### VERMONT SUPREME COURT Case No. 23

- AP

- 279

109 State Street Montpelier VT 05609

- 0801 802

- 828

- 4774 www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross

appellant. Decisions of a three

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



### ENTRY ORDER

FEBRUARY TERM

, 2024

In re M.L., Juvenile (D.W., Mother*) } } APPEALED FROM:

} } Superior Court, Windham Unit

, Family Division } CASE NO. 21

- JV

- 00786 Trial Judge: Jennifer Barrett

In the above

- entitled cause, the Clerk will enter:

Mother appeals the termination of her parental rig hts in son M.L

. , born in April 2020. * We affirm.

The record reflects the following. In June 2021, the State filed a petition alleging that M.L. was a child in need of care or supervision (CHINS) a n d h e was placed in t he custody of the Department for Ch ildren and Fa milies (DCF) pursuant to emergency

- and temporary

- care orders. In November 2021, mother stipulate d that M.L. was CHINS at the time of t he State ’ s pe tition because she had indicated that she did not in tend to parent him and left him in the care of his maternal grandmother

, who se pa rental rights to mother had been terminated

. Mother agreed that maternal grandmother had a history of exposing her own children to unsafe i ndividuals and was at the t ime residing with two men about whom mother had concerns.

M ot her expressed an intent to reunif y wi th M.L., and the family division issued a disposition order in February 2022 with a goal of reunification with mother or father by May 2022

. The case plan adopted by the court called for mother to, among other things, rec eive consistent mental

- health treatment and comply with the treatment recommendations, obtain a developmental assessment and participate in any recommended services, secure stable housing, demonstrate financial stability , and engage with M.L. ’ s provider s

.
The State petitioned to terminat e parents ’ rights in November 2022. A hearing on the
pe tition was held over two days in April and May 2023

, and the family division subsequently issued a written decision containing the following factual findings.

After M. L. was placed in DCF custody in June 2021

, mother moved to the state of Georgia a n d re mained there th rough the time of disp osition. While in Georgia, she had only

* Fath er ’ s rights were also te rminated; he does not appeal.2

virtual visits with M.L. Mother returned to Vermont in March or April of 2022 , and DC F offered her one

- hour supervised visits with M.L. twice a week

. Mother attended less than half of the nine ty

- seven visits offered between April 2022 and March 2023

. Though mother identified transportation issues as one of the reasons for the missed visits, she did not accept DCF ’ s offer of transportation assi stance

. As a result of mother ’ s inconsistent attend ance, visits never in creas ed in duration or frequency, and mother never progressed to unsupervised visits.

In September 2022, screening revealed that M.L. has a rare genetic mutation w hich may cause developmental delay and epilepsy. M.L. has exper ienced delays in the develo pment of his speech, language, and fine

- motor skills , and he receives services such as p hysical and speech therapy. Mother never engaged with M.L. ’ s sc hool or any of his service providers and did not attend any of his medical appointments

.
Mother ’s housing remained unstable throughout the pendency of th e case

. She moved frequently

, living with friends in Geor gia, with father

, with maternal gran dmother, with a supportive person

, with her brother, and in emergency housing

. Mother has an intellectual disability and has been diagnosed with post

- traumatic stress dis order, bi polar disorder, s eizure disorder, anxiety, an d depression. While in Georgia, s he completed an intake for a mental

- health and developmental asse ss ment but declined services and did not receive therapy

. After returning to Vermont, mother completed an intake with Health Care & Rehabilitation Services ( HCRS ) and was assigned a ther apist. H er case was closed during the summer of 2022 due to her lack of attendance at ther apy sessio ns

. M other had been taking he r mental

- health medications since May 2022 and w as engaged with a nurse practitioner to manage those medications. Mother comple ted a developmental assessment with HRCS and was deemed eligible for services in cluding case management, tra nsportation, and in

- home services , but was resistant to availing herself of these supports

. She did not comply with the servi ces recommended in the assessment

.
Mother uses a payee. She repeatedly selected inappropriate payees who took advantage of her, impacting her f

inancial stability. Though it was recommended that mother use HCRS as a professional payee, she declined to do so.

Based on these findings, the family division concluded that there was a change in circumstances due to mother ’ s stagnation , observing that she never prog ressed beyond the beg inning stages of her case plan

. The trial court then weighed the statutor y best

- interest s factors

. Though mother and M.L. had a bond

, she did not play an active role in supporting his welfare and there was a sig nificant risk of future abandonment

. M.L. was bonded with his foster family and had adjusted to his home, school, and community. Th o ugh the trial court commended mother for resuming consistent visits with M.L., securing emergency housing, and reengaging with her therapist between the first and second days of the termination hearing

, it concluded that this pr ogress was in sufficient to support the conclusion that mother would be able to parent M.L. within a reas onable time

. The family divis ion concluded that termination of mother ’ s parental rights was in M.L. ’ s best inter ests and granted the State ’ s petition

. This appeal followed.

