In re A.R.

In re A.R., Juvenile (B.W., Mother*)

SUPREME COURT DOCKET NO. 2018-338

Supreme Court of Vermont

JANUARY TERM, 2019

February 1, 2019

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

APPEALED FROM:

Superior Court, Franklin Unit, Family Division

DOCKET NO. 218-12-17 Frjv

Trial Judge: Mary L. Morrissey (CHINS); Thomas Carlson (TPR)

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

The trial court found A.R. to be a child in need of care or supervision (CHINS) and it terminated mother's parental rights at initial disposition. Father is deceased. Mother argues on appeal that the court's CHINS finding is not supported by the evidence.¹ Based on this assertion, mother also asserts that the termination of her rights was improper. We affirm.

I. CHINS Proceeding

A.R. was born in February 2012.² In December 2017, A.R. was taken into emergency custody of the Department for Children and Families (DCF) following an investigation into allegations that mother's boyfriend physically abused him. Following a hearing, the court adjudicated A.R. as CHINS. It made the following findings. Parents lived together intermittently. After they broke up, A.R. lived primarily with father. A.R. spent some time with mother, who lived with her boyfriend. Mother told paternal grandmother that boyfriend was abusive and mean to her. She showed grandmother a bruise that boyfriend inflicted. While mother testified that boyfriend never physically hurt her, the court found grandmother's testimony more credible. Father was concerned about A.R. being in the same home as boyfriend due to boyfriend's aggressiveness. In a parentage case between mother and father, the family court issued a no-contact order prohibiting A.R. from having any contact with boyfriend. Mother's request to vacate the no-contact order was denied. Mother nonetheless allowed A.R. to have contact with boyfriend in violation of the court's order. The court credited mother's testimony that, at some point, fatheracquiesced to this contact. The court found it unclear if the no-contact order was later modified or vacated at father's request.

The court made numerous additional findings recounting the history of DCF's involvement in this matter. It explained that at the time of his suicide in August 2017, father had primary legal rights and responsibilities for A.R. After father's death, DCF received numerous reports expressing concern about A.R. being placed in mother's custody. After conducting a risk assessment, DCF opened a family-support case. One reported concern was mother's living conditions. A DCF social worker conducted a home visit and observed the porch of mother's home to be "highly cluttered" with bags of garbage and a box of old food items. The amount of garbage on the porch made it difficult to move around. Mother allowed DCF inside the home once after DCF provided her advance notice of the visit; she refused to allow any unannounced visits. The social worker did not observe any safety issues inside the home during the single announced visit. When the social worker visited again, she observed even more trash on the porch, as well as an old mattress and debris. The court rejected mother's explanation for the garbage as not credible.

DCF was also concerned that mother might be unstable in her medically assisted drug treatment. The social worker asked mother if she would let DCF verify her compliance with treatment to assess if other services might be helpful. While mother initially denied having a drug problem, she subsequently admitted that she was using buprenorphine illicitly, indicating that she was getting it for free from people in the community. Mother told the social worker that she would like to participate in medically assisted treatment and she said that she had asked a doctor for a referral to an addiction-treatment clinic. During a visit several weeks later, mother reported that she was engaged in the clinic, had been prescribed Suboxone, was seeing a counselor, and was providing three urine-analysis tests a week. Mother refused, however, to sign releases for her providers. DCF observed behavior, including rambling speech and "pinpointed" eyes, that seemed inconsistent with mother's claims of being fully engaged in drug treatment.

