In re C.W. (Vt. May 8, 2026): Unpreserved CHINS-Procedural Objections and Unobjected Hearsay Do Not Defeat Termination; “Unfitness” Is Addressed Through § 5114(a) Best-Interests Findings

Vermont Supreme Court (Entry Order; three-justice panel). Parents (B.W., Mother; C.W., Father) appealed termination of parental rights to their six-year-old child, C.W. The Court affirmed.

1. Introduction

This case arises from a CHINS proceeding initiated after the overdose death of C.W.’s infant sibling while in the parents’ custody. The family court initially pursued reunification through a case plan emphasizing sobriety, stable housing, and—critically—safe and predictable caregiving in a violence- and substance-free home. After a period of progress culminating in a conditional custody order (CCO), the case pivoted in September 2024 following an altercation in a hotel room in which the court found father assaulted mother and C.W. was injured, with concurrent substance use. Custody returned to DCF. The State later petitioned to terminate both parents’ residual rights.

On appeal, father primarily raised (i) a procedural challenge asserting the State needed a new CHINS petition and merits hearing after the September 2024 emergency care order; (ii) evidentiary objections arguing the assault and fear findings rested on hearsay; (iii) a claim that DCF improperly “cut off” parent-child contact based on a single domestic-violence incident; and (iv) a constitutional argument that termination required an explicit, separate finding of parental unfitness under Santosky v. Kramer. Mother challenged the best-interests determinations and the changed-circumstances finding.

2. Summary of the Opinion

The Vermont Supreme Court affirmed termination. It held:

• Preservation controls: father’s claim that the State was required to file a new CHINS petition and hold a new merits hearing after the September 2024 emergency order was not preserved because it was never presented to the family court.
• Hearsay principles in TPR: the assault findings were supported by nonhearsay evidence; additionally, hearsay admitted without objection can support findings, and parents failed to object to testimony that C.W. feared father.
• Contact/visitation: father could not attribute loss of contact to DCF where incarceration and criminal conditions barred contact and he did not renew his motion to resume visitation after re-incarceration.
• Constitutional “unfitness” framing: consistent with Vermont law, “unfitness” is encompassed within the best-interests analysis under 33 V.S.A. § 5114(a), and no separate explicit “unfitness” finding is required.
• Merits of termination: the findings supported changed circumstances (deterioration/stagnation regarding violence and honesty about the precipitating incident) and supported that neither parent could resume parental duties within a reasonable time from C.W.’s perspective.

3. Analysis

3.1 Precedents Cited

A. Preservation, waiver, and appellate restraint

• In re M.P., 2019 VT 69 and In re C.H., 170 Vt. 603 (2000) (mem.): The Court relied on these decisions for the principle that procedural and even constitutional claims generally must be raised in the family court to be reviewed on appeal. Here, father waited roughly fourteen months—from emergency care order to termination order—without raising the “new CHINS/merits” theory.
• In re White, 172 Vt. 335 (2001): Used to explain the “purpose of the preservation rule”: ensuring the trial forum can rule first and correct errors if needed. The Court treated father’s omission as fatal to appellate review.
• State v. Gilbert, 2009 VT 7 (mem.) and In re Carter, 2004 VT 21: Addressed father’s attempt to invoke plain error. The Court emphasized that plain error requires an “obvious” error; a novel statutory interpretation is not “obvious,” and plain error is reserved for exceptional circumstances (miscarriage of justice or glaring deprivation of rights).
• In re I.B., 2016 VT 70: Cited to show father had an available path to challenge the September 2024 custody transfer as an appealable disposition modification under 33 V.S.A. § 5318(d), even if the order was styled as a temporary care order.
• State v. Lizotte, 2018 VT 92 and Gallipo v. City of Rutland, 2005 VT 83: Used to reject father’s facial constitutional challenge to the CHINS statute raised for the first time in his reply brief.

B. The two-stage TPR framework and standard of review

• In re B.W., 162 Vt. 287 (1994): Reiterates the two-step inquiry when termination is sought after initial disposition: (1) changed circumstances; then (2) best interests under 33 V.S.A. § 5114(a).
• In re H.A., 153 Vt. 504 (1990): Provides the common metric for “change in circumstances”—whether parental ability has stagnated or deteriorated over time.
• In re J.B., 167 Vt. 637 (1998) (mem.): Establishes the “most important factor” in the best-interests analysis: likelihood of resuming parental duties within a reasonable time.
• In re R.W., 2011 VT 124: Confirms the State bears the burden at both stages and must prove each by clear and convincing evidence.
• In re N.L., 2019 VT 10: Sets the appellate posture: deference to findings unless clearly erroneous; affirm conclusions supported by findings.

C. Evidence: hearsay, credibility, and factfinding in TPR

• In re A.F., 160 Vt. 175 (1993): Central to the evidentiary analysis. First, hearsay is admissible in termination proceedings so long as it is not the sole basis for termination. Second, the case is also cited later for the proposition that partial progress does not preclude a finding of changed circumstances.
• In re M.P., 133 Vt. 144 (1975) and In re R.L., 148 Vt. 223 (1987): These decisions supply a stringent waiver rule: uncorroborated hearsay may support findings if admitted without objection; failure to object waives the claim that reliance on it was error.
• In re D.S., 2014 VT 38 and Fournier v. Fournier, 169 Vt. 600 (1999) (mem.): Reinforce trial-court primacy on credibility and weighing evidence, including the power to accept parts of a witness’s testimony and reject others. In re D.S. also supports the principle that a parent bears responsibility for conduct leading to incarceration and its consequences for contact and reunification.

D. Constitutional framing of “unfitness” and the child’s best interests

• Santosky v. Kramer, 455 U.S. 745 (1982) and In re D.C., 2012 VT 108: The Court invoked In re D.C. to explain Santosky as a due process standard-of-proof case, not a mandate for a separate, explicit “unfitness” finding beyond the statutory best-interests analysis. Vermont treats “unfitness” as encompassed by 33 V.S.A. § 5114(a).
• In re M.W., 2016 VT 28 and In re M.B., 162 Vt. 229 (1994): Provide the balancing principle that parental rights are fundamental but not absolute; they may be overcome when the child’s best interests require termination, and public policy does not require preserving the bond at any cost to the child.

3.2 Legal Reasoning

A. Procedural challenge rejected on preservation grounds (and plain error narrowed)

Father’s headline argument—that the September 2024 emergency care order effectively reset the case and required a new CHINS petition and a new merits hearing—never reached the merits. The Court treated this as a classic preservation failure: father did not present the issue to the family court at any time during the extended interval between removal and termination.

The opinion also demonstrates a disciplined approach to plain error in child-protection appeals. The Court characterized father’s statutory reading as “novel,” which, under State v. Gilbert, makes any error non-obvious. It further emphasized that father had meaningful avenues to challenge removal and custody modification in real time (including appealability under In re I.B.), undermining any claim of exceptional circumstances.

B. Changed circumstances: deterioration/stagnation measured against the case plan’s core safety objective

Applying In re B.W. and In re H.A., the family court (affirmed on appeal) identified changed circumstances not in superficial compliance (housing, employment, sobriety by the time of trial), but in the failure to achieve the plan’s underlying goal: safe, predictable caregiving in a violence- and substance-free environment.

The September 2024 violence—paired with the court’s finding of substance use and, importantly, the parents’ later minimization/denial—was treated as evidence that parental capacity to provide safety had deteriorated or at least stagnated on the very risks that drove state involvement. The Court endorsed a functional view: compliance with “action steps” does not equal remediation if the core protective deficits persist.

C. Hearsay and proof: (1) nonhearsay corroboration; (2) waiver by non-objection

Father’s evidentiary attack had two components: the finding that he assaulted mother and injured C.W., and the finding that C.W. feared him.

• Assault and injury: The Court emphasized that the key findings were supported by nonhearsay evidence—mother’s own in-court testimony acknowledging she told the police “the truth” that father “beat me up,” and the responding officer’s in-court observations of blood, mother’s injuries, and C.W.’s abrasions. This made the hearsay argument largely beside the point under In re A.F. (hearsay not the sole basis).
• Child’s fear of father: Even if testimony about the child’s fear came through foster parent/DCF statements, the Court invoked In re M.P. (1975) and In re R.L. to hold that unobjected-to hearsay can support findings and that failure to object waives the issue on appeal.

The decision therefore reinforces a practical trial lesson: evidentiary objections in TPR are not optional formalities—failure to object can convert what would be a disputable proof issue into an unreviewable one.

D. Visitation/contact: causation and responsibility

Father argued that a “single domestic violence” incident led to termination by cutting off contact and weakening the parent-child bond—implying the State (via DCF) manufactured the best-interests record. The Court rejected this causation narrative on the facts and by reference to responsibility principles in In re D.S.:

• father’s incarceration and criminal conditions initially prohibited contact;
• after release, DCF did not resume visitation because C.W. reported fear;
• father filed a motion to compel contact but withdrew it due to re-incarceration after another assault; and
• father did not renew efforts to reinstate contact thereafter.

The Court treated these as consequences within father’s control (conduct leading to incarceration; litigation choices), not agency obstruction. The ruling also sits alongside the statutory backdrop that contact may be suspended when necessary for protection under 33 V.S.A. § 5319(a), though the Court decided the point largely on factual causation rather than a broad delegation theory.

E. No separate “unfitness” finding required: best interests as the substantive fitness inquiry

Father’s constitutional framing relied on Santosky v. Kramer. The Court answered with In re D.C.: Santosky constitutionalized the standard of proof (clear and convincing evidence) but did not dictate the substantive format of findings. Vermont’s best-interests factors under 33 V.S.A. § 5114(a) “encompass” parental fitness directly and indirectly. Thus, by applying § 5114(a)—especially the “reasonable time” factor from In re J.B.—the family court necessarily addressed fitness.

The Court then tied this principle to the record: father’s denial of violence, pattern of assaultive behavior, lack of acceptance/responsibility, and inability to provide safety within a reasonable time supported termination notwithstanding the fundamental nature of parental rights (In re M.W.; In re M.B.).

3.3 Impact

Although nonprecedential, the order is likely to be cited persuasively for several pragmatic propositions that recur in Vermont CHINS/TPR litigation:

• Preservation rigor in TPR: Even substantial procedural or constitutional claims may be lost if not raised promptly below. Parties must challenge removal/modification processes contemporaneously, including by appealing appealable disposition modifications.
• Trial-level evidentiary discipline: Unobjected hearsay can become competent support for findings. For parents’ counsel, this underscores the need to object, request limiting findings, or develop countervailing admissible proof; for the State, it highlights the value of presenting nonhearsay anchors (e.g., officer observations, party admissions) even when hearsay is admissible.
• Domestic violence as a reunification barrier when unaddressed: The decision stresses that even where parents check many compliance boxes (housing, employment, sobriety), denial/minimization of domestic violence can be dispositive because it directly undermines the safety predicate of reunification.
• Causation narratives about visitation: Courts may resist claims that DCF “caused” bond erosion where a parent’s own criminal conduct and litigation decisions explain the absence of contact.
• Constitutional framing stabilized: The order reaffirms the established Vermont approach that § 5114(a) best-interests findings are the substantive vehicle for assessing fitness, keeping Santosky disputes focused on proof burdens rather than an additional formal finding requirement.

4. Complex Concepts Simplified

• CHINS (Child in Need of Care or Supervision): A legal status allowing the court to supervise a child’s welfare when the child is at risk due to lack of proper parental care or safety.
• Disposition vs. merits: The merits stage determines whether the child is CHINS; disposition decides what orders and services are needed (custody, visitation, case plan). Termination after disposition requires showing a later change in circumstances.
• Conditional Custody Order (CCO): A reunification tool returning custody conditionally to parents while the CHINS case remains open and monitored.
• Changed circumstances: A required threshold to revisit disposition and consider termination; commonly proven by stagnation/deterioration in parenting capacity over time (In re H.A.).
• Best-interests factors (33 V.S.A. § 5114(a)): Statutory criteria the court must weigh to decide if termination is best for the child; the central factor is whether the parent can resume duties within a reasonable time (In re J.B.).
• Hearsay in TPR: Out-of-court statements offered for their truth. Vermont allows hearsay in disposition/TPR contexts (33 V.S.A. § 5317(b)), but parties must object if they want to preserve arguments about reliability or improper reliance; otherwise, even uncorroborated hearsay may support findings (In re M.P. (1975)).
• Preservation: The requirement to raise an issue in the trial court first. Without preservation, appellate courts usually will not decide the issue, even if framed as constitutional (In re M.P. (2019); In re C.H.).

5. Conclusion

In re C.W. affirms termination of parental rights where the parents’ later denial and minimization of a serious domestic-violence incident—coupled with the father’s repeated assaultive conduct and the mother’s inconsistent visitation and continued alignment with father—demonstrated that they could not provide safe, predictable care within a reasonable time for the child.

The decision’s broader significance lies in its procedural and evidentiary reminders: (1) appellate review is tightly constrained by preservation rules, (2) hearsay challenges must be made at trial or are typically waived, and (3) Vermont’s best-interests framework under 33 V.S.A. § 5114(a) is treated as the operative mechanism for assessing parental “fitness,” consistent with In re D.C.’s reading of Santosky v. Kramer.