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In re D.F.

Supreme Court of Vermont

December 14, 2018

In re D.F., H.F., M.F. and D.F., Juveniles

          On Appeal from Superior Court, Addison Unit, Family Division Helen M. Toor, J.

          Sarah R. Star of Sarah R. Star, P.C., Middlebury, for Appellant Father.

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

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Grearson, Supr. J., Specially Assigned

          ROBINSON, J.

         ¶ 1. Father appeals termination of his parental rights to his four children. On appeal, father raises three arguments regarding the court's termination decision: (1) the termination of parental rights (TPR) petition was premature because the three-month period for reunification provided for in the case plan had not expired and the Department for Children and Families (DCF) had not made reasonable efforts to reunify father with the children insofar as it refused to make the children available for expanded visitation that would have enabled reunification to occur; (2) the evidence does not support the court's determinations that father's progress had stagnated and that father would not be able to parent in a reasonable period of time; and (3) several specific findings are unsupported by the evidence. He separately appeals the trial court's "reasonable efforts" finding. We affirm.

         ¶ 2. The relevant procedural and factual background is as follows. Father and mother were married for ten years and had four children, Dy.F., born in April 2006, H.F., born in March 2007, M.F., born in February 2009, and Da.F., born in February 2010. DCF has been involved with the family since the children were born.

         ¶ 3. In June 2016, the State filed a petition alleging that the children were in need of care or supervision (CHINS) due to allegations of medical neglect, unsanitary conditions in the home, neglect of the children's hygiene, verbal abuse of the children by father, and verbal and physical abuse of mother by father.

         ¶ 4. The court transferred custody to DCF. In August 2016, parents stipulated to the merits of the CHINS petition, agreeing that they were not meeting the children's medical needs, that mother's unmet mental-health issues left her unable to protect the children from risk of harm, and father's preoccupation with mother prevented him from meeting the children's needs. DCF's proposed disposition case plan called for concurrent goals of reunification with mother or adoption. By the time of the initial case plan, mother was residing separately from father and living with a boyfriend in New Hampshire. The plan of services called for father to, among other things, complete a batterer's intervention program during which it would be expected that he would acknowledge his history of violence and demonstrate how to safely parent his children without the use of violence. Although father did not oppose many of the expectations in the case plan, he denied that he engaged in domestic abuse and would not agree to the proposed case plan requiring that he complete domestic-violence programming.

         ¶ 5. After a contested disposition hearing, on December 22, 2016, the court found by a preponderance of the evidence that father engaged in a pattern of domestic abuse, directed primarily at mother, that father on at least one occasion physically abused mother, and that there was a "clear pattern of emotional abuse and controlling behavior." Consequently, the case plan adopted by the court at disposition called for father to complete the Domestic Violence to Responsible Choices (DVRC) program, in addition to more than a dozen other expectations. The concurrent case-plan goals approved by the court were reunification with mother or with father or adoption.[1]

         ¶ 6. Father engaged in the required programming and attended weekly visits supervised by WomenSafe. At the post-disposition review at the end of February 2017, father, through his lawyer, expressed a desire to increase visitation time, perhaps on the weekends with members of his family supervising, so that they were not constrained by the limits on available independent supervisors. The State represented to the court that DCF had concerns about relying on members of father's family as supervisors because father's family continued to minimize or deny that there was any kind of domestic abuse. The court urged the parties to work together, and invited father to file a motion if he felt DCF was being unreasonable.

         ¶ 7. In late March 2017, DCF convened a safety-planning meeting in response to concerns expressed by the respective foster parents that father was showing up at locations where he knew the children or their foster families would be outside of set visitation times. Following that meeting, DCF provided father with written guidelines that provided, among other things, that father was authorized to have contact with the children only through the scheduled visitation and phone calls; father was not be in any community location in which it would be reasonable to assume that the children might be unless preapproved by DCF; that father should not, without preapproval from DCF, go to any venue or event where the foster parents would likely be, and should leave without having to be asked if he found himself at a venue or event with them; and that father should not be in the physical vicinity of either foster home.

         ¶ 8. In April 2017, father formally requested additional visits with the children, to be supervised by specified relatives. At the time, father had one visit a week with all four children for two-and-a-half hours supervised by Easter Seals.

