Note: Decisions of a three

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

ENTRY ORDER

SUPREME COURT DOCKET NO. 2016

- 395

MARCH TERM, 20 1 7

In re D.H. and A.H., Juveniles } APPEALED FROM: } } Superior Court, Lamoille Unit

, } Family Divisio n } } DOCKET NO. 46/48

- 10

- 14 Lejv

Trial Judge: Dennis R. Pearson

In the above

- entitled cause, the Clerk will enter:

Father appeals from the termination of his parental rights in D.H. and A.H. He argues that the court erred in making one of its finding s and erred in concluding that termination of his rights

was in the children’s best interests . We affirm.

Parents have a long history with the Department for Children and Families (DCF). DCF

first became involved with the family in 20 06, and t he issues that concerned DCF at that time with

K.D. , mother’s child with another father, remained essentially the same through the birth of D.H. in July 2007, and A.H. in July 2013. These issues include chronic homelessness and an inability to consistently provide for the family’s basic needs , and later, an inability to control and supervise K.D. with respect to his inte ractions with the two younger children. In October 2014, DCF filed a petition alleging that the children were in need of care or supervision (CHINS). At that point, the family was again homeless and living out of their vehicle and sleeping in a tent. Fa ther was again briefly incarcerated, and K.D. was “out of control” and abusing his younger siblings. Mother

lacked funds for basic necessities. The children were taken into DCF custody on an emergency

basis . In December 2014, parents stipulated that the children were CHINS. Parent s eventually stipulated to disposition and continued custody of the children with DCF. In September 2015, DCF moved to terminate parents’ rights. Following a three

- day hearing, which concluded in August 2016, the court grante d DCF’ s request.

The court found, among other things, that mother was unable to follow through consistent ly with services, and she consistently failed to meet the expectations in the case plan. The court explained that between March 2015 and September 201 5, parents had to change housing eleven times, including several stints at different motels. Father was arrested during this time. Although

father was r equired to regularly attend mental health treatment and anger management counseling sessions, he was n ot doing so. Parents also had several threatening and hostile interactions with

DCF st aff and visitation supervisors during the summer of 2015. This led to temporary stoppage of services, including Family Time coaching. In August 2015

, parents applied t o resume supervised vis it ation , but visitation did not begin , in part because parents failed to demonstrate that they were in compliance with their mental health treatment plans.2

While the children were in custody, f ather continued to be significantly in volved in various criminal cases, with new charges, and violations of furlough and/or probation. This made it

difficult for him, and mother , to maintain stability, including housing and employment. Despite anger management counseling, father continued to be volatile and his behavior led to violations

of

- probation (VOP) charges and sanctions. In June 2016, father was charged with his fourth VOP for drinking alcohol and then getting into an altercation and physically resisting when his probation officers attempted to take him into custody. Father became increasingly out of control and combative, and then assaultive, as he was being processed, including making death threats against the officers and damaging personal and Department of Corrections (DOC) property. As of August 2016, father remained in DOC custody; his pro bation had been revoked and he wa s serving a two

year sentence. Father was still waiting to be released on furlough, with his inability to find approvable housing being the most significant impediment to his supervised reentry. Father was also facing new charges of simple assault on a police officer and unlawful mischief, ste mmi ng from the incident discuss ed above. Father has also been diagnosed with schizophrenia.

The court noted that father primarily blamed DCF and others for his inability to make substantial progres s on the reunification plan. Father complained that parent s were unable to make progress because DCF social workers failed to return their calls and emails. The court rejected this argument, crediting instead testimony by DCF social workers , “support ed by their case file and notes,” that there were very few, and very sporadic calls and contacts from parents for almost

the entire tw o years that the cases were pending. The court found that p arents’ attitude toward DCF persistently thwarted whatever ability they might otherwise have had to take advantage of many of the services and support offered to them.

Parents are no longer a couple. Mother conceded that there was domestic violence in the

home , witnessed by the children. Mother had not had in

- person contact or visitation with the children for over a year by t he time of the TPR hearing. Father’s last in

- person contact with the children was in July 2015.

Based on these and other findings, the court concluded that parents had stagnated in t h e ir ability to parent and that termination of their rights was in the children’s best interests. It explained

that f ather was still not effectively engaged in regular and continuous treatment and counseling fo r his mental health issues; he had no stable home; and he had no apparent ability to support and care

for himself o r his children. A s of August 2016, father was still incarcerated, with no indication of

whe n he might be released due to his failure to identify acceptable housing. Given father’ s criminal history and con tinuing inability to control hi s anger and volatility, there was a substantial risk that he would again become involved in further criminal proceedings even after his release, thereby further complicating his ability to provide a stable home life and permanency for D.H. and

A.H. While fa ther might at one time have had a parental bond with and shown substantial affection for his two children, the court found that he had not had any meaningful contact with D.H. and

A.H. in many months, and that any bond that previously existed had largely d issipated. Father had not played a constructive role for some time in his children’s lives. The court concluded that

father’s failure to position himself to r esume parenting

, in the almost two years since the cases

were commenced, was overwhelmingly the result of his own choi ces and his own actions, and it

was no t due to factors beyond his control. This appeal by father followed.

Father first challenges the court’s finding that th e testimony of th e social workers regarding parents’ failure to communicate was “supported by their case files and notes.” He asserts that the

social worker who testified did not indicate t hat he r testimony was based on case files and notes.3

Even if the court erred in making this statement, the error is harmless. As we have

e xplained, “where a finding of fact that supports the conclusion of the court is clearly erroneous
,

we find harmless error if other valid findings also support the court’s conclusion .” In re G.F. , 2007 VT 11, ¶ 15, 181 Vt. 593 (mem.). The court’s decision did not turn on this point. Instead, a s detailed above, the court found that father made no progress toward being able to resume the care and custody of the children. He failed to engage in necessary treatment, he had no stable home, no ability to suppo rt himself or care for the children, he was incarcerated, he continued to commit crimes, and he remained unable to control his anger and volatility. The court’s findings amply support its conclusion that father had sta gnated in his ability to parent and t hat termination of his rights was in the children’s best interests.

Finally, father argues that the court misstated the law concerning the relevance of a parent’s inability to resume parenting due to factors beyond that parent’s control. The court did n ot find in

this case that father’s failure to comply with the case plan was due to factors beyond his control,

and thus, any error that might exist in the court’s statement is immaterial. It is evident that the trial court applied the appropriate statutor y standard in evaluating the children’s best interests , and its decision is supported by the record. See In re G.S. , 153 Vt. 651, 652 (1990) (mem.) (explaining that as long as trial court applied proper standard in evaluating child’s best interests , Supre me Court will not disturb its findings on appeal un less they are clearly erroneous and will affirm its

conclusions if the y are supported by the findings)

.

Affirmed

.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justice

_______________________________________ Marilyn S. Skoglund, Associate Justice

_______________________________________ Harold E. Eaton, Jr., Associate Justice