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, 2013

In re D.D., Juvenile } APPEALED FROM:

}

} Superior Court, Windham Unit,

} Family Division

}

} 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 pleaded 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 During the next eight months, mother’s furlough was revoked on three 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 

Brattleboro 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, in 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 three-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 conduct, 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.
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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 testing positive for cocaine, suboxone, and 

benezedrine. Following mother’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, 2012. 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 life 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 security of a permanent placement.” Stating 

that this case “is a discouraging revelation of the terribly vulnerable 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 safe and secure home trumped his tenuous relationship with mother.

On appeal, mother argues that the record does not support the court’s assessment of her 

relationship with D.D. Mother focuses particularly 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 went back to jail marked 

another wrenching disappointment of losing a loved one, just as he 

had begun to imagine 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 helpful because of the supposed harmful effects 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 

clear 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.”).

Neither of these arguments supports disturbing the family court’s termination 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 continuing bond that led the court to surmise that 

the multiple interruptions in mother’s visits with D.D. likely resulted in the visits being more 
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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 required 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 record contains overwhelming 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, Associate Justice