In December 2017, A.R.'s teacher contacted DCF to report her suspicion that A.R. had been physically abused. A DCF investigative-assessment worker and a police officer responded. Upon meeting A.R. at his school, they observed an open scratch on his left ring finger, a visible scratch on his cheek, and a bruise on his right ear. When the DCF employee pushed A.R.'s ear back to look at his injury, A.R. "grimaced" and said, "don't touch it." After meeting with A.R., the police officer and DCF employee went to mother's apartment to discuss A.R.'s injuries. A.R. was apparently home from school at that point. When mother answered the door, she denied that boyfriend was in the apartment. Boyfriend was there, however, and appeared shortly thereafter. Mother would not let the officer or DCF employee inside. She told investigators that A.R. came home from school with his injuries and that A.R. said that a classmate pushed him. The employee attempted to create a safety plan with mother but both mother and boyfriend were highly agitated. The DCF employee understood that boyfriend would be remaining in the home. It was at this point that A.R. was taken into emergency custody. Based on the police investigation, boyfriend was subsequently charged with domestic assault and cruelty to a child. These charges were pending at the time of the court's CHINS decision.

Based on these and other findings, the court concluded in an April 2018 order that A.R. was CHINS. With respect to the physical-abuse allegations, the court reiterated its findings above and concluded that A.R.'s injuries had been recently sustained, the injuries were inconsistent with mother's explanation for them, and mother's initial denial to investigators that boyfriend was in her home suggested mother's awareness that boyfriend might have been involved in injuring A.R. As indicated, DCF understood that boyfriend would remain in mother's home.

The court also concluded that, given the extent of the garbage and debris piled on mother's porch, DCF investigators were reasonably concerned about the living conditions inside the home. Mother refused to allow unannounced visits, raising concerns about the condition of mother's home when mother was not expecting DCF. The court also found that DCF reasonably had continuing concerns regarding mother's substance abuse, noting that mother had admitted to using illicit buprenorphine, she was aloof and rambling several weeks later while ostensibly fully engaged in treatment, she refused to provide releases regarding her alleged treatment, and a social worker observed mother's "pinpointed" eyes at the time A.R. was taken into emergency custody. The court found that the coinciding of these issues on the date that the CHINS petition was filed supported the conclusion that A.R. was at risk of harm and therefore CHINS.

II. TPR Proceeding

The court terminated mother's rights in September 2018 at initial disposition. Mother did not attend the hearing. The court found that despite DCF's persistent efforts, mother had minimal contact with A.R. while he was in DCF custody. She made no progress with respect to the initial case plan. She struggled with housing and drug abuse, and she incurred new criminal charges. Mother continued her relationship with boyfriend, who also struggled with substance abuse and had numerous criminal convictions, including assault, cruelty to animals, burglary, passing bad checks, and false pretenses. The court found that mother's home was in deplorable condition. Photographs of the home taken three months after A.R. was removed from mother's custody showed a dog carcass inside the home with a substantial portion of his head carved out, trash everywhere, and every fixture in the bathroom overflowing with excrement.

The TPR court made more detailed findings about the December 2017 incident. It found that A.R. reported in school that boyfriend hit him; he told the DCF employee and police officer who interviewed him that boyfriend, whom A.R. called "daddy monster," "hurt me." A.R. said that boyfriend hit him because A.R. would not go away and allow boyfriend and mother to have "adult time" so they could "do [their] medicine." A.R. also described having to urinate and defecate in the fixtures in the bathroom. The court found that mother tried to protect boyfriend and refused to cooperate with an investigation into abuse allegations. A.R. disclosed other horrific abuse by boyfriend to his therapist, who described A.R. as one of the most traumatized children she had ever seen. The court found clear and convincing evidence that boyfriend had inflicted physical and emotional abuse on A.R. and mother did nothing to protect him.

The court found that mother failed to make progress in addressing the goals of a plan discussed in January. She missed most of her scheduled visits with A.R., broke off meetings with DCF, became homeless and lost her housing subsidy due to the condition of her last apartment, was charged with more crimes, failed to follow through with a substance-abuse assessment and treatment, and failed to engage with the Nurturing Parent Program or with Family Time Coaching. She lied about her ongoing relationship with boyfriend, denied being pregnant, and falsely claimed she was in counseling and living with a friend in St. Albans. Perhaps most importantly, the court found, in her relatively few visits with A.R., she showed little relationship with him, talking to the supervisor instead of A.R. Mother showed little affection or interest in A.R.'s needs. The court made...