2014 VT 76


In re B.A. (2013-343)
 
2014 VT 76
 
[Filed 18-Jul-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 76

 

No. 2013-343

 

In re B.A., Juvenile


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Windham Unit,


 


Family Division


 


 


 


June Term, 2014


 


 


 


 


John
  P. Wesley, J.


 

Michael Rose, St. Albans, for Appellant.
 
Kerry A. McDonald-Cady, Windham County Deputy State’s
Attorney, Brattleboro, for Appellee.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ.
 
 
¶ 1.            
REIBER, C.J.   Mother appeals the family court’s
adjudication of her daughter B.A. as a child in need of care or supervision
(CHINS).  She argues that the court erred in combining the merits of the
CHINS proceeding with the disposition of a concurrent delinquency proceeding. 
Mother contends that the court lacked statutory authority to combine the
hearings and that striking the CHINS adjudication is necessary to cure the
error.  We affirm.
¶ 2.            
The facts supporting the CHINS adjudication as found by the trial court
are as follows.  B.A. was born in June 1999.  In the fall of 2012,
B.A. was referred to a specialized educational program due to sporadic school
attendance and safety issues raised by school personnel regarding suspected use
of regulated substances.  From the beginning of her attendance, school
personnel noticed difficulties with B.A.’s hygiene, including dirty, torn
clothing and unkempt hair.  School staff also noticed scars from
self-injury.  
¶ 3.            
In December 2012, police investigated a report that B.A.’s brother had
been sexually assaulted by a friend of B.A.  The assault allegedly was
witnessed by B.A. and took place in mother’s home when mother was present in
another room.  When the investigating detective interviewed B.A. and her
brother, mother was argumentative and uncooperative.  She would not allow
police access to her home to look for relevant evidence.  Police obtained
a search warrant, and observed that the residence was “extremely cluttered and
dirty.”  There were stacks of items over five-feet high, food items and
dirty dishes on counters, and the floor was sagging in a hazardous
manner.  The Department for Children and Families (DCF) sought an
emergency care order based on the condition of the home, but it was denied due
to lack of proof that the home was the children’s regular residence.  
¶ 4.            
In January 2013, B.A. arrived at school intoxicated and with fresh cuts
on her arm.  B.A. admitted she had been drinking all night and had
continued drinking on the bus to school.  School staff members were
extremely concerned and contacted mother.  Although the school director
explained to mother that she viewed the situation as urgent and believed B.A.
required immediate mental-health intervention, mother maintained that she was
unable to reschedule her own medical appointment to come immediately.
¶ 5.            
Two days later, the court granted DCF’s request for an emergency care
order.  The State subsequently filed two petitions: one alleging that B.A.
committed a delinquent act by consuming alcohol, and the other alleging that
B.A. was CHINS for lack of proper parental care.  Following a temporary
care hearing, the court granted DCF custody of B.A., and DCF placed her in a
foster home.  
¶ 6.            
The delinquency and child-neglect petitions proceeded
simultaneously.  In March 2013, B.A. admitted the delinquent act, and in
April 2013, DCF recommended a disposition of juvenile probation and continued
DCF custody.  Mother opposed the CHINS petition and the recommendation of
continued DCF custody in the delinquency disposition plan.  The court
combined the two issues for a contested hearing.  Prior to the hearing,
mother made a voluntary waiver of her right to be represented by counsel. 

¶ 7.            
The court held a merits hearing over two days in July 2013.  At the
hearing, the State presented testimony from B.A.’s school director and
principal, her DCF caseworker, the state police detective who had gone to
B.A.’s home in December 2012 to investigate the sexual assault, and the
troopers who executed the emergency care order.  
¶ 8.            
Mother testified on her own behalf, and presented testimony from her
friend, her son, and her mother.  Mother claimed that she did not bear any
responsibility for B.A.’s difficulties.  She stated that B.A. was washed
and dressed appropriately for school each day.  She also testified that
B.A. was not intoxicated when she left home that January morning, and that she
was unable to come immediately to assist B.A. because she needed to get medication
refilled.  She stated further that B.A.’s instability was due to the fact
that the boy who had allegedly sexually assaulted B.A.’s brother was riding the
same bus and going to the same school as B.A.
¶ 9.            
In a written order, the court found that B.A. was CHINS for lack of
proper parental care.  The court found that B.A.’s “state of intoxication
and disarray” when she arrived at school on that January morning demonstrated a
lack of proper parental care alone sufficient to support a CHINS finding. 
The court did not credit mother’s explanation that B.A. had not been
intoxicated when she left the house.  In addition, the court found that
parental neglect was further demonstrated by the living conditions in mother’s
house, which were unclean and unsafe, as well the harmful outbursts of rage
that mother exhibited in front of B.A.   
¶ 10.         On
the disposition recommendation, the court approved the case plan of continued
DCF custody in the delinquency docket.*  The
court found that B.A. had changed dramatically since being removed from her
mother’s custody, and her “appearance, hygiene, attitude, composure, study
habits, relations to peers and teachers” had all improved.  
¶ 11.         On
appeal, mother does not challenge any of the court’s evidentiary
findings.  Instead, she argues that juvenile-protection proceedings
mandate a particular statutory procedure and the court’s failure in this case
to precisely adhere to that procedure caused reversible error.  The
statutory procedures for both juvenile-delinquency and child-neglect
proceedings follow a similar path.  In both cases, the State initiates the
case by filing a petition alleging the factual basis.  See 33 V.S.A. §§
5222 (setting forth required contents of delinquency petition), 5310
(delineating requirements for petition alleging child is CHINS).  Once the
court finds that the child is delinquent or CHINS, a disposition plan is
prepared.  See id. §§ 5230 (requiring disposition case plan in
delinquency to include, among other things, assessment of child’s needs, any
proposed probation conditions and permanency goal if child is in DCF custody),
5316 (describing necessary contents of disposition case plan in CHINS cases,
including permanency goal, assessment of child’s needs and recommendation for
custody).  The merits hearings, if contested, are subject to the Vermont
Rules of Evidence.  Id. §§ 5229(d), 5315(d). 
At the disposition hearing, hearsay may be admitted and relied on if probative. 
Id. §§ 5231(b), 5317(b).
¶ 12.         Thus,
both types of cases employ a bifurcated procedure, separating the merits from
the disposition phase.  See In re D.D., 2013 VT 79, ¶ 20, ___ Vt.
___, 82 A.3d 1143 (describing bifurcated nature of abuse-and-neglect
proceedings).  The statute envisions that in some cases “with the
agreement of the parties,” the court can proceed directly from the merits to
disposition based on an initial case plan.  33 V.S.A. §§
5229(h), 5315(h).
¶ 13.         Mother
contends that here the court lacked statutory authority to simultaneously take
evidence on both the merits of the CHINS petition and the delinquency
disposition plan.  Assuming, without deciding, that the court’s procedure
failed to comply with the terms of the statute, we conclude the error is not
grounds for reversal because mother failed to preserve the issue and combining
the hearings did not cause prejudice.  
¶ 14.         Mother
did not object to combining the two hearings before the family court.  At
a status conference on April 19, 2013, the court suggested combining the merits
of the CHINS petition with the hearing on disposition in the delinquency docket
since mother opposed the recommendation for continued DCF custody.  The
court acknowledged that it would be “tricky” because different evidentiary
rules applied in the two proceedings, but indicated that the issue and the
witnesses were the same, and a joint hearing would serve judicial
economy.  The court directed that the State would have to go forward in
the joint hearing “without resort to the relaxed rules of evidence, which
otherwise it would be entitled to . . . in
the disposition hearing.”  See V.R.C.P. 42(a) (allowing joint hearings or
trials of matters involving common questions of law or fact); V.R.F.P. 2
(incorporating V.R.C.P. 42 into CHINS proceedings).  The State agreed to
the procedure, and mother made no objection to the proposal at that time or at
any subsequent point in the proceedings before the family court.  
¶ 15.         Generally,
in juvenile proceedings, as for other civil cases, unpreserved issues that are
not raised at trial are waived on appeal.  See In re A.W., 2014 VT
