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In re A.S.

Supreme Court of Vermont

September 26, 2014

In re A.S. and E.S., 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 Reporter.

Appeal from: Superior Court, Wash. Fam. Division. DOCKET NO. 153/154-12-10 Wnjv. Trial Judge: Devine.

Dooley, Skoglund, and Robinson, JJ.


In the above-entitled cause, the Clerk will enter:

Father appeals from the superior court's order terminating his parental rights with respect to his children, A.S., born in March 2007, and E.S., born in March 2008. We affirm.

Father and the children's mother, who voluntarily relinquished her parental rights on the first day of the termination hearing conditioned upon father's rights being terminated, married in 2007. During their marriage, the children were exposed to a high level of parental conflict, including verbal and physical abuse. Both A.S. and E.S. have profound special needs. A.S. has autism and developmental delays, while E.S. has global developmental delays and autism. Before the Department for Children and Families (DCF) became involved with them, the family was receiving a number of services, including occupational therapy and in-home developmental teaching. The service providers reported that, upon arriving at the family's home, they often found the children strapped into booster seats in front of a blaring television. At three years old, A.S. was pre-verbal and not toilet-trained.

DCF first became involved with the family in June 2010 after police responded to a report of a domestic altercation at the family's residence. Father began calling DCF after hours, leaving long, rambling messages threatening legal action against the Department based on its interference with his family. In late 2010, when father announced that he was removing the children from services, DCF filed a petition alleging that the children were in need of care or supervision (CHINS). The parents entered admissions to CHINS in January 2011. By that time, father had left the family home, and the parents were separated. Pending disposition, the children remained with mother under a conditional custody order.

Father did not appear at the disposition hearing held in February 2011. The court approved a disposition case plan that continued the conditional custody order and set a goal of restoring full custody to the mother. Services for father included individual therapy, domestic violence education, and supervised visitation. Father did not engage in services or participate in hearings for the next several months. DCF's increasing concern that the mother was not engaging in the case plan came to a head in July 2011, when E.S. was found by a stranger walking along the Paine Turnpike in Berlin, Vermont. There were indications that mother had been drinking at the time. DCF was granted custody of the children following this incident.

Father began having supervised visits with the children through the Family Time Coaching program in August 2011. Meanwhile, the children went through several foster placements because of their specialized needs. At age five, A.S. still did not maintain eye contact or respond to her name and was able to speak only a few words. She had the developmental level of a two or three-year old and displayed self-stimulating behavior. At age four, E.S. continued to display behaviors consistent with autism and had a developmental level of an eighteen-month-old child. The occupational therapist who conducted the children's evaluations attributed at least some of the children's developmental delays to early childhood trauma and the absence of important interactions during crucial stages of their childhood.

Father did not engage in individual counseling as required by the case plan until early 2012, and then quit after attending five appointments. He began counseling again shortly before the termination hearing. By May 2012, father was once again leaving long, ranting messages with DCF. In June 2012, father submitted to cognitive and psychological testing. During the interview with the evaluator, he revealed that he had been raised by a mentally ill mother who had been hospitalized on numerous occasions, that he was beaten regularly by his father, and that he had been sexually abused by an adult male when he was five years old. Father also described a history of significant substance abuse. The evaluator concluded that the test results were consistent with someone experiencing severe mental disorder. The evaluator further concluded that because father tended to present himself in an unrealistically positive light, he would not be highly motivated to seek mental health treatment.

At an August 2012 permanency review hearing, the superior court approved a case plan with concurrent goals of adoption or reunification with either parent. The new case plan called for father, among other things, to follow the recommendations of the psychological evaluation of him conducted in June 2012, attend individual therapy on a weekly basis, and work with service providers to help him engage with A.S. and E.S. and learn how to care for them.

In July 2013, the court granted father's request to expand visits to full days and then eventually overnights. The children, however, displayed negative behaviors at home and at school following the extended visits. Of particular concern were reports of sexualized behaviors by both children. Father denied that he inflicted any physical or sexual abuse on the children during the unsupervised visits. The children were not brought in for medical exams, and there is no direct evidence of any physical or sexual abuse.

In February 2013, DCF filed petitions to terminate each parent's parental rights. The termination hearing took place over three days in September 2013. Following the hearing, the court terminated father's parental rights, concluding that stagnation had occurred because of father's lack of progress in being able to care for the children and that the children's best interests warranted terminating his parental rights. The court found that despite a succession of coaches and over one hundred hours of supervised contact, father's ability to care for the children for extended blocks of time remained in doubt because of his lack of insight into the children's specialized needs and his unrealistic assessment of his own abilities to address those needs. The court found that father had not made progress in addressing his own mental health needs and had not made strong connections with service providers critical to his children's needs. The court concluded that given the uncertainty over whether father would be able to make progress toward addressing his own significant mental health ...

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