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= &n= bsp; &nbs= p; = &n= bsp; ENTRY ORDER
= &n= bsp; &nbs= p; SUPREME COURT DOCKET NO. 2004-513
= &n= bsp; &nbs= p; = &n= bsp; MAY TERM, 2005
In re B.W., Juvenile &n= bsp; &nbs= p; = &n= bsp; } = APPEALED FROM:
= ; &= nbsp; &nb= sp;  = ; &= nbsp; = span>} = Chittenden Family Court = ; } =
} DOCKET NO= . F98-2-03 CnJv
Trial Judge: Thomas = J. Devine
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
Father appeals from the family court’s order terminating his residual paren= tal rights over B.W. He argues t= hat the court erred because: (1) there was no evidence regarding what a “reasonable period of time” was from B.W.’s standpoint; = and (2) the court failed to consider if severing the father-child bond would be harmful to B.W. We affirm.= p>
B.W. was born to father and mother in February 2001. In August 2002, father obtained a relief-from-abuse order against mother, and he was awarded parental rights= over B.W. B.W. lived with father = until February 2003, when father decided that he could no longer care for him sa= fely and appropriately. B.W. was = taken into State custody, and in March 2003, he was adjudicated as a child in ne= ed of care and supervision based on father’s admission. In August 2004, the Department of Children and Families filed a petition to terminate parental rights. After a hearing, the court termin= ated both parents’ parental rights.*
The court made the following findings with respect to father. While in father’s care, B.W= . lived in a socially isolated sett= ing. Father struggled to pay for basic necessities. He had difficul= ty finding employment, and his job search was exacerbated by his lack of a driver’s license as well as his anxious, scattered and unfocused men= tal state. Father was smoking ma= rijuana weekly. In early 2003, father’s health began to deteriorate. Father decided that he could no l= onger care for B.W. properly, and B.W. was adjudicated CHINS.
The initial case plan, adopted in May 2003, contemplated reunification if pare= nts could meet certain goals within three to six months. The major goals for father were:<= span style=3D'mso-spacerun:yes'> obtain and maintain stable employ= ment; obtain safe and stable housing; attend all scheduled visits with B.W.; acq= uire parenting skills; work toward economic self-sufficiency; get his driver= 217;s license reinstated; abstain from using drugs and comply with the recommendations of his substance abuse therapist; continue counseling; and complete anger management classes. The court found that father did not achieve many of these required expectations over the ensuing seventeen-month period. The court explained that although= father had shown more of an inclination to access services than mother, he did so= at a prolonged pace. He had ongoi= ng problems in getting to parental education appointments, and he made little progress in the parent education program.= During visits with B.W., father displayed clear love and affection = for the child, but his attention would often wander, and he had difficulty controlling the child. Fathe= r did not maintain steady employment and continued to use marijuana occasionally. By August 2004, father still had no employment, no reliable car and he was struggling with transportation. He was still working on fixing his trailer and trying to make repairs to his car.
court explained that in September 2004, father had been robbed by an
acquaintance of the money that he had received for selling his trailer.
The court turned next to the larger question of whether father would be able to parent B.W. within a reasonable time.&nbs= p; The court found that in the week before the hearing, father had beg= un training for a part-time job, and he had refrained from using marijuana fo= r the prior three months. The cour= t found that father’s testimony was largely undermined, however, by his insistence that there had never been much need for DCF to become involved = in the first place. The court f= ound that father seemed reluctant to confront the facts and circumstances that = had led to the matter coming before the court, and he seemed unable to acknowl= edge any responsibility for the crises that had occurred in the early part of 2003. The court was also tro= ubled by father’s testimony that mother was mainly to blame for his predicament, and that she had “ruined his life;” the court not= ed that father seemed fixated on this point.=
The court found that, to his credit, father had been able to put B.W.’s = needs ahead of his own by seeking help in February 2003. He had made a far more comprehens= ive attempt than mother to engage in services to achieve reunification. He had tended to consistently vis= it B.W., he had demonstrated a real interest in the child’s well-being and he loved playing with his son. = The court found, however, that father continued to struggle with basic issues = such as stable housing and steady employment.&= nbsp; The court explained that these two issues were part of the disposit= ion report and he had made strides toward either only within the few days befo= re the hearing. Father acknowle= dged that as he moved from a shelter into a rooming house, it would still take months before he could secure an apartment, assuming that he maintained st= eady work. The court found that s= teady work had been an elusive proposition for father from the start, explaining= that father had been unemployed or marginally employed for almost two years des= pite the assistance of numerous caseworkers.&n= bsp; The court stated that time would tell if his current part-time posi= tion would develop into a permanent, steady position, but the court needed to w= eigh that time against B.W.’s need for permanency and stability.
On balance, in considering the statutory factors, the court concluded that fa= ther’s obvious love and affection for B.W. did not outweigh the risks that father would need an extended period of time beyond what had already elapsed to g= et into a situation where he could resume parental duties. The court found that B.W. had bec= ome well-adjusted to his home with the foster family. B.W.’s material needs were = being met; and he also had stability, love and guidance. The child’s adjustment to t= he home had been positive, and having spent almost half of his life there, the cou= rt found that it was also entrenched. The court conclu= ded that it would be harmful to uproot B.W. from this oasis of stability at so= me as yet undeterminable point down the road when father had finally stabilized = and become ready for B.W.’s return.&nbs= p; It therefore concluded that termination of father’s parental rights was in B.W.’s best interests. Father appealed.
