In Re G.W., Juvenile

VERMONT SUPREME COURT Case No. 22-AP-276
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

APRIL TERM, 2023

In re G.W., Juvenile } APPEALED FROM:
(A.D. Father* & E.W. Mother*) }
} Superior Court, Rutland Unit,
] Family Division
} CASE NO. 120-6-18 Rdjv
Trial Judge: Howard A. Kalfus

In the above-entitled cause, the Clerk will enter:

Mother and father both appeal the family division’s order terminating their parental rights
to their son G.W., born in December 2015. On appeal, mother argues that the family division
failed to account for the loss of contact with mother resulting from terminating mother’s parental
rights. Father argues that the evidence does not support the findings that father’s progress had
stagnated. We affirm.

The family division made the following findings. In June 2018, the family division
granted custody of G.W. to the Department for Children and Families (DCF) on an emergency
basis. The State subsequently filed a petition alleging that G.W. was a child in need of care or
supervision (CHINS). DCF placed G.W. with his paternal grandmother and her partner. In
August 2018, mother stipulated that G.W. was CHINS due to risk of harm from mother’s
substance abuse and failure to engage with DCF. At the time, mother was living alone and was
the sole caretaker of G.W. The court issued an initial disposition order in November 2018,
which had a goal of reunification. The action steps for mother included seeking substance-abuse
treatment, establishing consistent contact with DCF, engaging in a mental-health evaluation and
following recommendations, attending and engaging in Family Time, and meeting with a
domestic-violence specialist. The goals for father included seeking and completing an anger-
management assessment and following recommendations, attending and engaging in Family
Time, following conditions of release, and meeting with a domestic-violence specialist.

In April 2020, DCF changed the case-plan goal to adoption, but following an
administrative review, it was changed back to reunification to allow father to obtain domestic-
violence counseling. In December 2020, the court adopted a permanency plan that updated
parents’ action steps to require parents to engage in treatments and Family Time, and to obtain
housing. In the spring of 2021, DCF suspended father’s parent-child contact after father became
explosive with his mother, G.W.’s foster mother, and her partner in G.W.’s presence. Father
filed a motion for parent-child contact, which the State opposed. The family division granted the
State’s request for a temporary protective order, prohibiting father from having contact with
foster parents. The order was extended several times and, in granting a final order in May 2021,
the family division made findings regarding father’s behavior. The family division found that
father had confronted his mother aggressively and loudly and called her various profane names.
He yelled threats at his mother’s partner and pushed his chest against the partner’s chest. G.W.
was present and asked father to stop and go home. Father’s angry outbursts made G.W. sad.
Father was subsequently verbally aggressive and hostile at a DCF meeting. These events took
place after father had completed twenty-six weeks of domestic-violence treatment and an anger-
management program. The court determined that father’s behavior was detrimental and harmful
to G.W. The resulting protective order restricted father to supervised contact as approved by
DCF.

In April 2021, DCF changed the case-plan goal to adoption based on parents’ lack of
progress toward completing their goals. The State filed a petition to terminate mother’s and
father’s parental rights in May 2021. Following a three-day hearing, the court terminated
parents’ parental rights. The court found that there was a change in circumstances due to
stagnation. Father had not seen G.W. in over a year and had not kept informed regarding G.W.’s
medical and educational needs. Although father had engaged in services and obtained housing,
his inability to control his anger prevented him from safely parenting G.W. Similarly, the court
found that mother’s progress had stagnated. Mother did not adequately engage in mental-health
or substance-abuse treatment. She acknowledged using heroin only a week before the hearing.
She failed to sign releases or to meet with a domestic-violence specialist. Although she attended
weekly supervised visits with G.W., she did not progress to unsupervised time. The court
concluded that termination was in G.W.’s best interests. G.W. has resided with his paternal
grandmother and her partner since entering DCF custody in June 2018. He had a positive
relationship with them and his uncle, who also lives in the home. He was well adjusted to his
current school and community. Neither parent was able to resume parenting in a reasonable
period of time. Father needed to reacquaint himself with G.W. and learn how to meet G.W.’s
needs. Mother’s lack of treatment and ongoing struggles with mental health and substance use
remained obstacles to parenting. Therefore, the court granted the petition to terminate. Both
parents appeal.

On appeal, mother first argues that the family division needlessly terminated her parental
rights because G.W. was safely living with his grandparents and having ongoing positive contact
with mother. When the termination of parental rights is sought after initial disposition, the trial
court must conduct a two-step analysis. In re B.W., 162 Vt. 287, 291 (1994). “The court must
first find that there has been a change in circumstances; second, the court must find that
termination of parental rights is in the child’s best interests.” In re S.W., 2003 VT 90, ¶ 4, 176
Vt. 517 (mem.); see also 33 V.S.A. § 5113(b). In assessing the child’s best interests, the family
division is guided by the statutory criteria. 33 V.S.A. § 5114. The most important factor is
whether the parent will be able to resume parenting duties within a reasonable time. In re J.B.,
167 Vt. 637, 639 (1998) (mem.).