         ¶ 9. The court held a hearing on May 30, 2017 to consider father's motion and to have a permanency-planning hearing. At the hearing all parties agreed that DCF made reasonable efforts to finalize the permanency plan and stipulated to a new case plan with an anticipated reunification goal of three months. The court and the parties spent most of the time discussing father's request for additional visits supervised by his relatives. The State was not averse to eventually increasing father's visit time with supervision by a specified family member but did not support an immediate order providing for such visits. The State noted that father had only had one Family Time visit supervised by Easter Seals, had just finished his first visit with all four children at once in over a year, represented that the clinical treatment team did not support extended-family supervised visits at all, said it would defer to the treatment providers as to when the children were ready for extended-family visits, and emphasized that if father wanted extended family to serve as supervisors, then those family members needed to make contact with the children by letter. The children's attorney indicated that the children wanted more time with their father and urged that when Easter Seals and DCF concluded that the visits had progressed with father to the point where he could have some weekend time, the additional visits take place in Middlebury, rather than Newfane, where father's grandmother lived. Father emphasized that increased visits were essential for him to realistically meet the three-month permanency goal approved by the court that day and advocated for an order that provided for the additional visits beginning at a date certain, rather than an open-ended order deferring to other providers. In response to father's concerns about the short window he faced for reunification, the State reassured father and the court that father did not have to be prepared for reunification by that time; he only needed to demonstrate significant progress moving forward.

         ¶ 10. At the close of the hearing, the court summarized the collective plan, explaining that DCF was to: provide a letter summarizing the expectations father would have to meet to progress to visitation beyond the Easter Seals regime, including continued progress in DVRC; provide notice of the expectation that any potential supervisor from father's family make some kind of communication so the kids would be comfortable with that person in a supervisory role; and convene a team meeting by June 30 that parents, counsel, and any extended family supervisor could attend to check in concerning the parties' progress. The court set a status conference for July 11, with the expectation that by then enough progress would be made to allow the court to approve additional supervised visits.

         ¶ 11. In June, after the boys' foster mother secured a temporary stalking order against father in a different docket, the State, with the support of the juveniles, filed a motion for a juvenile protective order restricting father's contact.[2] Father responded with a request for a juvenile protective order against the foster parent, as well as a request to transfer custody of the boys to his aunt. He alleged that foster mother's conduct in filing a stalking complaint against him was detrimental to the boys, and that the boys had become alienated from him and that visits had been canceled. In his motion, father indicated that he would be filing a modified motion to transfer custody of the girls from a different foster-care provider to his aunt, but explained that the situation with the boys' foster mother required urgent, rather than gradual, action.

         ¶ 12. At the June 30 hearing on the respective requests, the boys' foster mother testified about various instances in which father had appeared at or near events where foster mother and the boys were present and described the impact of father's presence at various places on the boys' sense of security. Father offered a mix of harmless explanations for his presence on such occasions and a denial of some of the secondhand reports to which foster mother had alluded in her own testimony. The court did not make findings because the parties did not finish presenting their evidence, but at the end of the hearing father acknowledged the court's admonition that father should closely follow the March 2017 DCF guidelines governing his contact with the children. Father and the State eventually dropped their respective requests for a protective order and the court heard no further evidence specifically directed to those requests.

         ¶ 13. At the July 11 status conference, DCF was not ready to support additional visits between father and the children supervised by father's aunt. The children had not yet received the letters father's aunt had written each of them to reestablish a relationship, and the team meeting that was to take place by June 30 had not happened. The court concluded that DCF was not "put[ting] on the brakes," but just needed more time for understandable reasons, and deferred the question of expanded visitation supervised by father's aunt. In response to father's sense of urgency given that the remaining time in the permanency plan was passing, the court reassured father that as long as father was trying to engage and do what the plan calls for, he would not lose his chance at reunification due simply to the mere passage of time and circumstances beyond his control. In the meantime, the competing motions for a protective order and father's motion to transfer custody to his aunt remained pending.

         ¶ 14. On July 26, father filed a revised motion to transfer custody of all four children to his aunt. The next day, the State filed a petition to terminate father's residual parental rights.[3]

         ¶ 15. Following three days of hearings in February and March 2018, the trial court made the following findings. At the time of the CHINS petition the home was in "utter chaos" with dog feces and cat urine on the floors, dirty clothes and dishes everywhere, and a strong offensive odor. The children went to school filthy and smelly, and had lice for extended periods of time. Other children did not want to play with them. Mother and father argued almost daily, and the children witnessed verbal, mental, and emotional abuse. In front of the children, father called mother a host of insulting and offensive names. He regularly forced mother to have sex by denying her necessities such as gas money. Father was controlling and manipulative of mother; he stalked mother and was jealous and angry.

