Sunday, April 17, 2016

Sufficiently Stagnant?

In re T.M., 2016 VT 23

By Andrew Delaney

This case is kind of a big deal. If rumors are correct, this is the first time since I was high-school aged that the SCOV has reversed a termination-of-parental-rights (TPR) finding (side note: I say high-school aged rather than “in high school” because I was homeschooled, which allows me to accurately report that I graduated both first—and last—in my high school class).

A.M. was born in 2011; T.M. about a year and a half later. T.M. has spina bifida (split spine), which is “a permanent birth defect that causes nerve damage and other disabilities.” The Department of Children and Families (DCF) first got involved because of the parents’ drug use (especially mom’s while pregnant with T.M.). A conditional-custody order (CCO) was issued that required the parents to be substance free, participate in counseling, and keep up with T.M.’s medical appointments and A.M.’s daycare. Mom and dad were successful with the CCO, and custody was discharged to mom and dad, though DCF kept an open case.

There were some missed medical appointments and inconsistent daycare; mom was depressed, and dad admitted to drinking and smoking weed. DCF went to court again. When they called dad to tell him a court date had been set, he threatened to take the kids and move to Florida. So DCF sought emergency custody and the trial court granted it. DCF also filed a children-in-need-of-care-or-supervision (CHINS) petition. A little while later, mom and dad agreed to a CHINS finding “that the children were and are in need of care and supervision due to their parents’ substance use and how it interferes with parenting of the children.” 
Two days after that, dad checked into rehab. After discharge, dad did follow-up treatment. The disposition plan issued by the court continued legal custody with DCF and placement with grandma (on dad’s side), “and established concurrent case plan goals of either reunification with the parents or adoption.” Mom and dad had to find appropriate housing and get financially stable. The plan also called for dad to participate in treatment, urine screens, and individual therapy. Additionally, dad needed to demonstrate an ability to put the kids’ needs above his own and to better understand the kids’ needs, and to work with a parent educator through Family Time Coaching. The estimated goal date was November 2014.

DCF filed a TPR petition on October 31, 2014. Mom voluntarily gave up her parental rights at a hearing a few months later. Around the time of the TPR petitions, the kids’ current foster parents began giving respite care and about six months later officially became the foster parents.

The court held a two-day evidentiary hearing in August 2015. The trial court then terminated dad’s parental rights, concluding that while dad had made significant progress in certain areas of his life, his continued substance use amounted to stagnation. Stagnation, the court reasoned, meant that circumstances had changed to warrant reconsidering the reunification plan. Dad’s continued substance use and failure to take responsibility for said drug use meant that he wouldn’t be able to assume parental duties within a reasonable time, and therefore, termination of dad’s parental rights was in the kids’ best interests.

The trial court made 12 specific oral findings that included the following: the reason for CHINS was parents’ substance use interfering with their ability to care for the kids; that dad had found housing and employment and was very engaged with the kids; that his engagement decreased somewhat with the new foster placement, and while dad was frustrated he didn’t ask the court for more time with one exception; that DCF cut off the family time coaching after filing the TPR petitions despite dad’s desire to continue; that the substance abuse remained inadequately addressed and dad was not honest about the extent of his drug use.

So despite all the good stuff in dad’s favor, and a good relationship and clear affection with the kiddos, the trial court found that the not-completely-addressed substance-abuse issue meant stagnation.

That brings us to the SCOV. Dad argues that the record doesn’t support the trial court’s threshold finding of changed circumstances, and beyond that, its conclusion that he wouldn’t be able to resume his parental duties within a reasonable period of time. Dad contends that he remedied the problems that led to his kiddos being placed in state custody and that there was no basis for the court to find stagnation of his ability to parent.

The SCOV majority notes that if a trial court is going to modify a disposition order and terminate parental rights, it has to first find a material change in circumstances in the children’s lives. Stagnation is the most-common change of circumstances in TPR cases. So, the key question “is whether the parent has made progress in ameliorating the conditions that led to state intervention.” The State has to show—and the trial court has to find—stagnation by clear-and-convincing evidence before moving to TPR.

The majority’s first question to ponder is whether the evidence supports the trial court’s changed-circumstances finding. The majority notes that nobody is saying dad didn’t meet most of the goals—the central issue is dad’s substance use. And so, the majority lays out the substance-use evidence.

At the TPR hearing, the State cross-examined dad on his drug treatment. He talked about checking into the Brattleboro Retreat and then getting into an outpatient opiate-replacement program with weekly meetings. The State’s primary evidence regarding dad’s drug use was based on the notes from the weekly meetings. The drug testing reports had ten abbreviations. Dad had THC present for four months (but not the two months before the hearing). Additionally, there were some positive results (possibly) for amphetamines and one possible positive for methadone. The accompanying notes indicated that there was a potential false positive, and further monitoring was warranted to see if there was a pattern.

