In Re A.B. & B.B., Juveniles

VERMONT SUPREME COURT Case No. 25-AP-044
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

JULY TERM, 2025

In re A.B. & B.B., Juveniles } APPEALED FROM:
(A.B., Father*) }
} Superior Court, Chittenden Unit,
} Family Division
} CASE NOS. 23-JV-00066 & 23-JV-00067
Trial Judge: Kate T. Gallagher

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

Father appeals a trial court order terminating his parental rights in daughter A.B., born in
September 2015, and son B.B., born in July 2018. We affirm.

I. Background1

In December 2022, the Vermont Department for Children and Families (DCF) received
reports that A.B. and B.B. had been absent for a significant portion of the school year and that
the home they lived in was hazardously unclean. Father was no longer residing in the home and
mother had sole legal and physical parental rights and responsibilities for the children; DCF was
concerned that she was unable to meet their needs for food and medical care. The following
month, the State filed petitions alleging that A.B. and B.B. were children in need of care or
supervision (CHINS). Father was incarcerated at the time. The court placed the children with
father’s aunt, T.H., under a conditional custody order.

In June 2023, the family division determined that A.B. and B.B. were CHINS at the time
of the State’s petitions. By this time, father had been released and he stated that his goal was to
reunify with the children. In July, DCF filed a disposition case plan calling for reunification with
either parent by November 2023. Father’s action steps included: engaging with DCF; attending
in-person visits with the children as well as their medical appointments, school meetings, and
shared-parenting meetings; and working with Easterseals to develop his parenting skills.

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Mother voluntarily relinquished her parental rights in the children and did not appeal
the court’s termination order. We therefore focus here on the factual and procedural background
relevant to father.
DCF amended the case plan in September 2023 to extend the reunification timeline by
three-to-six months and add certain action steps. The agency had recently learned that father had
been hospitalized several times—and was told, but could not confirm, that these hospitalizations
resulted from drug overdoses. Accordingly, the amended plan called for father to engage in a
substance-use assessment and comply with any resulting treatment recommendations. It also
required father to obtain housing, as it had become clear that he no longer had a stable residence.
The court adopted the amended plan in December 2023.

In April 2024, the State filed petitions to terminate parents’ rights in A.B. and B.B. The
following July, the court transferred custody of the children to DCF, though they remained in
T.H.’s care as a foster placement. The court held a termination hearing in November 2024.
Mother voluntarily relinquished her rights in the children. Father contested the State’s petitions,
and the court heard testimony from father, T.H., and three DCF workers involved in the case. It
subsequently issued a written decision including the following factual findings.

When she began to care for the children in January 2023, T.H. observed that B.B.—then
four years old—was nonverbal, had a flat affect, did not make eye contact or respond to stimuli,
and had difficulty chewing, occasionally choking on his food. He had spent much of his early
life confined to a highchair and could barely walk. After pursuing medical treatment for B.B.,
T.H. learned that he has chromosomal abnormalities, autism, and developmental and fine-motor
issues. A.B., while relatively healthy, had also experienced developmental delays. She was
academically behind after missing valuable time in school. She had also become parentified due
to acting as B.B.’s caretaker for most of her life and focused on the emotional needs of those
around her to the exclusion of her own. Although father had lived with mother and the children
until shortly before the reports giving rise to the State’s petition, he asserted that he was unaware
of B.B.’s developmental delays or other issues of concern in the home because he worked long
hours, leaving mother to care for the children. He assumed that she had been taking them to
medical appointments and meeting their needs.

Father’s initial engagement with DCF waned over time. The agency attempted to help
him apply for housing and related financial support, but father did not submit the applications.
He continued to “couch surf,” changing residences every few days. Though father indicated that
he was trying to save money and secure stable housing, he had been unable to accrue the
necessary funds and could not identify any concrete steps he had taken to obtain housing through
any community provider.

Father did not attend shared-parenting meetings or work with Easterseals or other
providers to develop his parenting skills. He did not attend the children’s medical or educational
appointments, despite B.B.’s significant ongoing needs. T.H. provided father with information
about these appointments, but when father was encouraged to reach out directly or attend the
visits, he did not do so.

Between March and October 2023, father spent weekends with the children at T.H.’s
home. That November, however, he began working long hours for a taxi company and stopped
visiting the children regularly because he prioritized his work over his visits. He often failed to
provide notice that he would not attend scheduled visits, causing A.B. to become upset and
dysregulated. He maintained contact with the children primarily through phone and video calls.
While A.B. enjoyed the calls, B.B.’s age and developmental needs largely prevented him from
engaging with father remotely. By the time of the termination hearing, there had been little

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meaningful contact between father and the children for many months. Father cared about the
children, but did not have a strong bond with them.

