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In re T.M.

Supreme Court of Vermont

February 12, 2016

In re T.M. and A.M., Juveniles

On Appeal from Superior Court, Windsor Unit, Family Division Howard A. Kalfus, Acting J., Specially Assigned

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Appellant Father.

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

Michael Rose, St. Albans, for Appellees Juveniles.

PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morris, Supr. J. (Ret.), Specially Assigned


¶ 1. Father appeals an order of the superior court, family division, terminating his parental rights with respect to his two children, A.M. and T.M. We conclude that the State failed to meet its threshold burden of demonstrating by clear and convincing evidence that sufficient changed circumstances existed to modify the previous disposition order establishing concurrent goals of reunification and adoption and accordingly reverse.[1]

¶ 2. A.M. was born in January 2011, and T.M. was born in September 2012. T.M. has a diagnosis of spina bifida (split spine), a permanent birth defect that causes nerve damage and other disabilities. The Department for Families and Children (DCF) first became involved with the family in the summer of 2012 after a conditional custody order (CCO) was issued because of concerns over the parents' drug use, particularly the mother's use while pregnant with T.M. The CCO required the parents to be substance free, to participate in counseling, and to follow through with T.M.'s medical appointments and A.M.'s daycare. The parents were successful with the CCO, and it was discharged in May 2013; however, DCF maintained an open case with the family, which involved home visits and a family safety plan.

¶ 3. In the fall of 2013, DCF began having renewed concerns about the family because of missed medical appointments for T.M., inconsistent daycare, the mother's depression, and father's admission to using alcohol and marijuana. DCF sought a court hearing to determine the best way to address its concerns. When DCF called father to advise him that a court date was set, he threatened to remove the children to Florida. At that point, DCF sought emergency custody and filed a petition alleging that the children were in need of care or supervision (CHINS). On February 21, 2014, the court issued an order transferring custody of the children to DCF. At the April 2, 2014 merits hearing, the mother and father stipulated to a finding of CHINS, agreeing "that the children were and are in need of care and supervision due to their parents' substance use and how it interferes with parenting of the children."

¶ 4. Two days after the court's merits order, and before the disposition hearing, father checked in to the Brattleboro Retreat for detoxification. He began Suboxone treatment while at the Retreat and continued that treatment at an outpatient facility immediately after his April 10, 2014 discharge.

¶ 5. The court's May 12, 2014 disposition order continued legal custody of the children with DCF, maintained their kinship placement with the paternal grandmother, and established concurrent case plan goals of either reunification with the parents or adoption. The plan required parents to find appropriate housing and to establish financial stability through employment and Medicaid benefits. In addition, they were to engage in "the appropriate level of treatment with clinicians experienced in the outlined areas of need." In particular, the plan required father to continue his daily Suboxone treatment, to continue all substance abuse treatment and follow all recommendations, to provide DCF with regular urine screens, and to continue his individual therapy. It also required him to demonstrate an ability to supervise and monitor the children appropriately, to demonstrate an ability to put their needs before his own, and to work with a parent educator in Family Time Coaching to gain a better understanding of the children's needs. The disposition case plan identified November 2014 as an estimated date for achieving the case plan goals.

¶ 6. On October 31, 2014, DCF filed a petition to terminate the mother's and father's parental rights as to both children. At a January 2015 hearing, mother voluntarily relinquished her parental rights to the children.

¶ 7. Around the time of DCF's termination petitions, the children's current foster parents began providing respite care. That care extended to six days a week by the end of December, and in March 2015 the former respite caregivers officially became the children's foster parents.

ΒΆ 8. The court held an evidentiary hearing on August 10 and 11, 2015. We review the evidence presented at that hearing in detail below. At the conclusion of that hearing, the court terminated father's parental rights. The court concluded that, although father had made significant progress in certain areas of his life, his continued substance use amounted to stagnation and thus constituted changed circumstances warranting reconsideration of the plan of reunification. The court further concluded that father's use of illicit substances and his failure to take responsibility for that conduct precluded him from being able to assume parental duties within a reasonable period of ...

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