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@vermont.gov or by mail at: Vermont Supreme Court,
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be made before this opinion goes to press.


                                         2016 VT 9

                                        No. 2015-273

In re J.C. & T.F., Juveniles                                Supreme Court

                                                            On Appeal from
                                                            Superior Court, Franklin Unit,
                                                            Family Division

                                                            December Term, 2015


Alison S. Arms, J.

Matthew Valerio, Defender General, and Joshua S. O’Hara, Appellate Defender, Montpelier, for
 Appellant Mother.

William H. Sorrell, Attorney General, and Martha E. Csala, Assistant Attorney General,
 Montpelier, for Appellee Department for Children and Families.

Michael Rose, St. Albans, for Appellee Juveniles.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


       ¶ 1.    REIBER, C.J.      Mother appeals from a superior court order adjudicating the

minors J.C. and T.F. to be children in need of care and supervision (CHINS). Mother contends

that the evidence and findings fail to support the judgment, and that the court’s findings were

conclusory and inadequate. We affirm.

       ¶ 2.    This proceeding commenced with the filing of CHINS petitions in June 2014,

based on reports and observations of social-service providers concerning mother’s care of the
children during the preceding six months. At the time, mother was living with her child, J.C.,

who was almost five years old, her husband and their daughter, T.F., who was almost two years

old, and her husband’s daughter K.P., who was then six years old. K.P. is the subject of a

separate CHINS proceeding. The trial court held a merits hearing as to J.C. and T.F. in May

2015, and issued a written ruling in July 2015.

       ¶ 3.     The facts may be summarized as follows. An in-home service provider with the

Early Head Start program who visited the family on several occasions in May 2014 observed a

number of cruel and abusive interactions between mother and her stepdaughter K.P. Mother told

K.P. that “she didn’t want her anymore,” informed the Head Start provider that she wanted to

paddle K.P. “until she bled,” admitted that she had not given K.P. anything to drink for two days

to teach her a lesson for “stealing food from the refrigerator,” reported that she had made K.P.

stand in a corner for hours, and stated that she “want[ed] to be the next one on T.V. for killing

her kid K.P.”

       ¶ 4.     Based on the Head Start provider’s report, a social worker with the Department

for Children and Families also visited the home. She observed that mother appeared to be

stressed, overwhelmed, and agitated throughout the visits, noted similarly cruel treatment of

K.P., and also observed an incident in which mother grabbed J.C. by the arms and forced the

child onto a couch. Mother testified that she regularly suffered from depression, and had been

prescribed medication but was not taking it. Father testified about his own extensive history of

drug abuse and struggles to stay clean and sober. Although his work kept him away from the

home for much of the time, he testified that he had no concerns about mother’s treatment of the

children.




                                                  2
       ¶ 5.    The court concluded that mother had emotionally and physically abused K.P., and

further concluded that the evidence demonstrated mother’s general inability to properly care for

J.C. and T.F. and her need for parenting education. The court noted father’s need for continued

substance abuse treatment. Based on these conclusions, the court adjudicated both children to be

CHINS, and set the matter for a disposition hearing. This appeal by mother followed.

       ¶ 6.    When reviewing a CHINS adjudication, we will “uphold the court’s factual

findings unless clearly erroneous and the court’s legal conclusions when supported by those

findings.” In re D.D., 2013 VT 79, ¶ 34, 194 Vt. 508, 82 A.3d 1143.

       ¶ 7.    A child is “in need of care or supervision” when, among other possible situations,

he or she is “without proper parental care or subsistence, education, medical, or other care

necessary for his or her well-being.” 33 V.S.A. § 5102(3)(B). As we have explained, “[t]he

focus of a CHINS proceeding is the welfare of the child, and therefore a court may adjudicate the

child as CHINS even if the allegations are established as to one parent but not the other.” In re

C.P., 2012 VT 100, ¶ 28, 193 Vt. 29, 71 A.3d 1142. The principal issue “is whether, given all of

the circumstances, the child is without proper ‘parental’ care, such that the child’s well-being is

threatened,” a “question of fact, . . . and each case must be determined on its own facts.” In re

