Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2015-459

APRIL TERM, 2016

In re T.P. and D.P., Juveniles } APPEALED FROM:

}

} Superior Court, Franklin Unit,

 } Family Division

}

} DOCKET NO. 45/46-4-14 Frjv

Trial Judge: Howard A. Kalfus, Acting 

Superior Judge, Specially Assigned

In the above-entitled cause, the Clerk will enter:

Mother and father separately appeal from a family court order terminating their parental 

rights to the minors T.P. and D.P. Father contends the court erred in: (1) failing to hold a 

disposition hearing or issue a disposition order; and (2) requiring father to submit clean drug 

tests as a condition of child visitation. Mother contends the court erroneously failed to set forth a 

rational basis for its decision. We affirm.

A CHINS petition was filed in April 2014, alleging that the children, then three and one 

years old, were in need of care and supervision based on parents’ chronic substance abuse and 

incidents of domestic violence. A temporary care order initially placed the children with their 

paternal grandmother, but her inability to care for them resulted in their placement with their 

maternal grandmother and her husband—both licensed foster parents—where they have since 

remained. 

In July 2014, mother stipulated to an adjudication of CHINS. Father’s counsel noted at 

the CHINS hearing that father had “de facto” not been involved in parenting the children because 

of a “no contact order.” A disposition plan was filed with the court in September 2014, which 

identified concurrent goals of reunification or, if unsuccessful, termination of parental rights and 

adoption. The plan set forth a number of goals and services for both parents that included 

substance abuse assessments and treatment, drug testing, participation in individual and team 

meetings with the Department for Children and Families as scheduled, and maintaining safe and 

stable housing free of drugs and domestic violence. Mother was to follow a consistent childvisitation schedule. Father was to contact “All About Kids,” a supervised visitation program, to 

establish a visitation schedule, and was to attend all scheduled visits and team meetings. 

In late September 2014, the court held a hearing to review the plan with the parties. 

Father’s attorney stated that he had not received timely notice of the hearing, and asserted that 

the plan contained a number of factual errors. The court, accordingly, continued the matter to 

December 2014 to afford father an opportunity to prepare for a contested disposition hearing. 
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At the hearing in December 2014, the court announced that other matters precluded an 

evidentiary hearing that day, but that it would reschedule the matter for a contested hearing if 

either party requested one. Father’s attorney indicated that he would consult with his client and 

agreed to file written objections by early January 2015. The court then heard argument from 

counsel about the plan, and was further informed that father had failed to attend several meetings 

designed to establish a parent contact schedule and that mother had failed a number of drugs tests 

in the last several months. After further discussion, the court agreed to a proposal by the 

children’s attorney that visits from both parents be conditioned upon their submitting a clean 

drug test. The children’s attorney had initially suggested a clean test within twenty-four hours of 

each visit. With respect to the proposal, father’s attorney stated that “it should work” but 

expressed concern about getting the results that expeditiously. The court ultimately ordered that 

the tests be provided two days before scheduled visits. 

Father’s one-page filing in January 2015 set forth his objections to the disposition plan by 

citing to several pages and lines in the disposition report that he claimed were inaccurate. He 

also objected to the need for supervised visits. The court scheduled a contested disposition 

hearing for late March 2015, but the State filed a TPR petition in the interim. The court held a 

hearing in late March 2015 to establish a discovery schedule on the pending TPR and to address 

mother’s motion to enforce visitation. Father’s attorney was present at the hearing, explained 

that father had been incarcerated for a period in January and February 2015, and noted that a 

meeting with DCF was scheduled “in the near future” to discuss father’s parent contact schedule. 

The court held a further status conference in July 2015, where father’s attorney indicated that 

father was currently incarcerated but otherwise confirmed that he had no other matters to raise at 

that time. 

An evidentiary hearing on the TPR petition was held over the course of three days in 

October and December 2015. Without objection, the court stated that it would consider the 

matter to be a TPR at initial disposition given the absence of any actual disposition order in the 

record. At the conclusion of the hearing, the court entered findings and conclusions on the 

record. As to father, the court found, in summary, that he had had very little contact with the 

children since they came into DCF custody. Indeed, he had not seen them at all since December 

2014, a year earlier, and had not engaged with DCF in any meaningful fashion. Applying the 

best-interests criteria, the court found that father’s interactions and interrelationship with the 

children was “virtually nonexistent,” that he had not played a constructive role in their lives, and 

that—measured from the perspective of the children’s need for permanence and stability—he 

could not resume parental responsibilities within a reasonable time. As to mother, the court 

found that there had been “a great deal of inconsistency” in her attendance at scheduled visits 

with the children and counseling, which had decreased over time; that she had demonstrated 

emotional support and affection “when you were there” but that her inconsistency had limited the 

role she played in the children’s lives; and that there was little likelihood she could resume 

parental responsibilities within a reasonable time. The court also found that that the children had 

since adjusted well to their foster placement in their maternal grandmother’s home and 

community. Accordingly, the court concluded that termination of parental rights was in the best 

interests of the children. These appeals followed.

Father contends the court violated his statutory and constitutional rights by failing to hold 

a contested disposition hearing, and by relying on a case plan that had not been adopted. 

Although several continuances in this case delayed the disposition hearing to the point that it 

merged into the TPR hearing, the statutory timeframe for a disposition hearing is not mandatory, 

In re D.D., 2013 VT 79, ¶ 24, 194 Vt. 508, and the statutory scheme authorizes the termination 
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of parental rights at initial disposition. 33 V.S.A. §5318(a)(5); see also In re C.P., 2012 VT 100, 

¶ 30, 193 Vt. 29 (“The family court may terminate parental rights at the initial disposition 

proceeding if the court finds by clear and convincing evidence that termination is in the child’s 

best interests.”). Nor does the record support father’s claim that the court improperly relied on 

the case plan despite the fact that his objections to the plan were never heard or resolved. The 

court’s findings and conclusions show that the decision to terminate father’s parental rights was 

based substantially on his nearly “nonexistent” contact with the children, which was due largely 

to his periodic incarcerations, failure to comply with the drug-testing condition, and general 

failure in any way to “keep abreast” of what was happening in the children’s lives. Although the 

delay in holding a timely disposition hearing was not optimal, under the circumstances presented 

here we find no error. 

Father also asserts that the court erred in requiring him to submit clean drug tests prior to 

visits with the children. The record shows, however, that father raised no objection to the need 

for testing at the time the court imposed the requirement or at any time thereafter. Accordingly, 

we find no merit to the claim. In re A.M., 2015 VT 109, ¶ 28 (to preserve issue for review, party 

must raise it with trial court with sufficient specificity and clarity to provide fair opportunity to 

address it). 

Mother contends the court improperly “failed to explain the rational basis for its 

decision.” She asserts, more specifically, that she deserved an “explained answer” as to why the 

benefits outweighed the costs of termination in light of the evidence that she was important to 

both children and that tension between mother and the foster mother made continued contact 

with the children problematic. The court’s responsibility is to review the evidence in light of the 

statutory best-interests criteria and to explain “what was decided and how the decision was 

reached.” In re M.B., 147 Vt. 41, 45 (1986). The court here did so here. Although the court 

acknowledged that mother’s visits with the children had been positive, it concluded that her 

attendance was too infrequent to play a significant role in the children’s lives or to support a 

conclusion that she could resume parental responsibilities within a reasonable time. We thus 

find no error.

Affirmed. 

BY THE COURT:

_______________________________________

John A. Dooley, Associate Justice

_______________________________________

Marilyn S. Skoglund, Associate Justice

_______________________________________

Harold E. Eaton, Jr., Associate Justice