Wh e n termination of parental rights is sought after initial disposition, the family division ’ s an alysis proceeds in two parts. In re M.P. , 2019 VT 69, ¶ 24, 211 Vt. 20. The trial court must first determine whether there has been a change in circumstances; if so, it must consider whether termination of parental rights is in the child ’ s best inter ests. Id

. ; see also 33 V.S.A. §§ 5113(b) , 5114(a ). Changed circumstances are “ most often found whe n a parent ’ s ability to care proper ly for the child has either stagna ted or deteriorated over the passage of3

time. ” In re K.G. , 2023 VT 51, ¶ 30 (quotation omitted)

. Provide d that the court applied the appropriate standard, we will not disturb its find ings unless they are clearly erroneous and will aff irm its conclusions if supported by those findings. In re G.S

. , 153 Vt. 651, 652 (1990) (m em.).

First, mother argues that the family division ’ s findings that she had not e stablished stable housing, demonstrated financial s tability, or secured a stable paye e are clearly erroneous

. “ W hen findings are attacked on appeal, our role is limited to dete rmining whether they are supported by credible evidence

. ” In re A.F. , 160 V t. 175, 178 (199 3 ).

Mother con tends that there was insufficient evidence to support the finding that she had not obtained stable housing becaus e she testi fied that s he rece ived a hotel housing voucher between the April and May termination hearing dates

, was assured that she would continue to receive housing due to he r disability , and was working with a case manager to secure non

transitional housing

. But while mother test ified that she believed the voucher program would not be impacted by the end of COVID

- 1 9 assistance because of her disability , the DCF worker assigned to the case did not share this understanding. Instead, the DCF wo rker testified that mother would be required to check out of the hotel on July 1, 2023. This testimony supported the finding that mother ’ s housing remained un stable despite h er participati on in the vouch er program

. I t i s for the trial court , not this Court, to determine the appropriate weight to assign to th e evi dence

. Id

. Further, mother ’ s testimony that she was working to secure non

- transitional housing in the future was irrelevan t to the court ’ s assessme nt of the stability of her current housing

. The finding that mother had not established stable housing was not c learly err oneous. S ee In re G.S. , 153 Vt. at 652.

Mother also argues that the court erred in finding that she had not dem onstrated fin ancial stability or established a stable payee because she testified that she had money left over each month after selec ting a new payee. T he trial court found that mother had not demonstrated consistent financial stability but it did not find , as mother assert s, that she failed to est ablish a stable payee

. I nstead , it found that mother had repeatedly selected inappropriate payees who
to ok advantage of her, impac ting her financial stability

. Though mother testified that she felt h er new payee was working out w ell because she had money left over each mo nth, the evidence about the new payee ’ s suitability f or this role was mixed. The new payee was one of th e individuals living with maternal grandmother when M.L. was taken into custody and, at that time, mother ha d expressed concern that he could “ fly off the handle. ” The DCF worker testif i ed that she did not believe he was a suitable person to fill the role of payee and that his appointment created ris k

. And though the new payee testified at the termination hearing, the family division did not find his testimony credible and largely discounted it. In ligh t of these consid erations and mother ’ s historical selection of inappropriate payees , the court ’ s finding t h at mother had not yet demonstrated financial stabilit y was not clearly err oneous. See id

. Finally, mother argues that the court e rred in co ncluding t hat she had stagnated because

, to the extent she had an obli gation to obtain private housing, her inability to do so was attributable to the pand emic and the state ’ s housing c risis, which are factors beyond her control. See In re S.R.

, 157 Vt. 41 7, 421

- 22 ( 1991) (recogn izing that stagnation caused b y fa ctors beyond parent ’s control cannot support termination of parental rights ). The court did not find that

mo ther was ob ligated to obtain private housing and mother provides no record s upport for this
assert i o n

. See V.R.A.P. 28 (a)(4) (requiring that arguments in a ppellant ’ s brief be supported by

“ citations to the

. . . parts of the record on which the appellant relies ” ). Instead , the court found that mother had not obtained stable housing . As set forth a bove, this finding was not clearly4

erroneous , and mother has not argued that her failure to obtain stable housing was due to factors beyond her control. T he fa mily division did not abuse its discretion in concluding th at there had been a change i n circumstance s d ue to mother ’ s stagnation.

Affirmed

.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice