Vermont TPR Clarified: No Comparative “Foster Parent vs. Parent” Balancing, Relative Placement Irrelevant at TPR, and Appellants Must Cure Transcript Defects

Case: In re K.L. and M.L., Juveniles, Supreme Court of Vermont, Case No. 25-AP-154 (Oct. 3, 2025) — Three-justice panel entry order (nonprecedential).

Introduction

This entry order from a three-justice panel of the Vermont Supreme Court affirms termination of parental rights (TPR) for two children, K.L. (born 2014) and M.L. (born 2019). The case arises out of a CHINS proceeding that followed serious safety and substance-exposure concerns in early 2023. The Department for Children and Families (DCF) sought termination in late 2024 after parents made insufficient progress on a court-approved disposition case plan.

On appeal, both parents challenged (1) the change-of-circumstances finding (stagnation), (2) the court’s best-interests analysis under 33 V.S.A. § 5114, and (3) the trial court’s purported “comparison” of parents to foster parents. Mother also attacked the adequacy of the transcript; father argued that termination was unwarranted because he had recently attained sobriety and because the children’s grandparents were willing caregivers.

The Vermont Supreme Court affirmed. In doing so, it reiterated several important principles: (a) at a post-disposition TPR, the family division looks only to change of circumstances and the child’s best interests—not to the fitness of relatives as potential placements; (b) while trial courts must not terminate by comparing parents to foster caregivers, inartful phrasing is not reversible error if the substance of the best-interests analysis is correct; and (c) appellants bear the burden to provide and, when necessary, correct or settle the appellate record and transcripts, and failure to do so can waive claims.

Note on precedential status: As an entry order by a three-justice panel, this decision is not precedential. Nonetheless, it offers a clear synthesis and application of well-settled Vermont TPR law.

Summary of the Opinion

The Court upheld a finding of change of circumstances based on parental stagnation: over nearly two years in DCF custody, neither parent progressed to consistent, safe parenting or to overnight care.
The Court affirmed termination under the § 5114 best-interests factors, emphasizing the dominant factor—whether either parent could resume parenting within a reasonable time measured from the children’s perspective.
Father’s arguments that termination was unnecessary because he was newly sober and because grandparents were available for care were rejected as inconsistent with the TPR framework: after initial disposition, the questions are change of circumstances and best interests; the court need not assess relatives’ parental fitness at TPR.
Although the trial court’s best-interests writeup stated that individual factors “favored” foster parents, the Supreme Court deemed this “inartful” language harmless because the court, in substance, applied the correct child-centered analysis rather than engaging in an impermissible comparative contest.
Mother’s challenge based on an “indiscernible” transcript failed because appellants must order, correct, or settle the record under V.R.A.P. 10; failure to do so waives issues that require a corrected transcript.
Hearsay concerns did not warrant reversal: the foster mother had personal knowledge of key observations, and in any event hearsay is admissible at TPR so long as it is not the sole basis for termination (33 V.S.A. § 5317(b)).
Father was foreclosed from collaterally attacking case-plan goals at the TPR stage because he did not appeal the initial disposition order that approved those goals.

