In Re F.R. & A.R., Juveniles

VERMONT SUPREME COURT Case No. 24-AP-307
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

APRIL TERM, 2025

In re F.R. & A.R., Juveniles } APPEALED FROM:
(B.B., Father* & T.R., Mother*) }
} Superior Court, Franklin Unit;
} Family Division
} CASE NOS. 69-6-20 Frjv & 68-6-20 Frjv
Trial Judge: Robert W. Katims

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

Mother and father appeal termination of their parental rights to twins F.R. and A.R., born
in June 2020. On appeal, father argues that the court erred in terminating his rights because he
had made significant progress. Mother argues that the evidence does not support the court’s
determination that her progress had stagnated and that her due-process rights were violated when
the court allocated the burden of proof to mother regarding her motion for conditional custody.
We affirm.

The court found the following by clear and convincing evidence. When the twins were
just a day old, the State filed petitions alleging that they were children in need of care or
supervision (CHINS) based on parents’ long history with the Department for Children and
Families (DCF). Parents’ rights to other children had been terminated and there were ongoing
concerns around substance abuse and instability in the home. The twins were in the neonatal
intensive care unit after birth, both having been exposed to inter-utero drug use. F.R. was born
with bilateral club feet and required extensive medical intervention. The treatment program
required strict adherence to prevent long-lasting issues and would continue throughout
childhood. A.R. had chronic ear infections. The court granted custody to DCF, and they were
placed in an anonymous foster home due to father’s past violent behavior.

Mother was incarcerated in December 2020. During that time, father spoke to mother on
the telephone and made threats against DCF, DCF workers, and the Lund home. These
telephone calls were recorded, and the threats included threats to kill DCF workers and start a
“civil war.” In response, in-person visits were suspended with father and father was ordered to
complete a risk assessment and follow recommendations. The assessment concluded that father
did not accept responsibility for his threatening behavior and did not show a willingness to
change, instead blaming DCF. DCF required father to enter a conduct agreement to continue
working with DCF.
In August 2021, after a contested hearing, the court concluded that the twins were
CHINS. The court found that at the time of the twins’ birth, the twins’ older sibling was in DCF
custody. Mother had not followed through on the expectations in the sibling’s case plan,
including absconding from furlough, and failing to engage in mental-health counseling or work
with service providers. Father had a history of violating conditions of release and substantiations
of child abuse. The resulting disposition order had a goal of reunification by April 2022. Some
action steps for mother included following the plan for parent-child contact, engaging with
counseling for past trauma and mental health, completing a parenting course, updating her
substance-abuse treatment plan and following recommendations, engaging in healthy
relationships, attending medical appointments for the children, and maintaining safe and stable
housing. Father’s steps included not blaming others for his criminal and abusive behavior,
following the plan for parent-child contact, following the conduct agreement with DCF, meeting
with a domestic-violence specialist, completing parenting class, engaging in mental-health
counseling, attending medical appointments, and maintaining safe and stable housing.

Because parents were making some progress by the reunification date, the goal date was
moved to July 2022. A trial reunification with parents began in June 2022. DCF provided
tremendous support to parents, including reminding parents of appointments and helping with
transportation. The trial reunification ended in July 2022 after parents missed an important
medical appointment for F.R.—it had been rescheduled once and DCF reminded parents about
the importance of the visit—and mother’s probation officer received a report that mother was
abused by father. In a meeting with her probation officer, mother appeared scared and hesitant;
she denied the abuse but the probation officer noticed a bruise mark on her throat that looked like
a thumbprint. Father worked with a domestic-violence specialist and attended counseling
sessions, however, he failed to acknowledge that he engaged in domestic violence and showed
no insight into his wrongful behavior.

A second trial reunification began in November 2022 and failed in March 2023 based on
concerns for the children’s health, parents’ inability to follow medical recommendations and
access medical care for the children, and the children’s significant behavior changes after visiting
with parents. Among other concerns, A.R. developed a serious ear infection for which parents
did not seek medical attention. In addition, by March 2023, parents’ newborn child was placed
in the home with the twins and parents were overwhelmed by caring for all three children.

