Stagnation Despite Program Completion: Termination Affirmed Where a Parent Cannot Sustain Engagement and the Child Needs Permanency

1. Introduction

In re O.S., Juvenile (C.S., Father*) (Vt. Mar. 14, 2025) is a Vermont Supreme Court entry order affirming the termination of a father’s parental rights to his son, O.S. The appeal centered on whether the family division correctly found (1) a post-disposition change in circumstances—specifically parental “stagnation”—and (2) that termination served the child’s best interests under 33 V.S.A. §§ 5113(b) and 5114(a).

The case arose after three CHINS proceedings over several years. Although father periodically engaged in services and completed certain programs, the family division found he repeatedly failed to maintain engagement, consistency, and sobriety-related transparency, while the child—young and with special needs—required permanency. The Supreme Court rejected father’s arguments that program completion defeated stagnation, that the court improperly “equalized” the parent-child bond with other relationships under the first best-interest factor, and that the family division speculated or shifted the burden on the “reasonable time” factor.

Note: The order itself states that three-justice panel decisions “are not to be considered as precedent before any tribunal.” Even so, it is a useful synthesis of controlling principles the Court treats as settled.

2. Summary of the Opinion

The Vermont Supreme Court affirmed termination. It held:

  • The family division properly found changed circumstances based on father’s stagnation—notwithstanding his completion of some programs—because the core concern is sustained improvement in parenting capacity and safety, not box-checking.
  • The family division did not err under 33 V.S.A. § 5114(a)(1) by considering the child’s relationships with father and with the maternal grandmother/foster parent and extended family; the statute directs consideration of relationships with “any other person” significantly affecting the child’s best interests.
  • The family division’s finding under 33 V.S.A. § 5114(a)(3)—that father was unlikely to resume parenting within a reasonable time from the child’s perspective—was forward-looking but properly grounded in father’s pattern of progress and regression, inconsistent visits, limited transparency about sobriety monitoring, and ongoing criminal violations.

3. Analysis

A. Precedents Cited

The Court’s reasoning is built explicitly on a line of Vermont termination cases and a few constitutional/appellate standards decisions. Each cited authority serves a distinct function:

