Termination Need Not Await Permanent Placement: Past Conduct Can Establish Inability to Parent Within a Reasonable Time

Case: In re A.S., W.S., A.S., M.S., and A.S., Juveniles (A.S., Father)

Court: Supreme Court of Vermont (three-justice panel; entry order)

Date: October 3, 2025

Disposition: Affirmed (termination of father’s parental rights)

Note: The Court expressly states that decisions of a three-justice panel are not precedential. The analysis below treats this decision as persuasive, not binding authority.

Introduction

This entry order from the Vermont Supreme Court affirms the family court’s decision to terminate a father’s parental rights to five minor children following a post-disposition change-of-circumstances and best-interests analysis under 33 V.S.A. § 5114(a). The case centers on whether the father’s progress toward reunification had stagnated and whether he could resume parenting within a reasonable time in light of repeated incarcerations, relapse, and new criminal charges.

The opinion also addresses two recurring questions in termination-of-parental-rights (TPR) litigation: (1) the role of a parent’s past conduct in the forward-looking “reasonable time” assessment, and (2) whether uncertainty in a child’s permanent placement should delay termination. The Court, reiterating established Vermont law, concludes that past conduct can inform the reasonable-time analysis and that termination does not depend on—or need to await—the availability of a permanent foster or adoptive placement.

Summary of the Opinion

After an initial disposition that aimed for reunification within six to nine months, the State moved in May 2024 to terminate both parents’ rights. The family court found that the father’s ability to care for the children had stagnated due to relapse into substance use, failure to comply with probation and DCF requirements, and multiple new criminal charges leading to successive incarcerations. Although father maintained some contact with the children, the court found he had not provided day-to-day care since September 2022 and remained unlikely to resume parental duties within a reasonable time.

On appeal, the father argued that his strong bond with the children and anticipated release from incarceration within six months warranted denying termination. The Supreme Court affirmed, holding:

The trial court applied the correct legal standards: change in circumstances (via stagnation) and best interests under § 5114(a), focusing on the likelihood of resumption of parental duties within a reasonable time.
Unchallenged factual findings—including the father’s repeated incarcerations, relapse, and criminal charges—supported the conclusions.
The parent–child bond is important but not dispositive where maintaining the bond would undermine the children’s best interests.
Termination does not require the State to first secure a permanent foster or adoptive placement or prove that less drastic alternatives would suffice.

Analysis

Precedents Cited and Their Influence

In re B.W., 162 Vt. 287 (1994): Establishes that, in post-disposition TPR proceedings, the court must first find a “change in circumstances.” The family court framed its analysis accordingly, assessing whether the father’s ability to care had stagnated since the disposition order.
In re H.A., 153 Vt. 504 (1990): Clarifies that change in circumstances often appears as stagnation or deterioration in a parent’s capacity. The trial court’s stagnation finding—based on relapse, noncompliance, and repeated incarceration—tracks H.A.’s definition.
In re J.B., 167 Vt. 637 (1998) (mem.): Emphasizes that the most important best-interests factor is whether the parent can resume parental duties within a reasonable time. This principle underpinned the trial court’s conclusion and the Supreme Court’s affirmance.
In re N.L., 2019 VT 10: Supplies two key points: (i) standard of review—factual findings are upheld unless clearly erroneous; and (ii) the “reasonable time” factor is forward-looking but informed by past conduct. The appellate court relied on both to defer to the trial court’s well-supported predictions about father’s future ability based on his past behavior.
In re M.B., 162 Vt. 229 (1994): Holds that maintaining a parent–child bond is not required where doing so would not serve the child’s best interests. This supports the court’s refusal to privilege the bond over other statutory factors.
In re S.B., 174 Vt. 427 (2002) (mem.): Confirms that a valid TPR does not depend on securing permanent foster care or adoption. This defeats the father’s argument that termination should be delayed because the three youngest children’s permanent placement remained uncertain.
In re G.F., 2007 VT 11 (mem.): States that once parental unfitness and inability to resume responsibilities are established, the court need not consider less drastic alternatives. The Court applied this to reject father’s plea for delay or intermediate measures.
14 V.S.A. § 2660(b): Statutory reinforcement that the Family Division need not rule out every alternative disposition once TPR is deemed in a child’s best interests. This codifies the principle reflected in G.F. and S.B.

Legal Reasoning

The Court proceeds in the established two-step framework for post-disposition TPR:

Change in Circumstances via Stagnation: The father’s trajectory—initial engagement during incarceration, followed by relapse, noncompliance, new criminal charges (including kidnapping and aggravated assault), and reincarceration—constituted stagnation in his ability to parent since the disposition order. The Court emphasized that day-to-day caregiving had been absent since September 2022, and intermittent phone/video contact did not offset the lack of real-world caregiving and stability.
Best Interests under 33 V.S.A. § 5114(a): The Court endorsed the family court’s findings across the statutory factors:
- Relationships and Attachments: While the older children loved father, their interest in calls waned. The younger children’s attachment to father was unclear. All children were attached to their foster caregivers and were thriving or improving in those placements, with educational and developmental supports in place.
- Current Placement and Adjustment: The two oldest did well with their maternal aunt and uncle, with school progress and social integration. The three younger children were doing reasonably well with their paternal great-grandmother, with speech and language services and behavioral supports.
- Reasonable Time to Resume Parenting: Father’s current incarceration on serious state and federal charges—and the history of relapse and criminal conduct while at liberty—supported the finding that he could not resume parental duties within a reasonable time. Even assuming a six-month release, father would need additional, uncertain time to secure housing and employment and demonstrate sustained sobriety and law-abiding behavior—tasks he had previously failed to accomplish.
- Constructive Role: Substance use and incarcerations rendered father emotionally and physically unavailable, preventing him from playing a consistent constructive role.

