In re S.M.

IN_RE_SM.93-225; 163 Vt 136; 655 A.2d 726

[Filed 30-Dec-1994]

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press. 


                           No. 93-225


In re S.M. & M.M, Juveniles               Supreme Court

                                          On Appeal from
                                          Rutland Family Court


                                          October Term, 1994



Silvio T. Valente, J.

Adele Pastor of Corsones and Corsones, Rutland, for appellant children

Jeffrey L. Amestoy, Attorney General, Montpelier, and Alexandra N. Thayer,
 Assistant Attorney General, Waterbury for appellant SRS 

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
 Montpelier, for appellee father 

Kathleen De Veaux, Rutland, for appellee mother



PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     GIBSON, J.   The Commissioner of Social and Rehabilitation Services
(SRS) and juveniles S.M. and M.M. appeal from an order of the Rutland Family
Court denying SRS's petition to terminate the residual parental rights (TPR)
of the juveniles' parents.  Appellants raise three claims on appeal: (1) in
every dispositional review the court must consider the factors enumerated in
33 V.S.A.  5540, even where the court does not find a substantial change of
material circumstances; (2) the court erroneously concluded that no
substantial change of circumstances existed as to father; and (3) the court
erred by not considering mother's lack of progress in its
change-of-circumstances analysis.  We reverse. 

 

     In August 1990, SRS filed a CHINS (children in need of care and
supervision) petition alleging that two-year-old M.M. and her one-month-old
brother, S.M., had been physically abused by their parents, who also had
failed to protect them from abuse.  The court granted the petition in
November 1990, finding the children CHINS.  In January 1991, the court held a
disposition hearing and transferred legal custody and guardianship of M.M.
and S.M. to the Commissioner of SRS, who placed the children in foster care. 

     The court-approved case plan submitted by SRS originally called for the
children's reunification with their parents.  To achieve reunification, the
plan of services required the parents to participate in parenting classes and
to engage in mental health counseling. Throughout the next year, the parents
completed various parenting classes, and received counseling individually and
together from a number of different service providers.  Progress in therapy
was slow, due in part to the parents' denial that they were responsible for
their children's abuse. 

     In December 1991, SRS changed the case plan goal from reunification to
termination so the children could be freed for adoption.  A petition to
terminate was filed in February 1992 for consideration during the
eighteen-month dispositional review hearing.  33 V.S.A.  5531.  A hearing
on the petition extended over thirteen days during November and December
1992.  In February 1993, the court denied the request to terminate the
parents' residual parental rights, concluding that SRS had failed to sustain
its burden to show a substantial change of material circumstances.  It found
that after the children were placed in custody, there was never an extended
period of time when one or both of the parents were not engaged in some kind
of program contemplated by the case plan.  It reasoned that due to father's
progress, albeit irregular and limited to specific parenting strategies, his
capacity to parent had not stagnated or deteriorated.  The court further
concluded that it need not address mother's progress relevant to a
substantial change of material circumstances because it had already
concluded, based on father's situation, that no change of circumstances
existed.  SRS thereafter filed a motion to 

 

reconsider and to amend the order, which the court denied in March 1993.  SRS
and the children appealed. 

                                  I.

     Appellants' first argument focuses on the extent of the family court's
inquiry in considering whether to terminate residual parental rights during a
dispositional review hearing pursuant to 33 V.S.A.  5531.  Appellants
argued below that the court must address the best interest factors in 33
V.S.A.  5540 whenever it considers termination during the  5531
dispositional review.  The court rejected the argument, and appellants raise
it again on appeal. 

     Essentially, appellants ask this Court to collapse into one step the
well-established two- step inquiry required in every post-disposition TPR
hearing when the issue arises during an eighteen-month dispositional review. 
It is well settled that the family court must conduct a two- step analysis
whenever it considers modifying an existing disposition order.  In re M.M.,
159 Vt. 517, 521, 621 A.2d 1276, 1279 (1992); see 33 V.S.A.  5532(a). 
First, the court must find a substantial change in material circumstances. 
In re B.W., ___ Vt. ___, ___, 648 A.2d 652, 654 (1994).  If a substantial
change in material circumstances is established, the court then must
determine whether the best interests of the children require termination.  In
re H.S., ___ Vt. ___, ___, 632 A.2d 1106, 1107 (1993).  This analysis is
required whether the court is considering a modification during a
dispositional review or during a hearing on a motion to modify disposition. 
Compare In re M.M., 159 Vt. at 520-21, 621 A.2d  at 1279 (termination at
eighteen-month dispositional review) with In re D.B., ___ Vt. ___, ___, 635 A.2d 1207, 1208-09 (1993) (termination upon motion to modify disposition). 
Appellants' argument to the contrary is wholly unsupported by the law, and
the trial court was correct in so concluding. 