  • In re S.W., 2003 VT 90, ¶ 4, 176 Vt. 517 (mem.)
    Used for the central definition of “changed circumstances” in post-disposition termination litigation: changed circumstances are “most often found” when parental capacity “has either stagnated or deteriorated over the passage of time.” This anchors the threshold inquiry under 33 V.S.A. § 5113(b).
  • In re N.L., 2019 VT 10, ¶ 9, 209 Vt. 450
    Supplies the appellate review framework: the Supreme Court will not disturb findings unless clearly erroneous and will affirm conclusions supported by findings, so long as the correct standard was applied. The Court later reuses this citation to reject father’s challenge to the family division’s weighting of best-interest factors.
  • In re D.M., 2004 VT 41, ¶¶ 5, 7, 176 Vt. 639 (mem.)
    The Court’s key “not a checklist” principle: compliance with a case plan does not guarantee reunification; the question is whether the parent demonstrated the improvement contemplated when removal occurred. The Court relies heavily on In re D.M. to explain why completing Nurturing Parenting/Caring Dads/other programs did not preclude a stagnation finding when father could not sustain engagement, sobriety monitoring cooperation, and consistent parenting presence.
  • In re T.M., 2016 VT 23, 201 Vt. 358
    Father argued similarity: he portrayed the stagnation finding as based on “bare evidence” of drug noncompliance. The Court distinguishes In re T.M., emphasizing that in that case the State failed to establish meaning/reliability of drug-test results and, more importantly, failed to connect them to treatment progress or parenting. Here, by contrast, the record showed a broader, behaviorally grounded pattern: inconsistent visits, revocation of releases, refusal to share urinalysis results, incarceration, lack of communication during residential treatment, and multiple probation-violation charges—evidence connecting engagement failures to parenting reliability and child safety.
  • Troxel v. Granville, 530 U.S. 57, 65 (2000) and In re K.M.M., 2011 VT 30, ¶ 24, 189 Vt. 372
    Cited for the proposition that parents have a fundamental liberty interest in the care, custody, and control of their children. The Court uses these not to heighten the statutory test, but to frame and then reject father’s claim that a positive parent-child relationship must tip § 5114(a)(1) against termination.
  • In re R.W., 2011 VT 124, ¶ 43, 191 Vt. 108
    Provides the limiting principle on parental liberty interests: they are not absolute; in termination cases the “polestar” is the child’s best interests. The Court uses this to rebut the argument that constitutional interests reweight the statutory factor analysis in father’s favor.
  • In re S.B., 174 Vt. 427, 428 (2002) (mem.)
    Draws a sharp line between termination proceedings and ordinary custody contests: termination is a legislatively created process requiring the court to weigh specified statutory best-interest factors—not to decide which caregiver is “better” in a general sense. This supports the Court’s conclusion that the family division acted properly by applying § 5114(a)(1) as written.
  • In re A.F., 160 Vt. 175, 178 (1993)
    Supplies deference on weighing evidence: the family court has discretion to weigh evidence, and disagreement with how the court balanced it does not show abuse of discretion.
  • State v. Bergquist, 2019 VT 17, ¶ 64 n.13, 210 Vt. 102
    Procedural waiver principle: even constitutional issues will not be considered if inadequately raised and briefed. The Court uses it to dispose of any underdeveloped constitutional argument embedded in father’s § 5114(a)(1) claim.
  • In re J.B., 167 Vt. 637, 639 (mem.) and In re C.P., 2012 VT 100, ¶ 30, 193 Vt. 29
    Identify § 5114(a)(3) as the “most important” factor and explain “reasonable time” is measured from the child’s perspective, accounting for young age and special needs. The Court relies on these to justify a child-centered timeline where prolonged uncertainty is itself harmful.
  • In re J.D., 165 Vt. 440, 444-45 (1996) and In re B.M., 165 Vt. 331, 337 (1996)
    Together support predictive judgment grounded in history: juvenile cases require difficult predictions; “best judgment” is the standard; and while § 5114(a)(3) is forward-looking, past events remain relevant to future parental capacity. The Court cites them to validate reliance on father’s repeated pattern of progress followed by regression.
  • In re B.C., 169 Vt. 1, 14 (1999), clarified on other grounds in In re C.P., 2012 VT 100, 193 Vt. 29
    Used to reject “burden shift” arguments: a court’s statement that it “lacked confidence” in a party’s ability is a comment on the evidentiary record, not an improper transfer of the burden of proof.

B. Legal Reasoning

1. The two-step statutory structure: § 5113(b) then § 5114(a)

The Court follows the standard Vermont framework when the State seeks termination after initial disposition:

  1. Threshold—Changed circumstances (§ 5113(b)): the court must determine whether a change in circumstances requires termination to serve the child’s best interests. Stagnation or deterioration commonly satisfies this threshold.
  2. Merits—Best interests (§ 5114(a)): if changed circumstances exist, the court applies the four statutory best-interest factors.

2. “Stagnation” is about durable improvement, not program completion

Father’s principal appellate theme was that he completed multiple programs and had recently attended residential treatment, implying the family division could not find stagnation. The Supreme Court rejects that framing by importing In re D.M.’s functional test: participation is not dispositive; the question is whether the parent demonstrated the improvement contemplated at removal, and whether the parent can sustain that improvement over time.

The Court highlights record facts showing the family division’s focus was maintenance of progress:

  • Father attended only about half of offered visits and sometimes arrived late, impacting the child.
  • He stopped visits entirely for a period (August–October 2023).
  • He revoked releases, limiting DCF’s ability to verify treatment engagement and sobriety.
  • He refused to provide urinalysis results for a period, preventing assessment of sobriety maintenance.
  • He had a brief incarceration and failed to communicate when entering residential treatment.
  • At the final hearing he faced seven probation-violation charges accumulated over three months.

In short, the Court treats “stagnation” as a demonstrated inability to reliably deliver safe, consistent parenting—especially when the child has already experienced repeated removals and returns.

3. Best-interest factor (1): the statute requires considering all significant relationships

Father argued the family division erred by treating grandmother’s relationship as if it were on “equal footing” with the father-child relationship. The Supreme Court answers doctrinally and textually:

  • Termination is not a custody comparison exercise (In re S.B.); it is a statutory factor analysis.
  • While parental rights are constitutionally significant (Troxel v. Granville; In re K.M.M.), in termination matters the child’s best interests govern and parental liberty interests can be overcome (In re R.W.).
  • Section 5114(a)(1) expressly directs the court to consider the child’s interactions with parents, foster parents, and “any other person” significantly affecting the child’s best interests—so considering grandmother’s role was not only permissible but required.

The Court’s holding is narrow but important: a positive parent-child relationship does not mechanically compel factor (1) to weigh against termination; the family court retains discretion to weigh multiple significant relationships within the statutory framework (In re A.F.).

4. Best-interest factor (3): “reasonable time” is child-centered and predictively assessed

On the most important factor—likelihood the parent can resume parental duties within a reasonable time—the Court emphasizes:

  • “Reasonable time” is measured from the child’s perspective and can account for young age and special needs (In re C.P.).
  • Predictive assessments are unavoidable; “best judgment” is the standard (In re J.D.).
  • Past patterns remain relevant to future capacity even in a forward-looking inquiry (In re B.M.).

The family division’s concern was not that father lacked skills in supervised, time-limited contact; it was the reliability and durability of full-time parenting given father’s history of intermittent engagement and regression. The Supreme Court deems that inference permissible and supported by evidence.

5. No improper burden shift

Father claimed the family division shifted the burden by stating it “lacked confidence” he could resume parenting in a reasonable time. The Supreme Court rejects this using In re B.C.: commenting on the evidentiary record is not shifting the burden of proof; it is an explanation of why the proponent’s evidence did not persuade.

C. Impact

Although labeled nonprecedential, the order has practical significance as a clear application of widely cited Vermont termination doctrines:

  • Reinforces the “not a checklist” principle: Completing services does not defeat termination if the parent cannot sustain behavioral change and consistent parenting presence. This is especially salient in cases involving substance use where transparency (releases, testing information) is a functional prerequisite to demonstrating stability.
  • Validates relationship-balancing under § 5114(a)(1): Courts may (and must) consider strong caregiver bonds with foster/kin placements without being accused of improperly “equalizing” them with parental bonds—so long as the analysis remains statutory and child-centered.
  • Supports child-centered timelines: For young children (and particularly children with special needs), repeated cycles of removal and reunification attempts can weigh heavily toward permanency; courts may rely on historical patterns to predict whether “this time” will be different.
  • Discourages appellate reframing of stagnation as “drug noncompliance” alone: The Court’s distinction of In re T.M. signals that litigants should focus on whether the State connected evidence (including testing/sobriety monitoring) to parenting capacity and treatment progress, rather than isolating individual compliance failures.

4. Complex Concepts Simplified

  • CHINS (Child in Need of Care or Supervision): A juvenile court status finding that a child lacks necessary care, safety, or supervision, allowing court-ordered services and potential custody transfers to DCF.
  • CCO (Conditional Custody Order): The child returns to a parent subject to enforceable conditions (e.g., treatment, sobriety, home safety).
  • Termination of parental rights (termination of residual parental rights): A final order severing the legal parent-child relationship, typically to free a child for adoption or other permanent placement.
  • Burden of proof (preponderance vs. clear and convincing): The CHINS merits were found by a preponderance (more likely than not). Termination findings require clear and convincing evidence (a higher level of certainty).
  • Changed circumstances / “stagnation”: After disposition, the State must show something has changed such that termination is required for the child’s best interests. “Stagnation” means the parent has not progressed as needed over time—often reflected in repeated relapse-like patterns, inconsistency, or inability to maintain improvements.
  • “Reasonable time” from the child’s perspective: The question is not how long the parent would like, but how long the child can reasonably wait for safe, stable parenting, given the child’s developmental needs and history.

5. Conclusion

In re O.S. affirms a termination order where father’s intermittent engagement, inconsistent visitation, limited transparency about sobriety monitoring, and ongoing legal problems supported a finding of post-disposition stagnation and an inability to resume parenting within a reasonable time from a young child’s perspective. The order underscores three takeaways: (1) case plans are not compliance checklists; courts look for sustained, functional change; (2) under § 5114(a)(1) the court must consider all significant relationships affecting the child’s best interests, not only the parent-child bond; and (3) forward-looking “reasonable time” determinations may properly rely on past patterns because juvenile adjudication necessarily involves predictive judgment aimed at securing permanency for children.