Analysis

Precedents Cited and Their Influence

In re K.F., 2004 VT 40, ¶ 8, 176 Vt. 636 (mem.): Clarifies the two-step framework for post-disposition TPR—(1) change of circumstances, and (2) the child’s best interests. The Court followed this structure here.
33 V.S.A. § 5113(b) and § 5114: Statutory anchors for the change-of-circumstances requirement and the best-interests factors. The opinion’s analysis tracks these provisions, with special focus on the ability to resume parenting within a reasonable time.
In re J.B., 167 Vt. 637, 639 (1998) (mem.): Establishes that the most important best-interests factor is the parent’s ability to resume parenting within a reasonable time. This principle drove the outcome given father’s recent, early-stage recovery and mother’s prolonged noncompliance and instability.
In re J.J., 143 Vt. 1, 6 (1983): Parental improvement matters, but the test is whether there is a reasonable possibility of reunification within a reasonable time. Applied here to reject father’s late-breaking sobriety as insufficient for reunification on the children’s timelines.
In re S.W., 2008 VT 38, ¶ 13, 183 Vt. 610 (mem.): At TPR, the family division need not make findings about a relative’s parental fitness. This controlled father’s “grandparent placement” argument.
In re S.B., 174 Vt. 427, 428 (2002) (mem.): TPR is not about comparing which caregiver is “best.” The Supreme Court used this to label the trial court’s “favored the foster parents” phrasing as error in form, but not in substance.
In re I.B., 2016 VT 70, ¶ 12, 202 Vt. 311: Findings need not mimic statutory language verbatim; the question is whether the court clearly considered the relevant factors. This supported treating the trial court’s phrasing as harmless given the underlying analysis.
In re D.M., 2004 VT 41, ¶ 7, 176 Vt. 639 (mem.): The case plan is not a checklist; the core inquiry is whether the parent shows improvement in the conditions that triggered state intervention. The family court organized findings by case-plan goals, but its analysis ultimately tracked the correct improvement inquiry.
In re E.C., 2010 VT 50, ¶ 14, 188 Vt. 546 (mem.): Recitations of testimony are not findings. The Supreme Court noted that despite some recitation, the findings here were sufficient to support the result.
In re A.F., 160 Vt. 175, 181 (1993); 33 V.S.A. § 5317(b): Hearsay may be admissible at termination so long as it is not the sole basis for the decision. This defeated mother’s hearsay challenge.
V.R.A.P. 10(b), (e); In re S.B.L., 150 Vt. 294, 298 (1988); V.R.A.P. 10(b)(1): Appellants must order and, when necessary, correct/settle the record; failure to do so waives issues dependent on a corrected transcript. This disposed of mother’s “indiscernible” transcript argument.
In re C.B., 2020 VT 80, ¶ 38, 213 Vt. 215: After a final disposition order is not appealed, a parent cannot collaterally challenge its terms in a later TPR appeal. The Court cited this to reject father’s claim that only substance use should have mattered where the unappealed plan also included parenting skills, accountability, and domestic violence work.

Legal Reasoning

The Court employed the orthodox two-step TPR analysis.

Change of circumstances (stagnation):
- Both parents stipulated to CHINS on grounds centered on substance exposure and lack of proper parental care in July 2023.
- From early 2023 to the TPR hearing, mother’s visits were inconsistent; she did not complete Family Time coaching; she failed to demonstrate sustained sobriety; she lacked safe, stable housing and income; and she remained connected to unsafe individuals. This produced emotional impacts on the children and demonstrated minimal progress toward reunification.
- Father ceased contact in November 2023 while using substances and disengaged from DCF services; only shortly before the TPR hearing did he begin recovery efforts. The court found he lacked an ongoing, meaningful relationship with the children and would require substantial work to rebuild one. He also did not complete domestic-violence action steps, and the children did not view his housing as safe.
- In light of these facts, the court found the requisite change of circumstances via stagnation—neither parent progressed to safe, consistent, overnight care after nearly two years.
Best interests under § 5114:
- Adjustment and well-being: The children were thriving in a stable foster home with a known “fictive kin” caregiver, routines, school engagement, and supportive relationships.
- Relationships and constructive role: Mother’s inconsistent contact and father’s prolonged absence undermined constructive parental roles. Father’s unexpected appearance at K.L.’s games caused distress, evidencing relational disruption.
- Ability to resume parenting within a reasonable time: The pivotal factor. Mother’s continued instability and father’s very recent sobriety and lack of relationship-building led the court to conclude neither could resume parenting within a timeframe consistent with the children’s needs.

