Constructive Visitation Alone Does Not Defeat Termination: Refusal to Cooperate with Home/Safety Assessment and Substance-Use Evaluation Supports “Stagnation” and Best-Interests Findings

Case: In re S.O., Juvenile (Bennington Unit, Family Division; Supreme Court of Vermont, Entry Order, June Term 2026, Case No. 26-AP-050)

1. Introduction

This appeal arises from termination of parental rights (TPR) to S.O., born October 2020. The State filed a CHINS petition in April 2024; S.O. entered emergency DCF custody. After adjudication (October 2024) and disposition (December 2024), reunification remained the permanency goal with case-plan steps for both parents. In April 2025, the State moved to terminate parental rights. Following a merits hearing, the family division terminated both mother’s and father’s rights, and both appealed.

The key issues on appeal were whether the family division: (1) properly found a “substantial change in material circumstances” since disposition—most commonly shown by parental “stagnation” or deterioration over time—and (2) properly determined, under the statutory best-interests factors, that termination served S.O.’s best interests, particularly the likelihood either parent could resume parental duties within a reasonable time.

2. Summary of the Opinion

The Vermont Supreme Court affirmed. It held that the family division applied the correct legal framework and made findings supported by the evidence. Mother’s appeal failed because the trial court did not ignore her past caregiving; rather, it permissibly emphasized her lack of contact with both DCF and the child during the case and her failure to address substance-use and stability concerns. Father’s appeal failed because—even though he maintained consistent, generally positive supervised visits and played a constructive role—the court could still find “stagnation” and that termination was in S.O.’s best interests where father refused to cooperate with DCF’s efforts to assess his residence for safety and failed to engage in substance-use assessment/treatment despite repeated indications of intoxication and a positive screen.

3. Analysis

3.1 Precedents Cited

• In re B.W., 162 Vt. 287, 291 (1994)
  The Court relied on In re B.W. for the two-step modification/TPR framework: a threshold finding of a “substantial change in material circumstances” since disposition, followed by a best-interests determination. It also quoted B.W. for the common formulation that material change is often established when the parent’s ability to care “has either stagnated or deteriorated over the passage of time.” This “stagnation” concept supplied the evaluative lens through which the trial court’s findings about both parents were measured.
• In re B.M., 165 Vt. 331, 336 (1996)
  In re B.M. provided the prioritization principle within the best-interests factors: “the most important factor is the likelihood that the natural parent can resume his or her parental duties within a reasonable time.” The Court used this as a controlling emphasis to validate the trial court’s concern that neither parent could move from supervised contact to safe, independent parenting within a child-appropriate timeframe.
• In re G.S., 153 Vt. 651, 652 (1990) (mem.)
  In re G.S. supplied the appellate standard of review: findings stand unless “clearly erroneous,” and conclusions are affirmed if supported by findings. This standard framed the outcome—both parents’ arguments were treated largely as requests to reweigh evidence or second-guess the trial court’s judgment calls.
• In re S.B., 174 Vt. 427, 429 (2002) (mem.)
  The Court invoked In re S.B. to reject mother’s effort to re-litigate best-interests weighing on appeal: the Supreme Court does not “second-guess” the family court or “reweigh the evidence,” but reviews for abuse of discretion and evidentiary support.
• Meyncke v. Meyncke, 2009 VT 84, ¶ 15, 186 Vt. 571 (mem.)
  Cited to underscore that mere disagreement with the trial court’s reasoning does not establish abuse of discretion. The citation reinforced the Court’s view that father’s appellate presentation did not identify legal error; it challenged the trial court’s weighting of cooperation, housing verification, and substance-use concerns.

3.2 Legal Reasoning

A. Substantial change in material circumstances (“stagnation”)

The trial court found a post-disposition material change because both parents failed to make meaningful progress on the core barriers that led to DCF custody.

• Mother: Minimal contact with DCF; essentially no visitation (one visit in a period spanning well over a year); continued substance-use struggle; no mental-health assessment or demonstrated engagement in treatment; no parent education; unknown living situation. These findings supported “stagnation” (indeed, functional non-engagement) in the capacity to safely parent.
• Father: Although engaged in frequent supervised visits, he repeatedly appeared intoxicated during contact; a screen indicated cocaine and high alcohol; he refused a substance-use assessment or treatment; and he refused to permit DCF to visit/assess his home or obtain basic information about who lived there. The court treated these refusals not as minor administrative friction but as barriers preventing any progression from supervised visitation to independent parenting.

