In re M.L., Juvenile

VERMONT SUPREME COURT Case No. 23-AP-279
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 M.L., Juvenile } APPEALED FROM:
(D.W., Mother*) }
} Superior Court, Windham Unit,
} Family Division
} CASE NO. 21-JV-00786
Trial Judge: Jennifer Barrett

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

Mother appeals the termination of her parental rights in son M.L., born in April 2020.*
We affirm.

The record reflects the following. In June 2021, the State filed a petition alleging that
M.L. was a child in need of care or supervision (CHINS) and he was placed in the custody of the
Department for Children and Families (DCF) pursuant to emergency- and temporary-care orders.
In November 2021, mother stipulated that M.L. was CHINS at the time of the State’s petition
because she had indicated that she did not intend to parent him and left him in the care of his
maternal grandmother, whose parental rights to mother had been terminated. Mother agreed that
maternal grandmother had a history of exposing her own children to unsafe individuals and was
at the time residing with two men about whom mother had concerns.

Mother expressed an intent to reunify with M.L., and the family division issued a
disposition order in February 2022 with a goal of reunification with mother or father by May
2022. The case plan adopted by the court called for mother to, among other things, receive
consistent mental-health treatment and comply with the treatment recommendations, obtain a
developmental assessment and participate in any recommended services, secure stable housing,
demonstrate financial stability, and engage with M.L.’s providers.

The State petitioned to terminate parents’ rights in November 2022. A hearing on the
petition was held over two days in April and May 2023, and the family division subsequently
issued a written decision containing the following factual findings.

After M.L. was placed in DCF custody in June 2021, mother moved to the state of
Georgia and remained there through the time of disposition. While in Georgia, she had only

*
Father’s rights were also terminated; he does not appeal.
virtual visits with M.L. Mother returned to Vermont in March or April of 2022, and DCF
offered her one-hour supervised visits with M.L. twice a week. Mother attended less than half of
the ninety-seven visits offered between April 2022 and March 2023. Though mother identified
transportation issues as one of the reasons for the missed visits, she did not accept DCF’s offer of
transportation assistance. As a result of mother’s inconsistent attendance, visits never increased
in duration or frequency, and mother never progressed to unsupervised visits.

In September 2022, screening revealed that M.L. has a rare genetic mutation which may
cause developmental delay and epilepsy. M.L. has experienced delays in the development of his
speech, language, and fine-motor skills, and he receives services such as physical and speech
therapy. Mother never engaged with M.L.’s school or any of his service providers and did not
attend any of his medical appointments.

Mother’s housing remained unstable throughout the pendency of the case. She moved
frequently, living with friends in Georgia, with father, with maternal grandmother, with a
supportive person, with her brother, and in emergency housing.

Mother has an intellectual disability and has been diagnosed with post-traumatic stress
disorder, bipolar disorder, seizure disorder, anxiety, and depression. While in Georgia, she
completed an intake for a mental-health and developmental assessment but declined services and
did not receive therapy. After returning to Vermont, mother completed an intake with Health
Care & Rehabilitation Services (HCRS) and was assigned a therapist. Her case was closed
during the summer of 2022 due to her lack of attendance at therapy sessions. Mother had been
taking her mental-health medications since May 2022 and was engaged with a nurse practitioner
to manage those medications. Mother completed a developmental assessment with HRCS and
was deemed eligible for services including case management, transportation, and in-home
services, but was resistant to availing herself of these supports. She did not comply with the
services recommended in the assessment.

Mother uses a payee. She repeatedly selected inappropriate payees who took advantage
of her, impacting her financial stability. Though it was recommended that mother use HCRS as
a professional payee, she declined to do so.

Based on these findings, the family division concluded that there was a change in
circumstances due to mother’s stagnation, observing that she never progressed beyond the
beginning stages of her case plan. The trial court then weighed the statutory best-interests
factors. Though mother and M.L. had a bond, she did not play an active role in supporting his
welfare and there was a significant risk of future abandonment. M.L. was bonded with his foster
family and had adjusted to his home, school, and community. Though the trial court commended
mother for resuming consistent visits with M.L., securing emergency housing, and reengaging
with her therapist between the first and second days of the termination hearing, it concluded that
this progress was insufficient to support the conclusion that mother would be able to parent M.L.
within a reasonable time. The family division concluded that termination of mother’s parental
rights was in M.L.’s best interests and granted the State’s petition. This appeal followed.