In April 2023, the State filed petitions to terminate parents’ rights. The same month,
mother moved for conditional custody of the twins. After a hearing, the court denied the motion,
continuing DCF custody. After a hearing on the termination petition, the court determined that
there was a change in circumstances due to parents’ stagnation. Father failed to address his
abusive behavior in a meaningful way. He denied his abusive conduct, minimized his
threatening behavior toward DCF, mother, and the twins’ older sibling, and continued to act
aggressively. In July 2023, father exhibited aggressive behavior towards the twins’ older sibling
and minimized his behavior. He also failed to comply with the conduct agreement. Parents did
not demonstrate an ability to meet the children’s medical needs. They did not bring F.R. to
required medical appointments and failed to notice or treat a serious ear infection in A.R. In
sum, they did not make any real progress toward meeting the goals in the case plan despite
extensive support from DCF and two attempts at reunification.

The court examined the statutory factors and concluded that termination was in the
children’s best interests. The twins had a strong and positive relationship with their foster
parents. The twins adjusted positively to foster parents’ home, school, and community. The

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children were in the same foster home their entire lives, except for the two trial reunification
periods. Their foster parents have provided a safe and supportive home and kept the twins
current on all medical appointments, including those for F.R.’s club feet. The children were not
bonded with mother and father. Parents were not able to resume parenting in a reasonable period
of time. They made very little progress towards reunification in over three years. They did not
demonstrate an ability to provide safe and nurturing care, failing to address the domestic
violence in their relationship and show the ability to meet the children’s medical needs.
Therefore, the court granted the petition to terminate parents’ rights to A.R. and F.R. Mother
and father both appeal.

When the State moves to terminate parental rights after the initial disposition, the court
must first find that there is a change of circumstances, 33 V.S.A. § 5113(b), and second, “that
termination of parental rights is in the child’s best interests.” In re K.F., 2004 VT 40, ¶ 8, 176
Vt. 636 (mem.). In assessing the child’s best interests, the court must consider the statutory
criteria. 33 V.S.A. § 5114. The most important factor is whether the parent will be able to
resume parenting duties within a reasonable time. In re J.B., 167 Vt. 637, 639 (1998) (mem.).
On appeal, we will uphold the family court’s conclusions if supported by the findings and affirm
the findings unless clearly erroneous. Id.

On appeal, father argues that the court erred in terminating his rights because he had
made significant progress towards the goals of the case plan. Father contends that he completed
domestic-violence and parenting programs, attended two anger-management classes, and met
with a domestic-violence specialist. Father also asserts that he made progress by achieving
financial and housing stability and obtaining substance-abuse treatment.

Father’s assertion that he made some progress towards the goals in the case plan by
engaging in domestic-violence and parenting programming does not undermine the court’s
decision regarding stagnation. “The key question for the court when considering whether
stagnation has occurred is whether the parent has made progress in ameliorating the conditions
that led to state intervention.” In re D.M., 2004 VT 41, ¶ 7, 176 Vt. 639 (mem.). A parent’s
attendance at programs is an important part of progress, but a parent must also demonstrate “the
improvement contemplated at the time the children were removed from the parent’s care.” Id.

Here, the court acknowledged that father attended counseling sessions for domestic
violence but found that despite the services and programming offered to father, he failed to
demonstrate an improvement in his behavior. He exhibited inappropriate behavior in his class to
the point that the facilitator had to ask him to calm down. He smashed a car window with a
crowbar in July 2023 while his teenage child was inside. He continued to act aggressively and
inappropriately towards DCF during meetings. Since entering the conduct agreement with DCF
in August 2021, father continuously violated it, including by making derogatory remarks about a
case aid and DCF. He denied his abusive conduct and minimized his threatening behavior
towards DCF, mother, and the twins’ older sibling. In addition to not making improvement on
his abusive and violent conduct, father did not show an ability to provide care and support for the
twins. He was not attuned to their medical needs and failed to notice or treat A.R.’s serious ear
infection. The record supports the court’s finding that father’s progress stagnated.

