In re J.B., Juvenile

In re J.B., Juvenile (2001-191); 173 Vt. 515; 787 A.2d 1290

[Filed 26-Sep-2001]

[Motion for Reargument Denied 26-Nov-2001]

 
                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-191

                              AUGUST TERM, 2001


In re J.B., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
     	                               }	Chittenden Family Court
                                       }	
                                       }
                                       }	DOCKET NO. 495-10-99 Cnjv

                                                Trial Judge: James R. Crucitti

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


       Mother and father appeal from an order terminating their parental
  rights to their son, J.B.   Father contends that the court erred in
  admitting testimony from an SRS worker regarding father's  inability to
  grasp parenting concepts seven years earlier which led to the termination
  of his parental  rights to another child.  Mother contends that the court's
  prejudgment of the case invalidates the  termination proceeding.  We
  affirm.

       The court made the following findings which neither parent has
  challenged on appeal.  J.B.,  born September 26, 1999, is the son of mother
  A.B. and father R.B.  J.B. was born with serious  physical disabilities
  which required that he be fed through a feeding tube and remain
  hospitalized for  the first six weeks of his life.  Hospital officials
  alerted SRS that they were concerned the parents  would be unable to care
  for the child due to his special needs and the level of conflict between
  the  parents.  On October 29, 1999, SRS filed a petition alleging J.B. to
  be a child in need of care and  supervision (CHINS).  At the CHINS merits
  hearing, mother admitted that due to her cerebral palsy  and motor
  impairment she was unable to physically care for the child without
  assistance.  Because of  father's inadequate parenting skills, he was
  unable to help her care for the child.  Father has a  guardian assigned to
  him by the probate court to assist him with his living arrangements.  He
  has  been classified as having a lower level I.Q. and lacks the basic
  knowledge regarding child  development to care for the child.  On May 12,
  2000, the court found J.B. to be a CHINS based on  mother's admission, the
  domestic violence existing in the family, and father's lack of basic 
  knowledge of child care necessary for the safety of J.B.

       On July 5, 2000, SRS filed its original disposition report, which
  called for termination of  parental rights, with a concurrent plan of
  services and possible reunification between mother and J.B.  Visits were
  initially twice a week, for two hours per visit.  Mother requested that the
  visits be  reduced to once a week.  During the visits, mother was often
  tired, and often arrived late or left early.  Mother's ability to
  understand and meet the child's needs did not keep pace with the child's 

 

  development.  Father often used the visits to discuss his own personal
  problems with J.B.'s foster  father.  The couple's pattern of domestic
  violence continued.  On August 2000, SRS filed a  disposition report
  requesting termination of parental rights.

       At the time of the TPR hearing, father was incarcerated for failing to
  comply with probation  conditions on a previous offense, and had a domestic
  assault charge for his actions against mother  and an attempted sexual
  assault charge pending.  Father was not expected to be released from 
  custody within two years.  Mother distanced herself physically and
  emotionally from the child.   A  psychological evaluation of mother found
  her to be suffering from depression, anxiety, and post-traumatic stress
  symptoms.  The evaluator recommended that mother's parental rights be
  terminated.  The court concluded that mother's inability to parent the
  child went beyond her mere physical  limitations.  Mother refused to engage
  in services offered by SRS that might have assisted her in  caring for J.B. 
  Mother refused to obtain help for domestic assault, failed to grasp basic
  parenting  skills, relocated to another state, and had serious emotional
  issues which required intensive therapy  before she could  safely parent
  J.B.  The court concluded that mother did not have the present ability  to
  parent J.B., nor would she have that ability within a reasonable period of
  time.  The court  concluded that father's incarceration, his lack of basic
  parenting skills and maturity, and his limited  cognitive ability and
  history of violence against women made him unable to resume his parental 
  duties in a reasonable period of time.  Both mother and father appealed. 

       Father contends that the court erred in admitting the testimony of the
  SRS social worker who  worked with father seven years earlier regarding his
  first child C.S.  The social worker testified that  R.B. did not benefit
  from prior departmental interventions and was unable to learn basic
  parenting  skills and concepts.  Eventually, father voluntarily terminated
  his parental rights to C.S.  Although  requesting an offer of proof, father
  did not object to this testimony during the hearing, and therefore  has
  waived the issue on appeal.  See O'Brien v. Island Corp., 157 Vt. 135, 141,
  596 A.2d 1295, 1298  (1991).  Notwithstanding this waiver, we see no error
  in the court admitting testimony regarding  father's inability to acquire
  the skills necessary to parent his older child in assessing whether father 
  will be able to acquire these same skills within a reasonable period of
  time in order to resume  parenting J.B.  See generally In re J.B., 167 Vt.
  637, 640, 712 A.2d 895, 898 (1998) (mem.)  (evidence of mother's past
  behavioral problems supported court's initial disposition decision to 
  terminate mother's parental rights to infant removed from her care shortly
  after birth); In re B.M.,  165 Vt. 331, 337, 682 A.2d 477, 480-81 (1996)
  (past events are relevant indicators of whether the  parent will be able to
  resume parental duties).