Father never participated in a substance-use assessment. Although he acknowledged
overdosing on multiple relatively recent occasions, he minimized the seriousness of these
potentially fatal events. Father believed that his substance use was recreational and did not feel
an assessment was necessary. While father stated that he had since become sober and provided
one urinalysis report demonstrating this, he also refused to comply with DCF’s requests for
random urinalysis tests.

A.B. and B.B. both made significant progress in T.H.’s care. T.H. created a team of
medical and educational professionals to meet B.B.’s needs, advocating for him to ensure he
received appropriate services. By the time of the final hearing, B.B. had braces for his legs and
eyeglasses to correct his vision. His mobility and coordination had improved, he was learning to
express himself verbally and through sign language, and he was able to make eye contact and
engage with others. He still needed constant, close supervision and would never be able to live
alone or fully care for himself. T.H. had helped A.B. become less parentified and focus on her
own emotional needs, ensured that she received therapy to help her navigate her complex
emotions, and arranged for her to have surgery to remove several rotting teeth. T.H. was
working with A.B. at home to address her educational deficits, and A.B. was making educational
and social gains at her new school.

Though father had had eighteen months to make progress on his action steps, he failed to
do so. T.H. and DCF both explained to father that—in order to be a single parent—he would
need to find a work-life balance that that would allow him to be available to his children and
attend the appointments and meetings necessary for their growth and development. However, he
remained unhoused and overworked, with no time to parent and no plan to address these
foundational issues. Father conceded that he did not prioritize the actions necessary to become
capable of parenting his children. Just as he had once focused on his work and left the children’s
care to mother, he had again focused on his work and left the children’s care to T.H.

The court concluded that, due to father’s stagnation in his progress toward reunification,
there had been a substantial change in material circumstances sufficient to consider modification
of the disposition order. It weighed the statutory factors and concluded that it was in the
children’s best interests that father’s parental rights be terminated. This appeal followed.

II. Discussion

When the State moves to terminate parental rights after disposition, the family court
undertakes a two-step analysis. In re D.S., 2016 VT 130, ¶ 6, 204 Vt. 44; 33 V.S.A. § 5113(b).
It must first determine whether “a change in circumstances requires such action to serve the best
interests of the child.” 33 V.S.A. § 5113(b). Changed circumstances are “most often found
when a parent’s ability to care for a child has either stagnated or deteriorated over the passage of
time.” In re S.W., 2003 VT 90, ¶ 4, 176 Vt. 517 (mem.) (quotation omitted). Where the
§ 5113(b) threshold is met, the court goes on to consider whether termination is in the child’s
best interests under the statutory criteria at 33 V.S.A. § 5114(a). “The State has the burden of
proof at both stages and, as to each point, must meet its burden by clear and convincing
evidence.” In re R.W., 2011 VT 124, ¶ 15, 191 Vt. 108 (quotation omitted).

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“The decision to terminate parental rights is committed to the discretion of the family
court.” In re D.M., 162 Vt. 33, 38 (1994). Provided the court applied the proper standard, we
will not disturb its findings unless clearly erroneous and will affirm its conclusions if supported
by those findings. In re N.L., 2019 VT 10, ¶ 9, 209 Vt. 450.

On appeal, father challenges only the first step of the family court’s analysis: its
determination that that there had been a change in circumstances due to his 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.). The court cannot, however, base a conclusion of changed
circumstances on “stagnation caused by factors beyond a parent’s control.” Id. Father argues
that this was the case here.2 He asserts that his financial circumstances, full-time work
obligations, and transportation difficulties prevented him from securing housing or maintaining
consistent visitation with the children, and that DCF failed to consider these realities in drafting
the case plan.3 These contentions are simply not supported by the record.

We begin with the case plan and DCF’s broader efforts to help father satisfy its
objectives. Father was not present at the disposition hearing at which the plan was adopted.
However, his attorney indicated that she understood his position on the plan and raised no
objection to the action steps and corresponding timeline set forth therein; in fact, she expressed
appreciation for several provisions that accommodated his heavy work schedule. The DCF
worker assigned to the case when the plan was adopted testified that because father missed the
disposition hearing, she arranged a meeting with him to review the action steps and reiterate
what the agency was looking for from him in order to support reunification. Father conceded
that, at this meeting, he agreed to ongoing monthly meetings with the DCF worker to ensure he
was on track with his case-plan goals but failed to follow through with this commitment. He

