### VERMONT SUPREME COURT Case No. 23

- AP

- 296

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 B.A. & R.D., Juveniles (W.D., Father*) } } APPEALED FROM:

} } Superior Court, Addison Unit

, Family Division } CASE NO S

. 12

- 3

- 20 Anjv & 11

- 3

- 20 Anjv Trial Judge: David R. Fenster

In the above

- entitled cause, the Clerk will enter:

Father appeals the termination of his parental rights in daughters B.A. and R.D , born in February 2015 and August 2018, respectively

. * We affirm.

The record reflects the following. In March 2020, the State filed pe titions alleging that B.A. and R.D . were children in need of care or supervi sion (CHINS) and the family division issued emergency

- and temporary

- care orders transferring custody to the D epartment for C hildren and F am ilies (DCF)

. At the time

, B.A. and R.D. had been in mother ’ s c ustody pursuant to a final relief

- from

- abu se order , effective until December 2020, which pro hibited father from contacting mother and required t hat his visitation with the children be supervised

. In May 2020, mother stipulated that the children were CHINS at the time of the pe titions because her lack of
par enting skills and family support creat ed a risk of neglect and inappropriate physical discipline.

T he family division issued an initial disposition o rder in Ju l y 2020 with a goal of

reu nification with mother

. In August 2020, by agreement of the parties, the disposition order was amended to provide fo r a g oal of reu nification with mother and father in six to twelve

mo nths. The court ad opted a case plan which recognized father ’ s developmen tal disability in connection with the contemplated services and cal led for him to, among other things,

“ demonstrate his protective capacit ies by following provider [s ’ ] recommendations for healthy contact with his child ren. ” His act ion steps included participat ing in a domestic

- violence

* Mother voluntarily relinquished her parental ri ghts subject to the termi nation of father ’s rights and is not party to this appeal

.2

accountability program, complet ing an intake appointment with the WomenSafe pr ogram to set up supervised visitation with B.A. and R.D.

, a nd follow ing WomenSafe ’ s rec ommendation s and
pro tocols during visits.

The State filed petitions to terminate parents ’ rights to B.A. and R.D . in Decembe r 2021. After the completion of father ’ s competence

- based parenting assessment, the termination hearing was held over several day s, conclu ding in May 2023. The family division subsequently issued a written order in which it made the following findings of fact under the clear

- and

- convincing evidence standard.

T here had been almost no contact between fathe r and the children for nine months when the amended disposition order was issued in August 2020

. Father did not reach out to WomenSafe to arrange for the supervised visits contemplated by the case pla n for several more months , telling DCF that he wa s too busy. When visits ultimately began ar o und Januar y 2021, they did not go well. I t was di fficult for father to keep up with both children and he miss ed their

emo tional cu es.

DCF transitioned father ’ s supervis ed visits to Easter Seals so that father could participate in family time coaching , a referral not initially made because he had not demonstrated the requisite “ growth mindset

. ” Easter Seals has cons iderable experience working with individuals with a variety of developmental presentations. Du ring the program , fat her demonstrated some strengths: he had excellent attendance ; was always on time and prepared with toys , supplies, and snacks ; and he never shouted or used pro fanity with the children or the coach

. However, father

was resistant to family time coaching

. He testified t hat he has used nothing the c oach taught him

, does not need anyone to tell him how to parent

, and does not need help to support th e children

.
B.A. and R.D. each ha ve significant emotional and e ducational needs, and R.D. has significant developmental needs and requires specialized care to assist her in daily life. Both children have experienced trauma arising from family violence, food insecurity, and neglect , and this childhood trauma impacts their needs

. D uring fam ily time coaching, father continu ally struggled to identify, prioritize, and me et the children ’s needs

. Father was provided with an informational video about R.D. ’ s part icular speech and langua ge needs but did not watch the video or meet her need to practice language skills

. Though father was prompted to e ncourage R.D. to walk, he continued to carry her despite the impact this was having on the development of her gross motor skills

. Father struggled to bond with R.D. and d id n ot recognize her reluctance with him. R.D. frequently “ shut down ” during visits with father, requiring the coach to step in

. Though R.D. ultimately began to return father ’s demonst rations of affection, her responses were not consistent, and she continued to seek comfort from the family time coach and wo uld “ freeze up ” in father ’s presence only to engage with ca regivers after he left the visit

.
Father ’ s attempts to engage with B.A. sometimes upset her, forcing the c oach t o in terven e. Father would talk about himself but resist ed inte racting with B.A

. on her terms

. He did not address her significant emotional needs. On more than one occasion, B.A. told father she was upset that mother had s top ped visiting , but father declined to discuss this with B.A., leaving3

her need for help processing these feelings u n m e t

. Though B.A. began to demonstrate affection toward father, she also started to have unexplained m eltdown s. F ather comfo rted B.A. duri ng meltdowns

, but would not talk her through her emotions.

