In re X.L. and N.L., Juveniles

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2011-353
MARCH TERM, 2012
In re X.L. and N.L., Juveniles } APPEALED FROM:
}
} Superior Court, Bennington Unit,
} Family Division
}
} DOCKET NOS. 149-12-09 &
14-2-10 Bnjv
Trial Judge: Karen R. Carroll
In the above-entitled cause, the Clerk will enter:
The family division terminated mother’s parental rights to X.L. and N.L., and father’s
parental rights to X.L. On appeal, mother argues that the court failed to provide her with
sufficient notice of the termination hearing. Father argues that the evidence does not support the
court’s findings that father’s ability to parent had stagnated and that father will not be able to
resume parenting within a reasonable period of time. We affirm.
This termination case involves mother’s two children, N.L., born in September 2007, and
X.L., born in October 2009. N.L.’s father voluntarily relinquished his parental rights and did not
participate in the termination hearing.
The court found the following facts. In December 2009, X.L. was placed in the custody
of the Department for Children and Families (DCF) under an emergency care order because X.L.
was losing weight and mother was unable to provide him with sufficient nourishment. X.L. had
been in the hospital at the age of one month for failing to thrive, and, although mother had
received instruction on improving X.L.’s condition, he continued to lose weight. At the time,
mother was caring for the children on her own. X.L.’s father committed a domestic assault
against mother prior to X.L.’s birth and was prohibited from contacting her. In February 2010,
the court issued an emergency care order regarding N.L. and found that mother could not
properly care for the child due to her mental health and inattention to routine care.
In December 2009 and March 2010, the parents entered admissions and stipulated that
both X.L. and N.L. were children in need of care or supervision (CHINS). They also agreed
with, and the court approved, DCF’s disposition plans in both cases, which aimed concurrently
for reunification or termination of parental rights.
The case plan required mother to, among other things, provide recommended medical
care for the children, maintain safe housing, work with a parent educator, attend therapy, sign
releases, attend parenting classes, and update the service provider with her contact information.
Mother did not meet these goals. Her mental health was a primary concern, but she attended
therapy only sporadically. She started a parenting program, but it was terminated for her failure
to participate. Mother’s last contact with her DCF caseworker and her children was March 2011.
In April 2011, DCF sent mother a letter, but received no response.
Father has a history of criminal offenses, including domestic violence against mother.
X.L. is his eighth, and youngest, child. Father does not have a relationship with his other
children. The case plan required father, among other things, to comply with all Department of
Corrections (DOC) requirements, attend scheduled visits, complete a parenting class, comply
with service provider requirements, engage in therapy, and refrain from committing additional
criminal acts. Father also was required to recognize the impact of his domestic violence on his
young child and to attend individual counseling to address parenting skills and anger
management. Father attended supervised visitation with X.L. The family time coach identified
several areas for father to work on including avoiding talking about adult issues during visits and
refraining from inappropriate language. Father displayed anger and blamed others for his
problems. He made disparaging remarks to X.L. Father made some progress, but continued to
bring up adult issues and his own problems at visits. Father was referred for anger management.
This therapy was discontinued after father cancelled several visits. Father began a relationship
with a woman who displayed angry and aggressive behavior. DCF warned father that the
girlfriend would pose a barrier to reunification with X.L., but father continued the relationship.
Father has told his DCF caseworker that he is not able to care for X.L.
Since being placed in DCF custody the children were placed in separate foster families.
Both N.L. and X.L. have formed strong bonds with their respective foster families. The families
intend to adopt the boys and to continue contact between the brothers.
DCF filed petitions to terminate parental rights as to both children. The court sent mother
notice of the termination hearing, but it was returned for lack of a forwarding address, and
mother was absent at the hearing. Mother’s attorney was present and participated. During
questioning of mother’s DCF caseworker, the caseworker explained that she thought mother was
living in Brattleboro with a boyfriend. She also testified that she had sent mother letters in April,
which were returned as undeliverable with a notice that mother had moved with no forwarding
address.
Following the hearing, the court issued a written decision. As to mother, the court
concluded that there was a change of circumstances due to stagnation since mother had failed to
satisfy any portion of the case plan. The court found that despite some success, father’s progress
had also stagnated. The court explained that father continues to have anger issues and had failed
to complete anger management counseling. In addition, father continued to bring adult issues up
during visits with X.L., and he maintained a relationship with a woman who has a volatile
temper and whom DCF has deemed to be an inappropriate caregiver. After examining the
statutory best-interests factors, the court concluded that termination was in the children’s best
interests.
Both parents appeal. The family court has discretion in deciding whether to terminate
parental rights. In re D.M., 162 Vt. 33, 38 (1994). Termination requires a threshold showing of
a substantial change in material circumstances. Id. “If the change in circumstances has been
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established, the court may order termination only upon concluding that severance of the parent-
child bond is in the best interest of the child.” Id.; see 33 V.S.A. § 5113(b). The most
overarching of the best-interests factors is whether the parent will be able to resume parenting
within a reasonable period of time. In re J.B., 167 Vt. 637, 639 (1998) (mem.).
We first address mother’s appeal, which alleges that the court failed to provide her with
individual notice of the termination hearing. At a hearing in X.L.’s case in January 2011, mother
was present, and DCF announced its plan to terminate the rights of both parents. At a status
conference in May 2011 to discuss setting the termination hearing, mother was absent. The court
inquired as to how mother would be notified of the termination hearing. The State responded
that it had not received a change of address from mother and would send the notice by regular
mail. Mother’s attorney indicated that he had corresponded with mother by electronic mail and
had expected her at the conference. Mother’s attorney believed that mother was still receiving
regular mail. The court notified mother of the termination hearing, but the notice was returned as
undeliverable with no forwarding address.