The Court also corrected several legal misconceptions:

Relative placement at the TPR stage: At post-disposition TPR, the family division is not required to assess relatives’ parental fitness or weigh alternative placements; the inquiry is child-centered under § 5114. Father’s reliance on grandparents’ willingness was therefore misplaced.
Comparative “foster parent vs. parent” analysis: While the trial court’s repeated phrase that a factor “favored foster parents” was erroneous, it did not drive the outcome; the substance showed a proper best-interests analysis. TPR cannot rest on the notion that the child might be “better off” elsewhere; rather, it must rest on the statutory factors, especially timely parental resumption of duties.
Appellate record integrity: Appellants bear the burden to order a complete transcript and to move to correct or settle it. Where a party fails to cure “indiscernible” portions, arguments depending on those gaps are waived.
Collateral attacks on the case plan: A parent who did not appeal the disposition order approving the plan cannot later claim at TPR that plan goals were improper. Accordingly, father’s effort to narrow the case to substance use alone failed where he had not challenged additional goals (parenting skills, accountability, domestic violence) when they were adopted.
Hearsay at TPR: Hearsay is admissible so long as it is not the exclusive basis for termination, and here there was ample direct evidence in addition to the foster mother’s personal observations.

Impact

While nonprecedential, the order synthesizes and reinforces recurring themes in Vermont CHINS/TPR practice:

For trial courts: Avoid framing best-interests findings as “favoring” foster parents; state conclusions in terms of the child’s needs and the statutory factors. Ensure that findings are actual findings, not summaries of testimony. Organizing findings by case-plan goals is permissible so long as the court’s ultimate focus remains on improvement in the conditions that precipitated state intervention.
For DCF and GALs: Document offers of services, parental engagement/nonengagement, and the children’s adjustment and needs. This case illustrates that prolonged parental absence and late-stage improvement may still not meet the “reasonable time” standard from the child’s perspective.
For parents and counsel: Maintain contact and engage with services; complete Family Time coaching and related case-plan steps; and if the disposition plan is objectionable, appeal or move to modify promptly. Do not rely on the availability of relatives at TPR; make relative placement arguments earlier (e.g., disposition, permanency, or placement-review stages).
For appellate advocates: Scrutinize the record early. If transcripts contain “indiscernible” portions, use V.R.A.P. 10(e) to settle or correct the record; otherwise, arguments hinging on missing content may be deemed waived.
For evidence practitioners: Hearsay is admissible at TPR under § 5317(b) and In re A.F., but should not be the sole basis for termination; corroborate with direct evidence and personal-knowledge testimony when available.

Complex Concepts Simplified

CHINS (Child in Need of Care or Supervision): A legal status indicating a child requires state intervention due to abuse, neglect, or lack of proper parental care. Here, the parents stipulated that the children were CHINS due to exposure to substance use and related risks.
Disposition case plan: A court-approved roadmap specifying services and goals for reunification. It guides expectations but is not a mere checklist; the central question is whether parental improvement addresses the original safety risks.
Change of circumstances/Stagnation: Before terminating after disposition, the court must find circumstances have changed—typically that progress has stalled or not occurred despite services and time.
Best interests (§ 5114): Four statutory factors guide the decision, with special emphasis on whether the parent can resume parenting within a reasonable time as measured from the child’s needs and timeline.
“Reasonable time” from the child’s perspective: The law focuses on the child’s developmental needs and sense of time, not the parent’s preferred timeline. Late but promising improvements may be insufficient if they cannot mature into safe parenting promptly.
“Fictive kin”: Non-relatives with a close connection to the child or family (e.g., a known school figure) who can serve as caregivers, offering continuity and stability.
Hearsay at TPR: Unlike at a traditional trial, some hearsay is admissible in TPR hearings; however, termination cannot rely solely on hearsay.
Appellate record duties (V.R.A.P. 10): The appellant must ensure the appellate court has all necessary transcripts and must correct or settle any defects; failing to do so can forfeit related arguments.

Conclusion

In re K.L. and M.L. reaffirms core Vermont TPR principles and clarifies several practice points. The Supreme Court endorsed the family court’s focus on stagnation and the child-centered best-interests analysis, particularly the ability to resume parenting within a reasonable time. It rejected a comparative “who is better” approach and underscored that relative placement questions are not part of the post-disposition TPR calculus. The decision also serves as a caution to appellants about managing the appellate record and to trial courts about drafting precise findings without comparative foster-parent language. Although nonprecedential, the order is a cogent application of Vermont’s TPR framework and a useful guide for judges, practitioners, and child-welfare stakeholders navigating the complex intersection of parental rehabilitation and children’s need for timely permanence.