Father continued to require remin ders from the family time co ach to engage in play with B.A. and R.D. and to initiate an d maintain conversations with them. He did not consistently respect the ir wishes when they refused physical contact with him. On one occasion shortly before t h e conclu ding day of the hearing , f ather brought his dog to a visit

. The dog barked aggressively, and father struck the dog in the children’s presence. The coach had to intervene to parent the children, and father subsequently min imized even the possibilit y that this event could have negatively impacted the children ’ s feelings of safety.

At times, father st ruggled with the children during coaching sessions in the community. He needed reminders to be con scious o f the people around them and required support to soothe B.A. and R.D. when they became upset at the supermarket.

Father also had lapses in providing for the children ’ s safety

. On one occasion, he left the m unattended at a table when he went to the counter at a fast

- food rest aurant

. Because R.D. is overl y frie ndly w ith new people and has no concept of “ stranger danger

, ” leaving her unattended presents a heightened risk

. Though father improved in this regard , he w ould still leave the children in a room unattended on occasion. He also twice failed t o react to R.D. walking or running into a parking lot

. Father does not consistently identify safety concerns.

After almost eighteen months of family time coaching, father had not pr ogressed to unsupervised visits beca use he still requir ed direct support to care for B.A. and R.D. The coach was still frequently com fort ing the children during visits , parenting them, and providing a good deal of direct care in father ’ s stead

. Father still need ed prompting to address sa fety issues and

was not yet able to meet the children ’ s significant needs

.
Father presented testimony from Dr. Yuan , who prepa red his competence

- based parenting asses sment based on a cli nical interview, observation at two visits, a records r eview, interviews with colla teral conta cts, and the administration of several testing instruments

. The family divisi on found that Dr. Yuan was not aware of the children ’ s trauma history and did not factor it into her evaluation, did not identify the children ’ s spe cific emotional and developmental needs , did not review either chil d ’ s indiv idualized education plan , did not address father ’ s lack of progress over the nearly eleven months that pass ed between her observation and the hearing, was not aware of observations made during family time coaching , and was not asked about the specifi c safety concerns i dentified in other testimony

. As a result of these factors , the court explained that it could not place great weight on Dr. Y uan ’ s opinion that father was currentl y a

“ good enough ” parent

. T he court found that her testimony established that fa ther ha d the ability
to acquire the skills and knowledge to become an effective parent, bu t not that he curren tly possessed the skills and knowledge to parent or had the current capacity to parent B.A. or R.D. specifically

.
Based on th ese findings, the family division concluded that there was a change in circumstances due to father ’ s stagnation. Though father had completed many of the action steps in the case plan, there were others he had not achieved

, such as participating i n a dome stic

-4

violence accountability program

. O ver t wenty months after the timeline to achieve re unification el apsed, fat her still struggled to notice and respond to the children ’ s cues and provi de safe and attuned care.

T he trial court then considered the st at ut ory best

- interests factors

. B.A. and R.D. were well

- adjusted to their homes and schools

, had bonded with their respective foster families, and

were thriving in their current placements

. The court found that father love s the children, but it was unclear how construc tive his cont inuing role in their lives was

. Finally, the court concluded that because father d id not have a cur rent ability to mee t the specific needs of his children and rejected the parent education o ffered through family time coaching, there was little likelihood that he would make any further progress toward resuming parental du ties in a reasonable time

. The court conclud ed that termination of father ’ s parental rights was in the children ’ s best interests. T his appeal followed.

When termination of pa rental rights is sought after initial disposition, the family court conduct s its analysis in two steps

. In re B.M. , 165 Vt. 331, 335 (1996 )

. First, the court must consider whether there has been a cha nge in circumstances, “ most often found when a parent ’ s ability to care proper ly for the child has either stagnated or deteriorated

. ” Id

. at 336 (quotation omitted) ; see also 33 V.S.A. § 5113(b)

. “ If this threshold finding is made, th e court must then consider the factors set forth in 33 V.S. A. § 5114 and determin e if termination of parental rights is in the child ’ s best interests. ” In re K.G. , 2023 VT 51, ¶ 30 , __ Vt. __ (quotation omitted)

.
“ The State has the burden of proof at both stages and, as to each point, must meet its burden by clear and con vincing evidenc e. ” In re R.W. , 2011 VT 124, ¶ 15, 191 Vt. 108 (quotation omitted)

. As long as the court ap plied the proper standard, we will not disturb its findings unless they are clearly err oneous and will af firm its conclusions if supported by those findings. In re G.S. , 153 Vt. 651, 652 (1990) (mem.).

