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

ENTRY ORDER

SUPREME COURT DOCKET NO. 2013-382

FEBRUARY TERM, 2014

In re A.W. and A.W., Juveniles } APPEALED FROM:

}

} Superior Court, Orleans Unit,

} Family Division

}

} DOCKET NOS. 29/30-4-11 Osjv

Trial Judge: M. Kathleen Manley

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

Father appeals the termination of his parental rights with respect to his two daughters, 

Am.W. and Al.W. We affirm.

Father does not challenge the lion’s share of the findings made by the superior court, 

family division. The unchallenged findings reveal the following facts. Am.W. and Al.W. were 

born in July 2008 and September 2010, respectively. Two weeks after Al.W.’s birth, father, who 

had been living with the mother and Am.W. for the previous two years, was incarcerated in New 

York on drug and firearms charges. The mother was the primary caregiver during those two 

years. Both parents were abusing controlled substances, including heroin. In April 2011, the 

children were taken into state custody on an emergency basis due to unexplained bruising and 

lacerations on the head, face, gums, and legs of Al.W. Both the mother and her new companion 

were substantiated for physical abuse, and the children were found to be children in need of care 

or supervision (CHINS) and placed with a foster family, with whom they still live.

In July 2011, Am.W. told her foster family that her paternal grandfather had “touched” 

her vagina in a manner that caused pain and bleeding. The Department for Children and 

Families (DCF) substantiated abuse by the grandfather, but the Human Services Board 

eventually overturned that substantiation. Shortly after Am.W.’s disclosure of sexual abuse, a 

medical examination revealed physical evidence of the abuse. The court credited the examiner’s 

testimony that there was “a high likelihood of sexual assault,” but could not make a definitive 

finding on the identity of the perpetrator.

Meanwhile, a disposition hearing that had commenced in July 2011 was continued to 

September 2011, by which time father had been released from prison based on a plea agreement. 

DCF’s original disposition plan called for concurrent goals of reunification with the mother or

adoption, but by the second day of the disposition hearing DCF was advocating for termination 

of parental rights. Father, however, requested an opportunity to reunite with the children, and 

DCF developed a new case plan that included reunification with him. In November 2011, the 

court approved the new plan, which required father to: (1) refrain from drug use, participate in a 

substance-abuse assessment, follow treatment recommendations, and sign all release forms to 

allow DCF to monitor his progress; (2) participate in a mental health assessment, obtain mental 
2

health counseling to help him process the abuse endured by the children and to understand how 

his own conduct had affected the children’s lives, and sign all releases regarding his treatment; 

(3) visit the children regularly, meet with service providers to gain a better understanding of how 

to ease himself into the children’s lives, and develop and maintain a healthy attachment with his 

children. Because of the children’s young ages and the fact that they had already been in DCF 

custody for over six months, the plan anticipated father needing to achieve these goals within the 

next several months.

Things went relatively well at first. Father visited the children regularly, and his 

supervised contact increased from one hour a week to two-to-three hours twice a week. He met 

with the family time coach, the foster parents, and a DCF social worker at monthly shared 

parenting meetings. He was living with his father at the time, however, which was an 

impediment to his having unsupervised visitation with his daughters at his home. Moreover, as 

his contacts with the children increased, Am.W. became more distressed, resisted going to the 

visits, had tantrums, and engaged in self-harming behaviors. Father had problems handling both 

children at the same time, and persisted in arguing with Am.W. about her allegations that his 

father had sexually abused her, even after service providers advised him to acknowledge her 

statements and assure her that she was safe rather than to question the truth of what she was 

saying. He focused more on his distress about the way Am.W was treating him than he did on 

trying to understand what was happening.

In April 2012, father got his own apartment, and unsupervised visitation began, with the 

restriction that no one was to be in the apartment with father when the girls were visiting. 

Shortly after the unsupervised visits started, however, Am.W.’s anxieties increased, resulting in 

tantrums and vomiting before the contact began, nightmares, behavioral problems in school, and

her retreating into a fantasy world. The visits were terminated in May 2012 after Am.W. 

reported that father had slapped Al.W. and that a man without a shirt on had been in the 

apartment. Father denied the accusations, and the court made no finding on whether the

incidents actually occurred. Nonetheless, the court found that whatever happened during the 

three weeks of unsupervised visitation, it had created heightened anxieties for both children, to 

the extent that it negatively impacted their emotional and physical health.