G.C., 170 Vt. 329, 334, 749 A.2d 28, 32 (2000) (quotation omitted). Because the critical focus

in a CHINS proceeding is on the child’s well-being, the State is not required to demonstrate that

the child has suffered actual harm, but rather is subject to a risk of harm. See In re L.M., 2014

VT 17, ¶ 29, 195 Vt. 637, 43 A.3d 553 (noting that State did not “need to establish actual harm”

to show that child was CHINS); see also E.J.R. v. Young, 162 Vt. 219, 223, 646 A.2d 1284,

1287 (1994) (explaining that “[a]ctual and completed harmful acts cannot be, and are not, a

precondition to a CHINS finding”). It is equally well settled that “[t]he family court may rely on




                                                3
evidence of the treatment of a sibling in concluding that a child is a CHINS.” Young, 162 Vt. at

224, 646 A.2d at 1287; see also In re J.J.P., 168 Vt. 143, 148, 719 A.2d 394, 397 (1998) (“The

court may rely on evidence of a parent’s treatment of siblings to show a pattern of abuse and

neglect, and a general inability to protect the children from harm.”).

       ¶ 8.      Mother concedes that evidence of a parent’s treatment of a sibling may be

relevant in deciding whether a child is CHINS. She contends, however, that such treatment “is

not alone conclusive” and that the trial court here erred “when it concluded that treatment of a

sibling alone, without any connection to the children subject to the CHINS petition, was

sufficient to conclude those children are CHINS.”

       ¶ 9.      The record does not support mother’s characterization of the court’s ruling or the

evidentiary basis of its decision.     As noted, the trial court concluded that mother’s cruel

treatment of K.P. “also endanger[ed] the health and welfare of J.C. and T.F.” This conclusion

found support in the testimony of the family’s DCF social worker, who testified at length about

her observations of mother at home with all three children. The social worker observed that

mother was generally “stressed out [and] overwhelmed”; that the apartment was “chaotic”; and

that mother’s demeanor throughout the visit was “very agitated.” Although mother’s blatant and

vicious cruelty was directed at K.P., the social worker also observed an incident in which

mother, while “extremely stressed,” grabbed J.C.’s arms and pushed the child onto a couch with

such force that the social worker “voiced to [mother] my concern for the way that she was

handling her own daughter.” The social worker also recalled that, “[w]ith all three children . . .

[mother] was very agitated,” and that mother readily acknowledged feeling verwhelmed by her

circumstances.




                                                 4
       ¶ 10.   In addition, a DCF investigator who visited the home several months before the

filing of the CHINS petition recalled that mother had complained of J.C.’s “behavioral

difficulties” and had admitted her “struggles to manage J.C.’s behaviors.” In her own testimony,

mother acknowledged that she “struggle[d] with depression,” had difficulty finding counselors

she “mesh[ed]” with, and went through periods where she “tend[ed] to fade away.”

       ¶ 11.   The record thus does not support mother’s claim that the trial court relied solely

on her treatment of K.P. in concluding that J.C. and T.F. were at risk. On the contrary, the

record shows that mother’s cruelty occurred in circumstances where all three children were

present and where—according to several disinterested witnesses—she exhibited a high level of

stress and agitation which manifested itself in a least one instance of physical aggression toward

J.C. that caused concern and comment by the family’s DCF social worker. This was sufficient to

support the court’s conclusion that her general conduct endangered the health and welfare of J.C.

and T.F.

       ¶ 12.   Mother also makes much of the court’s findings that she “singled out K.P. for

disparate treatment” and was observed to “treat K.P. differently than the other children.” Mother

maintains that these findings betray a “logical inconsistency” with the court’s subsequent

conclusion that her behavior posed a risk to the other children. The argument is unpersuasive.

The risk to J.C. and T.F. was plainly predicated on the agitated and unstable environment in

which K.P.’s abuse occurred; finding that mother singled-out K.P. for particular abuse is not

inconsistent with that determination.