First, father argues that the court ’ s finding that Dr. Yuan was unaware of the children ’ s trauma history and particular needs i s clearly erroneous bec ause it is inconsis tent with its finding that she reviewed a case plan containing this information

. As a result, he contends, the court erred in determin ing that her testimony did not support the conclusion that father was fit

— or could become fit within a reaso nable time

— to parent B.A. and R.D. See In re D.C. , 2012 VT 10 8, ¶ 22, 193 Vt. 101 ( “ [ T]he critical question in a termination proceeding is wheth er the parent is fit, or will be fit within a reasonable perio d of time, to par ent the p articular child w ho is the subject of the termination proceeding. ”). “ When findings are attacked on appeal, our role is limited to determining whether they are supported by credible evidence

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

. As indicated above, f

ather argues that the finding that Dr. Yuan was un a ware of th e children ’ s t rauma history is inconsistent with its f inding that s he reviewed a case plan which detailed their past trauma ex te nsively and described their particular needs. However, the case plan he cites in sup port of this a ssertion is dated August 2020, while the case plans Dr. Yuan was found to have reviewed are from February 2021 and February 2022. See V.R.A.P . 28 ( a)(4) (providing that appellant ’ s argument must cont ain “ citations to the .

. . parts of the record on which the appella nt re li e s ” )

. E ven assuming that the case plans D r. Yuan reviewed contained information about trauma the children expe rienced, this do es not contravene a finding that she nonetheless lacked awareness of the ir trauma hi story where h er own testimony supported that5

conclusion

. While Dr. Yuan knew o f some of the children ’ s prior adverse experiences and

a cknowledged that they had experienced trauma, she was not aware that they had experienced neglect of their basic nee ds

. Father does not challen ge the court ’ s conclusion s tha t t h e children ’ s trauma history included neglect

. Dr. Yuan herself agreed that additional information about the extent and type of trauma the children experienc ed would have been helpful to her assessment of father’ s ability to parent them. The finding that Dr. Yuan was not aware of the children ’ s trauma history is not clearly erroneous in light of her own acknowledgment that she was not aware of the full scope of the trauma the y were found to have experienced . See In re A.F. , 16 0 Vt. at 17 8

.
To the ex tent father suggests that the trial court otherwise erred in determining that Dr. Yuan was un aware of the children ’s particular needs , he has ident ified no such finding. See V.R.A.P. 28(a)(4)

. Instead , the court fo und that Dr. Yuan ’s tes timony did not specifically address the children ’ s needs and that she did not id entify R.D. ’ s language

- development needs

. Again, even assuming that the case pla ns Dr. Yuan reviewed included information about the children ’ s need s , this do es not pre clude a finding that her testimony d id not specifically address those needs or that she did not identify R.D. ’ s language

- development needs

. Father has not ide ntified any basis to conclude that the court ’ s findings on this point were clearly erroneous.

Next, we consider father ’ s argument that the family division erre d in making a threshold finding of stagnation. He points to evid ence of his compliance with the case plan and request s for more visit ation time and contends that, to the extent the court f aul ted him for failing to progress to unsupervised visitation, this was the result of DCF ’ s failure to allow such visitation. Father suggests that he could have transitioned to unsupervised visits or resumed parenting with

a sa fety plan in pla ce beca use Dr. Yuan opined that he could provide care for the children that

wou ld not cause harm and could safely parent them with supports.

T o be gin, we note that a parent ’ s co mpliance with the case plan is “ not determinative of whether stagnation may be fou nd. ” In r e D.M. , 200 4 VT 41, ¶ 7

, 176 Vt. 639 (mem.) (explaining that a “ case plan is not intended to be a mere checklist the parent must satisfy to ensure the automati c return of the children to the parent ’ s care ” ). And in any event, while the tria l court credited father with completing many of his action steps, it al so reco g nized that others remained outstanding. Significantly, t hough the timeline to achieve reunification had elapsed

over twen ty months prior, father continued to struggle to notice and respond to the children ’ s cues and to provide safe and attuned care. Under these circumstances, f ather ’ s completion of many of his action steps did not preclude a finding of stagnation.

No r was f

ather ’s f ailure to p rogress to unsupervised visits a fa ctor outside of his control. See In re S.R.

