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In re B.K.

Supreme Court of Vermont

November 9, 2017

In re B.K. and L.K., Juveniles

         On Appeal from Superior Court, Caledonia Unit, Family Division Robert R. Bent, J.

          Michael Rose, St. Albans, for Appellant Father.

          Thomas J. Donovan, Jr., Attorney General, Montpelier, and Martha E. Csala, Assistant Attorney General, Waterbury, for Appellee.

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

          CARROLL, J.

         ¶ 1. Father appeals the termination of his parental rights to B.K., age 9, and L.K., age 11. We reverse and remand for further proceedings.

         ¶ 2. This case began in July 2014 when the Department for Children and Families (DCF) filed a petition alleging that B.K. and L.K., who were then six and seven years old respectively, were children in need of care or supervision (CHINS). In September 2014, the parents stipulated to a CHINS adjudication, which was adopted by the family court. In the stipulation, the parents admitted that over the previous four years they had not engaged in recommended services for domestic violence and substance abuse, and that the children had suffered severe trauma due to witnessing violence in the home and had frequent unexcused absences and tardiness from school during the 2013-14 school year. The court approved a case plan with concurrent goals of reunification with mother and father or adoption, with interim custody with DCF. The case plan called for father to participate in parenting classes and domestic violence treatment, and for mother to participate in substance abuse and mental health treatment.

         ¶ 3. Father made significant progress toward the case plan goals. He attended and completed a batterers intervention program, participated in other parenting classes, and successfully completed Family Time Coaching. His substance abuse assessment was negative, but he continued to engage in therapy. He had regular unsupervised visits with B.K. and L.K. He initially struggled to find housing, but eventually secured adequate housing and steady employment. Mother, by contrast, attended visits and therapy inconsistently. She was incarcerated for a period in 2015. Since December 2015, mother has had no contact with the children.

         ¶ 4. Both L.K. and B.K. had significant behavioral issues. A January 2015 trauma evaluation report identified early exposure to trauma, parental substance abuse and domestic violence, and chaotic living conditions as some of the sources of their problems. At that time, L.K. displayed trauma symptoms including anxiety, hypervigilance, anger, aggression, and defiance. Even after living in foster care for months, L.K. continued to exhibit troubling behavior, such as smearing feces all over the walls, eating feces, and masturbating excessively and in public. She sometimes wet herself prior to and during visits with father. She continued to demonstrate anger, defiance, and aggression, and was fixated on sex and men. B.K.'s behavioral issues were less extreme, but she was also defiant and oppositional. The children were extremely aggressive towards each other. Their fighting frequently escalated prior to visits with their father, although this pattern had improved somewhat over time.

         ¶ 5. The children's therapists agreed that they needed consistent, structured care to address their needs. L.K.'s therapist believed that extensive contact with father would undermine these goals. A psychologist who evaluated father in October 2016 agreed that father was unable to meet the children's needs on a full-time basis, and that the best long-term placement for the children was their foster home. However, she found that father played a constructive role in their lives and recommended that they continue to have monthly contact with him. The psychologist opined that the children had already suffered a loss in not having contact with their mother and that, if they were unable to continue to see their father, it would be devastating to them. She recommended that the children and father have contact at least once per month.

         ¶ 6. In April 2016, DCF filed petitions to terminate the parental rights of both parents. The court held a three-day hearing in November and December 2016. In March 2017, the family court issued a written decision in which it granted termination of mother's rights but denied the petition as to father.[1] The court stated that father had made progress, but it did not believe that father would ever be able to "effectively parent these high needs children." It determined that father would not be able to resume parental duties within a reasonable time, given the children's need for permanency and consistency. However, the court found that father played a constructive role in the children's lives and that it would not be in their best interests to lose father as they had mother. It noted that while the foster father was friendly toward father, the foster mother was "not welcoming" to father and had expressed reluctance to allow visitation with him more than four times a year if the girls were adopted. In the absence of a post-adoption contract, [2] which would require the foster parents' consent, the court could not guarantee that father would continue to have the monthly parent-child contact recommended by the psychologist who evaluated father. The court acknowledged that the most important factor in the best-interests analysis was whether father could resume parental responsibilities within a reasonable time. However, it found that in this case, father's loving parental bond with the children outweighed the other factors. The court therefore concluded that termination of father's rights was not in the best interests of the children.

         ¶ 7. DCF timely filed a motion to alter or amend the decision pursuant to V.R.C.P. 59(e), arguing that the court improperly weighed the evidence. The court held a hearing on the motion on June 8, 2017. At the beginning of the hearing, the court stated that it would give the parties an opportunity to present evidence. DCF's attorney responded that there was no evidence to present and that "this is purely a legal argument." He argued that the court's denial of the termination petition denied the children permanency. The children's attorney likewise stated that permanency was her primary concern and that she had "heard a rumor" that the children would not be able to remain in their current placement if adoption were not possible. After hearing from father's attorney, who opposed DCF's motion, the court expressed concern that it had not heard from the foster parents. It questioned why the children could not be placed into a permanent guardianship. DCF's attorney stated that the foster parents would lose important subsidies and Medicaid if they could not adopt.

         ¶ 8. The court then asked to hear from the foster mother. She stated that the children had recently expressed a desire to be adopted and to be part of their family. She said that B.K. called the foster parents "mom" and "dad, " and L.K. was starting to do so as well. She said that she had no intention of cutting father out of the children's life. She indicated that a permanent guardianship would be an unsatisfactory solution because father could legally seek increased visitation, which they would likely have to hire a lawyer to oppose, and they were living on limited income. The court then stated, "I'm going to just stop-just so you understand. I am treating [foster mother's] statements as ...

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