Father first argues that the family court erred because its findings do not show = that it weighed the amount of time that father needed to improve against the am= ount of time that B.W. could wait. Father asserts that the court could not predict at what point father would be able to resume parenting, and it speculated that, at whatever poi= nt that was, B.W. would be harmed by the removal from his foster home. According to father, there was no evidence as to the prospect of such harm, and without such evidence, the court’s ultimate conclusion regarding a “reasonable period of time” is unsupported.
the termination of parental rights is sought, the family court must conduc=
two-step analysis. In re =
162 Vt. 287, 291 (1994); see 33 V.S.A. § 5532(a). It must first find that there has=
substantial change in material circumstances; second, the court must find =
termination of parental rights is in the child’s best interests. In re B.W., 162 Vt. at 291=
. In determining a child’s be=
interests, the court must consider the factors set forth in 33 V.S.A. &sec=
5540. The most important fac=
tor in the
court’s analysis is the likelihood that the natural parent will be a=
to resume his or her parental duties within a reasonable period of time.
In re B.M., 165 Vt. 331, 3=
(1996). As long as the court
applied the proper standard, we will not disturb its findings on appeal un=
they are clearly erroneous; we will affirm its conclusions if they are
supported by the findings. <=
G.S., 153 Vt. 651, 652 (1990) (mem.).
find father’s first claim of error without merit. The court’s findings reflec=
it properly considered whether father would be able to resume his parenting
duties within a reasonable period of time.
The court concluded that father would require an extended period of=
beyond what had already elapsed before he could be in a position to parent
B.W. This conclusion is supp=
by the court’s findings, which are in turn supported by the record.<=
style=3D'mso-spacerun:yes'> We need not reiterate all of the
court’s findings here. The
court also found that B.W. was doing well with his foster family, and he h=
been in their care for more than half of his life. The court recognized that father =
B.W., and B.W. was happy and excited to see father during their visits.
Father next asserts that the family court failed to properly consider whether the severance of the father-child bond would be harmful to B.W. Relying primarily on out-of-state= case law, father argues that the family court must assess whether the disruptio= n of the parent-child bond would be less harmful to the child than the disrupti= on of the foster parent-child bond. Father maintains that, in this case, the strong bond between B.W. a= nd father was acknowledged by the court, but there was insufficient evidence presented regarding the consequences of severing that bond. Father relies on In re E.M., 620 A.2d 481 (Pa. 1993), in support of his argument.
We find no error. The family co= urt properly considered the relationship between father and B.W. in reaching i= ts conclusion that termination of father’s parental rights was in B.W.’s best interests. As previously discussed, the court recognized the bond that father shared wit= h the child, but it concluded that father’s love and affection for B.W. di= d not outweigh the risks associated with further delay. The court’s analysis reflec= ts its consideration of the factors set forth in 33 V.S.A. § 5540, and its findings are supported by the record.
Father’s reliance on In re E.M. is misplaced. First, that decision is not bindi= ng on this Court. The decision also reflects the application of a different legal standard than that employed in Vermont, and it is factually distinguishable. In In re= E.M., the Pennsylvania Supreme Court reversed and remanded a termination order b= ased on its conclusion that an important element relating to the “needs a= nd welfare” of the children had not been adequately considered in the proceeding below. See 620 A.2d at 483-84 (noting that in considering what situation would best serve a child’s needs and welfare, a court “must examine the status of the natural parental bond to consider whether terminating the natural parents’ r= ights would destroy something in existence that is necessary and beneficial̶= 1; (parentheses and quotations omitted)).&nb= sp; As the court explained, in the proceedings below, the trial court h= ad recognized that the question of the bond between the children and their na= tural mother had not been fully considered, but it had nonetheless concluded that once a parent had been judged incompetent, there was no need to ascertain whether a beneficial bond existed between the natural parent and the child= , nor whether additional factors counsel that continuing the relationship might otherwise serve the needs and welfare of the child. Id. at 485. The court rejected this reasoning, stating that it was clearly conceiva= ble that a beneficial bonding could exist between a parent and child, such tha= t, if the bond were broken, the child could suffer extreme emotional consequences. Significantly,= the State’s expert had testified at the hearing that a better assessment= of the relevant emotional factors could have been made if an evaluation had b= een conducted of the children’s interactions with their natural mother a= nd with their foster father. Th= us, the court concluded that “[t]o render a decision that termination serves= the needs and welfare of the child without consideration of emotional bonds, i= n a case such as this where a bond, to some extent at least, obviously exists = and where the expert witness for the party seeking termination indicates that = the factor has not been adequately studied, is not proper.” Id.
Unlike E.M., and notwithstanding the different legal standard employed the= rein, the family court in this case did consider the bond that father shared with B.W. in reaching its conclusion. = span>It evaluated the relationship in terms of the factors set forth in 33 V.S.A. § 5540, and concluded that termination of the relationship was in B.W.’s best interests. We find no error in the family court’s order.
BY THE COURT:
Paul L. Reiber, Chief Justice
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
* Mother did not appeal from the fa= mily court’s order.