In Re K.C., Juvenile

VERMONT SUPREME COURT Case No. 24-AP-166
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

OCTOBER TERM, 2024

In re K.C., Juvenile } APPEALED FROM:
(K.C., Mother*) }
} Superior Court, Chittenden Unit,
} Family Division
} CASE NO. 22-JV-00683
Trial Judge: Michael J. Harris

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

Mother appeals a family division order terminating her parental rights in her daughter
K.C., born in August 2021.1 She argues that the court erred in concluding that the State
demonstrated, by clear and convincing evidence, that the termination of her parental rights was
in K.C.’s best interests. We affirm.

In May 2022, when K.C. was eight months old, the State filed a petition seeking a
determination that she was a child in need of care or supervision (CHINS). The supporting
affidavit alleged that K.C. was at risk of harm because mother was struggling with substance use
and had allowed unsafe individuals into her home, and father was incarcerated in Pennsylvania
and unable to provide care for K.C. K.C. was originally placed in the conditional custody of
mother’s friends. However, the conditional custody order was vacated before the end of May
after one of the custodians reportedly brought K.C. to mother’s home, a violation of the order’s
conditions, and accepted illicit drugs from mother. K.C. was subsequently placed in the custody
of the Department for Children and Families (DCF). Mother stipulated that K.C. was CHINS on
the date of the State’s petition because she had relapsed in the use of substances and allowed
others to sell them in her home, leading to an incident in which one of these individuals
threatened mother and K.C. with a firearm.

Approximately one year later, in May 2023, the State filed petitions to terminate parents’
rights in K.C. The trial court held hearings on the matter on November 21, 2023, and April 1
and 10, 2024. Though mother received notice and was represented by counsel, she failed to
appear at any of the three hearing dates. The court subsequently issued a written decision in
which it made the following findings by clear and convincing evidence.

1
Father’s rights in K.C. were terminated in the same order. Because he did not appeal,
this decision focuses on the procedural background relevant to mother.
At the time of the CHINS petition, mother was struggling with substance use and living
with unsafe individuals. She entered residential treatment in May 2022 but was discharged three
days later, without completing the program, after engaging in aggressive and volatile behavior
including throwing a chair. In June, mother completed a five-day detox program but did not
engage in follow-up care, telling DCF that she did not wish to pursue further substance-abuse
treatment and believed that avoiding triggering people and places would be sufficient to prevent
any future illicit use of substances.

Between June and August of 2022, mother had very little contact with K.C. In July,
mother told DCF that she wanted to resume visits with K.C. but was again struggling with
substance use, including the use of intravenous crack cocaine. She explained that there were
needles around her home and that individuals who could trigger her use were present there. She
also indicated that she was not in any treatment program and declined DCF’s offers of treatment
support.

Mother again requested contact with K.C. in late August and was told that she needed to
first meet with DCF due to the agency’s concerns over her admitted substance use. She had one
supervised visit at the DCF office. DCF discussed setting up twice-weekly supervised visits at
the office, but mother was unable to commit to a visitation schedule. At around the same time,
mother faced eviction proceedings due to concerns about substance use and distribution in her
unit or building. To preserve her housing-voucher eligibility, mother voluntarily vacated her
apartment with no other stable housing in place. DCF provided mother with supports and
contacts to pursue new, stable housing away from individuals who might trigger her substance
use. In addition, the DCF worker assigned to K.C.’s case encouraged mother to consider
participating in family treatment court, an ongoing commitment that provides a wide range of
supports including substance-use-treatment and mental-health-treatment support and
coordination.

In August 2022, the court adopted a disposition case plan with a goal of reunification
between mother and K.C. within six to nine months, to be extended to one year if mother
successfully engaged in family treatment court as anticipated. Mother’s action steps included:
immediately seeking detoxification services, a substance-use assessment, and medically assisted
treatment; identifying and maintaining safe and stable housing and working with appropriate
supports to ensure her home remained free of unsafe individuals; establishing regular contact
with DCF and returning any communications from the agency within twenty-four hours; creating
a supervised contact schedule and accessing parenting supports; and signing releases to ensure
DCF could monitor mother’s engagement with these goals.

