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In re C.F., Juvenile

Supreme Court of Vermont

February 27, 2015

In re C.F., Juvenile

On Appeal from Superior Court, Chittenden Unit, Family Division Linda Levitt, J.

Michael Rose, St. Albans, for Appellant Mother.

Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Appellee Juvenile.

William H. Sorrell, Attorney General, Montpelier, and Martha E. Csala and Katherine D. Lucier, Assistant Attorneys General, Waterbury, for Appellee State.

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

REIBER, C.J.

¶1. Mother appeals a decision of the superior court, family division terminating her parental rights with respect to her son, C.F. She argues that the decision, which was based in part on the family division’s view that C.F. has an immediate need for permanency, is irrational in light of the court’s contemporaneous decision not to terminate the parental rights of C.F.’s father. Although C.F. originally filed the termination petition, which was later joined by the Department for Children and Families (DCF), and did not appeal the family division’s decision to terminate mother’s parental rights, he also has filed a brief asking this Court to reverse that decision based on the court’s failure to solicit the opinions of C.F.’s attorney and guardian ad litem (GAL) at the termination hearing. We affirm.

¶ 2. The family division’s findings, which are not in dispute in this appeal, reveal the following facts. C.F. was born in January 2011. In May 2013, as the result of his parents’ addiction to heroin, C.F. was found to be a child in need of care or supervision (CHINS) and was placed in the conditional custody of his paternal grandmother, with whom he had been living since December 2012. At the time C.F. came into DCF custody, mother had not been actively parenting him. She had struggled with a heroin addiction for over a decade from the time she was nineteen years old. As the result of her drug use, mother has a lengthy criminal record and has had periods of incarceration. She also has mental health problems that went unaddressed until shortly before the termination hearing.

¶ 3. When DCF was granted custody of C.F. in May 2013, mother and father were together and homeless. The family division eventually issued a no-contact order between mother and C.F. because of mother’s ongoing heroin use and failure to engage in treatment. For most of the time between May 2013 and April 2014, mother’s whereabouts were unknown. She did not attend court hearings regarding C.F. and did not engage in the DCF case plan adopted by the court.

¶ 4. In February 2014, C.F.’s attorney filed a petition seeking termination of mother’s and father’s parental rights. In March 2014, mother was incarcerated as the result of an outstanding arrest warrant that listed twenty-seven pending charges against her. While incarcerated, mother attended a residential drug-treatment program. She was admitted to the program in mid-March 2014 and discharged the following month, at which time she agreed to participate in the treatment court program. In April 2014, DCF joined the termination petition filed by C.F.’s attorney. At the time of the termination hearing in August 2014, the twenty-seven charges against mother were still pending, and she was awaiting a change-of-plea hearing. Mother did not request that the no-contact order with C.F. be lifted until the day of the termination hearing.

¶ 5. For his part, father made little or no progress toward reunification with C.F. during 2013, but then began making significant progress beginning in January 2014 when he returned to a residential drug-treatment program. From then until the termination hearing, he was engaged in drug treatment, was compliant with probation conditions, and helped his mother with C.F.’s daily care.

¶ 6. Following the termination hearing, the family division issued two orders one day apart. In the first order, the court granted the termination petition as to mother, concluding that she had not played a constructive role in C.F.’s life and would not be able to resume her parental duties within a reasonable time from C.F.’s perspective because of her long history of relapse into drug addiction. In the second order, the court denied the termination petition as to father, concluding that in recent months he had played a constructive role in C.F.’s life and showed signs of being able to resume his parental duties within a reasonable period of time.

¶ 7. Mother appeals the family division’s first order, arguing that the order is irrational in light of the second order. C.F. did not file a notice of appeal of either order, but has filed a brief joining mother’s brief and asking this Court to reverse the family division’s order as to mother. He argues that the court failed to ask C.F.’s attorney and GAL to give their opinions as to whether termination of mother’s parental rights was in his best interests.

¶ 8. We first examine mother’s argument. She contends that the family division’s decision to terminate her parental rights is irrational, and thus constitutes an abuse of discretion because: (1) it terminates her parental rights in part due to C.F.’s need for permanency, and yet at the same time delays permanency for C.F. by not terminating father’s parental rights; and (2) it foresees the real possibility of father resuming his parental responsibility for C.F., and yet terminates her parental rights despite father’s testimony that he had recently reconciled with mother. In mother’s view, it makes no sense to terminate her parental rights at this juncture when the court will hold another hearing in the future to assess ...


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