### VERMONT SUPREME COURT Case No. 23

- AP

- 343

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

MARCH TERM

, 2024

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

} } Superior Court, Chittenden Unit

, Family Division } CASE NO. 22

- JV

- 01490 Trial Judge: K ir stin K. Schoonover

In the above

- entitled cause, the Clerk will enter:

Mother appeals termination of her parental rights to L.D., born in April 2009

. 1 On appeal , mother argues that the court erred in finding that her progress stagnated and that she would not be able to resume par enting within a reasonable time . We affirm.

The court found the following

. In Janu ary 2021, whe n L.D. was in father ’ s sole custody

, the State filed a petition alleging that L.D. was a child in need of care or supervision (CHIN S) based on reports that father physically abused L.D. by beating her with the handle of a broom

. The Department for Children and Fami lies (DCF) had received sixteen reports over the prior ten
years regarding concerns about the family including physical abuse, conditions in the home, neglect, medical neglect, and t ruancy. The court initially granted custody of L.D. and he r two

s ibli ngs to mother under a c onditional custody order (CCO)

. Soon thereafter, b e cause of mother ’ s noncompliance with the CC O, the court placed custody with DCF in February 2021

. L. D. was placed in a foster home where she has remained since.

Father stipulated to the merits of the CHINS petition , and the resulting disposition cas e plan had a goal o f reunification with father

. Mother did not object to that di s p o si tion or appeal the disposition order

. Mother also did not s eek to amend the case plan and have h erself a dded as a reunification option for L.D.

1 Father reli nqui shed his parental rights condition ed on termination of m other ’s rights.2

The goal s for mother included participating in parent

- child contact
, engaging with parent

skills coaching, obtaining and engaging in mental

- health counsel ing , attending scheduled medical, dent al, and education al meetings, and providing drug sc reenings.

The State moved to terminate parents ’ rights in January 2023. Following a hearing, the court found that there was a change in circum stances due to mother ’ s sta gnation. Although mother made some progress by obt aining housin g and engaging with DCF, she did not progress in other areas

. She engaged in individual counseling , but it stopped due to mother ’ s nonattendance. She did not provide urinalysis for drug screening or participate in Family Time coaching. Importantly, mother w as inconsistent with visits, and this damage d her relationship with L.D. Mother did not have insight as to how her b ehaviors damaged her relatio nship with h er daughter.

Mother had a historically difficult relationship with L. D. Prior to the CHINS proceedings, w hen L.D. lived with mother she experienced me dical and educational neglect, and L.D. was anxious in mother ’ s ca re. During the pend ency of the CHINS proceedings, m other ’ s visits with L.D. w ere inconsistent and L .D. did not enjoy h er time with mother because it was often chaotic. Mot her and L.D. planned a special party for L. D. ’ s birthday

, but mother did not show up or con tact L.D. to indicate she would not be there

. After that incident

, L.D. stopped all contact with mother

. DCF an d L.D. ’ s foster mother encouraged L.D. to vi sit mother but L.D. refused to see her or participate in family therapy. L.D. provided a statement to the court, expressing her desire to be adopted

. L.D. explained th at she does not believe m other is reliable, consisten t, or mentally stable and that L.D. seeks permanency. Mother did not take

re sponsibility for her estrange ment with L .D. and be lieve d the court should r equire reunification. Mother did not appear for the final hearing in person as directed

. T h e court required mother ’ s attorney to go to mother ’ s home and mother agreed to appear remo tely

.

In addition to mother ’ s stagnation

, t he court found that there was also a change of circumstances due to two other cha nges in L. D. ’ s situation. First, the court found changed circumstances because reunification with father was contemplated by the case plan, but father relinquished his p arental ri ghts . Second

, the court found a change due to the altered relationship b etween L .D. and mother , and L.D. ’ s un willing ne ss to participate i n a relationship with mother

. The court analy zed L.D. ’ s best interests in light of the statutory factors in 33 V.S.A. § 5 1 14

. L. D. thrived in foster care , e x c ell ing in academics and in sports. L.D. ha d a strong relationship with her foster parents and their extended family. L.D. maintained contact with her sibli ngs and with father. She ha d no in

- person contact with moth er since April 2022, and ha d no relationship with mother or mother ’ s community. The court found that mother w ould not be able to resume par enting with in a reasonable time given her lack of relationship with L.D. and inability to understand L.D. ’ s ne ed s or provide consistency and stability

. Moreover, mother did not play a const ructive role in L.D. ’ s life. L.D. refuse d to speak with mother and the thought of contact with mother produce d a nxiety an d anger. Mother appeals.