Mother knew that the family treatment court program would provide supports to help her
reunify with K.C. However, she never completed the screening paperwork required to
participate, indicating that she was too busy and did not have time. She never entered the
program.

In November 2022, mother reported she had been hospitalized after a new boyfriend
assaulted her, and that she was still not receiving substance-use treatment. She did not respond
to DCF’s request for a meeting to discuss post-assault services.

Mother never worked with DCF to create a schedule for supervised visits with K.C. She
did contact DCF on several occasions to arrange single supervised visits, but only attended one
or two of the three visits she scheduled. Her last visit with K.C. was in December 2022.

2
Mother’s contact with DCF was initially sporadic and ultimately ceased entirely. In
January 2023, she indicated that she planned to participate in a residential treatment program.
However, DCF heard nothing further and never received confirmation as to whether this
occurred. In February 2023, mother called for an update and was informed that she needed to
meet with the DCF worker. She did not do so. Though DCF subsequently attempted to reach
out to mother through multiple modes of communication, she had no contact with the agency
after that time.

Despite DCF’s offers of support, there was no indication that mother ever obtained stable
housing or ceased living with individuals engaged in substance use—an acknowledged trigger
for her own use. Similarly, the agency received no information suggesting that mother had
ceased using illicit substances or sought out further substance-use treatment or services. There
were no identified providers who could help DCF assess mother’s sobriety and suitability for
progression of visits. Mother never provided any releases, either because she never worked with
any providers or because their records would show that she did not comply with a treatment
program.

After K.C. entered DCF custody, the agency discovered that she had special medical
needs. K.C. was diagnosed with asthma and prescribed two inhalers for use in different
circumstances. In January 2023, tubes were placed in her ears in connection with her recurrent
ear infections.

K.C. had several placements while in DCF custody. As of the final termination hearing,
she had been in her current foster home for one year, not including a period during which she
had gradually increasing contact time with her foster parents while transitioning into their home.
Her foster parents were attending closely to her medical needs, providing her with a nurturing,
consistent, and loving setting, bringing her to child-oriented activities, and had integrated her
into their extended families. K.C. met age-appropriate developmental milestones while in their
care. She began referring to her foster parents as her mother and father, and they became her
source for comfort and stability. The foster parents were committed to adopting K.C. if freed for
adoption.

Based on these findings, the trial court concluded that there had been a substantial change
in material circumstances since the initial disposition order. Mother had stagnated in her ability
to care for K.C., failing to make even initial progress toward the case-plan goal. The court then
weighed each of the best-interests factors set forth at 33 V.S.A. § 5114(a). It observed that due
to mother’s failure to maintain contact with K.C., the two had no current or recent relationship
and mother played no constructive role in K.C.’s life. Father remained in Pennsylvania, and
K.C. had never met him in person due to factors within father’s control. K.C. did have virtual
visits with father beginning in October 2023, but these were not conducive to establishing an
initial bond with a very young child. In contrast, K.C. had developed close, supportive, and
stable relationships with her foster parents. She was well-adjusted to their home and community,
and she viewed them as her parents—the people “who provide her emotional grounding, comfort
in times of need or distress, and long[-]term stability of care.” Most importantly, the court
recognized, mother’s failure to maintain regular contact with K.C. or make progress in
addressing any of her action steps created “serious doubt” as to her ability to resume parenting
K.C. within a reasonable time. The court noted that K.C. was a young child, had been in DCF
custody for almost two years, and needed permanency. It concluded that termination of parental
rights was in K.C.’s best interests and granted the State’s petitions. This appeal followed.

