In Re L.B., Juvenile

VERMONT SUPREME COURT Case No. 23-AP-026
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

JUNE TERM, 2023

In re L.B., Juvenile } APPEALED FROM:
(A.J., Mother*) }
} Superior Court, Windham Unit,
} Family Division
} CASE NO. 21-JV-00033
Trial Judge: Jennifer Barrett

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

Mother appeals the trial court’s final order terminating her parental rights as to her nine-
year-old daughter, L.B. We affirm.

In January 2021 the State filed a child-in-need-of-care-or-supervision (CHINS) petition
and sought an emergency care order for L.B. based on allegations that L.B.’s guardians (maternal
grandparents) were verbally and physically abusing her. At that time, mother was living in New
York, and L.B. had been living with grandparents for four years. L.B. first came into
grandparents’ care when she was three years old. Mother had asked her parents to care for L.B.
due to mother’s mental-health struggles and housing insecurity. Grandparents gained
guardianship over L.B. when she was five years old.

The court granted an emergency order, and L.B. entered custody of the Department for
Children and Families (DCF) in January 2021. In March 2021, the parties agreed by stipulation
or on the record that L.B. was a CHINS, and the court entered a merits order to that effect. DCF
filed a proposed case plan in April 2021, which the court adopted in June 2021 following a
disposition hearing. The initial disposition order had a goal of reunification with mother. The
case-plan expectations for mother included seeking a mental-health assessment and treatment,
engaging in family therapy with L.B., demonstrating the ability to meet LB’s needs, maintaining
communication with L.B.’s care providers, and complying with the Interstate Compact on the
Placement of Children (ICPC) process for L.B. to be placed with mother in her home state of
New York.

Following initial disposition, there were some delays in the case due to efforts to
determine the identity of L.B.’s father and due to mother’s ICPC process in New York. The
court eventually confirmed L.B.’s father through genetic testing, but it later terminated father’s
parental rights—he has not appealed. Mother’s ICPC placement request was denied by an
interstate caseworker based on multiple incidents of domestic violence and substance abuse by
mother and her boyfriend. Mother and her boyfriend then moved from New York to Vermont in
March 2022.

In May 2022, the State moved to terminate mother’s rights. In December 2022,
following a two-day hearing, the court made findings and conclusions orally on the record and
issued a written order terminating mother’s parental rights. The court relied particularly on the
following findings. Although mother loved L.B., mother had not played a constructive role due
to her lack of contact with L.B. L.B. had not lived with mother for six years at the time of the
final hearing. Although mother acted appropriately and met L.B.’s needs during visits, mother
attended only four of ten in-person visits that were offered. At the time of the final hearing,
mother had not seen L.B. in approximately six months. Mother also had made little progress
toward many of her case-plan expectations. Mother had not been engaged in mental-health
counseling in at least eight months, and visitations with L.B. never progressed to a level where
they were able to engage in family therapy, which was one of the case-plan expectations.
Mother also did not meet the expectation that she maintain communication with L.B.’s care
providers.

The court noted that L.B. had experienced significant traumas and any caregiver for L.B.
would need to understand a trauma-informed approach. Mother struggled to control her anger
during team meetings, including when one of her children was present. DCF informed mother
that her relationship with her boyfriend was a barrier to reunification due to ongoing domestic
violence, but mother made clear that she would not leave her boyfriend even if leaving him was
necessary to properly care for L.B. Given L.B.’s history of trauma, the court found that “being
exposed to domestic violence in the home would be extraordinarily traumatic, even more so than
to an ordinary child.” Mother had not engaged with a domestic-violence coordinator since
moving to Vermont, which was another case-plan expectation. In addition, mother was living at
a homeless shelter at the time of the final hearing, but was required to leave shortly and did not
have new housing secured. The court found that all of these factors undermined mother’s ability
to meet L.B.’s needs.

In contrast, the court found that L.B. felt safe and comfortable in her current placement, a
residential therapeutic program. L.B.’s needs were generally being met there, and she had
developed a strong relationship with a foster parent who would be willing to adopt her. Given all
of the above, the court concluded that mother’s progress had stagnated, so there was a change in
circumstances warranting examination of the statutory best-interests factors. Analyzing the
factors based these factual findings, the court concluded that mother would not be able to resume
parenting within a reasonable period of time and that terminating her parental rights was in
L.B.’s best interests.