Contacts between father and the children in the community began again in June 2012. 

Both children resisted the contact, with Al.W screaming and crying that she did not want to get 

out of the car, and Am.W. acting angry and telling father that she did not want to be there. 

Father continued to struggle with how to interact with the children, and upset them by telling 

them that the foster parents were not their parents. During these visits, the children turned to the 

family time coach for reassurance and soothing.

Throughout 2012 and 2013, Am.W. repeatedly talked about the sexual abuse and needed 

constant assurances that she was safe in various settings. Due to the level of Am.W.’s anxieties, 

DCF arranged for an evaluation to assess those anxieties and develop a plan to address them. 

The resulting assessment confirmed the observations of others that Am.W. had ongoing chronic 

trauma associated with a chaotic living environment, parental substance abuse, domestic abuse, 

and physical and sexual abuse, resulting in high anxiety levels, interrupted sleep patterns, 

dissociative fantasies, vomiting, and self-harming behaviors. The court found that Am.W.’s 

trauma required specialized parenting skills that would provide structure in her life. When the 

assessment was completed, father declined to review it with the family time coach and DCF 

social worker.
3

In October 2012, DCF filed petitions to terminate father’s and the mother’s parental 

rights. The termination hearing was held over four days in the spring of 2013. Based on the

findings detailed above, the court terminated the parents’ residual parental rights. With regard to 

father, the court concluded that there had been a substantial change of circumstances due to 

stagnation in his ability to parent the children and that the children’s best interests required 

termination of parental rights. The court noted that because Am.W. and Al.W. were only thirtythree and seven months old, respectively, when they were taken into state custody, and because 

father was incarcerated for the first six months after their transfer to state custody, father 

understood that it was imperative for him make immediate and steady progress toward 

reunification.

Nevertheless, as the court found, father did not meet the case plan goals set forth in the 

November 2011 disposition order. Although father had consistent contact with the children, he 

did not engage in the services necessary for him to provide the children with the care they 

needed. He met with a substance-abuse counselor but failed to provide DCF with a copy of any 

assessment that was done or to execute waivers necessary for DCF to obtain an assessment or 

urine analysis that may have been done. He stopped substance abuse counseling in the summer 

of 2012 because he did not believe that he needed to attend any longer. Similarly, although 

father was referred for a mental health assessment to help him process the abuse that his children 

suffered, he met with a counselor for only a short period of time before he quit without providing 

DCF with any assessment. As for the goal that he develop a healthy bond with the children, 

father consistently visited them and participated in some shared parenting meetings, but he did 

not engage with a parent educator and he declined to continue with a special program aimed at 

helping parents care for children who had suffered trauma. Father informed service providers 

that the program caused him too much discomfort because it triggered memories of his own 

childhood trauma.

The court concluded that termination was in the children’s best interests because the

children needed stability and permanence after having suffered significant trauma at an early age. 

Particularly with respect to Am.W., the court credited the testimony of her counselor that she 

would be devastated if she were to be removed from her foster family, with whom she and her 

sister had spent most of their young lives. The court concluded that while father expressed a 

desire to continue to work toward obtaining the parenting skills necessary to address the 

children’s significant needs, the children had spent a significant amount of their lives in foster 

care and could not wait any longer for father to obtain those necessary skills. According to the 

court, father was more focused on how his children behaved towards him and how his efforts 

towards reunification were being sabotaged by others rather than on how he could develop a 

healthy relationship with the children, who had been subjected to a chaotic early childhood.

Thus, the court concluded that there was little likelihood that father could obtain the necessary 

parenting skills within a reasonable period of time, considering that the children had already 

been in state custody for twenty months while father made little progress towards putting himself 

in a position to parent them.

On appeal, father argues that the superior court erred by failing to acknowledge that DCF 

was substantially responsible for the circumstances that made it impossible for him to reunite 

with his children. According to father, DCF intentionally hampered service providers and, by 

doing so, obstructed the development of a healthy bond between him and his children. In 

support of this argument, father quotes testimony from Am.W.’s counselor and the therapist 

hired by DCF to do an assessment of Am.W. First, father quotes his trial attorney’s cross-
4

examination of Am.W’s counselor regarding a letter in which the counselor stated to Am.W.’s 

DCF caseworker his belief that father “and his support system could offer a childhood fostering 

the girls healing process, but they need additional help.” When father’s attorney asked the 

counselor whether DCF followed up on this recommendation, the counselor responded that he 

thought “there had been some changes in [the DCF caseworker’s] feelings about safety due to 

observations about parenting.” Second, father quotes the counselor answering that “it was at the 

recommendation of DCF” upon being asked why there had been only one joint counseling 

session with Am.W. and father. Third, father cites testimony by the therapist hired who assessed 

Am.W. acknowledging that he relied upon DCF’s version of the child’s history, that DCF had 

the authority to determine with whom he spoke, that he did not speak to father or the mother, and 

that it was generally better to speak to as many people as possible.