3
When the State moves to terminate parental rights after an initial disposition order, the
family division must engage in a two-step analysis. In re M.P., 2019 VT 69, ¶ 24, 211 Vt. 20. It
first considers whether there has been a change in circumstances sufficient to justify modifying
the existing order. In re B.W., 162 Vt. 287, 291 (1994); 33 V.S.A. § 5113(b). Where this
threshold is met, the court goes on to determine whether termination of parental rights is in the
child’s best interests by weighing the four factors set forth at 33 V.S.A. § 5114(a). In re N.L.,
2019 VT 10, ¶ 9, 209 Vt. 450. “The State has the burden of proof at both stages and, as to each
point, must meet its burden by clear and convincing evidence.” In re R.W., 2011 VT 124, ¶ 15,
191 Vt. 108 (quotation omitted).

On appeal, mother does not challenge the court’s conclusion that there was a change in
circumstances following the initial disposition order. However, she contends that the State’s
evidence regarding K.C.’s current circumstances and paternal extended family—as relevant to
the court’s analysis under 33 V.S.A. § 5114(a)(1) and (2)—was insufficient to support the
conclusion that termination of mother’s parental rights was in K.C.’s best interests under a clear-
and-convincing evidence standard.

The role of this Court “is not to second-guess the family court or to reweigh the evidence,
but rather to determine whether the court abused its discretion” in terminating parental rights. In
re J.M., 2015 VT 94, ¶ 8, 199 Vt. 627 (quotation omitted). “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.” In re N.L., 2019 VT 10, ¶ 9
(quotation omitted). Where the standard of proof is clear and convincing evidence, “[t]he test on
review is . . . whether the factfinder could reasonably have concluded that the required factual
predicate was highly probable.” In re N.H., 168 Vt. 508, 512-13 (1998). Assessed under these
standards, we find no basis to disturb the trial court’s decision.

At the outset, it is important to note the relative weight of the two best-interests factors on
which mother’s argument turns. Under § 5114(a)(1), the court was called to consider K.C.’s
“interaction and interrelationship . . . with . . . her parents, siblings, foster parents, if any, and any
other person who may significantly affect [her] best interests.” Pursuant to § 5114(a)(2), it had
to weigh K.C.’s “adjustment to . . . her home, school, and community.” However, the first and
second factors are not necessarily dispositive in a best-interests analysis. See In re G.L., 2024
VT 60, ¶ 52. Rather, as the trial court explicitly recognized, the “most important” of the four
statutory factors is the third: the likelihood that the parent will be able to resume parental duties
within a reasonable time, measured from the perspective of the child. In re D.S., 2014 VT 38,
¶ 22, 196 Vt. 325; 33 V.S.A. § 5114(a)(3).

Mother does not challenge the trial court’s analysis of this “critical” third factor. In re
B.M., 165 Vt. 331, 336 (1996). As the court found, despite DCF’s offers of support, mother did
not “even show initial progress” in addressing the concerns that led to the CHINS merits
determination. It accorded particular significance to mother’s failure to demonstrate that she
could maintain sobriety or sustained participation in substance-use treatment, as well as her
inability or unwillingness to be a consistent presence in K.C.’s life and the resulting lack of any
relationship or bond between mother and child. The court concluded that in light of K.C.’s
young age, her special medical needs, the instability she had already experienced in her life, and
the twenty-three months she had already spent in DCF custody, it was unreasonable to require
her “to wait indefinitely to see if or when her parent might develop the means, skills[,] and
ability to safely parent and maintain a consistent involvement in [her] life.” See In re C.P., 2012
VT 100, ¶ 30, 193 Vt. 29 (“The reasonableness of the time period is measured from the

4
perspective of the child’s needs, and may take account of the child’s young age or special
needs.”) (citation omitted). It is in this context that we consider mother’s arguments relative to
the first and second best-interests factors.

First, mother contends that the testimony of K.C.’s foster mother at the November
hearing was too limited to support the court’s conclusion because it was “extremely brief” and
K.C. had only been placed in the foster home for seven months at the time. For multiple reasons,
we find this argument without merit.