       ¶ 13.   Finally, mother asserts that the court’s findings are sparse and conclusory and fail

to adequately explain the reasoning underlying its decision.       CHINS orders must set forth

findings sufficient to support a conclusion that the child is in need or care or supervision. In re




                                                5
M.C.P., 153 Vt. 275, 291, 571 A.2d 627, 636 (1989). The court’s specific findings as to J.C. and

T.F. are indeed truncated, and its analysis would have been far stronger if it had cited the facts

set forth earlier in its ruling to support its ultimate conclusion that the children were CHINS. We

are satisfied, however, that the decision provides a minimally sufficient basis to understand the

court’s reasoning, and to support its conclusion that the children were in need of care or

supervision.

       Affirmed.

                                                 FOR THE COURT:



                                                 Chief Justice


       ¶ 14.   ROBINSON, J., dissenting. I don’t disagree with the majority’s characterization

of the applicable law in this case, but do disagree with the majority’s holding that the trial court’s

findings support its conclusion that J.C. and T.F. were CHINS. I would remand to the trial court

for further findings.

       ¶ 15.   The applicable law is uncontroversial: it requires a distinct determination that a

child is without proper parental care with respect to each child subject to a CHINS petition, but

does not necessarily require a finding that the child has suffered actual harm; and it allows but

does not require a factfinder, in appropriate circumstances, to infer that a parent’s conduct

toward one child reflects a risk to the other.

       ¶ 16.   With respect to the first point, this Court has explained, “the focus of a CHINS

proceeding is the welfare of the child.” In re B.R., 2014 VT 37, ¶ 13, 196 Vt. 304, 97 A.3d 867

(quotation omitted). Accordingly, the family division should focus on the child’s welfare rather

than on the respective unfitness of each parent. Id. ¶ 14; see also 33 V.S.A. § 5315(a) (“At a



                                                  6
hearing on the merits of a petition, the State shall have the burden of establishing by a

preponderance of the evidence that the child is in need of care and supervision.” (emphasis

added)). Moreover, the question before the court is “whether, given all of the circumstances, the

child is without proper parental care, such that the child’s well-being is threatened.” In re G.C.,

170 Vt. 329, 334, 749 A.2d 28, 32 (2000) (internal quotations omitted). Actual harm is not a

prerequisite to a CHINS finding. In re L.M., 2014 VT 17, ¶ 29, 195 Vt. 637, 93 A.3d 553.

       ¶ 17.   Concerning the second point, this Court has explained that “ ‘[w]hether treatment

of one child is probative of neglect or abuse of a sibling must be determined on the basis of the

facts of each case.’ ” E.J.R. v. Young, 162 Vt. 219, 224, 646 A.2d 1284, 1287 (1994) (quoting

In re D.P., 147 Vt. 26, 30, 510 A.2d 967, 970 (1986)). Where evidence reflects “a pattern of

abuse and neglect, and a general inability of [a parent] to protect” any of the children, the family

division “may rely on evidence of the treatment of a sibling in concluding that a child is a

CHINS.” Young, 162 Vt. at 224, 646 A.2d at 1287. In Young, this Court considered a neglect

petition concerning a newborn child whose four older siblings had been the subject of hearings to

terminate parental rights that concluded a month before the newborn’s birth. Id. at 220, 646

A.2d at 1285. Based on evidence that the parents “exhibited a pattern of conduct toward children

entrusted to their care substantially departing from the norm,” this Court concluded that “there

was more than sufficient evidence strongly linking the treatment of J.R.’s siblings to her own

likely future treatment, justifying the order that she is a CHINS.” Id. at 225, 646 A.2d at 1287

(quotation omitted).

