¶ 1. Mоther appeals the family court’s February 1, 2006, permanency planning order awarding permanent legal guardianship of two of her children to the father’s aunt and uncle in West Virginia. We reverse and remand the matter for thе family court to consider whether 14 V.S.A. § 2664(a)(2) has been satisfied.
¶ 2. The two children that are the subject of this appеal are D.G., born in December 1996, and C.G., born in December 1998. The children have been in the custody of the Department for Children and Families (DCF) since September 2004 when DCF filed a petition alleging that the children were in need of care or supervision (CHINS) because of mother’s neglect. At the initial disposition hearing held in the spring of 2005, the family cоurt continued custody with DCF and adopted a case plan that recommended sending the children to their fathеr’s aunt and uncle in West Virginia to explore a possible placement with the couple as permanеnt legal guardians. The court determined at the disposition hearing that neither mother nor the children’s father would bе capable of resuming parental responsibilities within the foreseeable future. The children were placed with the father’s aunt and uncle in West Virginia in July 2005. Following a permanency hearing in the fall of 2005, the family court awаrded legal guardianship to the aunt and uncle, thereby transferring legal custody from DCF to the couple.
¶ 3. On appeal, mother first contends that the court “bootstrapped” findings from the merits hearing, which required proof by only a preponderance of the evidence, to satisfy the clear-and-convincing-evidenee standard required to support an order establishing a permanent guardianship. See 14 V.S.A. § 2664(a) (court must find by clear and cоnvincing evidence certain enumerated facts before issuing order for permanent guardianship). We reject this argument for several reasons. First, at the initial disposition hearing, the court stated that it was firmly convinced under any standard that the State had met its burden of demonstrating that its plan was in the children’s best interests. Second, at the рermanency hearing, mother’s attorney objected to relitigating the merits of the case and explicitly asked the court to take judicial notice of its merits and disposition findings. Third, and most importantly, the family court (1) acknоwledged in the decision being appealed that the clear-and-convincing-evidenee standard was аpplicable, (2) defined in detail the State’s burden in meeting that standard, and (3) expressly found that the evidence examined in its findings met that standard. We find no error.
¶ 4. Mother also argues that the family court erred by failing to find a significant chаnge in material circumstances before transferring custody of the children from DCF to the aunt and uncle. We need not address the legal question posed by mother because the family court’s findings amply demonstrated changed circumstances due to stagnation in mother’s parenting ability. As the court found, since the disposition order and the children’s move to West Virginia, mother had made little effort to communicate with the children, had been jailed fоr criminal offenses, had failed to participate in needed mental health counseling, and was living with her father in a community that does not allow children to reside. The court also expressed doubt that mother had ended a recent romantic relationship with a man who had a his
¶ 5. Next, mother argues that the court’s permanency order must be reversed because the court failed to find that adoption of the children was not reasonably likеly during the remainder of their minority, as required by 14 V.S.A. § 2664(a)(2). We agree. Section 2664(a)(2) states that “[b]efore issuing an order for permanent guardianship, the court shall find by clear and convincing evidence” that “[n]either returning the child to the рarents nor adoption of the child is reasonably likely during the remainder of the child’s minority.” See In re A.S.,
¶ 6. Finаlly, mother argues in a supplemental brief that Vermont law does not authorize awarding permanent legal guardianships to nonresidents. According to mother, the absence of an express provision for nonresident guаrdianship, coupled with an express requirement that a case be transferred to “the appropriate probate court in the district in which the permanent guardian resides,” § 2664(c), compels the conclusion thаt only Vermont residents may qualify as permanent guardians. It does not appear that § 2664(c) demonstrates a legislative intent to exclude out-of-state residents from being permanent guardians. Indeed, the statute is silent as to whether out-of-state guardians are permitted — it neither specifically allows nor precludes such a pоssibility. In any event, we need not consider this argument because mother failed to raise it either below or on аppeal in her initial brief. See In re D.C.,
Reversed and remanded for proceedings consistent with this opinion.