To begin, we note that—given the paramount importance of the third best-interests factor,
as discussed above—“the availability of an alternative placement is not a precondition to
terminating parental rights.” In re J.M., 2015 VT 94, ¶ 11; see also In re G.L., 2024 VT 60, ¶ 53
(noting “how far removed any information pertaining to a child’s foster placement is from the
pivotal issues in a termination proceeding”). This was “not a custody case in which the family
court is weighing which parent or guardian will be best able to serve the needs of the child,” but
rather “a legislatively created termination proceeding in which the court is required to weigh
specified statutory factors in determining whether to grant a petition for termination of residual
parental rights.” In re S.B., 174 Vt. 427, 428 (2002) (mem.). Such a petition may be granted “if
it is in the best interests of the child as determined by weighing [the statutory factors],” none of
which “preclude[] the court from terminating the parental rights until a permanent placement is
available.” In re L.A., 154 Vt. 147, 160 (1990). Thus, the court could conceivably have
terminated mother’s parental rights even if the State had not shown that K.C. was thriving in a
foster placement that offered stability and permanency. However, in this case, the State’s
evidence amply supported the court’s findings to this effect and its corresponding analysis under
§ 5114(a)(1) and (2).

Mother’s characterization of the foster mother’s testimony as “very limited” is not
supported by the record. The foster mother testified to the following in November 2023. She
and her husband first met K.C. in February of that year and began visiting with her multiple
times per week in anticipation of her transition into their care. By mid-March, they were having
overnight visits, and K.C. came to live with them full-time in the beginning of April. She is the
only child in their home and has her own bedroom there. The transition was “incredibly
smooth,” and K.C. quickly “took to” her foster parents. To maintain consistency in her life, they
continued bringing her to the same daycare she previously attended. K.C. did very well at
daycare and, based on her progress and eagerness to learn, advanced two levels in the program
while in the care of her foster parents. K.C. could recite the full alphabet, knew her numbers and
colors, and was meeting her developmental milestones. Her foster parents had taken her to
multiple medical appointments and are closely attuned to her special medical needs. K.C. is a
happy child who loves coloring, being outside, going on adventures, and singing. She spends a
great deal of time with her foster parents’ relatives and has become a part of their respective
extended families. The foster parents had taken K.C. on family vacations and brought her to
museums and zoos. Without prompting, K.C. began calling them “Mom” and “Dad.” She is
“incredibly bonded” to them, and they are “one hundred percent” committed to adopting her if
freed for adoption. The foster mother explained that she and her husband are “all in” and are
physically, mentally, emotionally, and financially capable of raising K.C. to adulthood. This
uncontroverted testimony supports the family division’s findings about K.C.’s relationship to her
foster parents and their extended families and her adjustment to home and community. See 33
V.S.A. § 5114(a)(1), (2); cf. In re N.H., 168 Vt. at 512 (explaining that evidence may be “clear
and convincing” even if contradicted or impeached).

5
Moreover, contrary to mother’s assertion, the foster mother’s testimony was not the only
evidence the State offered on these points. The two DCF workers assigned to K.C.’s case also
testified to their observations of her adjustment to her foster home, and their testimony was
consistent with the foster mother’s. Though mother seems to suggest that the evidence became
stale in the months that passed between the foster mother’s testimony and the conclusion of the
proceeding, we note that one of the DCF workers testified at the final hearing on April 10. At
that time, the DCF worker explained that K.C. had a “really positive” relationship with her foster
parents. She was very attached to and loving toward them, and was doing “really, really well” in
their home. The foster parents continued to attend carefully to K.C.’s special medical needs and
had recently taken her to a pulmonologist. K.C. was also continuing to advance at daycare. This
evidence, too, provided abundant support for the court’s analysis of the first two best-interests
factors.

