortly thereafter, Todd filed a motion to transfer custody of both children to his mother. Following a hearing, the court denied this motion, and it terminated both fathers' rights. Mother voluntarily relinquished her parental rights.

[¶5] The court made the following findings. Mark was in federal prison when D.S. was born. His criminal record reflects six felony convictions, twenty-four misdemeanor convictions, and twenty-one violation-of-probation complaints. His crimes include domestic assault, grand larceny, numerous convictions for driving under the influence (DUI), and possession of marijuana. In January/February 2012, Mark returned to jail pending charges for sexual assault on a victim less than sixteen years of age, furnishing alcohol to minors, and lewd and lascivious conduct with a child. He also had pending charges for DUI, fourth offense, and operating a vehicle without the owner's consent, stemming from a September 2011 auto accident. He was in jail at the time of the June 2013 termination hearing.

[¶6] Mark has a significant temper problem when drinking, and he had been prescribed Xanax to help with his anger problem. Mark preferred to illegally smoke marijuana instead of taking Xanax because Xanax made him drowsy and he believed that marijuana better helped him with his anger and anxiety. The court expressed significant concern that Mark would not take his medication to control his anger in the future. It noted that Mark had ...


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