       ¶ 18.   On the other hand, where evidence that supports a CHINS determination with

respect to one child is not probative of the risk of harm to another, that evidence may not support

a CHINS determination as to the second child. See, e.g., In re J.M., 131 Vt. 604, 608-09, 313




                                                 7
A.2d 30, 32-33 (1973). In J.M., the trial court considered five neglect petitions relating to a set

of siblings. The court’s neglect determinations concerning the four older children were not

appealed. The evidence reflected generally that the children lived in an overcrowded and untidy

home. The trial court’s findings concerning the cleanliness of the children were supported by

evidence relating to the four older children while attending school. This Court held that that

evidence could not support a finding that the six-month old child was neglected. Id. at 608-09,

313 A.2d at 32-33. While evidence of a parent’s conduct toward one sibling may support an

inference about the risk faced by another sibling, that inference is not automatic. The evidence

in a particular case must support the inference that the parent’s conduct toward one child reflects

or gives rise to a threat of harm to the other. See also In re M.K., 2015 VT 8, ¶ 6, __ Vt. __, 114

A.3d 107 (noting that trial court found that mother’s abusive action toward one child “stemmed

from her frustration at not being able to control a rowdy five-year old,” and that “at this stage of

his life, the younger child was not at immediate risk of being subjected to the same kind of

conduct”).

       ¶ 19.   Applying these principles to the trial court’s findings, I cannot agree that those

findings support the conclusion that J.C. and T.F. are CHINS.            The trial court’s findings

concerning mother’s horrific treatment of K.P. emphasize K.P.’s unique position in the

household, and fail to provide a bridge from mother’s treatment of K.P. to the risks faced by the

other children. Nor can I join in the majority’s reframing of the trial court’s decision.

       ¶ 20.   The trial court’s findings paint a picture of a vulnerable and unwelcome step-child

who is singled out for shocking mistreatment by mother. The trial court found the following. A

witness from the Department for Children and Families described mother admitting to putting a

backpack on K.P., telling K.P. that she was not welcome any more, and leaving her in the




                                                  8
hallway outside the apartment for an hour; that she had not given K.P. a drink in two days

because the child needed to learn a lesson because the child had been getting up in the middle of

the night to “steal food” from the refrigerator; that K.P. was no longer allowed to have a bed in

her room because she was deliberately urinating and defecating on the bed; and that K.P. was

required to sit on the floor rather than the furniture, while the other children were allowed to sit

on the furniture. The witness saw mother “single[] out [K.P.] for disparate treatment” by

requiring K.P. to stand in the corner for pretending to be a cat even though J.C., who was playing

with her, was not punished. Finally, the witness reported that mother stated that she wanted to

put K.P. on the street, wanted to let DCF take her, and “wanted to be the next one on T.V. for

killing a kid.”

        ¶ 21.     A different social worker testified about mother’s reports of stress with K.P.

Mother said that she did not want K.P., but that the child “came with the marriage.” Mother

described K.P. as an odd child who did not act like a normal child, who ate more food than they

could afford to feed her, and who, as a result of toileting issues, required pull-ups that they could

not afford. That social worker also saw mother “treat K.P. differently than the other children”

during the social worker’s visit to the home.

        ¶ 22.     On the basis of these findings, the trial court concluded that mother’s treatment of

K.P. supported a CHINS finding as to J.C. and T.F. In particular, the court found that K.P.

suffered emotional and physical abuse at the hands of mother. The court elaborated, explaining

that the child came to the home suffering symptoms relating to possible prior trauma, mother was

overwhelmed by K.P.s behavior and ill-equipped to address her needs, mother resented having to

care for K.P., and mother stigmatized the child within the family. The court then addressed the

critical question in this case involving J.C. and T.F.:




                                                   9
               The issue is whether [mother’s] disparate and cruel treatment of
               K.P. also renders her biological children, J.C. and T.F., children in
               need of care and supervision. The Court finds that it does. Further,
               [mother’s] treatment of K.P., and her insensitivity and callous
               disregard for K.P.’s well-being speak to the general need for
               parenting education.

       ¶ 23.   Ordinarily, the leap from a parent’s gross mistreatment of one child to the risk of

harm faced by another would not be particularly great, especially where the evidence reflects “a

pattern of abuse and neglect, and a general inability of [a parent] to protect” any of the children.

