In re A.T. & E. T., Juveniles

VERMONT SUPREME COURT Case No. 23-AP-295
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

FEBRUARY TERM, 2024

In re A.T. & E. T., Juveniles } APPEALED FROM:
(S.M., Mother* & A.T., Father*) }
} Superior Court, Addison Unit,
} Family Division
} CASE NOS. 20-JV-00216 & 20-JV-00215
Trial Judge: Robert Katims

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

Mother and father appeal from the termination of their residual parental rights in E.T. and
A.T., born in April 2015 and April 2016 respectively. We remand as to mother for resolution of
a factual dispute regarding notice; we affirm the termination of father’s rights.

The trial court made the following findings. E.T. and A.T. were placed in the emergency
custody of the Department for Children and Families (DCF) in September 2020 following an
allegation of child abuse. E.T. had rug burns on her body that were inconsistent with accidental
injury. Parents denied abusing E.T.; father was subsequently convicted of cruelty to a child.
Prior to this event, DCF received twenty reports expressing concern about the family. Mother
has substance-abuse issues and significant mental-health issues; father has significant substance-
abuse issues. The parties stipulated that the children were in need of care or supervision
(CHINS) in October 2020. In March 2022, the State moved to terminate parents’ residual rights.
Parents attended the first day of the termination hearing but not the second day. In a September
2023 decision, the court found that parents stagnated in their ability to parent and that
termination of their rights was in the children’s best interests.

The court found that when the children first entered DCF custody, they were not toilet
trained, they lacked dental care, they appeared disheveled, and they were struggling
developmentally. The children were placed in a foster home. Their foster mother provided them
with a stable environment and the children thrived in her care. Both children identified a need
for consistency and predictability and stated that they did not feel safe with parents.

DCF attempted a brief trial reunification with parents in December 2022. The
reunification failed due in part to reports that the children were acting out inappropriately and
aggressively at school. Service providers also reported that parents were overwhelmed and that
the children’s home environment was becoming progressively unsafe. Parents confided to the
children’s foster parent that things were not going well. Things stabilized once the children
returned to their foster home.

Following the failed reunification, parents continued to struggle in their ability to parent.
As indicated above, mother has significant mental-health issues, including anxiety, agitation, and
combativeness. She also had sleep problems and was observed falling asleep during visits with
the children. Mother could not see beyond her own needs and she often failed to connect with
the children during visits. Shortly before the termination hearing, mother relapsed and abused
substances. Father continued to struggle with substance-abuse issues. He started but did not
complete residential treatment in April 2023, and he resumed using cocaine as evidenced by
positive drug screens. Father did not understand how his substance abuse negatively affected the
children; he believed it only affected him.

The court concluded that parents’ capacity to care properly for the children had, if
anything, deteriorated since the initial case plan in December 2020. Despite a brief change in a
positive direction in late 2021, parents failed to adequately address their areas of need. Mother
was unable or refused to address her mental-health issues. Father continued to abuse substances.
Both failed to complete parenting classes. Both were consistently late or missed visits with the
children, often with little or no notice, which generated mistrust in the children. Despite
substantial services being provided to parents during the trial reunification in late 2021, parents
became quickly overwhelmed and unable to properly parent the children. Given this, the court
concluded that there had been a change circumstances since the initial disposition order. Turning
to the statutory best-interest factors, the court found no likelihood that parents could resume
parental duties within a reasonable time, and it concluded that the remaining factors also
supported termination of parents’ rights. Mother and father appealed.

I. Mother’s Appeal

Mother argues on appeal that the State failed to prove that she was served with notice of
the termination hearing as required by Vermont Rule for Family Proceedings 3. Mother did not
raise this argument below and claims plain error. In support of her argument, she points to
statements made by the trial court on the second day of the termination hearing when she and
father failed to appear. The court expressed its belief that it had an incorrect address for mother
on file and later stated that notice had not been sent to parents. The State appeared to suggest in
response that service on parents’ attorneys sufficed, which mother argues is incorrect. Mother
contends that she was deprived of her right to attend the final hearing day, which constitutes
plain error.