When termination of parental rights is sought after initial disposition, the family
division’s analysis proceeds in two parts. In re M.P., 2019 VT 69, ¶ 24, 211 Vt. 20. The trial
court must first determine whether there has been a change in circumstances; if so, it must
consider whether termination of parental rights is in the child’s best interests. Id.; see also 33
V.S.A. §§ 5113(b), 5114(a). Changed circumstances are “most often found when a parent’s
ability to care properly for the child has either stagnated or deteriorated over the passage of
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time.” In re K.G., 2023 VT 51, ¶ 30 (quotation omitted). Provided that the court applied the
appropriate standard, we will not disturb its findings unless they are clearly erroneous and will
affirm its conclusions if supported by those findings. In re G.S., 153 Vt. 651, 652 (1990)
(mem.).

First, mother argues that the family division’s findings that she had not established stable
housing, demonstrated financial stability, or secured a stable payee are clearly erroneous. “When
findings are attacked on appeal, our role is limited to determining whether they are supported by
credible evidence.” In re A.F., 160 Vt. 175, 178 (1993).

Mother contends that there was insufficient evidence to support the finding that she had
not obtained stable housing because she testified that she received a hotel housing voucher
between the April and May termination hearing dates, was assured that she would continue to
receive housing due to her disability, and was working with a case manager to secure non-
transitional housing. But while mother testified that she believed the voucher program would not
be impacted by the end of COVID-19 assistance because of her disability, the DCF worker
assigned to the case did not share this understanding. Instead, the DCF worker testified that
mother would be required to check out of the hotel on July 1, 2023. This testimony supported
the finding that mother’s housing remained unstable despite her participation in the voucher
program. It is for the trial court, not this Court, to determine the appropriate weight to assign to
the evidence. Id. Further, mother’s testimony that she was working to secure non-transitional
housing in the future was irrelevant to the court’s assessment of the stability of her current
housing. The finding that mother had not established stable housing was not clearly erroneous.
See In re G.S., 153 Vt. at 652.

Mother also argues that the court erred in finding that she had not demonstrated financial
stability or established a stable payee because she testified that she had money left over each
month after selecting a new payee. The trial court found that mother had not demonstrated
consistent financial stability but it did not find, as mother asserts, that she failed to establish a
stable payee. Instead, it found that mother had repeatedly selected inappropriate payees who
took advantage of her, impacting her financial stability. Though mother testified that she felt her
new payee was working out well because she had money left over each month, the evidence
about the new payee’s suitability for this role was mixed. The new payee was one of the
individuals living with maternal grandmother when M.L. was taken into custody and, at that
time, mother had expressed concern that he could “fly off the handle.” The DCF worker testified
that she did not believe he was a suitable person to fill the role of payee and that his appointment
created risk. And though the new payee testified at the termination hearing, the family division
did not find his testimony credible and largely discounted it. In light of these considerations and
mother’s historical selection of inappropriate payees, the court’s finding that mother had not yet
demonstrated financial stability was not clearly erroneous. See id.

Finally, mother argues that the court erred in concluding that she had stagnated because,
to the extent she had an obligation to obtain private housing, her inability to do so was
attributable to the pandemic and the state’s housing crisis, which are factors beyond her control.
See In re S.R., 157 Vt. 417, 421-22 (1991) (recognizing that stagnation caused by factors beyond
parent’s control cannot support termination of parental rights). The court did not find that
mother was obligated to obtain private housing and mother provides no record support for this
assertion. See V.R.A.P. 28(a)(4) (requiring that arguments in appellant’s brief be supported by
“citations to the . . . parts of the record on which the appellant relies”). Instead, the court found
that mother had not obtained stable housing. As set forth above, this finding was not clearly

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erroneous, and mother has not argued that her failure to obtain stable housing was due to factors
beyond her control. The family division did not abuse its discretion in concluding that there had
been a change in circumstances due to mother’s stagnation.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

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