In re E. G.
- Reporters:
- , ,
- Before:
- Larrow
Lead Opinion
We are again presented with the question of whether the district court, in a juvenile proceeding under 33 V.S.A. chapter 12, was justified in terminating parental rights of the mother of E. G., a minor some threе years of age at the time of the modification hearing which resulted in the order. The factual situation is complicated by provisions of the same order returning custody of N. G., a sister sоme six years older, to the mother, with protective services to be provided by the Department of Social and Rehabilitation Services.
No question is raised here or below about the validity of the original order entrusting custody of both children to the Commissioner of Social and Rehabilitation Services, in February, 1978, or to the continuance of that order at the rеview hearing in August, 1978. Truly dire circumstances made these steps requisite, and they were taken virtually by stipulation. But in September, 1979, the mother filed a petition seeking return of custody, and the State’s Attоrney filed a petition seeking the relief which the court eventually afforded.
The factual pattern here in issue is varied and complex. Its cause has root in the unchallenged diagnosis of the mother as a person suffering from chronic schizophrenia, characterized by exacerbations and remissions. During the periods of exacerbation, often a result of stress, the mother has demonstrated inability to provide proper child care. In the past, this inability has manifested itself in delusional behavior, lack of heat and cleanliness in her living quarters, inattentiоn to E. G.’s personal hygiene, and the like. One incident, with —10° temperature in her apartment, resulted in frostbite and the amputation of four of the mother’s toes. The court, in substance, found that whilе the rearing of N. G., a child extensively self-reliant, was within the capabilities of the mother, given appropriate supportive social help, the added burden of E. G., with her tender years, was more than she could manage, and that recurrences of her episodes were apt to take place under this added stress. Medication reduces the chancе of such occurrences, but there is an admitted history of failure to take such medication on a regular basis.
The case thus presented is a very close one. We have indeed held, rather firmly, that improvement in parental condition was a bar to the severance of parental rights. In re J. A. S. (Juvenile), 135 Vt. 248, 373 A.2d 558 (1977); In re J. & J. W., supra. But we were also at pains to point out, in In re J. A. S. (Juvenile), that these decisions antedated the passage of what is now 33 V.S.A. § 667. With our decisions undoubtedly in mind, the legislature chose to enumerate with care the factors to be considered by a court in passing upon a petition like the one here involved, for custody of a minor by the Department of Social and Rehabilitation Services without limitation as to adoption. Besides the interactions and interrelationships of the child, his adjustment, and thе constructive role of the natural parent, it has defined in precise language what we previously termed “deterioration” and “stagnation.” As we commented in In re D. R., supra, 136 Vt. at 481, 392 A.2d at 953, reasonable time is now an element of prime consideration. To sever parental rights completely, temporary placement outside the home must be inadequate to serve the
(3) The likelihood that the natural parent will be able to resume his parental duties within a reasonable period of time; ....
It is apparent from a reading of thе bindings, carefully drawn and somewhat extensive, that the trial court gave thoughtful consideration to all the enumerated factors. A growing affection to foster parents was, as is usual at tеnder years, clearly indicated, as well as adjustment and improvement. Personal contact with the natural mother was shown to be not extensive, due partly to disabilities and illnesses, but nonetheless present. The statutory factors were not specifically enumerated in the findings and conclusions, but we have held this an unnecessary formality. In re G. V. & R. P., 136 Vt. 499, 394 A.2d 1126 (1978). The ability to care for a self-rеliant nine-year-old, coupled with inability to adequately care for a three-year-old, found ample support in expert testimony, even though there was conflict on the point. And we cannot say, as a matter of law, that the determination that this disability could not be remedied within a reasonable time is
Appellant’s objection to the reception of opinion evidence from Dr. Rife is also without merit. The doctor, a qualified psychiatrist, was licensеd to practice in Vermont, and his general qualifications were not, and are not now, the subject of challenge. The only objection to his trial testimony regarding the mother’s illness was that it had to be related to a point in time, the time of his observation. This was done, under a re-framed question, to July, 1978. (The date of hearing was October, 1979.) Without further objection, the doctor wаs permitted to testify to the prognosis hereinabove described.
Even apart from the lack of required objection, the answer was admissible. Though the doctor saw the mother only once, he testified to access to records, reports, history, and conversations with her own doctor, all helping form the basis for his conclusions. The objection urged here goes only to the weight to be accorded his opinion by the trier of fact, and no error appears. Lambert v. Fuller, 181 Vt. 181, 303 A.2d 471 (1973). Moreover, the opinion was corroborated in large part by the mother’s own expert witness.
Judgment affirmed.
Dissenting Opinion
dissenting. I am unable to join the majority opinion. An examination of the record in this case convinces me that the trial court acted prematurely in terminating the rеsidual parental rights of E. G.’s mother.
The power of the court to terminate residual parental rights is included within the provisions of chapter 12 of Title 33. These provisions must always be considered in light of 33 V.S.A. § 631(a)(3), which provides that the purposes of chapter 12 are to be achieved “whenever possible, in a family environment, separating the child from his parents only when necessary for his welfare or in the interests of public safety . . . .” This Court has often referred to this power of the state to terminate parental rights as “awesome.” In re D. R., 136 Vt. 478, 480, 392 A.2d 951, 952 (1978); In re J. & J. W., 134 Vt. 480, 482, 365 A.2d 521, 523 (1976). This power “should be used with extreme care and only as a last resort.” In re D. R., supra, 136 Vt. at 480, 392 A.2d at 952.
Two witnesses did recоmmend that the parental rights of Mrs. G. be terminated, and that E. G. be placed permanently with the foster parents with whom she had been