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In re N.L.

Supreme Court of Vermont

February 8, 2019

In re N.L., Juvenile

          On Appeal from Superior Court, Chittenden Unit, Family Division, Nancy J. Waples, J.

          Sarah R. Star, Middlebury, for Appellant Mother.

          Adele V. Pastor, Barnard, for Appellant Juvenile.

          Allison N. Fulcher of Martin & Delaney, Barre, for Appellee Father.

          Thomas J. Donovan, Jr., Attorney General, Montpelier, and Jody A. Racht and Martha E. Csala, Assistant Attorneys General, Waterbury, for Appellee State.

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

          SKOGLUND, J.

         ¶ 1. This case concerns petitions to terminate the parental rights of both mother and father with respect to their child, N.L. The family division of the superior court granted the petition to terminate mother's parental rights but denied the petition concerning father. Mother appeals the termination of her parental rights, and N.L. appeals the court's decision not to terminate father's parental rights. We affirm the termination of mother's parental rights and reverse the court's order declining to terminate father's parental rights. We remand the matter for the limited purpose of directing the family division to grant the petition to terminate father's parental rights. I. Facts

         ¶ 2. N.L. was born in August 2014. In January 2016, she was taken into state custody because both parents were using illicit substances, father was facing jail time on a charge alleging domestic abuse against mother, and mother was unable to care for the child due to her drug addiction and homelessness. N.L. spent several months in foster care. A conditional custody order (CCO) returned N.L. to mother's care after mother completed a substance-abuse program, and they resided for several months in a residential treatment program at Lund Family Center. The CCO remained in effect until February 27, 2017, when the Department for Children and Families (DCF) closed the case.

         ¶ 3. The present case was initiated based on an incident that occurred in August 2017, at which time DCF was investigating reports of drug use and domestic violence in the home. Police responded to a report of persons slumped over in a car in a grocery store parking lot, one of whom was mother. N.L. was in the back seat of the car, which was strewn with drug paraphernalia. Based on this event, mother was charged with cruelty to a child and pled guilty. N.L. was placed in DCF custody. Father, who was not involved in the incident, was living at mother's apartment, in violation of the terms of her voucher program. Neither parent appeared at the emergency care hearing the day after N.L. was taken into state custody. At an August 15, 2017 temporary care hearing, the family division ordered visitation between mother and N.L. three times a week, for two hours. Mother attended the visits regularly until late September 2017, when she stopped going.

         ¶ 4. Neither parent appeared for a scheduled October merits hearing. The hearing was rescheduled for December 19, 2017. Again, neither parent appeared for the hearing. The State presented evidence at the hearing, and the family division adjudicated N.L. a child in need of care or supervision (CHINS) after making findings on the record. Meanwhile, in November 2017, N.L. was placed with the foster family with whom she has remained ever since.

         ¶ 5. In January 2018, DCF filed a disposition case plan with a goal of adoption, as well as petitions to terminate both mother's and father's parental rights at initial disposition. The disposition hearing was held on January 24, 2018, at which time the parents, who both appeared for the hearing, were served with the termination petitions.

         ¶ 6. That same month mother completed a residential drug treatment program at Valley Vista and sought resumption of visits with N.L. But before that could happen, on February 13, 2018, mother was arrested on suspicion of aiding and abetting a bank robbery and brandishing a firearm while in the commission of a felony. At the time of the termination hearing in May 2018, mother was being held in a federal prison in Virginia. During this time, father had no contact with N.L.

         ¶ 7. The termination hearing was held on May 17, 2017. In its August 3, 2018 decision, after reviewing the best-interest criteria set forth in 33 V.S.A. § 5114(a), the family division granted the petition to terminate mother's parental rights but denied the petition concerning father. The court continued the CCO then in place with the foster family, changed the case plan goal from solely adoption to concurrent goals of adoption or reunification with father, ordered parent-child contact with father once he completed a required substance-abuse assessment, and adopted a timeframe of three-to-six months for father to achieve the reunification goal. The court expressly declined to require DCF to prepare a new case plan, finding that its original case plan adequately supported the court's adopted permanency goal. Mother appeals the termination of her parental rights, and N.L. appeals the family division's decision not to terminate father's parental rights. II. Mother's Appeal

         ¶ 8. Mother first argues that, in light of its acknowledgement that she shared a close bond with N.L., the family division erred by terminating her parental rights based on her pretrial incarceration and physical separation from N.L. Mother points to the court's finding that she had maintained her sobriety since completing the Valley Vista program in January 2018 and asserts that there was no evidence of her unfitness when she was sober. Mother states that there was no particularized evidence demonstrating that she would not be able to resume visiting N.L. if she were released from incarceration and maintained her sobriety. According to mother, the court violated her right to due process by basing its determination that she would not be able to resume her parental duties within a reasonable time on speculation that she would be indicted and convicted of the alleged federal offense. She contends that, in assessing N.L.'s best interests, the court failed to weigh the relevant factors concerning her preindictment or pretrial incarceration, including the strength of the criminal case against her and how her alleged conduct impacted her ability to resume her parental duties. In making these arguments, mother cites numerous out-of-state cases, but does not address our recent caselaw on the impact of parental incarceration-and particularly pretrial incarceration-on the family division's best-interests analysis.