On appeal, mother argues that the evidence does not support terminating mother’s
parental rights and that the court erred by focusing on the past rather than her prospective ability
to meet L.B.’s needs. She claims that she has made substantial progress toward the case plan and
will be fully ready to parent L.B. within four months. She points to evidence that she is making
progress toward gaining her driver’s license and is working with a housing coordinator to get
stable housing. Mother emphasizes her positive interactions with L.B. during visits and asserts
that keeping her in L.B.’s life “may help stabilize [L.B.’s] mental health.”

When termination is sought after initial disposition, the family division must find by clear
and convincing evidence that there has been a change of circumstances and that termination is in
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the child’s best interests. See 33 V.S.A. §§ 5113(b), 5317(c), (d). In assessing the child’s best
interests, the court must consider the statutory criteria. Id. § 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.). “As long as the court applied the proper standard, we will not
disturb its findings on appeal unless they are clearly erroneous; we will affirm its conclusions if
they are supported by the findings.” In re H.T., 2020 VT 3, ¶ 34, 211 Vt. 476. This Court will
“not reweigh the evidence or reassess the credibility of witnesses on appeal.” Id.

Here, mother disagrees with the trial court’s weighing of evidence and focuses on
evidence that favors her, but this does not provide a legal basis for reversal. “[T]he mere fact
that a parent has shown some progress in some aspects of his or her life does not preclude a
finding of changed circumstances warranting modification of a previous disposition order.” In re
A.F., 160 Vt. 175, 181 (1993). Mother does not contest the trial court’s findings that her
struggles with anger management and mental health and the ongoing domestic violence with her
boyfriend posed a significant risk to L.B.’s health and well-being, nor does she contest that she
failed to take steps to address those issues as set forth in the case plan. As the court reasonably
found, these issues detracted from mother’s ability to meet L.B.’s needs.

Mother’s lack of any recent parenting relationship with L.B.—including that L.B. has not
lived with mother for six years and that mother had inconsistent and infrequent visitation with
L.B. during the case—was another key factor supporting the court’s conclusions. Although
mother claims that she missed visits because she lacked transportation and that she is now in the
process of addressing that issue by seeking her driver’s license, the court found, based on the
testimonies of mother and a DCF caseworker, that transportation was a consistent issue for a
long time and mother simply did not prioritize securing reliable transportation. Likewise,
mother’s prediction that she will likely have her own housing four months from now does not
undermine the court’s finding that mother failed to demonstrate an ability to meet L.B.’s needs
within a reasonable period of time by providing a stable and safe environment. Mother was
adamant that she will remain with her boyfriend despite ongoing domestic violence and the risks
that that poses to L.B. The court’s conclusion that there was a change in circumstances due to
mother’s stagnation in her progress and its conclusion that the best-interests factors supported
terminating mother’s parental rights are both supported by credible evidence in the record, most
of which mother does not dispute.

Although mother is correct that the court’s best-interests analysis is prospective in nature,
past events are relevant to the inquiry and inform the court’s assessment of a parent’s future
ability to parent. In re D.S., 2014 VT 38, ¶ 22, 196 Vt. 325. In addition, the trial court must
measure what constitutes a reasonable period of time for a parent to resume parenting “from the
perspective of the child’s needs,” and may take into account the age of the child and any special
needs. In re C.P., 2012 VT 100, ¶ 30, 193 Vt. 29. The trial court highlighted the importance of
meeting L.B.’s particular needs due to her history of trauma and found based on ample evidence
that mother had not demonstrated sufficient progress toward being able to consistently meet
those needs. Mother was not entitled to any particular length of time to demonstrate progress.
Under the circumstances, the court acted within its discretion in determining that mother would
not be able to resume parenting within a reasonable period of time, that the other statutory
factors weighed against mother, and that termination of mother’s parental rights was in L.B.’s
best interests.

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Affirmed.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

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