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In re D.S.

Supreme Court of Vermont

March 25, 2016

In re D.S., Juvenile

On Appeal from Superior Court, Caledonia Unit, Family Division

Matthew Valerio, Defender General, and Sarah Star, Appellate Defender, Montpelier, for Appellant Mother.

Michael Rose, St. Albans, for Appellant Father.

William H. Sorrell, Attorney General, and Benjamin D. Battles, Assistant Attorney General, Montpelier, for Appellee

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

DOOLEY, J.

¶ 1. Mother and father separately appeal from a family court judgment terminating their parental rights to the minor D.S. Both parents contend the court erred in: (1) failing to hold an evidentiary hearing on the issue of whether to transfer custody of D.S. to the State following his birth; and (2) barring relitigation of factual findings from an earlier CHINS adjudication concerning D.S. and termination-of-parental rights proceeding concerning D.S.'s siblings. Father also contends the court erred in terminating his parental rights based on factors beyond his control. We affirm.

¶ 2. In March 2014, a CHINS petition as to D.S. was filed shortly before his birth based on the parents' pattern of neglect of his older siblings. The court issued a temporary emergency care order on March 21, 2014, ordering that D.S. be taken into custody by the Department for Children and Families. D.S. was born a few days later, on March 24, 2014, and the court held a hearing on March 26, 2014.[1]

¶ 3. Counsel for both parents were present at the hearing. The State requested continued custody of D.S. and placement with a foster family in the same town where two of his siblings were placed. Counsel for both parents argued for a conditional care order placing D.S. with mother, citing the importance of her bonding with the newborn. Mother's attorney noted that she had been in discussions with DCF, stated that mother had "fashioned a plan which we could probably discuss with DCF after this hearing, " and later explained that the plan involved mother spending time with D.S under the supervision, and with the assistance of, a variety of child care providers and social service agencies, including Family Time and Children's Integrative Services. The court and the parties also discussed the possibility of a Lund placement, assuming that mother was willing to apply.

¶ 4. The court agreed with parents on the need for contact, and indicated that it would hold a contested evidentiary hearing if parents wished, but declined to issue a conditional care order placing the child with mother, citing the lack of success of prior conditional care orders involving D.S.'s siblings. The court expressed its strong expectation, however, that DCF would ensure that D.S. had regular contact with mother until an alternative was found. An order issued by the court that day maintained custody with the State, and directed DCF to make a referral to Lund if mother was willing. The court noted that a further pre-trial conference was scheduled in two weeks, and informed counsel that "if you want to contested (sic) conditional care order, you can let me know."

¶ 5. A number of status conferences and preliminary hearings followed in which mother's attorney withdrew and a substitute attorney was appointed. A case plan filed in September 2014 noted that mother had refused to complete the Lund application or visit the facility. At no time following the March 26, 2014 hearing did either parent request a contested evidentiary hearing on the conditional care order.

¶ 6. Over the course of several days in September and October 2014, the court held a combined merits hearing as to D.S. and termination-of-parental-rights hearing as to his four older siblings. In January 2015, the court issued a written decision adjudicating D.S. to be CHINS, by clear and convincing evidence, based largely on the lengthy record of the parents' neglect of D.S.'s siblings, their inability to maintain a home free from extreme filth and safety risks, mother's failure to address her extensive mental health issues, and both parents' extensive history of substance abuse. The court also issued a separate order terminating mother's and father's parental rights to the older children. This Court affirmed both orders. In In re D.S., 2015 WL 3767188, at *4; In re L.W., No. 2015-028, 2015 WL 3756796, at * 5 (Vt. June 12, 2015) (unpub. mem.), https://www.vermontjudiciary.org/LC/unpusblishedeo.aspx.

¶ 7. We note that the D.S. decision addressed in a limited way the temporary care order issued on March 26, 2014. Mother argued that the failure to award her custody under the temporary care order "deprived her of a fundamental right." 2015 WL 3767188, at *3. In response, we stated that the placement was not part of the appeal and had not been appealed separately. We declined to consider it. Id.

ΒΆ 8. In February 2015, DCF filed a disposition plan with an initial goal of adoption, citing mother's refusal to complete the Lund application, to participate in other recommended services, and to maintain regular visitation. The plan also indicated that father had failed to utilize services or develop skills to properly parent D.S. The court held a termination-of-parental rights hearing over the course of three days in October 2015. Prior to the hearing, the court granted the State's motion in limine, ruling that the ...


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