In Re S.G., C.G, B.B, Juveniles

VERMONT SUPREME COURT Case No. 22-AP-346
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, 2023

In re S.G., C.G, B.B, Juveniles } APPEALED FROM:
(K.B., Mother*) }
} Superior Court, Windham Unit,
} Family Division
} CASE NOS. 6-1-20 Wmjv; 7-1-20 Wmjv &
8-1-20 Wmjv
Trial Judge: Elizabeth D. Mann

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

Mother appeals the termination of her parental rights to sons S.G., C.G., and B.B. We
affirm.

S.G. was born in December 2007, C.G. was born in September 2009, and B.B., their half-
brother, was born in April 2012.1 In January 2020, when the boys were twelve, ten, and seven
years old, respectively, the State filed a petition alleging that they were children in need of care
or supervision (CHINS) due to reports of mother’s substance abuse, depression, and self-harm,
as well as severely unclean conditions in the family home, and violent and threatening behaviors
by the children. The court transferred custody to the Department for Children and Families
(DCF) in emergency and temporary care orders.

In October 2020, mother stipulated to the merits of the petition, which included a
psychological assessment of B.B., the youngest child. The assessment indicated that B.B.’s
aggression towards teachers and peers and threats of self-harm were exacerbated by his exposure
to a chaotic home environment that included substance abuse and violence.

In December 2020, the court issued a disposition order with a goal of reunification with
mother. The disposition case plan called for mother to provide stable and emotionally safe

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A New Hampshire court terminated the parental rights of S.G. and C.G.’s father in
2013. B.B.’s father passed away in 2021.
parenting for the children, understand their developmental needs, maintain a safe and stable
home for reunification, learn to identify safe and healthy relationships, and maintain sobriety. It
also recommended that mother engage in mental-health and substance-abuse treatment.

In March 2021, the parties stipulated that mother would resume custody of the children
under a conditional custody order (CCO). A case update submitted by DCF in May 2021
indicated that both S.G. and C.G.’s behavior and school attendance were improving. However,
B.B. was frequently tardy to school and continued to have significant episodes of dysregulation,
and mother was inconsistent in attending her individual therapy sessions.

In July 2021, mother was charged with three counts of violating conditions of release by
contacting her ex-boyfriend, whom she had allegedly assaulted in 2020. In November 2021, the
State moved to vacate the CCO and return custody to DCF due to mother’s ongoing substance
abuse, mental-health concerns, and difficulties in meeting the children’s educational and medical
needs. The court granted the motion.

In April 2022, DCF petitioned to terminate mother’s parental rights. The court held a
three-day hearing in September and October 2022 and issued a final order in November 2022.
The court found that after the children reentered DCF custody in November 2021, S.G. and C.G.
were placed with one foster family, while B.B. was placed with a different family. C.G.
continued to engage in negative behaviors—including running away, threatening suicide with
sharp objects, and extreme dysregulation—that eventually led to his placement in a residential
facility. Since reentering DCF custody, S.G. and B.B. had thrived in their stable home
environments and C.G. was benefiting from the treatment and services he received at his
residential placement.

The court found that mother loved her children but had been unable to provide a stable
and safe home environment for them. Mother had been in a series of abusive relationships with
men who exposed the children to domestic violence and substance abuse. When she was
charged in July 2021 with violating her conditions of release by driving to her ex-boyfriend’s
house and yelling at him, she allegedly had one of the children in the car with her. The court
found that mother was currently in a romantic relationship with a man who had a pending charge
for aggravated domestic assault, which posed a risk to the children. The court found that during
the CCO period, mother had picked up B.B. in the company of an acquaintance who had an
active arrest warrant, without regard for the impact that police involvement and the arrest of that
acquaintance could have on B.B. The court found that mother had consistently demonstrated a
lack of awareness about the unsafe individuals with whom she associated and exposed her
children to these individuals.

Mother acknowledged that she had been diagnosed with depression, borderline
personality disorder, post-traumatic stress disorder, mood instability, and substance-abuse
disorder, and had a history of self-harm. However, her involvement in therapy during the
CHINS proceeding had been minimal and she had not successfully addressed her mental-health
concerns. Mother resisted DCF’s recommendation that she enroll in the partial hospitalization
program offered at Brattleboro Retreat for substance abuse. Once she agreed to do so, she was
discharged early after missing three appointments in a row. She had drug overdoses in February
2019 and January 2022, and had to be revived with Narcan on both occasions. She had provided

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only one clean urinalysis test during the course of the CHINS proceeding and had failed to attend
the three most recent tests. She had also been experiencing unexplained seizures.

The court found that during the period when mother had custody under the CCO, she
frequently had to call on her brother or her neighbors to take one of the boys so that they would
be separated from each other. Her brother also went to her house two or three times a week to
wake her up to ensure the children attended school. Despite this, the boys had numerous
unexcused absences from school. In October 2021, S.G. was locked out of the house overnight
and was unable to reach mother until the following morning. Mother’s home continued to be
cluttered and unclean, and she failed to secure B.B.’s medications as recommended by DCF.
Mother was offered extensive in-home supports during this period but was unable to make
improvements.

