Monday, December 2, 2013

I am not Sam

In re BC, 2013 VT 58

In the movies bad situations exist largely to provide motivation for the plot: single father with mental disabilities tries to raise his child as a single parent; he struggles against the system but calls upon his pluck, eccentric circle of friends, and love of the Beatles to overcome the odds.  Even though the child is given to a foster home, everyone recognizes that she belongs with him, and in a sudden dénouement, she is returned.  Cue the swelling music. 

In real life, adversity exists in and of itself.  Bad things happen to good people, not to provide them with a way to “meet-cute,” but because we live in a universe in which chaos and nonsense battle order and structure on a regular basis.

Today’s appeal is about child custody and termination of parental rights, which puts us squarely in the arena of bad things that happen. 

Child was born in 2004.  Parents split in 2006 and mom received sole custody with father having visitation rights.  Shortly thereafter, Department of Children and Families (DCF) received reports that mother was abusing drugs, abusing the child, and was exposing the child to known and registered sex offenders.  Child was sent to mother’s father and then to mother’s mother, but the damage appears to have been done.  Child was eventually adopted by the maternal grandmother, but the child struggled with serious behavioral issues, including what was later diagnosed as post-traumatic stress disorder. 

Things got worse in 2011 when DCF determined that child was CHINS (CHild-In-Need-of-care-or-Supervision) and placed him in a group home.  At first father and other family members were allowed to visit child, but these visits proved disastrous.  Family members behaved badly and inappropriately during the visits (the SCOV does not provide detail), and the very thought of the visits caused child stress and concern that reflected in his behavior and outbursts.

DCF, upon the recommendation of an evaluating psychologist, ended the family visitations and placed child in a therapeutic foster home. 

At a disposition hearing for child, the evaluating psychologist testified that child had a range of emotional issues including acting out, aggressiveness, self-harming, and sexualized behaviors.  Child, in psychologist’s opinion, needed a permanent relationship with a stable caregiver to provide support given child’s age and numerous behavior issues. 

While it appears that the problems with mother got these issues rolling, the psychologist went on to note that father’s situation was not much better.  Father had stopped using cocaine but still smoked marijuana.  Due to his low IQ, father could only complete the most basic caregiver functions and then only with supervision.  Father’s mental capacity was deemed to be the equivalent of a seven- or eight-year old.  While father could benefit from training, he was determined by the psychologist as likely to always need help and supervision for the basic tasks in life.

Initially, DCF endorsed a plan that would eventually reunite child with parents, following parents successful completion of training classes, but the attorney assigned to the child objected and sought a termination of parental rights. 

More motions meant more hearings, and at the next one, mother showed up and gave up her parental rights.  Exit mother, stage right.

Father did not relinquish his rights, but DCF put forward evidence showing that father was struggling with his training.  Despite attending classes, father continued to fail to grasp the significant issues that child continued to face.  On that front, the court also heard evidence about child’s violent outbursts at two therapeutic foster homes and his re-hospitalizations. 

What was not at issue was father’s love for the child and father’s distress caused by the separation from his child.  The trial court acknowledged as much in its final decision, but the trial court was required to look to the best interests of the child, which based on the testimony of the various experts, was that the child needed skilled, one-on-one treatment and care that father was simply unable and unlikely to ever give. 

In other words, dancing around to Aimee Mann singing “Two of Us” and hoping for the best, simply was not going to cut it.   Father’s parental rights were permanently terminated.

On appeal, father lobs three major arguments that fail to find purchase with the SCOV.

First, father argues that his parental rights were initially terminated when child was removed to DCF custody without a finding and evidence that father lacked fitness to raise child. 

The SCOV notes that while permanent termination does require such a finding, the facts here show that the initial removal was done on a temporary basis.  The problem, the SCOV notes, is that it took DCF and the trial court nearly a year to sort the whole mess out through hearings, evidentiary proceedings, and written findings.  The SCOV is none too pleased with the delay, but in light of the totality of circumstances, the SCOV finds more than enough evidentiary support to determine that father and his family lacked the capacity to care for child.

Second, father argues that he never had a chance to have his own, independent expert examine child.  There is not much to this argument in the SCOV’s opinion.  Such additional, independent examinations are allowed by the court for good reason and not as a matter of right.  The experts in this case from child’s social worker on up to the various psychologists testified consistently about child’s behavioral issues.  There simply wasn’t the basis to justify adding another expert to the evidentiary pot. 

Father’s third argument is a longshot.  He contests the factual conclusions of the trial court and argues that the evidence does not support the ultimate conclusions to terminate parental rights on a permanent basis. 

This is hard because while it is often the first argument that clients want to make, challenging the findings of the trial court, it is the last argument that the SCOV is likely to consider.  Basically, the SCOV works in this area under an abuse of discretion standard.  Unless, the evidence shows no support or a distinctive lack of support for the decision, the trial court’s finding will be upheld.  Despite the fact that father could show that he loves his child and that he was trying to be a better father, it is not enough to overturn the trial court’s findings that father lacked the ability or understanding to care for child in light of child’s extensive needs. 

So the termination of father’s parental rights is affirmed, and child will, for the foreseeable future, remain a ward of the state.  There were no last minute reprieves or recognition that love conquers cognitive behavioral standards. 

One is left with the hope that the state will find the right combination of competent caregivers and stability that will enable child to overcome the huge disabilities with which he is, at a young age, already burdened.  Father meanwhile will have to swallow hard on his grief and rest on what comfort comes elsewhere.  You know, just like in Hollywood.

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