Mother also argues that the evidence does not support the court’s determination that her
progress had stagnated. Mother contends that she worked with DCF, made progress from the
time of the initial disposition, and engaged in services. Mother claims that the court’s finding of
stagnation was impermissibly based on unproven violent conduct by father and isolated

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incidents—her incorrect treatment of A.R.’s ear infection and her new baby’s loss of one ounce
during illness. As to the first claim, the court did not base mother’s stagnation on unproven
violent conduct by father. Father had documented past abuse, and therefore the case plan
required mother to understand the impact that domestic violence had on her children and to
provide a healthy and safe environment for them. Mother failed to acknowledge father’s abusive
behavior, and the court acted appropriately in considering this in its stagnation analysis. Mother
minimized father’s threats of harm from April 2021, characterizing it as “venting,” and claimed
father had to smash a car window with the twins’ older sibling inside. The court was not
punishing mother for father’s behavior; rather, it was recognizing that mother’s failure to
acknowledge father’s abusive conduct and her decision to continue residing with father under
these circumstances presented a risk to the children.

In addition, the record supports the court’s finding that mother remained unable to
properly identify and address her children’s medical needs. Mother’s assertion that stagnation
was based on isolated instances of her failing to identify A.R.’s ear infection and her infant child
losing weight is not supported by the record. There was other evidence regarding mother’s
inability to meet the children’s medical needs. The court found that mother showed an inability
to provide basic care and support for the twins. F.R. had complex medical needs that would
continue throughout childhood and mother rushed through an office visit and did not ensure that
F.R. attended a critical medical appointment, despite DCF’s reminders. Moreover, the court
found, based on the testimony of a DCF worker, that mother was not attuned to the children’s
medical needs and remained unable to identify the children’s health issues. These findings all
support the court’s conclusion that mother’s progress had stagnated.

Mother’s second argument revolves around her request for a conditional custody order
(CCO). After the first trial reunification ended in July 2022, mother moved for conditional
custody of the twins. The court began a hearing on the motion in August 2022 and reconvened
in September 2022. After the September hearing, the parties agreed on a plan to reinitiate
reunification, and the court interpreted the agreement to include mother’s withdrawal of her
motion for a CCO. In April 2023, mother again moved for conditional custody after the second
trial reunification was unsuccessful. At the hearing, the court placed the burden of proof on
mother, and mother did not object. Following the hearing, the court denied the motion. The
court explained that mother had not presented a change in circumstances warranting a
modification of the existing disposition order concerning the twins, and that in any event, placing
the children in the care of their parents through a CCO was not in their best interests.

On appeal, mother argues that the court committed plain error when it placed the burden
on her. Plain error is generally limited to criminal cases. See V.R.Cr.P. 52(b) (defining plain
errors in criminal proceedings as those “affecting substantial rights”). In juvenile proceedings,
arguments not raised below are not preserved for appeal. In re D.C., 157 Vt. 659, 660 (1991)

 Mother claims that the court could not consider medical neglect as part of its stagnation
analysis because this was not a consideration at the CHINS merits phase. The disposition case
plan identified mother’s need to partner with the children’s medical and developmental providers
and ensure their needs were met. Therefore, given this identified goal, it was appropriate for the
court to consider mother’s ability to manage and meet the children’s needs, including their
medical needs. See In re D.C., 168 Vt. 1, 6 (1998) (rejecting mother’s argument that State may
rely solely on circumstances adjudicated in CHINS merits proceeding in assessing change in
circumstances).

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(mem.). This Court has recognized that in an “exceptional case[],” we can reverse on an
unpreserved issue if the error “is so obvious, grave, and serious as to warrant reversal.” Id.
Mother has not presented any error, let alone such a grave error here. Given that DCF was the
legal custodian, and had been since 2020, any change in the existing disposition order to alter
custody required a change of circumstances. See 33 V.S.A. § 5113(b). Because mother was the
party seeking a change, the court properly placed the burden on her. In any event, mother has
not demonstrated how any error in that proceeding ultimately impacted the court’s termination
decision given that in that proceeding the State held the burden of proof.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

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