2
The State contends that this issue is not preserved for our review on appeal because
father did not raise it during the termination hearing. See In re D.C., 157 Vt. 659, 660 (1991)
(mem.) (recognizing that in juvenile proceedings, arguments not raised below are not preserved
for appeal). The State does not explain, however, how father could be required to challenge the
basis for the court’s stagnation determination during the hearing, given that the court had yet to
announce its decision at that time. In any event, we do not consider the State’s preservation
argument because assuming father’s contention was preserved, it is without merit.
3
Father acknowledges that the court’s changed-circumstances determination was based
only “in part” on his failure to secure suitable housing and lack of consistent visitation. As noted
above, the court found that father failed to engage with any of his action steps, including the
requirements that he attend appointments and meetings for the children, participate in a
substance-use assessment, and engage with providers like Easterseals to develop his parenting
skills. We “employ[] the harmless error standard in termination cases, and, under that standard,
an error warrants reversal only if a substantial right of the party is affected.” In re R.W., 2011
VT 124, ¶ 17 (quotation omitted). “For example, where a finding of fact that supports the
conclusion of the court is clearly erroneous, we find harmless error if other valid findings also
support the court’s conclusion.” In re G.F., 2007 VT 11, ¶ 14, 181 Vt. 593 (mem.). We need not
consider here whether the court’s stagnation determination could stand independent of its
conclusions regarding housing and visitation, however, because the record does not support
father’s argument that his failure to make progress in those aspects of the case plan was
attributable to factors beyond his control.
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initially indicated that this was due to transportation issues, but subsequently agreed that he
could have taken the bus to get to these meetings but did not do so because he “wasn’t
prioritizing this right.” Father also agreed that DCF had been communicative with him and
generally accommodated his need to meet remotely at times. The DCF worker testified that
whenever she brought up father’s action steps, he responded that he understood what he needed
to do and how to do it. She explained that her work with father “sort of disintegrated” not
because she did not want to meet with him or support his reunification efforts, but because it
became increasingly difficult to get in contact with him over time.

Father argues that his lack of consistent visitation with the children was attributable to his
transportation difficulties—including his inability to afford a vehicle—and work obligations. At
the hearing, however, father testified that T.H. was “pretty open” to father visiting A.B. and B.B.
whenever he was available and acknowledged that even during a period in which he was
unemployed, he did not consistently visit the children. The DCF worker explained that she
would have provided father with transportation vouchers on request, but he never asked—noting
that, at the time, the bus was free. Father further testified that he had been charged with driving
under the influence in June 2024 and, as a result, lost his license. The DCF worker explained
that after the children were placed in DCF custody the following month, the agency attempted to
contact father to arrange for visits at one of its offices but was unable to reach him over the
course of a week. She testified that she ultimately heard from him after reaching out to his
attorney and arranged a time for the visits that father was satisfied with, but he only attended half
of these visits, at times failing to provide notice.

Father also asserts that he was unable to find suitable housing “through no fault of his
own.” In support of this allegation, he points to evidence outside the record pertaining to a lack
of housing for low-income individuals in the state. But see Hoover v. Hoover, 171 Vt. 256, 258
(2000) (explaining that this Court’s “review is confined to the record and evidence adduced at
trial” and “[o]n appeal, we cannot consider facts not in the record”). The DCF worker did
explain, however, that she understands that finding housing is difficult and tells the parents she
works with that “if that’s the only thing you’re working on, that’s not a reason to prevent
reunification.” Father testified that he filled out Burlington Housing Authority and Vermont
State Housing applications provided by DCF, but never dropped them off, noting that he
“probably need[ed] new copies” because his had since been “ruined [by] the weather.” The DCF
worker testified that while the agency could have helped father apply for a family unification
voucher—which can prioritize housing vouchers for parents working toward reunification—it
was ultimately unable to provide the requisite letter of support because father had disengaged
with DCF and was no longer making progress toward reunification. In his testimony, father
agreed that to some extent, the ball had been in his court with respect to housing, but he had not
done what he needed to do.

Father also agreed that he did not connect with any services that could help him
overcome his financial obstacles. He testified that he understood the disposition case plan laid
out the steps he needed to take to reunify with the children, but did not think that it was
important to follow the plan because “I just don’t feel like it’s the right thing to be looking at.”

The record in this case is replete with evidence that DCF was ready and willing to
support father in his efforts to reunify, including by connecting him with supports to help him
find affordable housing, assisting him with his transportation difficulties, and accommodating his
work schedule, but father did not avail himself of this help or prioritize the steps he knew he

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needed to take to reunify with his children. As a result, he has not shown that his failure to
secure housing and see his children consistently was attributable to factors beyond his control.
The court therefore did not err in weighing these considerations—among others—in determining
that there had been a change in circumstances due to father’s stagnation.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

Nancy J. Waples, Associate Justice

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