After the CCO was vacated, mother stated in the children’s presence that she did not want
to continue visits with them. She missed a significant number of visits with the children. She
admitted that most of the missed visits were due to her forgetting to confirm the visit,
oversleeping, or forgetting the visit altogether. In September 2022, she appeared four hours late
for C.G.’s birthday party at his residential placement in New Hampshire, upsetting B.B., who
had to be comforted by his brothers. When mother did attend visits, she would sometimes fall
asleep and rock back and forth.

The court found that there was a change in circumstances because mother failed to take
the steps recommended in the case plan to address the concerns that led to the children entering
custody. It then assessed the factors set forth in 33 V.S.A. § 5114 and found that each factor
weighed in favor of termination. The court found that due to mother’s lack of progress and
failure to engage in services offered to her, she would not be able to resume parenting the
children within a reasonable time. She cared about them but had not addressed her own
significant needs or engaged with their medical and educational providers to understand and
meet the children’s needs. Although she had a home large enough for the family, the court found
no evidence that she had addressed the issues that made the home unsafe. The court found that
the children were thriving in each of their placements and their extreme emotional dysregulation
and aggressive behaviors had subsided. It therefore granted the petitions to terminate mother’s
rights.

On appeal, mother challenges the court’s finding that she had stagnated in her progress
toward reunification. Mother argues that throughout the proceeding, she maintained a three-
bedroom apartment for her and the children.2 She points to evidence that she made some
progress in therapy, that she missed some visits for legitimate medical reasons, and that she had a
strong bond with the children.

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Mother also asserts that she earned income sufficient to support the family throughout
the case. The family division did not make any findings about mother’s financial situation or
rely upon it as factor in its decision. To the extent mother is claiming this was error, she points
to nothing in the record to support her assertion other than her own proposed findings, and, as we
conclude, there was ample other evidence to demonstrate stagnation.

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When the State seeks to terminate parental rights after initial disposition, the court must
first determine whether there has been a change in circumstances justifying modification of the
original disposition order. In re B.W., 162 Vt. 287, 291 (1994). If this threshold condition is
met, then the court must consider whether termination is in the child’s best interests, in
accordance with the factors set forth in 33 V.S.A. § 5114(a). Id. A change in circumstances “is
most often found when the parent’s ability to care properly for the child has either stagnated or
deteriorated over the passage of time.” Id. (quotation omitted). “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 T.M., 2016 VT 23, ¶ 12, 201 Vt.
358 (quotation omitted). “We will affirm the court’s decision if the findings are based on the
evidence and support the court’s conclusions.” In re D.M., 2004 VT 41, ¶ 5, 176 Vt. 639
(mem.).

The record supports the family division’s finding of stagnation. The court found that
mother’s contact with the children had been inconsistent and she had not been able to increase
her contact since the CCO was vacated in November 2021. Mother does not challenge this
finding but asserts that her frequent missed visits were due in part to physical illness. However,
mother testified at the hearing below that, even before she had appendicitis in March 2022, she
had a hard time remembering to confirm visits, and would oversleep or just “get side tracked and
forget.” When she did attend visits, she would sometimes fall asleep or rock back and forth. In
addition to her inconsistent visitation, mother conceded that she had not engaged with the
children’s schools or their medical, dental, and mental-health providers in the past year.

The evidence also showed that mother did not consistently engage in individual or group
mental-health therapy. Although mother’s therapist recommended biweekly individual therapy
sessions, mother never saw the therapist on a biweekly basis. Mother was discharged from the
partial hospitalization program due to lack of attendance. Mother’s therapist testified that in
2022, she only had consistent meetings with mother in January and June. Mother testified that
she did not feel group therapy was beneficial and acknowledged missing sessions.

The court acknowledged that mother had maintained an apartment large enough for the
family during the proceeding. However, it found that she had not been able to maintain a safe
and stable environment in that home. The court’s other findings, which mother does not
challenge, support this conclusion: mother had not maintained sobriety, completed recommended
drug treatment options, or stopped associating with known drug users as required by the case
plan. And while the court found that mother loved the children, it also determined that she did
not presently play a constructive role in their lives, as evidenced by her inability to prioritize
their needs. The record supports these findings.

Mother essentially argues that the court should have given more weight to the evidence in
her favor. However, “[o]ur role is not to second-guess the family court or to reweigh the
evidence, but rather to determine whether the court abused its discretion.” In re S.B., 174 Vt.
427, 429 (2002). Furthermore, “the mere fact that a parent has shown some progress in some
aspects of his or her life does not preclude a finding of” stagnation. In re A.F., 160 Vt. 175, 181
(1993). The evidence supported the court’s determination that mother had made insufficient
progress in addressing the conditions that led the children to enter state custody, and therefore

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that there had been a change in circumstances sufficient to justify modification of the initial
disposition order.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

William D. Cohen, Associate Justice

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