       The only issue mother raises on appeal is that the court prejudged the
  case in making an ex  parte determination that SRS's plan to seek
  termination, rather than reunification, was reasonable.   Mother's
  appellate counsel discovered a "Reasonable Effort Affidavit: Permanency
  Review" form in  the court file.    The judicial determination form is
  required for the State to receive federal funding  for foster
  care-maintenance payments for children placed in foster care.  See 42
  U.S.C. § 671 (a)(15)  (Supp. 2001); 45 C.F.R. § 1356.21 (2000).  Absent a
  timely judicial determination of reasonable  efforts, a child placed in
  foster care is ineligible for foster care-maintenance payments.  45 C.F.R.
  §  1356.21 (b)(1)(ii), (b)(2)(ii).  

 

       The form directs SRS to identify what steps it has taken toward
  reunification, or if  reunification were not the plan for J.B., what steps
  SRS had taken to finalize a permanent plan for  the child.  SRS averred
  that its plan for J.B. was not for reunification and that J.B. had been
  placed in  a legal risk home, and that a termination of parental rights
  petition had been filed. The court signed  the "Judicial Determination"
  portion of the form, in which the court determined that "[u]pon 
  consideration of the information presented . . . the efforts SRS made were
  reasonable." 

       Mother contends that by signing the form, the trial judge evinced his
  prejudgment regarding  a  material issue in the termination of parental
  rights hearing, and accordingly, his failure to recuse  himself from the
  termination of parental rights hearing a month later was erroneous.  Mother
  also  claims that the determination should not have been made ex parte.  
  Mother never raised these issues  before the family court, and we decline
  to consider them on appeal.  See In re A.K., 153 Vt. 462,  465, 571 A.2d 75, 77-78 (1990) (failure to raise issue before the trial court results in
  waiver).  

       Mother's supplemental filing is also unavailing.  Because mother has
  failed to preserve these  issues on appeal, we decline to consider whether
  Nebraska's response to the federal "reasonable  efforts" requirement
  compels a conclusion that the "judicial determination" procedure adopted by 
  SRS fails to satisfy the federal requirement.  See Harvey v. Shalala, 824 F. Supp. 186 (D. Neb.  1993), aff'd, 19 F.3d 1252 (8th Cir. 1994).  Also,
  the extent of the Vermont Legislature's awareness of  federal foster care
  funds when drafting the delinquency disposition review statute, 33 V.S.A. § 
  5529d(e), does not compel a finding that the "reasonable efforts"
  determination made here was  inadequate or prejudiced the ultimate decision
  on termination of parental rights.

       Although this is not the proper case to decide the issues raised by
  mother's appeal, given the  absence of a family court rule on "reasonable
  efforts" determinations, we request the Advisory  Committee on the Rules
  for Family Proceedings to consider procedural rules on the subject.  The 
  Committee should consider whether and what due process requirements are
  mandated by the federal  statute and whether the current practice for
  judicial determination conforms with due process.  The  Committee should
  also consider the authority of judges to make the reasonable efforts
  determination.  We note that other states have responded to the federal
  statute with varying approaches.  Some states  have incorporated the
  reasonable efforts requirement into their termination of parental rights
  statute  and require courts  to make a finding that reasonable efforts have
  been made to prevent a child's  removal from the home before terminating
  parental rights.   In re Lilley, 719 A.2d 327, 332 (Pa.  Super. Ct. 1998). 
  Before making a finding, the court must examine the efforts made by the
  social  service agency to meet its reasonable efforts obligation.  See In
  re Rasheta D., No. 98-08-07-TN,  2000 WL 1693157, at *19 (Del. Fam. Ct.
  March 2, 2000).  Others permit a waiver of a reasonable  efforts
  determination where aggravating circumstances exist.  In re C.B. & G.L.,
  611 N.W.2d 489,  493 (Iowa 2000).  Some states have adopted administrative
  rules that require that a court make  findings pursuant to 42 U.S.C. §
  671(a)(15), regarding whether and under what circumstances  reasonable
  efforts were made to prevent or eliminate the need for removal of the child
  from the home  and to make it possible for the child to return to the home. 
  In re T.W.R., J.P.M., & P.S.R., 887 P.2d 941, 944 (Alaska 1994), overruled
  on other grounds by In re S.A., 912 P.2d 1235 (Alaska 1996).  

 

  Other states have refused to make a social service agency's reasonable
  efforts at reunification a  condition precedent to termination.  In re
  McDaniel, 610 P.2d 321, 324 (Or. Ct. App. 1980).  


       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