In re C.H. and M.H.
Annotate this Case
In re C.H. and M.H. (99-352); 170 Vt. 603; 749 A.2d 20
[Opinion Filed 14-Jan-2000]
[Motion for Reargument Denied 15-Feb-2000]
ENTRY ORDER
SUPREME COURT DOCKET NO. 99-352
DECEMBER TERM, 1999
In re C.H. and M.H. } APPEALED FROM:
}
}
} Windsor Family Court
}
}
} DOCKET NO. 149/150-9-96Wrjv
In the above-entitled cause, the Clerk will enter:
In this appeal from a termination of parental rights (TPR), father
argues that the Windsor Family Court erred in terminating his parental
rights without a finding that he is an unfit parent. We determine that
father failed to preserve his unfitness claim, and affirm the family
court's decision that termination is in the best interest of the children.
At the July 1999 TPR hearing, the family court found the following
pertinent facts. Father was living with, but not married to, mother when
the children, C.H. and M.H., were born. He was not living with mother or
the children in September 1996, when mother attempted to smother C.H. with
a pillow. As a result of mother's actions, the children were placed in
custody with SRS on an emergency basis. (FN1) At a merits hearing in
November 1996, the family court found that both children were in need of
care and supervision - which neither parent contested - and the children
were placed in foster care, where they have remained throughout this case.
At a July 1997 disposition hearing, the court granted custody to SRS based
on the parties' stipulation.
Father was adjudicated a sex offender at the age of thirteen. He
received treatment but did not complete his therapy program. As a part of
the case plan for C.H. and M.H., it was recommended that father undergo a
penile plethysmograph to determine if he is still sexually aroused by
children. However, this test never took place, due to circumstances beyond
father's control.
SRS arranged a schedule to allow father to visit the children. Father
visited the children on two occasions in two-and-one-half years. Father
testified that he canceled scheduled visits due to conflicts with his work
schedule. Father's parents visited the children on occasion. The SRS case
plan required that father participate in parenting skills classes, but
father never contacted SRS about these classes nor attended such classes.
Father testified that he bought a house and remodeled it to accommodate
the children in the event they moved in with him, and that his parents
would care for the children while he was at work.
The court found that the foster mother has a degree in early childhood
education and works as a kindergarten assistant at the Perkinsville
School. She has taken the children to all SRS appointments and seen to
their medical and dental needs throughout the custody period. C.H.'s
behavioral and emotional problems, most of which stemmed from the
attempted smothering, have improved during the time she has lived with the
foster parents. The foster parents have expressed a willingness to adopt
the children if they become available for adoption, and the children call
the them "Mom" and "Dad." SRS case workers testified that the children
have bonded with the foster mother.
The court concluded that the State had met its burden of proving, by
clear and convincing evidence, that (1) there had been a substantial
change in material circumstances, and (2) termination is in the best
interests of the children under 33 V.S.A. 5540. Specifically, the court
found that: because father visited the children only twice during a
thirty-one month period, the children had no significant relationship with
him, but had bonded with their foster parents and have a significant
relationship with them; the children have adjusted to the environment
provided by their foster home; because of the lack of significant contact
between the children and their father and the positive interaction between
C.H., M.H., and their foster parents, it was considered most unlikely that
father would be able to resume parental duties within a reasonable period
of time; and, finally, father had played no constructive role in the
children's welfare, as they hardly know him and he had no significant part
in their lives or development.
The court ordered the termination of father and mother's parental
rights and transferred legal custody, guardianship, and residual parental
rights to SRS. This appeal followed.
Father argues on appeal that the family court erred because his
parental rights could not constitutionally or statutorily be terminated
without a finding that he is an unfit parent. The State counters that
father's July 1997 stipulation to the initial disposition placing custody
in SRS essentially constituted a finding of his unfitness and that the SRS
was not required to show his unfitness at the July 1999 TPR hearing.
We decline to reach father's contention because he waived his
unfitness argument by failing to raise it at any point during the family
court proceedings. "We have often stated that '[w]e will not reverse a
lower court when a party's failure to raise some matter below denied the
court an opportunity to consider it.'" Spencer v. Killington, 167 Vt.
137, 140, 702 A.2d 35, 36 (1997) (quoting Duke v. Duke, 140 Vt. 543, 545,
442 A.2d 460, 462 (1982)). We will not consider any matter raised for the
first time on appellate review. See Wilk Paving, Inc. v.
Southworth-Milton, Inc., 162 Vt. 552, 558, 649 A.2d 778, 783 (1994);
Lanphere v. Beede, 141 Vt. 126, 129, 446 A.2d 340, 341 (1982)
("Contentions not raised or fairly presented to the trial court are not
preserved for appeal.").
We observe, however, that in In re J.H., 156 Vt. 66, 587 A.2d 1009
(1991), the trial court had accepted the appellant-mother's argument that
"because she was not adjudged unfit at the original disposition hearing,
in order to retain custody SRS was required to show that she was unfit at
the review hearing." Id. at 71, 587 A.2d at 1012. We described this
reasoning as "flawed," noting that "[t]he mother was a party to the
initial disposition hearing and stipulated to SRS custody. She may not
now complain that no finding of unfitness was made regarding her." Id. In
the instant case, father candidly recognizes the relevance of In re J.H.
and invites us to overrule it. Even assuming we were inclined to accept
his invitation, father's failure to raise the issue below requires us to
decline.
Nevertheless, we still review the termination of parental rights to
"safeguard[] from arbitrary or erroneous state action by 'a general policy
that total termination of parental rights will not be ordered in the first
instance if there is a reasonable possibility that the causes and
conditions which
led to the filing of the petition can be remedied and the family
restored within a reasonable time.'" In re J.B., 167 Vt. 637, 639, 712 A.2d 895, 897 (1998) (mem.) (quoting In re D.R., 136 Vt. 478, 481, 392 A.2d 951, 953 (1978)).
Although father attempts to characterize the decision below as one
that relies solely on the children's bond with their "psychological
parents," see In re J. & J.W., 134 Vt. 480, 485, 365 A.2d 521, 524 (1976),
this is not a case in which the court ignored its obligation to consider
the statutory factors of 33 V.S.A. 5540. The court specifically
addressed the lodestar criterion of 5540(3):
Because of the lack of significant contact between C.H., M.H.,
and their father, and, because of the positive interaction of
those children with their foster parents, it is considered most
unlikely that [father] will be able to resume parental duties
within a reasonable period of time.
Indeed, the court noted that 5540(3) is "[p]erhaps the most
significant statutory factor" to be weighed in the termination of parental
rights. See In re M.M., 159 Vt. 517, 523, 621 A.2d 1276, 1280 (1993)
("The most critical factor in determining a child's best interests is
whether the parent will be able to resume her parental duties within a
reasonable time.").
Father argues that findings that he visited the children only twice in
two-and-one-half years and that he did not participate in parenting
classes as required by the case plan are not sufficient to support the
court's conclusion that it is "most unlikely that [father] will be able to
resume parental duties within a reasonable period of time."
The family court's conclusions will be upheld if they are supported by
the findings, see In re J.B., 167 Vt. at 639, 712 A.2d at 897, and we will
uphold the findings unless they are clearly erroneous. See id. The
court's conclusion that the State has shown by clear and convincing
evidence that termination is in the best interests of the children is
supported by findings, and, therefore, we will not disturb the court's
termination of father's parental rights.
Affirmed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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Footnotes
FN1. Father married mother subsequent to SRS obtaining custody of the
children.
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