The Court rejected father’s two principal counterarguments:

Parent–Child Bond: Important but not dispositive. The law (M.B.) forecloses a presumption in favor of maintaining the bond at the expense of the child’s needs and stability.
Uncertain Permanency for Some Children: Not a barrier to TPR. Vermont law (S.B., G.F., and § 2660(b)) does not require the State to wait for or prove the availability of permanent placement before terminating parental rights when the parent is unfit and cannot resume parenting within a reasonable time.

A minor factual discrepancy—an apparent misdating of the June 2024 criminal charges as June 2023 in the trial court’s order—was deemed immaterial to the analysis or outcome. The Supreme Court treated it as harmless in light of the overall findings and record.

Impact

Although non-precedential, this entry order reinforces several practical points likely to influence future CHINS/TPR litigation in Vermont:

Past conduct as predictor: Courts may draw reasonable inferences from a parent’s historical relapse, criminal behavior, and noncompliance to predict future ability (or inability) to safely parent within a child-centered timeframe.
Incarceration context: Prison-based engagement and phone/video contact are positive but not substitutes for consistent, safe, day-to-day caregiving in the community. Repeated incarcerations weigh heavily in the stagnation and reasonable-time analyses.
No “wait-for-placement” requirement: The lack of a finalized permanent placement—even for some siblings—does not prevent termination where best interests otherwise support it. This can expedite permanency planning and avoid indefinite delay.
Bond is not controlling: A genuine bond does not override safety, stability, and the child’s developmental needs, particularly where the bond is attenuating and foster placements are meeting needs.
Deference to unchallenged findings: On appeal, the failure to contest factual findings is consequential; where the trial court’s best-interests conclusions are supported by those findings, affirmance is likely.

Practice-oriented observations:

For parents and counsel: Consistent compliance and demonstrated stability upon release—housing, employment, sobriety, and lawful conduct—are critical. Re-engagements that risk relapse (e.g., with substance-using partners) can derail reunification.
For DCF and GALs: Document action steps, service referrals, and the child’s progress and attachments; maintain sibling contact where appropriate; and be prepared to show how present placements meet medical, educational, and developmental needs.
For courts: Individualized findings about each child’s attachments and needs, and clear linkage between past conduct and forward-looking predictions, will support robust appellate deference.

Complex Concepts Simplified

CHINS (Children in Need of Care or Supervision): A legal status found when children lack proper care or are at risk (e.g., due to parental substance use, unsafe caregivers, or absence of legal arrangements).
Conditional Custody Order (CCO): A temporary order placing a child with a parent subject to specified conditions; violation can lead to removal to state custody (DCF).
Stagnation: A failure to make sufficient progress in parenting capacity or case-plan goals over time. It is a recognized “change in circumstances” warranting modification of the disposition.
Best-interests factors (33 V.S.A. § 5114(a)): Statutory criteria including (1) the child’s relationships and attachments, (2) adjustment to home/school/community, (3) the likelihood the parent can resume parental duties within a reasonable time, and (4) the parent’s ability to play a constructive role. The third factor is often paramount.
“Reasonable time”: A forward-looking assessment of when, if at all, the parent can safely resume parenting, informed by past conduct and the child’s needs. It is not keyed to the parent’s schedule but to the child’s timeframe for stability.
Termination without secured placement: Vermont law does not require the State to have an adoptive/foster placement finalized before terminating parental rights; the child’s best interests control.
Standard of Review on Appeal: Appellate courts defer to family courts’ factual findings (unless clearly erroneous) and affirm legal conclusions if supported by those findings.
Harmless factual error: Minor mistakes that do not affect the analysis or outcome (e.g., a misdated event that does not undermine the core reasoning) will not warrant reversal.

Conclusion

The Vermont Supreme Court’s entry order affirms termination of the father’s parental rights based on stagnation and the children’s best interests, focusing on the parent’s inability to resume parenting within a reasonable time. The Court underscores that:

Past behavior is a valid predictor in the reasonable-time analysis;
The parent–child bond, while relevant, is not dispositive;
Termination does not hinge on the availability of a permanent placement or the exhaustion of less drastic alternatives;
Appellate review defers to unchallenged and supported trial findings.

While non-precedential, this decision aligns with and synthesizes core Vermont TPR principles. It signals that courts will not defer permanency where a parent’s pattern of relapse and incarceration renders timely reunification unlikely, and it reassures practitioners that termination may proceed even amid placement uncertainties when the best-interests factors favor severance.