Young, 162 Vt. at 224, 646 A.2d at 1287. But in this case, the repeated emphasis in the findings

on K.P.’s unique position—she was a stepchild with significant behavioral challenges who was

intensely unwanted by mother—and on the fact that mother singled out K.P. for disparate

treatment relative to J.C. and T.F., undermines the inference that mother’s abuse of K.P. reflects

a broader pattern that signals a risk of abuse for J.C. and T.F. Under these circumstances, the

trial court’s findings do not connect the dots between mother’s cruel treatment of K.P. and its

CHINS determinations with respect to the other children. See In re M.B., 147 Vt. 41, 45, 509

A.2d 1014, 1017 (1986) (“It is crucial that findings indicate to the parties and to this court, if an

appeal is taken, what was decided and how the decision was reached.”); see also In re J.M. 172

Vt. at 69, 769 A.2d at 663 (holding conclusory statement not “adequate to explain the how the

court weighed the evidence and reached the conclusion it did”).

       ¶ 24.   The majority addresses the limitations of the trial court’s findings by reshaping its

rationale. It characterizes the trial court’s decision as resting on the “agitated and unstable

environment in which K.P.’s abuse occurred.” Ante, ¶ 12. It points to the evidence that

mother’s cruelty occurred in some circumstances in which all three children were present and in

which mother “exhibited a high level of stress and agitation.”




                                                 10
       ¶ 25.   I reject the majority’s approach for two reasons. First, the majority is reframing

the trial court’s findings and interposing its own assessment of the record. The trial court’s

findings focus almost entirely on mother’s mistreatment of K.P., who was not the subject of the

CHINS petitions before the court. The court specifically posed the question of whether mother’s

disparate and cruel treatment of K.P. also renders her biological children CHINS, and, with no

further explanation, answered in the affirmative. In articulating the unstated connection between

mother’s abuse of K.P. and the other children, the majority supplies its own explanation that is

not reflected in the trial court’s analysis. See In re M.M., 2015 VT 122, ¶ 12, __ Vt. __, __

A.3d __ (“It is not our role to second-guess the family court or to reweigh the evidence.”

(quotation omitted)).

       ¶ 26.   Second, absent mother’s mistreatment of K.P., the trial court’s findings of a

generally chaotic household, an overwhelmed mother, and a single incident in which mother

grabbed J.C. by the arm and seated her on the couch with no finding that mother’s actions

involved an unreasonable degree of force, would not come close to supporting the conclusion

that J.C. and T.F. are CHINS. See In re M.M., 2015 VT 122, ¶ 12 (“A child is CHINS if he or

she is without proper parental care or subsistence, education, medical, or other care necessary for

his or her well-being” (quoting 33 V.S.A. § 5102(3)(B))). Nor does a parent’s “general need for

parenting education” trigger a CHINS determination. If these children are CHINS––and I

conclude that the record could support a CHINS determination with the proper factual findings––

       
           In fact, the trial court’s analysis regarding the other children consists of one conclusory
paragraph. The trial court’s decision goes to great lengths to detail the abuse of K.P. But, as the
trial court admits, “[t]he issue is whether [mother’s] disparate treatment of K.P. also renders her
biological children . . . in need of care and supervision.” In an eight page opinion and order, a
whole six and a half pages are dedicated to analyzing K.P. The trial court devotes a mere
paragraph to the children actually under review. While the abuse of K.P. is deplorable, the trial
court needed findings to support its conclusion the other two children were CHINS. Those
findings are missing from the record.


                                                 11
it’s primarily because of the risk of harm to the children arising from mother’s repeated and

callous abuse of K.P. in their presence, not because of the general atmosphere in which that

abuse happened to take place.

         ¶ 27.   The trial court’s findings with respect to mother’s treatment of K.P. were

thoughtful and thorough, but the court’s explanation of the link between that conduct and the risk

faced by the other children was conclusory. The evidence in this record could support a CHINS

determination with respect to J.C. and T.F., but the court’s findings do not compel such a

determination as a matter of law. I would remand this case for additional findings by the trial

court.



                                               Associate Justice




                                               12
