In re R.P. and D.P., Juveniles ( 2016 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2015-459
APRIL TERM, 2016
In re T.P. and D.P., Juveniles } APPEALED FROM:
}
} Superior Court, Franklin Unit,
} Family Division
}
} DOCKET NO. 45/46-4-14 Frjv
Trial Judge: Howard A. Kalfus, Acting
Superior Judge, Specially Assigned
In the above-entitled cause, the Clerk will enter:
Mother and father separately appeal from a family court order terminating their parental
rights to the minors T.P. and D.P. Father contends the court erred in: (1) failing to hold a
disposition hearing or issue a disposition order; and (2) requiring father to submit clean drug
tests as a condition of child visitation. Mother contends the court erroneously failed to set forth a
rational basis for its decision. We affirm.
A CHINS petition was filed in April 2014, alleging that the children, then three and one
years old, were in need of care and supervision based on parents’ chronic substance abuse and
incidents of domestic violence. A temporary care order initially placed the children with their
paternal grandmother, but her inability to care for them resulted in their placement with their
maternal grandmother and her husband—both licensed foster parents—where they have since
remained.
In July 2014, mother stipulated to an adjudication of CHINS. Father’s counsel noted at
the CHINS hearing that father had “de facto” not been involved in parenting the children because
of a “no contact order.” A disposition plan was filed with the court in September 2014, which
identified concurrent goals of reunification or, if unsuccessful, termination of parental rights and
adoption. The plan set forth a number of goals and services for both parents that included
substance abuse assessments and treatment, drug testing, participation in individual and team
meetings with the Department for Children and Families as scheduled, and maintaining safe and
stable housing free of drugs and domestic violence. Mother was to follow a consistent child-
visitation schedule. Father was to contact “All About Kids,” a supervised visitation program, to
establish a visitation schedule, and was to attend all scheduled visits and team meetings.
In late September 2014, the court held a hearing to review the plan with the parties.
Father’s attorney stated that he had not received timely notice of the hearing, and asserted that
the plan contained a number of factual errors. The court, accordingly, continued the matter to
December 2014 to afford father an opportunity to prepare for a contested disposition hearing.
At the hearing in December 2014, the court announced that other matters precluded an
evidentiary hearing that day, but that it would reschedule the matter for a contested hearing if
either party requested one. Father’s attorney indicated that he would consult with his client and
agreed to file written objections by early January 2015. The court then heard argument from
counsel about the plan, and was further informed that father had failed to attend several meetings
designed to establish a parent contact schedule and that mother had failed a number of drugs tests
in the last several months. After further discussion, the court agreed to a proposal by the
children’s attorney that visits from both parents be conditioned upon their submitting a clean
drug test. The children’s attorney had initially suggested a clean test within twenty-four hours of
each visit. With respect to the proposal, father’s attorney stated that “it should work” but
expressed concern about getting the results that expeditiously. The court ultimately ordered that
the tests be provided two days before scheduled visits.
Father’s one-page filing in January 2015 set forth his objections to the disposition plan by
citing to several pages and lines in the disposition report that he claimed were inaccurate. He
also objected to the need for supervised visits. The court scheduled a contested disposition
hearing for late March 2015, but the State filed a TPR petition in the interim. The court held a
hearing in late March 2015 to establish a discovery schedule on the pending TPR and to address
mother’s motion to enforce visitation. Father’s attorney was present at the hearing, explained
that father had been incarcerated for a period in January and February 2015, and noted that a
meeting with DCF was scheduled “in the near future” to discuss father’s parent contact schedule.
The court held a further status conference in July 2015, where father’s attorney indicated that
father was currently incarcerated but otherwise confirmed that he had no other matters to raise at
that time.
An evidentiary hearing on the TPR petition was held over the course of three days in
October and December 2015. Without objection, the court stated that it would consider the
matter to be a TPR at initial disposition given the absence of any actual disposition order in the
record. At the conclusion of the hearing, the court entered findings and conclusions on the
record. As to father, the court found, in summary, that he had had very little contact with the
children since they came into DCF custody. Indeed, he had not seen them at all since December
2014, a year earlier, and had not engaged with DCF in any meaningful fashion. Applying the
best-interests criteria, the court found that father’s interactions and interrelationship with the
children was “virtually nonexistent,” that he had not played a constructive role in their lives, and
that—measured from the perspective of the children’s need for permanence and stability—he
could not resume parental responsibilities within a reasonable time. As to mother, the court
found that there had been “a great deal of inconsistency” in her attendance at scheduled visits
with the children and counseling, which had decreased over time; that she had demonstrated
emotional support and affection “when you were there” but that her inconsistency had limited the
role she played in the children’s lives; and that there was little likelihood she could resume
parental responsibilities within a reasonable time. The court also found that that the children had
since adjusted well to their foster placement in their maternal grandmother’s home and
community. Accordingly, the court concluded that termination of parental rights was in the best
interests of the children. These appeals followed.
Father contends the court violated his statutory and constitutional rights by failing to hold
a contested disposition hearing, and by relying on a case plan that had not been adopted.
Although several continuances in this case delayed the disposition hearing to the point that it
merged into the TPR hearing, the statutory timeframe for a disposition hearing is not mandatory,
In re D.D., 2013 VT 79, ¶ 24, 194 Vt. 508, and the statutory scheme authorizes the termination
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of parental rights at initial disposition. 33 V.S.A. §5318(a)(5); see also In re C.P., 2012 VT 100,
¶ 30, 193 Vt. 29 (“The family court 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.”). Nor does the record support father’s claim that the court improperly relied on
the case plan despite the fact that his objections to the plan were never heard or resolved. The
court’s findings and conclusions show that the decision to terminate father’s parental rights was
based substantially on his nearly “nonexistent” contact with the children, which was due largely
to his periodic incarcerations, failure to comply with the drug-testing condition, and general
failure in any way to “keep abreast” of what was happening in the children’s lives. Although the
delay in holding a timely disposition hearing was not optimal, under the circumstances presented
here we find no error.
Father also asserts that the court erred in requiring him to submit clean drug tests prior to
visits with the children. The record shows, however, that father raised no objection to the need
for testing at the time the court imposed the requirement or at any time thereafter. Accordingly,
we find no merit to the claim. In re A.M., 2015 VT 109, ¶ 28 (to preserve issue for review, party
must raise it with trial court with sufficient specificity and clarity to provide fair opportunity to
address it).
Mother contends the court improperly “failed to explain the rational basis for its
decision.” She asserts, more specifically, that she deserved an “explained answer” as to why the
benefits outweighed the costs of termination in light of the evidence that she was important to
both children and that tension between mother and the foster mother made continued contact
with the children problematic. The court’s responsibility is to review the evidence in light of the
statutory best-interests criteria and to explain “what was decided and how the decision was
reached.” In re M.B., 147 Vt. 41, 45 (1986). The court here did so here. Although the court
acknowledged that mother’s visits with the children had been positive, it concluded that her
attendance was too infrequent to play a significant role in the children’s lives or to support a
conclusion that she could resume parental responsibilities within a reasonable time. We thus
find no error.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Harold E. Eaton, Jr., Associate Justice
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