Note: Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2012

- 349

FEBURARY TERM, 20 1 3

In re D.D., Juvenile } APPEALED FROM: } } Superior Court, Windham Unit

, } Family Divisio n } } DOCKET NO. 108

- 9

- 11 Wmjv

Trial Judge: John P. Wesley

In the above

- entitled cause, the Clerk will enter:

Mother appeals an order of the superior court, family division, terminating her residual parental rights with respect to her son, D.D. We affirm.

D.D. was born in June 2005 and lived with mother until May 2009, when mother’s deepening addiction to drugs led her to place D.D. with his grandmother. Two months later,

mother moved D.D. from his grandmother ’s home to his aunt’s home. In July 2009, mother was incarcerated. During her incarceration, she consented to the aunt being appointed D.D.’s legal guardian.

In April 2010, mother entered into a comprehensive plea agreement in which she admitted to probation violations and ple a d ed guilty to charges of retail theft, possession of heroin, and possession of a regulated drug. She remained incarcerated until May 2010, when she was furloughed. During the next eight months, mother’s furlough was revoked on three occasions because of her continued drug use. In March 2011, mother was admitted to the

Brattleb oro Retreat, where she attempted suicide and engaged in self

- harming behaviors. Following her release from the Retreat in the summer of 2011, she continued her drug use and attempted suicide on two more occasions.

Meanwhile, i n May 2011, the aunt , D.D.’s guardian, was arrested as part of a drug investigation. In June 2011, the aunt stipulated to D.D. being a child in need of care or supervision (CHINS). The Department for Children and Families (DCF) filed a case plan recommending reunification between D. D. and the aunt. In July 2011, the aunt was murdered, possibly as the result of a drug

- related dispute. Following the aunt’s murder, the case plan goal changed to termination of parental rights.

Because mother was consistent in weekly visits during a thr ee

- month period in late summer and early fall of 2011, however, a modified case plan set forth a concurrent goal of

reunification with mother. The new case plan required mother, among other things, to complete furlough in good standing, avoid criminal con duct, participate in planned visits, maintain safe housing, participate in drug screening, follow recommendations for treatment, document her drug

- free status, and engage in therapy to address mental health issues.2

In October 2011, mother was arrested for violating her conditions of furlough after drug paraphernalia was found in her apartment. Two months later, she was arrested for shoplifting. In March 2012, she was incarcerated after test ing positive for cocaine, suboxone, and

benezedrine. Following mo ther’s incarceration, DCF sought termination of her parental rights. Mother was released from furlough in August 2012 but will remain under the supervision of the Department of Corrections until June 2013.

The termination hearing was held on August 17, 20 12. Following the hearing, the family court issued a decision terminating mother’s parental rights. The court found that mother’s problems with the criminal justice system had deepened, that mother had failed to meet the case plan goals, and that her lif e of cycling between jail and community supervision had been accompanied by multiple threats of suicide and self

- harming behaviors

. The court concluded

that mother’s inability to remain out of jail or to adhere to case plan goals demonstrated “that she

is unlikely to be in a position to provide competently for [D.D.s] needs within any period of time short enough to be consistent with his right to the secu rity of a permanent placement.” Stating that this case “is a discouraging revelation of the terribly v ulnerable predicaments into which infants and young children are abandoned when their parents fall prey to the scourge of drug using, and the criminal lifestyles necessary to sustain resulting addictions,” the court concluded

that D.D. ’s need to be in a sa fe and secure home trumped his tenuous relationship with mother.

On appeal, mother argues th at the record does not support the court’s assessment of her relationship with D.D. Mother focuses particular ly on the following statements in the court’s

discussion:

More importantly, at two junctures just as visits were beginning to

generate promising bonding between Mother and [D.D.], Mother’s criminal and antisocial behaviors broke the continuity of that connection when furlough violations sent her back to jail. The first hiatus in October 2011 was a matter of weeks, but the second one in March 2012 has lasted more than five months. DCF predictably and properly concluded that the child’s well

- being was too fragile to risk further dashed expectations of reattachment. From the child’s perspective, it is likely that Mother’s commitment to the visits she managed to attend were more harmful than helpful, because her criminal behavior caused them to be drastically interrupted. To [D.D.], each time Mother wen t back to jail marked another wrenching disappointment of losing a loved one, just as he had begun to imagin e having her in his life again.

According to mother, the record does not support the court’s speculation that her visits were

more harmful than hel pful because of the supposed harmful effect s on D.D. resulting from interruptions in those visits. Mother further argues that the court’s speculation on the

harmfulness of the visits did not satisfy the requirement that its conclusions be supported by

cle ar and convincing evidence. See In re R.W.

, 2011 VT 124, ¶ 14, 191 Vt. 108 (“[T]he trial court must find stagnation, as well as best interests, by clear and convincing evidence.”).

N either of these arguments support s disturbing the family court’s terminat ion decision.

The court found that there was still a bond between mother and D.D., despite the limited contact between them during the previous two years, as evidenced by D.D.’s desire to maintain contact with mother. Indeed, it is the evidence of that c ontinuing bond that led the court to surmise that

the multiple interruptions in mother’s visits with D.D. likely resulted in the visits being more3

harmful than helpful to the child. The court did not suggest that its supposition on this point was based on clear and convincing evidence; rather, the court applied “its own common sense and experience in reaching a reasoned judgment. ” Payrits v. Payrits , 171 Vt. 50, 53 (2000)

. In any

event, the court’s ultimate determination that D.D.’s best interests requir ed terminating mother’s parental rights was based primarily on clear and convincing evidence that mother was unable to stay out of jail and address the multiple drug

- related and mental health issues that prevented her from safely parenting D.D. The re cord contains o verwhelming evidence to support the court’s

conclusions that mother had made virtually no progress toward being able to parent D.D. and would not be able to undertake that responsibility within a reasonable period of time.

Affirmed

.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justice

_______________________________________ John A. Dooley , Associate Justice

_______________________________________ Brian L. Burgess, Associ ate Justice