Mother attended the first scheduled hearing day in these termination proceedings. That
hearing took place in May 2023 and addressed solely whether the children qualified as “Indian”
under the Indian Child Welfare Act. At the outset of the second day of the termination hearing,
which occurred in August 2023, the State noted parents’ absence. It informed the court that, in
terms of notice, it was relying on the court’s records, indicating that notice would have been sent
to the addresses that parents provided to the court. The State added that it also had evidence
from a DCF employee and an Easter Seals worker that parents had been verbally informed of the
hearing, and the State expected parents’ attorneys would agree that they had sent their clients
notice of the hearing. The court indicated that, according to its records, notice of the hearing had
been sent and it listed the addresses that the court had on file for each parent. The State

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responded that parents were now living together at father’s address. The court clerk indicated
that notice was sent to all parties. The court agreed that notice had been sent to all parties but
questioned if mother’s address was correct. The hearing then began. Not long thereafter, the
court stated that it “just g[ot] information that the notice was sent to the parents’ attorneys, but
not directly to the parents. So I don’t know if that changes anything, but . . . .” The basis for the
court’s assertion is unknown. The State responded that it did not believe that changed anything
and expressed her belief that parents’ “attorneys would indicate that they ha[d] noticed their—
their clients.”

The rules require that notice of the termination hearing “be served by the court directly
upon the parents by first-class mail in accordance with Rule 5(b)(2) of the Vermont Rules of
Civil Procedure unless otherwise ordered.” V.R.F.P. 3(a)(3)(A); see also In re M.T. 2006 VT
114, ¶ 11, 180 Vt. 643 (mem.) (holding that court must send parents “direct notice . . . of a
pending petition and scheduled hearing concerning the termination of their parental rights”).
Under Vermont Rule of Civil Procedure 5(b)(1)(C), “[s]ervice by mail or by commercial carrier
is complete upon mailing or delivery to the carrier.” See also Reporter’s Notes—2006
Amendment, V.R.C.P. 5 (similarly explaining that each method of service provided for in Rule
5(b) “is complete upon entrustment of the paper being served to the means of transmission—the
postal service or carrier, or the ‘send’ button of the electronic device”). We have held that the
court’s notice obligation is satisfied when the court mails notice to a parent’s last known address,
even if it is returned due to the parent’s failure to update his or her address. See In re J.L., 2007
VT 32, ¶ 13, 181 Vt. 615 (mem.) (holding that it was parent’s “failure to update the court as to
his change of address that resulted in the failure of the notice to reach him”).

As indicated above, mother appeared at the first day of the termination hearing in May
2023, which presumably allowed her to “recognize[] the full import of the proceeding.” See In
re M.T., 2006 VT 114, ¶ 12 (stating that receiving direct notice of termination hearing from
court, which is empowered to terminate rights, allows court to presume that parent “recognized
the full import of the proceeding”). With respect to the second day of the termination hearing,
which was held in August 2023, the trial court record shows that parents were each mailed notice
of the termination hearing by first-class mail. The court clerk so indicated at the hearing as did
the trial court initially. Mother’s address is listed in the court file. These facts appear to satisfy
the court’s notice obligation.

The trial court then stated, however, that it had learned that notice was sent only to
counsel. It did not indicate the source of that information, which is at odds with the records
available to this Court. We cannot resolve this factual dispute on appeal and we must therefore
remand the court’s decision as to mother for additional findings concerning the notice sent to
mother. As indicated above, if the court finds that notice of the hearing was sent by first-class
mail to the address it had for mother on file, that would discharge its notice obligation. No
additional proceedings would be required. If mother did not receive the notice because she
moved, any service failure would be mother’s responsibility for failure to update her address
with the court. See In re J.L., 2007 VT 32, ¶ 13. We emphasize the narrow scope of our
remand: the court need only make a finding on whether notice was sent to mother by first-class
mail at the address that she had provided to the court. If such notice was sent, no additional
proceedings are required and the termination of mother’s rights will stand as mother raised no
challenge to the merits of that order on appeal. If notice was not sent by first-class mail, mother
would be entitled to a new hearing. Our limited remand does not encompass any notice

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argument as to father. Father challenged only the merits of the court’s decision and he waived
any notice argument by failing to raise it in this appeal.