, 157 Vt. 417, 421

- 22 (1991) (recog nizing that stagnation ca used b y fa ctors beyond a parent ’s control cannot support termination of parental rights). The family division expressly found that fath er was not able to have unsupervised visits because he continued to require direct
suppor t to c are for the children. To the extent father suggests that this co nclusion was inconsistent with Dr. Yuan ’s opinio n, it was for the trial court, not this Court, to determine th e weight to assign t o that opinion. In re A.F. , 160 Vt. at 178 ( “ We leave it to the sound discr etion of the family court to determine the credibility of the witnesses and to weigh the evidence. ” ). F ather does not ex plain how a saf ety plan could have facilitated unsupervised contact in light of his continued need f

o r direct support to care for the childre n. The resistance to family time coaching which prevented father from overcoming that need and progressing to unsupervised6

visits was a factor solely withi n his own control. See, e.g., In re D.M.

, 2004 VT 41, ¶ 6 ( rejecting argumen t that stagnation was caused b y factors beyond mother ’s control and observing that “[c]hanging her own behav ior and implementing the many parenting lesso ns she received from

. . . s ervice providers was and remains fully within mother ’s cont rol ”). The family division did not a buse its discretion in finding that father ha d stagnated in his ability to care for B.A. and R.D.

F inally, we consider father ’ s arg ument that th e family divi sion terminated his parental rights based on “ minor concerns, ” contra v ening t he statutory requirement to construe the best

interests factors “to preserve the family and to separate a child from his or her parents only when

necessa ry to protect the child from serious harm or in the interests of public safety

. ” 33 V. S.A. § 5101(a)(3). In support of thi s argument, father contrasts Dr. Yuan ’ s testi mony with that of the family time coach and argues that the coach was not qualified to assess father ’ s parenting abilit ies . He suggests that the court should have credited Dr. Yuan ’ s observ ations of father ’ s parenting and discredited the coach ’ s concerns.

While the law contains the statutory purpose identified by father

, it also requires that the Juvenile Proceedings Act be construed “to ensure that safety and timely permanency for children are the paramount concerns in the administration and conduct of procee dings ” thereun der. Id

. § 5 101(a)( 4) (emphasi s added)

. Safety and timely permanency for the children were th e underpinnings of the family division ’ s conclusion that the most important factor

— whether father could resume parental du ties within a reasonable time

— weighed in favor of termination. See In

re D.S. , 2014 VT 38, ¶ 22, 196 Vt. 325 ; 33 V.S.A. § 511 4(a)(3)

. T he court noted that B.A. and R.D. were very young when they entered DCF cust ody and, over three years later, fath er still lacked the ability to recogniz e and meet their s ignificant needs and was unlikely to make further progress in a reaso nable period b ecause of his resistance to parent education

. See In re C.P.

, 20 12 VT 100, ¶ 30, 193 Vt. 29 ( “The reasonableness of the time period is measured from the
per spective of the child ’s nee d s, and may take account of the child ’s yo ung age or special needs. ” (citations omitted)). We cannot agree with father ’ s descript ion of concerns about his ability to identify and respond to safety issue s or meet the children ’s significant needs as “minor. ” Instead, t h ose concerns went to the hea rt of his ability to resume pa rental duties. Father has not identified any basis to conclude that the court ’ s weighing of the best

- interests factors w as in consistent with th e statutory purposes set forth at § 5101(a)

.

I n analyzing father ’ s ability to resume par ental duties in a reasonable time

, the family division recognize d the discrepancies between Dr. Yuan ’s observations of father ’s parenting and what others o bserved of his parenting

. The court concluded that

— regardless of the reason for the se differ ing accounts

— the weight it could afford Dr. Yuan ’s opinion was impac ted by her failure to address th e other observations which called the con clusions of her assessment into question

. It is not our role to reweigh this ev idence on appeal. In re S.B. , 174 Vt. 427, 429 (2002) (mem.) (“Our role is not to second

- guess the family court or to reweigh the evidence, but rather to determine whether the court abused its disc retion in terminating

. . . parental rights”). And w hil e father briefly sugg ests that he would have had an immediate ability to parent the children if DCF implement ed Dr. Yuan ’ s recommendations, he does not explain what those recommendations were or challenge the court ’ s fi nding that Dr. Yuan eval uat ed DCF ’ s imp lementation of the recommendations in her assessment and did not identify any available

serv ice s that DCF failed to provide

. F inally , father cites In re N.H. for the proposition th at7

termination is in appropriate if questions remain abou t a parent ’ s ability to a ssume an a ctiv e parental role

. 135 Vt. 230, 237 (1977). Father ’ s reliance on this case is misplaced as In re N.H. did not involve the terminati on of parental rights but, inst ead, a challenge to a disposition order

. Id

. The family division did not abuse its discretion in concluding that the termination of father ’ s parental rights was in the children ’ s b est intere sts.

Affirmed

.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice