Directed Verdict Unavailable in Vermont TPR Proceedings; Broad Discretion to Reopen Evidence to Promote Timely Permanency

Commentary on In re A.K. and A.C., Juveniles (S.K., Father*), Vermont Supreme Court (Jan. 9, 2026) (Entry Order).
Practice note: The Opinion itself states that three-justice panel decisions “are not to be considered as precedent before any tribunal,” but it still reflects how the Court applies existing doctrine to recurring termination-of-parental-rights (TPR) litigation issues.

1. Introduction

This appeal arose from the Washington Unit, Family Division’s order terminating a father’s parental rights to two young children, A.K. (born 2019) and A.C. (born 2023). The Department for Children and Families (DCF) took custody after allegations of severe parental substance use, homelessness, and unsafe caregiving. After disposition, the case plan set reunification goals with detailed action steps (sobriety, mental-health stability, parenting skills, attendance at visits and appointments, cooperation with DCF, and safe stable housing). Reunification timelines were extended more than once.

The key appellate issues were both procedural and substantive:

• Whether the family division erred by allegedly stepping out of a neutral role during the termination hearing.
• Whether the court erred in denying father’s motion for judgment in his favor at the close of the State’s case (raised below as a “directed verdict”).
• Whether the court abused its discretion by reopening the evidence after father rested without presenting evidence.
• Whether the evidence supported a “change of circumstances” based on parental stagnation and supported the best-interests determination.

2. Summary of the Opinion

The Vermont Supreme Court affirmed. It held that:

• The trial judge did not assume a prosecutorial role and the proceeding was unlike Auger v.Auger.
• A “directed verdict” is not applicable in judge-tried TPR proceedings; Vermont Rules for Family Proceedings exclude the civil-rule directed-verdict mechanism, and in any event the trial court ruled on the merits rather than rejecting the motion categorically.
• The family division acted within its “broad discretion” to reopen evidence prior to judgment, particularly given the relevance of the evidence and the juvenile-system goal of timely permanency.
• The record supported a finding of stagnation (despite late gains), including father’s inconsistent visits and the resulting serious harm to A.K., the recency of father’s sobriety and emotional stability, continuing housing instability, and unresolved concerns about prioritizing the children over mother.

3. Analysis

A. Precedents Cited

• In re K.F. (2004 VT 40, ¶ 8): Cited for the two-step structure when the State seeks TPR after initial disposition: (1) a “change of circumstances” under 33 V.S.A. § 5113(b); and (2) termination in the child’s best interests under 33 V.S.A. § 5114. The Opinion follows this framework and places the stagnation finding within step one.
• In re J.B. (167 Vt. 637, 639 (1998) (mem.)): Supplies both (a) the appellate standard of review (findings upheld unless clearly erroneous; conclusions upheld if supported by findings) and (b) the “most important” best-interests factor: whether the parent can resume parenting within a reasonable time. The Court repeatedly returns to “reasonable time” in evaluating late progress.
• Auger v.Auger (149 Vt. 559, 563-64 (1988)): Used as the contrasting example of impermissible judicial conduct—where a court effectively “took over” and signaled bias. The Opinion distinguishes the present case to reject father’s neutrality argument, thereby reinforcing the line between active case-management and improper assumption of an advocate’s role.
• In re A.M. (2015 VT 109, ¶ 28): Cited for preservation—issues must be presented with “specificity and clarity” to allow a trial ruling. This matters because father argued “directed verdict” below, but invoked a different procedural mechanism (Rule 52(c)) on appeal.
• Gladstone v. Stuart Cinemas, Inc. (2005 VT 44, ¶¶ 10-11): Provides the review standard and decisional lens for a Rule 52(c) motion (judgment on partial findings): legal conclusions reviewed de novo; factual findings for clear error; trial court weighs evidence as factfinder. The Opinion applies this approach to explain why denial of father’s mid-hearing motion was not erroneous.
• In re G.L. (2024 VT 60, ¶ 38) and In re Bjerke Zoning Permit Denial (2014 VT 13, ¶ 16): Together establish that trial courts have “broad discretion” to reopen evidence after the close of evidence but before final judgment. The Opinion uses these to uphold reopening here, emphasizing timeliness and availability of witnesses.
• In re C.L.S. (2021 VT 25, ¶ 15): Cited for the statutory purpose of juvenile proceedings—timely permanency and safety as paramount—quoting 33 V.S.A. § 5101(a)(4). This authority is pivotal to the reopening ruling: reopening was justified in part to avoid “needless delay.”
• In re D.M. (2004 VT 41, ¶¶ 5, 7): Defines “stagnation” and rejects a checklist approach. The Opinion uses it to frame why completing some action steps does not control if the parent has not shown the “improvement contemplated” when custody was transferred.
• In re A.F. (160 Vt. 175, 178 (1993)): Reaffirms that the family division weighs evidence and assesses credibility; appellate review asks only whether findings are supported by credible evidence. This undergirds the Court’s rejection of father’s attacks on specific findings.
• In re B.M. (165 Vt. 331, 336 (1996)): The central “late improvement” principle: some progress does not preclude changed circumstances, and late progress after a TPR petition does not necessarily “wipe out” earlier stagnation—particularly viewed from the child’s perspective. The Opinion deploys this directly against father’s “recent progress” argument.
• In re K.G. (2023 VT 51, ¶¶ 32-33, 36): Supports the proposition that stagnation may be established through failure to consistently attend visits, and that this is generally within a parent’s control rather than an external force. The Opinion uses this to rebut father’s claim that loss of contact was beyond his control.