         ¶ 16. With respect to physical abuse, the trial court credited the out-of-court statements of several of the children, described in court by the DCF caseworker, suggesting that father physically abused mother. In particular, the DCF worker testified that H.F. had reported that there was lots of fighting in the home and that "Daddy was bigger so he didn't get bruises but Mommy got bruises;" that M.F. described to a preschool teacher (who then apparently relayed the report to the DCF caseworker) a "boo-boo bear" that "Mommy puts on the bruises that Daddy gives her"; and Dy.F. reported that there was lots of hitting and kicking between his parents and by the parents upon him. The court found these reports to be reliable hearsay because of the consistency of the reports, the children's lack of a motive to lie, and the admitted emotional abuse and physical manifestations of trauma in the children.

         ¶ 17. A theme of the mother and father's relationship near the end was father's (accurate) belief that mother was cheating on him, and his jealous and possessive behavior. The trial court made a finding about father being so angry at mother for wearing a dress he believed she was wearing to impress another man that he drove her to a remote location, with the kids in the car, ripped it off her and burned it while the children watched. During this time period, he called her up to fifty times a day to check on where she was and what she was doing. On one occasion he woke the children up and drove around with them in the car until 1:00 a.m. looking for mother.

         ¶ 18. The trial court found that father had made many significant, positive steps to address his behaviors that led to the CHINS petition. He completed the DVRC class and the Nurturing Parents class, did a mental-health assessment, and was extremely consistent in visitation. He was able to testify at the hearing about the impact his emotional abuse of mother had on the children and was ashamed of his past behaviors. The court was persuaded that father had learned a lot, and credited father for his progress.

         ¶ 19. However, the court identified numerous deficiencies in father's progress as well. The court found that in his hearing testimony, father on multiple occasions sought to minimize his behavior. Explaining the pre-petition conduct of awakening the children at 1:00 a.m. and driving around looking for mother, father incredibly explained that he needed medications for one of the children that mother had, and he needed the children's car seats that were in her car. Father denied that he was "obsessed" with mother when he called her fifty times a day, and instead explained that he was "preoccupied" with his relationship with her-a clarification the court saw as an attempt to minimize his behavior. He continued to deny reports of some pre-petition behavior-including threatening to have his stepfather rape mother and physical abuse of mother. And even at the hearing, father minimized his own responsibility for the squalid conditions the children had lived in, continuing to blame mother for the condition for the home, and emphasizing that he left early for work so did not know what condition the children were in when they left for school.

         ¶ 20. With respect to his alleged "stalking" of the foster parents and children while they were in foster care, the court was persuaded by father's explanations on some of the issues raised in the hearing testimony and concluded that father did not intend to scare or threaten anyone. However, the court concluded that father had repeatedly shown a lack of understanding about how his conduct might affect the children, who needed predictability and were affected by his appearing places where he was not expected. The court noted that one of the children had recently stated that father was "still stalking us" and expressed a desire for it to end. The court saw father's behavior as evidence of his putting his own desire to see the children ahead of considering their needs, and of a lack of insight into the trauma he can cause even without intending to.

         ¶ 21. And with respect to father's continuing controlling behavior, the court found that as recently as the weeks before the hearing, mother changed her telephone number because of father's frequent calls after she had repeatedly told him to leave her alone. The court concluded, "He clearly has not fully grasped the idea of respecting others' rights to control their own lives rather than letting him control them."

         ¶ 22. The court described the children's progress in foster care. The girls, H.F. and M.F., were placed in a foster home together. They had sleep issues and had not learned proper hygiene. The boys, Dy.F. and Da.F., were placed together in a different foster home. Dy.F. had hygiene issues and a stress-induced allergy. He was below grade level for academics. Da.F. was diagnosed with attention deficit hyperactivity disorder (ADHD), anxiety, and depression. He was below grade level and had impulse-control issues. He had nightmares after father raised his voice at a visit. All the children have improved dramatically since going into DCF custody. They feel safe, their behavior has stabilized, and they have good hygiene. They are less parentified and are able to act like children. The children do not do well when all four are together, and their clinicians opined that it would be very challenging for all four to live together again.

         ¶ 23. Father was reliable in visiting the children. However, the court credited testimony from both the DCF caseworker and the Easter Seals worker that in visits, the children tended to seek emotional support from the visit coaches rather than father, suggesting that the coaches had been able to ...

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