II. Father’s Appeal

We thus turn to father’s arguments. Father first asserts that parents did not deny abusing
E.T. and the court erred in so finding. Father states that he accepted responsibility for causing
E.T.’s injury in stipulating that the children were CHINS. Father also contends that the court
erred in finding that reports from the children’s school were part of the reason that DCF deemed
the trial reunification with parents a failure. He argues that the trial reunification occurred over
the winter holiday period, while the children were not regularly attending school.

To determine the best interests of a child, the court must consider four statutory factors.
See 33 V.S.A. § 5114. The most important factor is the likelihood that the parent will be able to
resume his or her parental duties within a reasonable time. See In re B.M., 165 Vt. 331, 336
(1996). As long as the court applied the proper standard, we will not disturb its findings on
appeal unless they are clearly erroneous; we will affirm its conclusions if they are supported by
the findings. In re G.S., 153 Vt. 651, 652 (1990) (mem.).

Father fails to show that the findings he identifies were clearly erroneous. With respect
to the first finding, the court was describing the circumstances under which the children entered
DCF custody. It stated that “[r]ug burns were discovered on [E.T.’s] body inconsistent with an
accidental injury. Both parents denied any abusive behavior, although [father] eventually was
convicted of cruelty to a child.” A DCF employee testified to the circumstances that brought the
children into DCF custody, including parents’ response to law enforcement following the
incident. She testified that parents told police that they accidentally dropped E.T., which was
inconsistent with the rug burns on her back and torso. Mother also minimized the incident,
which caused law enforcement concern. This testimony supports the court’s finding. Even if
this finding was erroneous, any error would be harmless. See In re B.S., 163 Vt. 445, 454 (1995)
(recognizing that party must establish prejudice from alleged errors to warrant reversal); see also
In re D.F., 2018 VT 132, ¶ 46, 209 Vt. 272 (concluding that reversal not warranted where
challenged finding was “not central to the court’s decision”). The court’s decision did not turn
on father’s abuse of E.T. but rather on his failure to make any meaningful progress during the
pendency of these proceedings.

The court’s finding regarding the trial reunification is also supported by the record.
There was testimony that the trial reunification began around the holiday break and, when the
children returned to school in January, their schools reported serious behavioral issues and
significant concern that “both children had severely decompensated with . . . their reunification.”

Father next argues that the court erred in concluding that termination of his rights was in
the children’s best interests. He argues that the court should have weighed the evidence
differently. He states that he loves the children and notes that they are not in a preadoptive
home. Father maintains that parents should be given more time to improve.

We reject these arguments, which are inconsistent with our standard of review. It is the
exclusive role of the trial court to assess the credibility of witnesses and weigh the evidence. In
re A.F., 160 Vt. 175, 178 (1993). We do not reweigh the evidence on appeal. See In re S.B.,
174 Vt. 427, 429 (2002) (mem.) (“Our role is not to second-guess the family court or to reweigh
the evidence, but rather to determine whether the court abused its discretion in
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terminating . . . parental rights . . . .”). The court’s findings support its conclusions, including its
conclusion that father cannot parent the children within a reasonable time, and we find no error.

The court’s termination order is affirmed as to both parents. The matter is remanded for
an evidentiary hearing and separate determination of whether there are grounds to vacate the
order as to mother based on whether the court mailed notice of the hearing to mother by first-
class mail to the address she provided.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

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