Mother claims that termination was unnecessary and not in G.W.’s interest because
termination will result in the loss of G.W.’s relationship with his mother and the family division
found that her weekly visits with G.W. were positive. There is no basis to disturb the judgment
of the family division, which applied the correct legal standards and made findings and
conclusions supported by the evidence. The family division assessed the statutory criteria in
§ 5114, finding that G.W. sees mother weekly and is excited to see her, but also that G.W. has a
positive relationship with his foster family and is well adjusted to his home, school, and
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community. Most importantly, the court found that mother would not be able to resume
parenting within a reasonable time given her inability to make progress on addressing her
substance use and mental health.

Mother’s argument essentially asks this Court to reweigh the best-interests factors. In re
S.B., 174 Vt. 427, 429 (2002) (mem.) (explaining that Court’s role on appeal “is not to second-
guess the family court or to reweigh the evidence, but rather to determine whether the court
abused its discretion”). The family division acted well within its discretion in determining that
although visits with mother were positive, on balance, termination was in G.W.’s best interests.
See In re M.B., 162 Vt. 229, 238 (1994) (recognizing that public policy does not require
maintaining parent-child bond regardless of cost to child).

On appeal, father argues that the evidence does not support the court’s finding that his
progress had stagnated because he alleges that he made progress on several case-plan goals,
including resolving his criminal charges, engaging in Family Time coaching, attending
supervised visits, completing an anger-management assessment and a domestic-abuse program,
and obtaining housing.

The family division did not abuse its discretion in finding that father’s progress stagnated.
See In re D.M., 2004 VT 41, ¶ 5, 176 Vt. 639 (mem.) (recognizing family division’s “broad
discretion” in determining whether to terminate parental rights). As explained above, to modify
an existing disposition order, the family division must find that there is a change of
circumstances. 33 V.S.A. § 5113(b). This is commonly demonstrated through parental
stagnation, which occurs when “the parent has not made the progress expected in the plan of
services for the family despite the passage of time.” In re D.M., 2004 VT 41, ¶ 5. The family
division credited father with engaging in programming, completing a parenting class, and
obtaining stable and appropriate housing. The court found that nonetheless, father failed to
demonstrate changed behavior. For example, father completed an anger-management course but
subsequently engaged in aggressive and confrontational behavior that resulted in the juvenile-
protection order. The court also found that father’s progress had stagnated because he not seen
G.W. in over a year and had not remained informed about G.W.’s school or medical situation.
Completing programs is not the sole determinant of whether a parent’s progress has stagnated.
“[T]he main concern must always be whether the individual parent has demonstrated the
improvement contemplated at the time the children were removed from the parent’s care.” Id.
¶ 7. Here, the court acted within its discretion in determining that, despite making progress on
some of the case-plan goals, father’s progress had stagnated because there was minimal
improvement in his parenting capacity.

Father next argues that the family division abused its discretion in assessing G.W.’s best
interests. Father claims that the court’s analysis was flawed because it relied in large part on his
lack of relationship with G.W., which he contends was not his fault. Father asserts that after the
protective order expired, DCF imposed so many conditions on his contact that father could not
comply and therefore his lack of connection was a result of DCF’s refusal of contact and not
attributable to father.

The family division acted within its discretion in evaluating G.W.’s best interests.
Contrary to father’s assertion, the court considered all of the factors in § 5114, including G.W.’s
relationship with father and others, G.W.’s adjustment to his home, father’s bond with G.W., and
father’s ability to parent in a reasonable time. Among other things, the court found that G.W.
had a strong bond with his foster family and was well adjusted to his current home and

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community, father had not seen G.W. in over a year, father had not kept informed of G.W.’s
medical and education needs, father had not played a constructive role in G.W.’s life, and father
was not able to parent within a reasonable time.

To the extent father asserts that DCF was to blame for his lack of contact and connection
to G.W., the record supports that this lack of connection was due to father’s own conduct.
Because of father’s actions towards G.W.’s foster parents in G.W.’s presence, a protective order
was issued. Moreover, because of father’s behavior, the court limited father to supervised visits
at DCF’s discretion. These visits were implemented through a community organization. The
record reflects that father did attend some telephone visits, but declined the offer of video visits,
missed the one scheduled in-person visit, and then in December 2021 terminated services.
Father asserts that the visits were difficult to comply with because they were not offered outside
of working hours. However, father fails to show how he preserved this argument for appeal by
raising this issue below. In sum, the record shows that visits were curtailed and supervised
because of father’s own behavior and then father did not take advantage of the supervised visits
offered to him. Based on this record, the family division did not abuse its discretion in
considering father’s lack of visits and connection to G.W. in evaluating the best interests of G.W.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

William D. Cohen, Associate Justice

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