When t he S t ate moves to terminate parental rights after the initial disposition, the court must first find that there is a change of circumstances, 33 V.S.A. § 5113(b), and second, “ that termination o f parental rights is in the child ’ s best interests.” In re K.F. , 2004 VT 4 0, ¶ 8, 176 Vt. 636 (mem.) ; see 33 V.S.A. § 5114(a) ( requiring court to consider best int erests of child when3

petition to terminate is filed)

. In assessing the child ’ s best interests, the court must consider the statutory factors

. 33 V.S.A . § 5114 (a)

. The m ost important factor is whether the parent will be able to resume parenting duties within a reasonable time. In re J.B. , 167 Vt. 637, 639 (1998) (mem.)

. On appeal, we will uphold the family court’ s conclusions if supported by the findings and affi rm the findings unless clearly erroneous. Id

.

On appeal, mother argues that the court erred in finding that her progress stagnated because she contends that DCF did little to assist mother with resuming her parent al duties and therefore the la ck of progress w as due t o factors outside her control

. The threshold finding of a change in circumstances is often demonstrated when a parent ’ s ability to care for a child has stagnated or deteriorated, which can be shown “ by the passage of time with no impro ve ment in parental capacity to care properly for the child or where the improvement is so insignifica nt that it is unlikely the parent will be able to resume parental duties in a reasonable time

. ” In re J.G. , 2010 VT 61, ¶ 10, 188 Vt. 562 (mem.) (quotation

o mitted )

. Termination is not appropriate w hen the lack of progress is caused by factors beyond parents ’ control

. See In re S.R. , 157 Vt. 417, 421

- 22 (1991).

Mother asserts that the court found that DCF had not provided her with the support necessary to re sume parenting L.D. by failing to set up family therapy services with L.D. Moreover , mother states that she had no meaningful way to comply with the case plan because DCF would not enforce or facilitate contact with L.D. when L.D. refused to vis it with mother.

Here, although the court found that DCF could have provided mother with greater support , the court found that mother contributed to her lack o f progress in her ability to parent L.D. The evidence supports the court ’ s finding that mother ’ s l ack of progress was attributable to her own conduct. DCF made several referrals for mother to engage in ser vices , but mother did not follow through . DCF referred mother to a parenting class aimed at parenting teens and mother did not complete it . DCF p rovided mother with Family Time coaching, but she was discharged for lack of attendance. Mother was discharged from her individual counseling for lack of att end ance. Mother also did not consistently or reliably attend visits

, negatively impact ing her re la tionship with L.D

. Finally, mother did not accept res ponsibility for her role in the estrangement between her and L.D. These findings all support the court ’ s determination that there was a change of circumstances due to stagnation. 2

In a related argument, mother contends that the court had no way to determine whether mother could resume parental duties in a reasonable time because mother did not have adequate

2 T he family d iv i sion found two other bases for changed circumstances

— father ’s relinqu ishment of his parental right s when the plan was for reunification with father and L.D. ’s decision not to participate in a relationship with mother. See In re D.C. , 2012 VT 108, ¶ 17, 193 Vt. 101 (holding that there was a change of circumstances where di sposition called for reunification of father and father voluntarily reli nquished his parental rights and grandmother

, who had assumed custody, died)

. We need not consid er whether these changes als o provide a sufficient basis to modify the existing order because mother ’ s lack of progress was a sufficient basis to find changed circumstances

.4

time or support to complete the goals in the case plan. As detailed above, DCF provided mother

w ith referrals and services and mother chose not to participate or not to consistently visit with L.D. Moreover, even though L .D. decid ed not to attend family therapy or visit with mother, DCF contin ue d to en courage L.D. to vis it with mother. The record supports the court ’ s finding that m other ’ s own actions in failing t o attend visits consi stently and engage with L.D. in a reliable fashion caused the breakdown in her relationship with L.D

. This in turn supports the
court ’ s determination that mot he r w ould not be able to parent in a reasonable time as measured from L.D. ’ s perspective.

Affirmed

.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

Nancy J. Waples, Associate Justice