         ¶ 9. The family division "may terminate parental rights at the initial disposition proceeding if the court finds by clear and convincing evidence that termination is in the child's best interests." In re C.P., 2012 VT 100, ¶ 30, 193 Vt. 29, 71 A.3d 1142. "[T]o determine a child's best interests, the court must consider [the] four statutory factors" set forth in § 5114, the most important of which "is the likelihood that the natural parent can resume his or her parental duties within a reasonable period of time" from the perspective of the child's needs. In re D.S., 2014 VT 38, ¶ 22, 196 Vt. 325, 97 A.3d 882. Although this inquiry is forward-looking in the sense that the court must consider the parent's prospective ability to parent the child, "past events are relevant in this analysis." Id. "As long as the court applied the proper standard, we will not disturb its findings unless they are clearly erroneous, and we will affirm its conclusions if they are supported by the findings." Id. (quotation omitted). "We leave it to the sound discretion of the family court to determine the credibility of the witnesses and to weigh the evidence." Id. (quotation omitted).

         ¶ 10. The fact of a parent's incarceration "is a proper consideration in the court's analysis of [the parent's] fitness pursuant to the statutory standard." Id. ¶ 26. "[O]ur case law makes clear that a parent is responsible for the behavior that leads to incarceration and for the consequences that come with such incarceration." Id. (concluding that father's incarceration during most of child's life was "certainly relevant in assessing his relationship with [the child], his ability to parent [the child], and whether he has played a constructive role in [the child's] life" because it had "a direct impact on his availability as a parental resource to [the child]"); see also In re K.F., 2004 VT 40, ¶ 12, 176 Vt. 636, 852 A.2d 584 (mem.) (affirming termination of father's parental rights where father had not been available as parental resource to child for eleven months, and he continued to be unavailable due to his incarceration).

         ¶ 11. In In re M.W., we specifically addressed the question of how the family division should consider a parent's pretrial incarceration when examining the best-interest factors. 2016 VT 28, ¶¶ 18-22, 201 Vt. 622, 145 A.3d 1250. In that case, the father sought to distinguish D.S. and K.F. because of the lack of evidence of the father's past criminal convictions and the fact that he had not yet been convicted of the pending charges. We acknowledged that the facts of M.W. could be distinguished from those in D.S. and K.F. based on those points, but nonetheless concluded "that it was appropriate for the family court, irrespective of the fact that the criminal charges against him were still pending, to consider father's incarceration and the consequences of his incarceration in evaluating what course of action was in M.W.'s best interests." Id. We directed "the family court to review the individual circumstances of each child to determine how a parent's incarceration-whether pretrial or not-affects the child's best interests." Id. ¶ 22. We concluded that the court must consider all relevant factors,

including the nature of the relationship between the parent and child before incarceration, the terms of the incarceration, the needs of the child, and the effect of incarceration on the parent's ability to remain involved with the child and to be in a position to resume parental duties within a reasonable period of time from the perspective of the child.

Id.

         ¶ 12. Here, the family division found that mother had been N.L.'s primary caregiver for the first three years of N.L.'s life prior to the child's placement in DCF custody, and that during mother's supervised visits, she "was observed to have a strong bond with N.L. and have safe and appropriate parenting skills." In examining the best-interest factors, the court further found that: (1) mother had not seen N.L. since her parent-child contact was suspended in September 2017 due to her failure to consistently attend her court-ordered visitation; (2) N.L. had begun to form a bond with her foster family; (3) mother was "currently incarcerated on serious federal charges which may result in her being imprisoned for a significant length of time"; (4) although mother emphasized her possible release date due to the government's failure to indict her, "she currently is in no position to parent N.L., and . . . she has not been able to parent her for several months"; (5) there was no evidence that mother "attempted to remain engaged with N.L., such as calling her or sending her cards"; and (6) although mother was an important part of N.L.'s life before initiation of the CHINS proceeding, the "precipitating incident leading to N.L. being taken into custody [and mother being charged with cruelty to a child] raises questions as to whether Mother was in fact playing a constructive role in N.L.'s life" and no evidence indicated "that Mother currently plays a constructive role in N.L.'s life."

         ¶ 13. In considering mother's incarceration, the family division's focus was not on the incarceration per se but rather the impact of her incarceration on her ability to resume parenting within a reasonable time. While mother and N.L. may have demonstrated a bond during the supervised visits that she attended, her failure to consistently attend those visits, which led to their suspension in September 2017, and her drug use undermined any claim that she played a constructive role in N.L.'s life. Shortly after mother's completion of the Valley Vista residential drug treatment program, at a time when she could have potentially renewed visitation with N.L., she was arrested on serious federal charges. During this period, the evidence indicated that mother made no effort to contact N.L. in any way. ...


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