On Appeal from Superior Court, Essex Unit, Family Division M. Kathleen Manley, J.
Michael Rose, St. Albans, for Appellant Father.
William H. Sorrell, Attorney General, and Elizabeth M. Tisher, Assistant Attorney General, Montpelier, for Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Father appeals an order of the superior court, family division, terminating his parental rights with respect to his son, M.W. He contends that his extended pre-trial incarceration cannot support the family court's termination order. We affirm.
¶ 2. The facts are not in dispute. M.W. was born in August 2010. M.W. lived with his young parents in the maternal grandparents' home for several months before moving into an apartment that the maternal grandfather built over a garage located fifty feet from the grandparents' home. During the approximately three years that the parents lived there, the mother and her parents were M.W.'s primary caregivers, as father worked two jobs and was away from the home much of the time.
¶ 3. On October 8, 2013, father was arrested and charged with four counts of aggravated sexual assault on minors under the age of thirteen and four counts of lewd and lascivious conduct with a child. Father was also charged with two counts of obstructing justice, one count of violating an abuse prevention order, and one count of violating conditions of release. M.W. was not the putative victim of any of the charged crimes. Ten of the twelve counts are felonies, the most serious of which-aggravated sexual assault on a minor under the age of thirteen-has a potential life sentence with a mandatory minimum of ten years to serve. The lewd-and-lascivious-conduct counts have a mandatory minimum sentence of two years to serve. The Department for Children and Families (DCF) substantiated father for abuse based on the conduct that led to the criminal charges. Father administratively appealed the substantiation, and that appeal has been stayed pending resolution of the criminal charges.
¶ 4. On two occasions, father was denied bail on his criminal charges, the first time based on the criminal division's conclusion that the evidence of guilt was great, and the second time, in February 2014, based on the criminal division's determination that the evidence of guilt was great and that there was clear and convincing evidence that father's release would pose a substantial threat of physical violence to someone. Father did not appeal the denial of bail, and he remained in jail awaiting trial at the time of the termination hearing in August 2015.
¶ 5. Meanwhile, in July 2014, the State filed a petition alleging that M.W. was a child in need of care or supervision (CHINS) due to the fact that he was the victim of unexplained, non-accidental injuries while in the mother's care. That same month, the mother stipulated to an adjudication of CHINS. Custody of M.W. was transferred to DCF, and the boy was placed with the maternal grandparents, with whom he has lived ever since. DCF initially developed a disposition plan with concurrent goals of reunification with the mother or adoption. DCF later outlined an amended plan describing what father would need to do before being considered for reunification, including submitting to a psychosexual evaluation, engaging in parent education, and getting reintroduced to M.W. But before that plan was submitted to the family court for consideration, DCF changed the case plan to the singular goal of adoption.
¶ 6. At a December 2014 hearing, DCF and the juvenile's attorney opposed father- child contact, citing M.W.'s emotional state and the fact that M.W. had not seen father since a thirty-minute December 2013 prison visit. The parties agreed, however, that father could send M.W. letters that would be screened by DCF and forwarded to the grandparents for them to determine when it would be appropriate to show the letters to M.W. That same month, DCF filed a petition to terminate the mother's and father's parental rights. Mother voluntarily relinquished her parental rights conditioned on father's parental rights being terminated, and on August 26, 2015, the family court held an initial disposition hearing in which the State sought termination of father's parental rights.
¶ 7. At the termination hearing, the State presented testimony from father, M.W.'s maternal grandfather, and M.W.'s DCF caseworker. Father also testified briefly on his own behalf and presented testimony of the DCF caseworker who had been assigned to him when he was in DCF custody. Father testified that he did not know when he would be brought to trial on the pending charges. A trial date in father's criminal case was scheduled for October 29, 2015, at the time of the termination hearing, but previously scheduled trial dates had been continued on a number of occasions, and in fact his trial is now scheduled for mid-April 2016. At the termination hearing, a DCF caseworker testified, among other things, that M.W., who had been severely traumatized, was fearful of leaving his grandparents and did not remember father. She opined that M.W. needed to know that he was going to be able to remain with his grandparents, with whom he was "joined at the hip."
¶ 8. Following the presentation of evidence, the family court made findings and conclusions from the bench before determining that terminating father's parental rights was in M.W.'s best interests. The court focused on the most critical of the best-interests criteria- whether father would be able to resume his parental duties within a reasonable period of time from the perspective of M.W. See 33 V.S.A. § 5114(a) (stating best-interests criteria); see also In re B.M., 165 Vt. 331, 337, 682 A.2d 477, 480 (1996) (stating that "we have repeatedly emphasized" that whether parental rights can be resumed within reasonable time from child's perspective is "the most critical factor in a termination-of-parental-rights case").
¶ 9. The court found that the two years during which M.W. had not seen father was a significant period of time for M.W., considering the child's age and needs. The court pointed out that even if father's trial were held as scheduled on October 29 and father was acquitted of all twelve charges, he would still face the substantiation of abuse that he had administratively appealed. The court further stated that if the substantiation was upheld on appeal, father would be required to undergo a psychosexual evaluation, and, in any event, would have to engage in parent education before being reintroduced to M.W. Indeed, as the court noted, father ...