B. Legal Reasoning

1) Change of circumstances via stagnation

The Court treated stagnation as a functional inquiry: whether, over time, father demonstrated the parental improvement contemplated by the disposition plan—not whether he could point to discrete completed tasks. Several factual themes supported stagnation:

• Inconsistent contact and child harm: Father repeatedly missed visits. The Opinion credits findings that missed visits “significantly impacted” A.K., triggering serious dysregulation and self-harming behavior. DCF reduced visits and ultimately stopped them because inconsistency was too destabilizing.
• Recency of sobriety and stability: Father’s sobriety was measured in months by the hearing. The December 2024 incident—intoxication, kidnapping threats, references to DCF workers getting shot, and suicidality—supported the conclusion that emotional stability was not established over time.
• Housing instability: Transitional housing existed, but was not suitable for the children. The reunification voucher was contingent on a reunification goal and readiness for significant custody time; father had not visited since January 2025.
• Prioritization problem: The Court accepted evidence that father continued to place mother’s needs and the relationship ahead of the children through much of 2024 and into 2025, contributing to missed visits and reduced engagement.

The Opinion’s doctrinal move is to treat these dynamics as “stagnation” even though father showed late engagement (treatment court, therapy, temporary housing, several months of sobriety). Consistent with In re B.M., late improvement did not negate the children’s prolonged experience of instability and the case’s extended timelines.

2) Best interests and “reasonable time”

Applying In re J.B. and the statutory best-interests factors (33 V.S.A. § 5114), the Court emphasized:

• The children’s young ages and lengthy time in custody (A.K. since 2022; A.C. since birth in 2023).
• The children’s bonds and adjustment in the foster home.
• Father’s inability to resume parenting within a reasonable time given the lack of contact since January 2025 and ongoing concerns about parenting capacity for two high-needs young children.
• Father’s lack of “constructive impact” due to the destabilizing pattern of missed visits.

3) Hearing procedure: neutrality, mid-hearing judgment, and reopening

C. Impact

Although labeled nonprecedential, the Opinion is practically significant in three recurring TPR litigation areas:

• Clarifying misfit “directed verdict” practice: It reinforces that “directed verdict” terminology and Rule 50 concepts do not map neatly onto judge-tried juvenile termination hearings, and that parties must preserve and present the correct procedural mechanism with clarity.
• Reopening evidence is child-centered: The ruling strengthens the idea that reopening is not merely an adversarial fairness tool, but can be justified by the statutory goal of avoiding delay in permanency decisions—especially when the request is immediate and witnesses are present.
• Stagnation is measured by parenting capacity and reliability, not task completion: The Opinion underscores that inconsistent visitation—particularly when it causes significant harm—can be powerful evidence of stagnation and best-interests concerns, and that late progress after a petition does not erase prolonged instability.

4. Complex Concepts Simplified

• CHINS: “Child in need of care or supervision” proceedings determine whether a child lacks proper parental care or faces harm, triggering court oversight and potential DCF custody.
• Disposition order & case plan: After a CHINS finding, the court adopts a plan (services and expectations) aimed at reunification or another permanent outcome. “Action steps” are concrete tasks, but courts focus on whether the parent has achieved real-world change.
• Change of circumstances (33 V.S.A. § 5113(b)): After disposition, TPR requires a showing that circumstances have materially changed—often proved by “stagnation,” meaning insufficient progress over time.
• Stagnation: Not “no effort,” but insufficient improvement despite time and services, assessed against what the plan was meant to accomplish (safe, stable, reliable parenting).
• Best interests (33 V.S.A. § 5114): A multi-factor inquiry; the dominant practical factor is whether the parent can resume parenting within a “reasonable time” from the child’s perspective.
• Directed verdict vs. Rule 52(c): A directed verdict (Rule 50) is a jury-trial mechanism; Rule 52(c) applies in bench trials, allowing judgment on partial findings when the judge, as factfinder, concludes the nonmoving party has not met its burden.
• Reopening evidence: Allowing additional testimony/exhibits after a party rests but before judgment; Vermont gives trial courts broad discretion, especially where reopening avoids delay and the evidence is material.
• Hearsay: Out-of-court statements offered for their truth; the trial court noted limits on making “clear and convincing” findings based on hearsay, highlighting the importance of competent, firsthand evidence in TPR cases.

5. Conclusion

In re A.K. and A.C., Juveniles affirms termination where the father’s improvements were recent, fragile, and undermined by a long pattern of missed visits, instability, and delayed prioritization of the children—resulting in significant harm and unmet needs. Procedurally, the Opinion rejects claims of judicial partiality, clarifies that “directed verdict” practice does not fit TPR bench trials under the Vermont Rules for Family Proceedings, and endorses broad trial-court discretion to reopen evidence when doing so advances the juvenile system’s overarching mandate: timely, safe permanency for children.