In re D.A., Juvenile

In re D.A., Juvenile (2000-567); 172 Vt. 571; 772 A.2d 547

[Filed 13-Apr-2001]
          
 
                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-567

                              APRIL TERM, 2001


In re D.A., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
                                       }	Rutland Family Court
                                       }	
                                       }
                                       }	DOCKET NO. 63-5-99 Rdjv

                                                Trial Judge: Theodore S. 
                                                             Mandeville 

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


       The Department of Social and Rehabilitation Services (SRS) appeals the
  family court's order  denying its petition to terminate the parental rights
  of the parents of three-year-old D.A.  We affirm.

       The family court's findings are uncontested.  D.A. was born on
  February 27, 1998.  A few  hours after his birth, he was transferred to
  Dartmouth Hitchcock Medical Center (DHMC), where  pediatric surgeons
  repaired a congenital defect that resulted in food being ingested into his
  bronchial  tubes.  Notwithstanding the surgery, D.A.'s medical condition
  presents a constant danger that food  will get caught in his esophagus and
  be sucked into his lungs, causing a severe asthma attack and  blocking his
  airway.  The condition is thought to be permanent but is expected to
  improve as the  child gets older.  D.A.'s condition requires that he eat
  soft foods, blended foods, or foods cut up into  very small pieces.  While
  eating, D.A. must remain erect and refrain from moving about.  He must be 
  encouraged to take liquids after every swallow to help food pass through
  his esophagus.

       In March 1998, D.A. was discharged from DHMC and returned home to live
  with his parents,  who had been taught the proper feeding procedures.  In
  February 1999, while D.A. was at DHMC for  surgical evaluation to determine
  what was causing his frequent gagging and vomiting, he  experienced an
  episode of respiratory arrest after eating some crackers.  Resuscitation
  and admission  to an intensive care unit was required.  D.A. remained at
  DHMC until June 1999.  During this  period, staff at the hospital attempted
  to teach D.A.'s parents how to care for his condition, but they  were
  unsuccessful and contacted SRS.  D.A. was ordered into SRS custody as a
  medically needy  child and placed with foster parents who took special
  training at DHMC and were assisted in their  home by nurses.  During this
  period of foster care, D.A.'s parents were given additional training in 
  how to care for D.A.  On December 28, 1999, D.A. was returned to his
  parents after it was decided  that mother had made adequate progress in
  learning to care for D.A., even though father had not.   Mother was deemed
  primary caregiver, but she had back-up help from father, D.A.'s aunt, and
  in-home nurses.

 

       During the first several weeks, with the benefit of twenty hours a day
  of nursing support, the  plan for D.A.'s care at parents' home went well. 
  Parents maintained a clean household, demonstrated  adequate feeding
  procedures, and seemed comfortable using the various equipment required. 
  In  February 2000, however, the situation deteriorated.  Parents were
  served an eviction notice for failure  to pay rent.  Their medicaid
  coverage lapsed because of their failure to honor appointments.  Mother 
  cashed an assistance check and used the proceeds to pay for bills other
  than the ones for which the  money had been designated.  During this
  period, parents' motivation to care for D.A. seemed to  wane.  It appeared
  to the service providers that parents were too overwhelmed with their
  financial  difficulties to properly care for D.A.  They bottle-fed D.A. in
  his crib, against the advice of the  nurses, and they relied too heavily on
  formula rather than solid foods.  They expressed less interest in 
  attending medical appointments concerning D.A., and they failed to respond
  to some twenty oxygen  alarms, mostly because they did not awaken.  In
  response to criticism over these matters, parents  became hostile to the
  service providers.  As the result, the nursing association withdrew its
  services,  and on March 1, 2000, SRS placed D.A. with legal-risk foster
  parents.  D.A. thrived and bonded with  the new foster parents, who
  expressed a willingness to adopt him.

       In May 2000, approximately four months after D.A. was adjudicated a
  child in need of care or  supervision, SRS filed a petition to terminate
  parental rights.  Following three days of hearings in  October 2000, the
  family court denied the petition.  The court did conclude that parents'
  ability to  care for D.A. as a special needs infant deteriorated during the
  time they had custody of the child.   The court also concluded, however,
  that SRS had failed to demonstrate by clear and convincing  evidence that
  parents would be unable to resume their parental duties within a reasonable
  period of  time.  The court noted that mother's significant health
  problems, which were discovered after D.A.'s  birth, had improved
  significantly since D.A. was placed in foster care-she had surgery to
  alleviate  conditions caused by sleep apnea and pancreatitis, was taking
  insulin to address a diabetic condition,  and had lost a great deal of
  weight.  As the result of mother addressing her medical problems, she  was
  much less tired than when D.A. had been placed at home, and she became
  aware of the  debilitating nature of her medical conditions, if left
  unaddressed.  The court also noted that mother's  attitude had changed with
  respect to the service providers.  She recognized that SRS and DHMC had 
  made the right decision to place D.A. in foster care.  Based on these and
  other considerations, the  court concluded that SRS had not given parents a
  sufficient opportunity to demonstrate their ability  to care for D.A.
  within a reasonable period of time, and that none of the other statutory
  factors  concerning the child's best interests outweighed this conclusion.