As a result, mother has not shown that the court erred in concluding that the State
demonstrated, by clear and convincing evidence, that K.C. had formed a parental bond with her
foster parents, who provided her with stability and consistency, integrated her into their extended
families, met her medical and other needs, and were committed to adopting her if freed for
adoption. These findings, in turn, supported the court’s analysis of K.C.’s best interests under
§ 5114(a)(1) and (2). See, e.g., In re T.T., 2005 VT 30, ¶ 6, 178 Vt. 496 (concluding that
evidence relevant to first two best-interests factors supported termination where “foster parents
had cared for T.T. for most of his young life, nursing him through needed physical therapy and
becoming his psychological parents” and wished to provide him with necessary permanence).

Finally, mother argues that the family division lacked sufficient evidence regarding
K.C.’s paternal extended family to support its conclusion that termination of mother’s parental
rights was in K.C.’s best interests. Specifically, she observes that father testified that either he or
his family members could provide permanency for K.C., but the “thread” of this testimony was
essentially lost between the November 21, 2023 and April 10, 2024 hearings.2 Mother asserts
that the relevant statutory provisions must be construed in connection with the purpose “to
preserve the family,” and contends that, had the court denied the petition, the State would have
had more time to complete a home study for father’s aunt in North Carolina.

This argument is also unsupported by the record. At the time of K.C.’s birth, father was
incarcerated in Pennsylvania. He remained so during the first termination hearing in November
2023, where he testified that his mother told him that his aunt, who lived in North Carolina,
would be willing to care for K.C. until his release or take “temporary custody if all else fails.”
When the direct examination of father by his attorney continued at the next hearing in April
2024, he had been released from prison and testified that he wanted K.C. to come live with him
at his home in Pennsylvania. K.C.’s attorney asked father about his aunt in North Carolina, and
he agreed that she is sixty-seven years old and had never met K.C. Because § 5114(a)(1) directs
the court to consider the child’s “interaction and interrelationship” with persons who may
significantly affect their best interests, it is not clear how additional testimony regarding father’s
aunt could have materially impacted the analysis: father agreed that K.C. and his aunt had never
met, and thus had no interaction or relationship. There was no evidence that K.C. had any
connection to any other members of father’s extended family, and mother does not challenge the
court’s conclusion that, for multiple reasons, father himself was unable to offer K.C. timely
permanency.

2
In making this argument, mother neglects to note that an intervening hearing was held
on April 1, 2024, and that the continuation of father’s November testimony began on this day.
6
To the extent mother suggests that the court should have considered the possibility that
K.C. could be placed with father’s aunt in its best-interests analysis, she has not indicated
whether or how she preserved this argument for appeal. See In re C.H., 170 Vt. 603, 604 (2000)
(mem.) (declining to reach parent’s argument on appeal because it was not raised before family
division); V.R.A.P. 28(a)(4)(A) (providing that appellant’s principal brief must indicate how
each issue presented was preserved). In any event, this contention is at odds with the case law.
“We have repeatedly rejected the claim . . . that the court must consider less drastic alternatives
to termination once it has determined [a] parent to be unfit and unable to resume his or her
parental responsibilities.” In re G.F., 2007 VT 11, ¶ 20, 181 Vt. 593 (mem.). “Having
concluded by clear and convincing evidence that termination of . . . parental rights was in
[K.C.’s] best interests, the court was not required to address possible alternative placements for
the child.” In re K.F., 2013 VT 39, ¶ 29, 194 Vt. 64. Just as we explained in In re K.F.,
“[e]vidence about potential kinship placements within [father’s] family would have been,
accordingly, irrelevant to the court’s decision.” Id.

The State’s evidence supported the trial court’s finding that mother was unlikely to be
able to resume parenting K.C. within a reasonable time given K.C.’s young age and need for
permanency. It also supported the court’s finding that K.C. was bonded to her foster parents and
adjusted to their home and her community. Mother has not shown that the court abused its
discretion in concluding that the State had shown, by clear and convincing evidence, that
termination of mother’s parental rights was in K.C.’s best interests under the relevant statutory
factors.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

7