In re H.B., Juvenile

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2014-208
OCTOBER TERM, 2014
In re H.B., Juvenile } APPEALED FROM:
}
} Superior Court, Bennington Unit,
} Family Division
}
} DOCKET NO. 54-4-12 Bnjv
Trial Judge: David Howard
In the above-entitled cause, the Clerk will enter:
Father appeals from the termination of his parental rights in daughter H.B. He argues
that the court erred in concluding that termination of his rights was in H.B.’s best interests. We
affirm.
H.B. was born in November 1996. In mid-2012, H.B. admitted to the allegations in a
delinquency petition. Around the same time, the Department for Children and Families (DCF)
filed a petition alleging that H.B. was a child in need of care or supervision (CHINS) because she
was beyond her parents’ control. H.B. was in father’s custody at the time; mother was not
involved in H.B.’s life. H.B. was placed in DCF custody. DCF subsequently dismissed the
CHINS petition, and the delinquency case proceeded to disposition. In December 2012, an adult
friend was awarded legal custody of H.B. In the spring of 2013, DCF obtained custody of H.B.
Parents did not participate in making a plan for H.B., nor did they contact DCF to check on
H.B.’s wellbeing. Father was in jail at the time, and mother was living in Massachusetts to avoid
Vermont arrest warrants. In January 2014, DCF moved to terminate both parents’ rights.
Following a hearing, the court granted DCF’s request.
The court found as follows. Father has been incarcerated for much of H.B.’s life due to
convictions for aggravated domestic assault, violations of a relief from abuse order, and other
crimes. While he was incarcerated, father had no meaningful contact with H.B. and he did not
play a positive role in her life. When father was released from jail in 2011, he sought and
obtained custody of H.B. for a short period. H.B. remained in father’s custody for several
months before father sought a CHINS petition. The court found that while father made some
positive efforts during this short period, he had no real relationship with H.B.
H.B. visited with father while in DCF custody, but the visits did not go well. Father was
subsequently arrested and charged with numerous crimes, including aggravated domestic assault
and aggravated sexual assault. At the time of the termination hearing, father was incarcerated
and awaiting trial. Father had been incarcerated for approximately eleven of the eighteen months
that H.B. had been in DCF custody. Father and H.B. had had essentially no contact since
father’s arrest, and H.B. did not desire any contact.
The court found that father made no progress in meeting the initial goals of the
disposition plan. Father admitted making mistakes that rendered him unavailable to H.B. for
most of her lifetime. In father’s view, however, there was no reason to terminate his rights
because H.B. could remain in her foster home regardless of whether his rights were terminated.
Father believed that the TPR was filed to provide a financial benefit to H.B.’s foster mother. The
court noted that the foster mother would probably be better off financially if father’s rights were
not terminated.
The court found that H.B. was doing well in her foster placement. She was very attached
to her foster family and well-adjusted to her community and school. H.B.’s foster mother sought
to adopt H.B. if possible.
Based on these and numerous other findings, the court concluded that termination of
father’s rights was in H.B.’s best interests. The court reiterated that father had played essentially
no role in H.B.’s life, and it concluded that father would not be able to assume any parental role
within a reasonable period. The court explained that father would be incarcerated at least until
his current charges were resolved and father’s history suggested that he would be unable to
remain out of jail for any length of time. Meanwhile, H.B. was doing very well in her foster
placement, and through her foster family, she had finally become part of a community. Although
H.B. was seventeen, she had a right to permanency and a good family environment, and her
foster parents sought to adopt her. After her difficult life, the court found that this plan and result
was clearly in H.B.’s best interest. Granting the petition, the court continued, would provide
H.B. with the permanency she needed. In reaching its decision, the court noted father’s
argument that this was purely a financial issue for the foster family and that “nothing would
change” if the petition was denied. The court found that this argument further demonstrated
father’s lack of understanding that H.B. needed permanency and not just a place to live.
Additionally, father’s belief that the TPR petition was an unwarranted attack on his parental
rights ignored that it was not just his rights that were at stake, but how he had exercised them and
what course of action was in H.B.’s best interests. Father appealed from the court’s termination
order.
As we have often repeated, the court must consider four statutory factors in assessing
what course of action is in a child’s best interests. 33 V.S.A. § 5114. The most important factor
is the likelihood that the natural parent will be able to resume his or her parental duties within a
reasonable period of 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 first suggests that the court failed to properly focus its analysis on H.B.’s best
interests. As support for this argument, he cites the court’s statement that it was not only father’s
rights that were at stake, but how he exercised those rights and what course of action was in
H.B.’s best interests.
We find no error. Obviously, the question of father’s parental rights was at issue in that
DCF was seeking to have those rights terminated. The question of how father exercised those
rights has a direct bearing on the statutory best-interest factors. In any event, it is evident that the
court applied the appropriate statutory standard in reaching its decision and focused on H.B.’s
best interests. Indeed, we note that father does not challenge any of the court’s findings,
including its findings that he played no constructive role in H.B.’s life and that he would not be
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able to parent H.B. within a reasonable period of time. The court’s findings amply support its
conclusion that termination of father’s rights was in H.B.’s best interests.
Father next complains that the court’s decision rests on an assumption that termination of
his rights would ensure that H.B. had permanency in her current foster home. Father states that
this assumption is misplaced because, upon termination of his rights, DCF retained authority to
change H.B.’s placement at any time. We find this argument without merit. H.B.’s foster
mother testified that she sought to adopt H.B., and a DCF caseworker testified that H.B. sought
the permanency and stability that would accompany such adoption. The court was not
unjustified in observing that termination of father’s rights would achieve permanency for H.B.
We emphasize, moreover, as we have in the past, that the termination of parental rights is not
dependent on a child’s placement options. See In re D.H., 2014 VT 38, ¶ 31, 97 A.3d 882.
Finally, father asserts that the court erred in responding to his argument that the TPR was
filed to provide a financial benefit to H.B.’s foster mother. According to father, if H.B.’s foster
mother would be better off financially by not adopting H.B., then the TPR petition should not
have been granted because H.B. would benefit from the increased financial support. We reject
this argument. The statutory best-interest standard does not include any evaluation of the
financial benefits conferred by adoption as opposed to continued foster care. The court based its
decision on the appropriate statutory factors, and we find no error.
Affirmed. The mandate shall issue on the date of this entry order.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Harold E. Eaton, Jr., Associate Justice
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