       On appeal, SRS argues that the family court misconstrued the
  reasonable-period-of-time  criterion by focusing on the quantum of time
  provided to the parents to demonstrate changed  behavior, rather than on
  the likelihood that they would succeed in overcoming their deficiencies.  
  According to SRS, in focusing solely on the time given to parents, the
  court ignored D.A.'s need for  permanency and stability, which indicated
  that a reasonable period of time had already passed.   Further, SRS
  contends that while mother's progress in coping with her life and
  addressing her  medical problems is laudable, her progress does not
  demonstrate that she will be able to resume  parental duties soon, even
  assuming a reasonable period of time has not already passed.  In SRS's 
  view, given D.A.'s history and the lack of a current parent-child
  relationship between him and his  parents, it is inconceivable that either
  parent will be able to resume parental duties within a  reasonable time
  frame consistent with D.A.'s pressing needs.

 

       In making these arguments, SRS relies heavily on In re B.M., 165 Vt.
  331, 342, 682 A.2d 477,  483 (1996), a case in which we sympathized with
  the progress that the father had made in his  personal life, but concluded
  that it was too late for him to act as a father to his daughter.  While
  there  are some similarities in the two cases, B.M. is not controlling.  In
  B.M., the father had never played a  parental role in the child's life, but
  sought custody of her years after she had been placed in SRS  custody.  We
  acknowledged the progress father had made in his personal life, but
  concluded that the  family court's termination order was supported by its
  findings that (1) the child was not bonded with  the father; (2) the father
  had never been a primary caregiver to the child; (3) because of 
  incarcerations, the father had been absent for long periods of time when
  the child was young; (4) the  child did not feel safe in the father's
  presence because of past incidents of domestic abuse; and (5) the  child
  expressed great anxiety at the possibility of reunification with her
  father.  Id. at 340-42, 682 A.2d  at 482-83.  Here, although the family
  court found that parents acted more as playmates to D.A.  during visits,
  and that D.A. had bonded to his new foster parents, mother was D.A.'s
  primary  caregiver when he was placed with her earlier, and D.A. has not
  been separated from his parents for a  length of time comparable to that in
  B.M.  Further, in contrast to the situation in B.M., where the  child was
  afraid of her father, the family court found that D.A. gets along well with
  his parents, and  always has.

       We do not agree with SRS that the family court focused exclusively on
  the amount of time  parents had been given to demonstrate change rather
  than on the likelihood that they could succeed  in overcoming their
  deficiencies.  The findings of the court indicate that mother was able in
  the past,  with the assistance of father and others, to act as D.A.'s
  primary caregiver.  Because of financial  problems and mother's medical
  conditions, which sapped her energy, parents' ability to care for D.A. 
  deteriorated.  Mother has addressed her medical conditions and has more
  energy.  She has also  acknowledged her previous deficiencies and
  recognized that service providers were right to place  D.A. in foster care. 
  If D.A. were returned to parents, mother's sister, who has two special
  needs  children and has received specialized training, and D.A.'s
  grandmother would be available to assist  parents in caring for D.A.  All
  of these findings are directly tied to the likelihood of parents, and 
  particularly mother, being able to resume parental duties within a
  reasonable period of time.   Although it is true that the court made no
  explicit findings on D.A.'s need for permanency, the court's  findings
  address each of the statutory best-interests factors contained in 33 V.S.A.
  § 5540.  The  testimony of an SRS social worker that children of D.A.'s
  young age need permanency, particularly  when they have been moved around
  such as D.A., does not require, in and of itself, that we reverse  the
  trial court's order denying SRS's petition.  The social worker's brief
  statements do not necessarily  demonstrate, by clear and convincing
  evidence, that D.A. will be harmed if his parents are given  additional
  time to demonstrate that they can care for him.

       The family court recognized that Vermont law is not intended to place
  troubled or needy  children in the best possible homes, but rather must be
  construed to preserve the family unit if it can  be done within a
  reasonable period of time without physically or emotionally harming the
  child.  See  In re R.B., 152 Vt. 415, 421, 566 A.2d 1310, 1313 (1989)
  (because freedom of children and parents  to relate to one another in
  context of family free of governmental interference is fundamental right, 
  courts are constrained to achieve statute's stated purpose, whenever
  possible, in family environment,  separating child from parents only when
  necessary for child's welfare).  The awesome power of  termination should
  be invoked only as a last resort when there is no "'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 B.M.,
  165 Vt. 194, 199, 679 A.2d 891, 895 (1996) (quoting In re  D.R., 136 Vt.
  478, 481, 392 A.2d 951, 953 (1978)).  As in In re M.M., 159 Vt. 41, 613 A.2d 713  (1992), where we rejected an argument similar to the one SRS
  makes here, D.A.'s parents presented  coherent testimony in favor of
  allowing them more time to improve their parenting skills.   Accordingly,
  "[w]e will not substitute our judgment for that of the family court, and we
  will not  reverse its conclusion, based on uncontested findings, that SRS
  had not established by clear and  convincing evidence that termination of
  parental rights was appropriate."  Id. at 46, 613 A.2d  at 716  (citation
  omitted).


       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