Upon review of the record, we do not agree that the trial court erred in failing to find that 

DCF sabotaged father’s ability to develop a stronger bond with his children by participating in 

their counseling sessions. Am.W.’s counselor testified that during the one joint session he had 

with Am.W. and father approximately four weeks after he began counseling her in April 2012

she “was very, very clear through her play that she was not safe.” The counselor explained that, 

during the joint session with father, Am.W. made no physical or eye contact with father and that 

her “play was focused on lack of safety” and “extreme themes of violence.” When asked why he 

had only one joint session with father, he explained that “I was very cautious about jumping—

having [father] in with her therapy; and in talking to [the DCF case worker], she offered that it 

wasn’t a good idea right then.” He stated that his door was always open to father, but that father 

never contacted him. When father’s attorney pressed the counselor on cross-examination about 

why there was only a single joint counseling session with Am.W. and father, the counselor stated 

that “I think it was clinically unsafe for her at that time.” He explained that “we were just 

starting a relationship and bringing what looked like a trigger to her trauma into our safety zone” 

so it “was probably something to take really, really slowly.” He stated that eventually more joint 

sessions could have happened but that Am.W.’s reactions to father were not improving and so 

“there wasn’t much to work on . . . to plant as a seed for [Am.W.] to feel comfortable.” When 

father’s attorney asked whether the lack of a relationship with father was “because dad wasn’t 

allowed to be at the trauma visits,” the counselor disagreed, stating that it was “because this little 

girl is hurt, and she’s not ready or safe.” When the attorney asked the counselor what someone 

in father’s position could have done, the counselor responded that father had support from the 

family time coaches and other sources, including himself. The testimony of Am.W.’s counselor, 

taken in its entirety, does not compel the finding and conclusion urged by father. 

For his part, the therapist hired by DCF to do the assessment of Am.W. stated that his job 

was to determine what impact Am.W.’s trauma from her earlier experiences was having on her 

and what components of caregiving and treatment were necessary to help her recover from that 

trauma. He stated on cross-examination that in making an assessment he generally valued the 

input of as many people as possible, but that he trusted DCF’s judgment on whom to interview 

because he was usually unaware of where each case stood in the legal process. Father suggests 

that it was improper for the therapist conducting the assessment to rely on DCF’s “version” of 

Am.W.’s history, but he does not point to any part of that history that was inaccurate or 

misleading to the therapist, and does not provide any support for the inference that if the 

therapist had talked to father, his conclusions and recommendations would have been different. 

Even if the therapist’s failure to talk to father impacted the weight of the therapist’s testimony, it 

would not render the therapist’s testimony incompetent. 
5

In short, the record supports the superior court’s conclusion that there is little if any 

likelihood that father will be able to provide them the parental support they need in light of their 

chaotic early childhood. The record reflects that DCF offered and provided considerable 

services to father, that father’s incarceration kept him from his children for six months early in 

their young lives, and that father was ultimately unable to take full advantage of the services 

provided by DCF to help him deal with his children’s trauma and to develop a healthy 

relationship with them within a reasonable period, viewed from their perspective. Given this 

record, the trial court did not err in concluding that the lack of bond between father and children

resulted from father’s own conduct rather than from the conduct of DCF. We find no basis in 

the record to disturb the superior court’s conclusion that termination of father’s parental rights 

was in the best interests of the children. See In re S.B., 174 Vt. 427, 429 (2002) (mem.) (stating 

that Supreme Court’s role on appeal “is not to second-guess the family court or to reweigh the 

evidence, but rather to determine whether the court abused its discretion in 

terminating . . . parental rights”).

Affirmed.

BY THE COURT:

_______________________________________

John A. Dooley, Associate Justice

_______________________________________

Beth Robinson, Associate Justice

_______________________________________

Geoffrey W. Crawford, Associate Justice