Mother’s argument relies on In re M.T., in which we held that the family court is required
“to provide direct notice of a pending termination petition and hearing to the parents of children
who are the subject of the petition, in addition to the parents’ attorneys.” 2006 VT 114, ¶ 12,
180 Vt. 643 (mem.). We explained that, given “the ominous prospect of permanently losing
their children,” parents were entitled to direct notice. Id. ¶ 11.
We conclude that the court satisfied the obligation of direct notice articulated in M.T. by
mailing direct notice to mother to the last address provided to the court by mother. That the
notice was returned due to an incorrect address does not alter the situation since mother had an
obligation to notify the court of any change in address. See In re J.L., 2007 VT 32, ¶ 13, 181 Vt.
615 (mem.) (holding that court fulfilled requirements of M.T. by sending notice directly to father
even though it was returned due to an outdated address); see also 33 V.S.A. § 5311(f) (“The
parent shall be responsible for providing the court with information regarding any changes in
address.”).
Mother attempts to distinguish In re J.L. on the grounds that in that case the father had
actual notice, the father called in at the beginning of the hearing, and the court left the record
open to give father an additional opportunity to present evidence. Mother argues that there was
no evidence she had actual notice and that the court erred in not affording mother an opportunity
to reopen the hearing if her absence was excusable. We find no error. The family division is not
required to prove that mother had actual notice. See In re S.W., 2008 VT 38, ¶ 12, 183 Vt. 610(mem.) (holding that proof of actual notice is not required). The court must send parents a direct
notice of a termination hearing, which the court did in this case.
As to mother’s contention that the court should have left the hearing open for further
evidence, mother fails to demonstrate that she was prejudiced in any manner by the fact that the
court did not leave the record open. Mother did not make such a request to the trial court, and,
on appeal, proffers no additional evidence she would have submitted. Similarly, while mother
claims the court erred by not conducting a hearing to determine if mother was at fault for failing
to update the court with an address, mother raised no such excuse in the trial court and does not
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proffer any legitimate reason on appeal. Therefore, there are no grounds to disturb the court’s
conclusion to terminate mother’s parental rights.
Next, we turn to father’s appeal, which pertains solely to X.L. Father first argues that the
court erred in finding changed circumstances in his case. A change in circumstances is most
often found when a parent’s ability to care for the child has stagnated. In re D.M., 2004 VT 41,
¶ 5, 176 Vt. 639 (mem.). To determine if a parent’s progress has stagnated, the court must
consider whether the parent’s abilities have improved from the time of the CHINS adjudication
so that the parent’s improved ability substantially conforms to the expectations in the case plan.
In re D.C., 168 Vt. 1, 4 (1998). Our review on appeal is limited to determining whether the trial
court’s factual findings are supported by credible evidence and whether the findings support its
conclusions. Id.Father argues that X.L. was taken into custody because of mother’s inability to address
X.L.’s failure to thrive and that, therefore, the court should have considered whether father was
able to meet X.L.’s basic needs, which he contends he could. See In re D.C., 168 Vt. at 4
(explaining that stagnation is determined by assessing whether there is no reasonable possibility
that the causes and conditions which led to the filing of the petition can be remedied within a
reasonable time). Father claims the court erred in addressing other “collateral issues” such as his
ongoing relationship with a volatile individual and his failure to complete anger management
therapy.
We conclude there was no error. While the most immediate cause of X.L.’s custody was
mother’s failure to properly care for him, the reason father could not parent X.L. at the time was
due to father’s domestic violence against mother, which was intimately linked to his inability to
control his anger. Thus, these issues were incorporated into the case plan; a plan to which father
stipulated. The trial court properly considered whether father had progressed in the areas
identified in the case plan, and its findings that father had not made progress are supported by the
evidence. The question is not whether the parent has shown any improvement in his or her
parenting skills, but instead “whether the improvement substantially conformed with the
expectations at the time of the CHINS adjudication and with [DCF’s] case plan.” In re D.B., 161
Vt. 217, 220 (1993). In this regard, father’s progress was minimal. Father did not complete
anger management, continued a volatile relationship contrary to DCF’s instruction, and admitted
that he could not properly care for X.L. on his own. See In re A.F., 160 Vt. 175, 181 (1993)
(noting that a parent’s improvement in one area does not preclude a finding of changed
circumstances).
Next, father argues that DCF failed to provide father with services and that stagnation
was therefore caused by factors beyond his control. See In re S.R., 157 Vt. 417, 421-22 (1991)
(recognizing that that stagnation cannot be based on factors beyond a parent’s control). Father
contends that his DCF caseworker was negligent in making only two referrals for him and should
have referred him for individual counseling, anger management, and a parenting class. We
conclude that DCF provided father with sufficient resources and that stagnation was caused by
factors within father’s control. DCF provided father with supervised visitation and coaching.
Father’s failure to complete his anger management counseling, to implement the instruction he
received during the visits, and to end his volatile relationship were all matters within father’s
control.
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Finally, in a related argument, father argues that the court erred in failing to consider in
its best-interests analysis DCF’s failure to refer father for services. Given our conclusion that
DCF provided father with appropriate referrals and support, there was nothing for the court to
consider, and we need not address this issue further.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
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