32, ¶ 28, ___ Vt. ___, ___ A.3d ___ (declining to address parents’ argument
that court improperly relied on evidence regarding events occurring after CHINS
petition was filed where no objection was raised at trial); In re C.H.,
170 Vt. 603, 604, 749 A.2d 20, 22 (2000) (mem.) (concluding
father’s argument waived where it was not raised in family court proceedings); In
re D.C., 157 Vt. 659, 660, 613 A.2d 191, 191 (1991) (mem.) (explaining that issues not presented to trial court for
consideration are waived on appeal).  Nonetheless, this Court can consider
unpreserved errors in “exceptional cases” where the error is “so obvious, grave, and serious as to warrant
reversal.”  In re D.C., 157 Vt. at 660, 613 A.2d at 192 (citing Varnum v. Varnum,
155 Vt. 376, 382-83, 586 A.2d 1107, 1110-11 (1990) (explaining that unpreserved
constitutional claim in child custody case would be reviewed under only a very
limited standard of review)).  
¶ 16.         Here,
the unpreserved error mother claims does not amount to a “fundamental
miscarriage of justice” warranting reversal.  Varnum,
155 Vt. at 383, 586 A.2d at 1111.  Mother
contends that by combining the procedures, the merits determination was tainted
by the admission of irrelevant and inadmissible evidence.  However, the
only irrelevant evidence mother identifies is testimony that mother introduced
concerning whether the school or DCF were aware that the boy who had allegedly
abused B.A.’s brother was riding the school bus with her.  This was
evidence introduced to support mother’s theory that B.A.’s appearance and
behavior were caused by riding the bus with the alleged abuser. 
Therefore, to the extent it was improperly admitted, it would have supported
mother’s case, not caused prejudice.
¶ 17.         Mother
also claims that the State was allowed to present inadmissible hearsay
testimony when a DCF case worker testified regarding a substance-abuse
evaluation of B.A.  Mother fails to explain how admission of this
evidence, even if improper in the context of the CHINS determination, mandates
reversal.  When evidence is improperly admitted in a CHINS determination,
the decision is reversible only when the “findings independent of the
challenged evidence do not support a conclusion that the child is without
proper parental care.”  In re R.M., 150 Vt. 59,
66, 549 A.2d 1050, 1055 (1988) (quotation omitted).  Here, the
court’s findings supporting the CHINS adjudication are independent of the
evidence challenged by mother.  Properly admitted evidence supports the
court’s findings that B.A. was in mother’s care when she frequently came to
school unwashed and unkempt, with marks of self-injury and, on one occasion,
intoxicated and in a vulnerable emotional state.  These findings alone
support the court’s conclusion that mother failed to provide B.A. with proper
parental care, and, therefore, there are no grounds for reversing the CHINS
adjudication.
¶ 18.         Mother
also contends that the disposition proceeding was deprived of relevant evidence
because the court did not admit hearsay evidence proffered by mother.
 Mother posits that there may have been reports that would have been
helpful in determining the best interests of the child and, because they were
hearsay, the court did not have the benefit of the information.  Mother
also points to the fact that she was denied the opportunity to introduce school
records on hearsay grounds to demonstrate that they contained no notation
regarding B.A.’s poor hygiene.  
¶ 19.         At
disposition in a delinquency proceeding, the court must make provision for the
child’s supervision and protection, and is authorized to transfer custody of the
child to the Commissioner of DCF.  33 V.S.A. § 5232. 
Disposition decisions are discretionary, and this Court requires the family
court to use its “[b]est judgment, rather than
perfection,” as the guiding standard.  In re J.D.,
165 Vt. 440, 444-45, 685 A.2d 1095, 1099 (1996).  Mother fails to
demonstrate any reversible error.  Although mother claims that the court
would have benefited from admission of hearsay reports, mother does not
identify any such reports, or explain what those reports would have shown. 
Further, mother fails to show how admission of the school records would have
changed the result.  The court’s findings concerning B.A.’s appearance at
school were amply supported by the testimony of school personnel and the
testimony of the state detective regarding the appearance of mother’s
home.  Further, even assuming that the records could undercut the
testimony regarding B.A.’s lack of hygiene, the disposition order is supported
by facts independent of the court’s findings regarding B.A.’s appearance. 
The court’s disposition decision for continued custody with DCF was based in
large part on the “remarkable” improvements B.A. had made, not just in her
personal appearance, but also in her study habits, attitude and behavior since
being placed with her foster family.  Significantly, the court found that
B.A. had not had any further incidents of substance abuse or self-injury. 
Concurrently, the court found that mother demonstrated an inability to put her
child’s needs ahead of her own.  Therefore, the court did not abuse its
discretion in concluding that continued custody with DCF was in B.A.’s best
interests.
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





*  At the end of
its decision, the court approved the same disposition report and case plan in
the CHINS docket.  