                                  II.

     Appellants next claim that the family court erred in its determination
that no substantial change of circumstances had occurred, thus preventing the
court from assessing whether termination was in the children's best
interests.  First, appellants argue that the court applied an 

 

erroneous standard with regard to father's improved parenting skills and his
progress in therapy. Second, appellants challenge the family court's
conclusion that in finding no change of circumstances as to father, it did
not have to consider whether mother's situation presented a change of
circumstances.  We take each of these claims in turn. 

                                  A.

     The family court found that father had shown progress in his ability to
care for S.M. and M.M.  In light of this progress, the court concluded that
father's parenting had not stagnated, and therefore no change of
circumstances had occurred.  It defined "stagnation" as the "passage of time
without improvement in parental capacity."  The court further concluded that
under this standard, SRS had failed to sustain its burden, and denied the TPR
petition. 

     Most often, a substantial change in material circumstances is found when
"`the parent's ability to care properly for the child has either stagnated or
deteriorated over the passage of time.'"  In re B.W.,  ___ Vt. at ___, 648 A.2d  at 654-55 (quoting In re H.A., 153 Vt. 504, 515, 572 A.2d 884, 890
(1990)).  Although stagnation may be found when the parent has made no
improvement over time, see id. at ___, 648 A.2d  at 655, some improvement will
not preclude a finding that the parent's capacity to care for the child has,
indeed, stagnated.  In re D.B., ___ Vt. at ___, 635 A.2d  at 1209.  The
central question is whether "the improvement substantially conformed with the
expectations at the time of the CHINS adjudication and with SRS's case plan."
 Id. at ___, 635 A.2d  at 1210.  If the parent's progress meets the
expectations, there is no change of circumstances.  Id.  If the improvement
does not substantially conform with the established expectations, then the
court may find a change of circumstances and proceed to the second prong of
the inquiry -- whether termination is in the children's best interests. 

     In the present case, the court specifically rejected the standard
outlined here.  Responding to SRS's suggestion that stagnation may be found
if the parents fail to make sufficient progress after the time the children
entered custody, the court erroneously stated that that standard was

 

appropriate only for the second prong of the two-part inquiry.  Because the
family court misapplied the test for finding a change of circumstances, we
reverse and remand for further proceedings. 

                                  B.

     Appellants also challenge the court's order because it did not address
whether a change of circumstances had occurred with respect to mother.  In
any termination proceeding, the family court must examine the circumstances
of each parent individually.  In re H.A., 153 Vt. at 513, 572 A.2d  at 889;
see also In re D.P., 147 Vt. 26, 32, 510 A.2d 967, 971 (1986) (Court reversed
and remanded TPR order as to mother because it was not clear that court had
applied correct legal standard with regard to her; Court affirmed order
terminating father's residual parental rights).  While one parent's
improvement may prevent the court from finding a substantial change in
material circumstances, the other parent's capacity may have stagnated or
deteriorated, thus meeting the change-of-circumstances test.  It was error
for the family court in the present case to decline addressing mother's
circumstances, and on remand, it should look at each parent individually in
addressing both prongs of the two-part inquiry. 

                                 III.

     Finally, we address an issue that arose during oral argument before this
Court.  Since the court's February 1993 order, the record reflects no further
dispositional reviews as required by 33 V.S.A.  5531.  We caution both SRS
and the family court that an appeal does not obviate the need for the  5531
review mandated by the Legislature to take place every eighteen months.  It
appears from this record that the eighteen-month time deadline has been
violated. Roughly one year and eight months passed between the court's
February 1993 order and oral argument before this Court.  Due to the
significant amount of time that has passed, the court should hold a new
disposition hearing on remand to consider the parents' present circumstances
in accordance with the standards set forth in this opinion.  See In re D.P.,
147 Vt. at 32, 510 A.2d  at 971. 

 

     Reversed and remanded for new disposition hearing in accordance with
this opinion. 



                                   FOR THE COURT:


                                   _____________________________________
                                   Associate Justice