Dad confirmed that “he tested positive for buprenorphine every week because that was the opiate replacement he was using in his treatment program.” He downplayed his marijuana use and said the amphetamine and methadone positives made no sense.

The State didn’t bring in an expert or other witness on the meaning or reliability of the reports. Basically, the State sorta used dad to explain the meanings of the abbreviations and what the reports meant.

The majority notes that “there was no evidence connecting the test findings to father's progress in substance abuse treatment, or to his parenting.” There was nothing in the records indicating a clinical judgment by counselors or the countersigning physician that dad was falling short or failing in his treatment. In fact, many of the notes say “no concern” while a couple indicate that the testing results need to continue to be monitored. Nobody testified “about the meaning of the treatment notes or their significance with respect to the case plan goals.”

On this record, the majority “cannot conclude that the State has proven stagnation by clear and convincing evidence.” The connection is too thin. While the majority acknowledges that the records could indicate that dad isn’t progressing appropriately, they certainly don’t do that on their face, “and the State failed to present any additional evidence to demonstrate the significance of those records.”

The majority isn’t buying the State’s drug-use-was-the-primary-reason-for-state-custody-and-any-substance-use-is-stagnation pitch. The majority opines that it “cannot assume that any and all evidence of substance abuse by a parent in treatment is indicative of stagnation.” The majority is careful to note that this doesn’t mean that the State has to bring in a pharmacologist in every CHINS case dealing with substance use, but somebody—be it a substance abuse clinician or even a DCF worker with proper foundation—has to connect the dots between the substance use and the ability to parent. Primarily, we’re dealing with marijuana use and possible amphetamine use here and there was nothing tying that to dad’s ability to overcome his opiate addiction and parent the kiddos.

Similarly, the majority rejects the conclusion that dad’s marijuana-use minimization supports stagnation. Dad said he only used marijuana a couple times but had positive screens for four months. Without more explanation from a witness, the majority isn’t going to agree that the difference between what dad admitted and what the records show is so great as what the trial court concluded.

The majority is careful to limit its holding, noting that its “holding in this case is narrow and closely tied to the facts of this case.” Dad did a whole bunch of good stuff and clearly had a good relationship with the kids. The majority isn’t ready to allow TPR based on “use of an undetermined amount of marijuana throughout part of the period preceding the termination hearing” because it doesn’t reflect “such a substantial departure from the case plan goals with respect to his progress in improving his capacity to resume his parental responsibilities that it amounts to stagnation.”

Accordingly, the SCOV reverses.

Chief Justice Reiber dissents. He reasons that the “trial court acted within its discretion in concluding that there had been a change of circumstances,” and would affirm its judgment. The kids were taken into custody due to the parents’ substance use and dad continued to use substances.

The dissent opines that there was no abuse of discretion here. Dad kept using drugs and that interfered with his ability to parent. The case plan required the parents to maintain sobriety and make sobriety a priority.

While dad made significant progress in achieving the case-plan goals, the continued substance use over a long period of time flies in the face of the reason the kids were taken into custody in the first place. The evidence, in the dissent’s view, also indicated that dad was not honest about his drug use. The evidence showed dad was testing positive for marijuana over a six-month period. As the dissent sees it: “The court therefore had no confidence that father had adequately addressed the single issue that led to the children coming into custody. The court thus concluded that father had stagnated in his ability to parent despite the other very significant gains that he had made.”

Dad claimed to have found some marijuana on the sidewalk and only had a puff or two a couple times to help him sleep. The dissent reasons that this assertion is belied by dad’s regular positive-for-marijuana drug screens over a period of six months. The dissent points out an incident recounted in the treatment notes in which one of dad’s friends apparently overdosed in dad’s home. “Although the notes indicate that father talked ‘about having needle in arm when saw friend turning blue,’ father denied that he was using intravenous drugs at the time or that his friend had taken drugs in his home.”

The dissent also points to a DCF caseworker’s testimony that dad’s supposed dishonesty about his substance use was a cause of great concern. The dissent notes that dad admitted to using drugs. The dissent reasons that the trial court was not required to make findings regarding the extent and frequency of dad’s drug use—the existence of the problem that caused removal in the first place is what warrants a finding of changed circumstances.

The dissent does not see dad as having met all the goals set forth in the disposition case plan. The “continued drug use, under the circumstances of this case, is not compatible with those goals.”

The dissent also takes issue with the majority’s apparent tie-it-all-together requirement. Here, the dissent opines that there has never been such a requirement before and that the fact of continued substance use is, in fact, more than adequate to support a stagnation finding.

The dissent does not see the majority’s holding as narrow. In fact, the dissent sees it as imposing a brand-new requirement on the trial court. As the dissent views it, the only question before the SCOV was “whether there was a basis in the record upon which the court could reach the conclusion it did.” The dissent sees the majority as having looked at this case through the lens of whether there was a basis for a different conclusion. The dissent opines: “The trial court's decision here is supported by the record, and consistent with the law, and it should be affirmed.”

What do you think? Let us know.

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