The Supreme Court’s affirmance reflects a practical point embedded in the “stagnation” inquiry: progress is measured against the plan’s safety and reunification requirements, not simply by attendance at visits. A parent may be affectionate, consistent, and “constructive,” yet still stagnate if they prevent the system from verifying sobriety and home safety—two prerequisites to unsupervised contact and placement.

B. Best interests under 33 V.S.A. § 5114

Applying § 5114, the family division emphasized the child’s relationships and the feasibility of reunification within a reasonable time. The Supreme Court found the trial court’s best-interests assessment well supported:

• Child’s relationships and stability: S.O. had been in the foster placement for over a year, had a “close and loving relationship” with the foster parent, and the foster parent met all needs. Mother had no current relationship due to near-total absence; father had a loving bond but only within ninety-minute supervised visits three times weekly.
• Ability to resume parental duties within a reasonable time (the “most important factor”): Mother had not demonstrated any safety or stability and did not engage with services. Father had not progressed beyond supervised visitation because his own refusals blocked home approval and his substance-use risk remained unassessed and untreated. The trial court was also entitled to discount father’s late-breaking statement at the termination hearing that he had “changed his mind” about cooperation, because as of the order date the court still lacked verified information about home safety and a timeline for remediation.
• Constructive role factor: The court found mother played no constructive role after custody; father did play a constructive role, but it was “limited as a result of his own actions.” The Supreme Court treated this as a permissible synthesis: constructive involvement is relevant but not dispositive when it cannot translate into safe, independent parenting.

C. Appellate review and deference

Both appeals were ultimately constrained by the standard of review. The Supreme Court repeatedly characterized the parents’ positions as attempts to reweigh evidence (e.g., mother emphasizing historical caregiving; father minimizing the housing/sobriety issues and stressing the quality of visits). Under In re G.S. and In re S.B., where findings are supported and the proper standard is applied, the Court affirms.

3.3 Impact

Even as a nonprecedential entry order, the decision highlights several practice-relevant themes likely to influence litigation behavior and trial-court adjudication in Vermont TPR matters:

• “Constructive visitation” is not a safe harbor. Consistent, positive supervised visits do not preclude findings of stagnation or a best-interests determination favoring termination when a parent blocks the steps needed to move toward unsupervised care (home verification, safety planning, substance-use assessment).
• Noncooperation can be substantive evidence. Refusing DCF home access and basic household information is treated as directly relevant to parenting capacity because it prevents the court from confirming minimal safety prerequisites for placement.
• Late compliance at trial may be discounted. A parent’s last-minute professed willingness to cooperate may not cure months of noncooperation where the court still cannot know, as of decision, whether the home is safe or how long remediation will take—especially in light of the child’s need for timely permanency.
• “Reasonable time” remains child-centered. The court’s focus on the child’s long stay in foster care and strong foster bond underscores that reasonable time is assessed from the child’s perspective, not the parent’s preferred timetable.

4. Complex Concepts Simplified

• CHINS (Child in Need of Care or Supervision): A legal status where the court finds the child is at risk of harm and requires court-ordered services/supervision, often involving DCF custody or oversight.
• Disposition order / case plan: The post-adjudication order setting custody, services, and specific steps parents must complete to work toward reunification.
• Material change in circumstances: A required threshold showing that something significant has changed since disposition. In TPR, it is commonly shown by lack of progress—“stagnation”—in fixing the problems that brought the case to court.
• Best-interests factors (33 V.S.A. § 5114): Statutory considerations guiding whether termination serves the child. The most important is whether the parent can resume parental duties within a reasonable time.
• Clearly erroneous / abuse of discretion: Appellate deference doctrines. The Supreme Court does not redo factfinding; it asks whether evidence supports the findings and whether the trial court’s decision fell within a permissible range of judgment.
• Why “home approval” matters: A parent’s home must be assessed for safety and stability before the case can move from supervised visits to unsupervised contact or placement. Refusing access can halt reunification progress regardless of visit quality.

5. Conclusion

In re S.O., Juvenile affirms termination where the trial court found post-disposition stagnation and concluded termination served the child’s best interests. For mother, the decisive considerations were near-total disengagement, lack of visitation, continued substance-use concerns, and unknown stability. For father, the decision underscores that a loving bond and consistent supervised visitation do not offset refusal to cooperate with home-safety verification and failure to address substance-use risks—especially when those failures prevent any meaningful progression toward independent parenting within a child-centered reasonable time.