2014 VT 37


In re B.R. (2013-388)
 
2014 VT 37
 
[Filed 25-Apr-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 37

 

No. 2013-388

 

In re B.R., Juvenile


Supreme Court


 


 


 


On Appeal from


     


Superior Court, Franklin Unit,


 


Family Division


 


 


 


January Term, 2014


 


 


 


 


Geoffrey
  W. Crawford, J.
 
Matthew F. Valerio, Defender
  General, and Marshall Pahl, Appellate Defender, Montpelier,
  for Appellant. 
 
William H. Sorrell, Attorney General,
  Robert F. McDougall and Bridget Asay, Assistant
  Attorneys General,
  Montpelier, for Appellee State.
 
Michael Rose, St. Albans, for
  Appellee Juvenile.

 
 
PRESENT:   Reiber, C.J., Dooley, Skoglund and Robinson, JJ.,
and Davenport, Supr. J.,
                     Specially Assigned
 
 
¶ 1.            
DOOLEY, J.   Father appeals from the trial court’s order adjudicating
B.R. a child in need of care or supervision (CHINS).  He argues that the
court’s decision is not supported by the evidence.  We affirm.
¶ 2.            
B.R. was born in November 2012.  On Monday, March 4, 2013, the Department
for Children and Families (DCF) filed a petition alleging that B.R. was CHINS,
and it obtained an emergency care order.[1] 
DCF’s supporting affidavit included, among other things, mother’s alleged
acknowledgement of a long history of significant drug use including intravenous
opiate use and cocaine use.  The affidavit also recounted events that allegedly
occurred shortly before the CHINS petition was filed, including the
circumstances surrounding mother’s Friday, March 1, 2013, arrest for driving
under the influence of drugs with her two older children in the car; mother’s
statements to the arresting officers about being stopped the day before for possessing
a methadone pill and crystal methamphetamine, drugs that she stated belonged to
father; mother’s admission to the arresting officers that she had cooked
methamphetamine with father at the family’s home the night before her DUI
arrest; mother’s concern at that time about B.R.’s welfare in father’s care,
and her fears that father had taken the three-month-old child to a “meth house”
in New York; and mother’s subsequent statements to police on Saturday, March 2,
that she had retrieved B.R. from a “meth house” in New York where father had
taken him.  
¶ 3.            
Following a March 6, 2013 temporary care hearing, the court transferred
temporary custody of B.R. to DCF based on the parties’ stipulation and the
affidavit referenced above.  The court found that mother was addicted to drugs
and unable to care for B.R., and that father might also be addicted and unable
to care for B.R.  B.R. was placed with his maternal great-grandmother.  Father
agreed to this plan. 
¶ 4.            
At the September 2013 merits hearing, mother stipulated that she “was
unable to adequately care for [B.R.] due to long-term substance abuse and her
failure to access and engage in services” to address her drug use and its
impact on B.R.  The allegations in DCF’s affidavit were reserved for the
disposition hearing.  Father did not stipulate that B.R. was CHINS, and the merits
hearing went forward.  
¶ 5.            
The State first sought to introduce testimony from the state trooper who
had stopped mother for DUI, including statements that mother allegedly made to
him about father’s involvement in making methamphetamine at the family’s home,
and father taking B.R. to a meth house in New York where mother later retrieved
him.  The court excluded the trooper’s testimony as inadmissible hearsay.  
¶ 6.            
Following a brief recess, the State indicated that it lacked the
evidence to go forward.  The court queried whether any additional evidence was
necessary.  It explained that mother, who was at least one and possibly the
only custodial parent, had admitted that B.R. was CHINS, which would result in
a disposition hearing no matter what.  The court found nothing in the statute that
required a finding against both parents individually before taking a child into
custody and moving to disposition.  It found that the allegations in the CHINS
petition had clearly been established based on mother’s admission, and given that
B.R. had been living with mother.  
¶ 7.            
A question then arose as to B.R.’s whereabouts on the day the CHINS
petition was filed.  After a discussion between the court and counsel, the court
granted the State’s request to reopen the evidence.  The State then presented
evidence from a DCF social worker who had been working with the family since
July 2012.  She testified that mother and father had been sharing an apartment in
Swanton, Vermont, and that B.R. was living there as well.  
¶ 8.            
The social worker went on to describe the creation of a safety plan in
which B.R. was to live with mother’s parents.  She testified that the plan was
put in place around the time that mother had retrieved B.R. from the alleged
meth house in New York.  The court overruled father’s counsel’s hearsay
objection to this testimony, explaining that it was trying to determine when
the safety plan was created.  The witness then stated that mother had retrieved
B.R. from father’s care in New York, and, subsequent to that, the baby resided
with mother’s father and stepmother.  
¶ 9.            
The social worker then provided additional testimony about parents’
living situation.  She explained that she met with parents shortly after the
CHINS petition was filed and, at that point, they both stated to her that they
were still residing together in the Swanton apartment.  During that meeting,
the social worker discussed parents’ drug use, and parents admitted to prior
and current substance-abuse issues.  Father stated that he had been in inpatient
substance-abuse treatment twice, that he had plans to go to the Brattleboro
Retreat that week, and that he was currently using opiates and Suboxone off the
street to prevent sickness.  
¶ 10.        
On cross-examination, the social worker acknowledged that she had not
visited the Swanton apartment between February 20 and March 4.  She explained
that, during that time, she had spoken with father and was focused on having
him complete a substance-abuse assessment.  The social worker also indicated
that she had not made the safety plan, and that another DCF social worker told
her where B.R. was during the weekend prior to the filing of the CHINS
petition.  Father’s attorney then moved to strike the social worker’s testimony
concerning B.R.’s whereabouts between February 20 and March 4 on hearsay
grounds.  The court overruled the objection, noting that the testimony had come
in previously without objection.  The court went on to explain that the
critical issue for the court was whether the social worker knew from her own
visits that father and mother were living together.  The social worker
reiterated that that was the case.  
¶ 11.        
At the close of the hearing, the court concluded that DCF had
established the allegations in the CHINS petition.  It explained that the issue
before it was not whether mother was a CHINS mother or father was a CHINS
father, but rather, whether B.R. was a child in need of care or supervision at
the time of the hearing.  It found that B.R. had been living with parents prior
to the filing of the CHINS petition.  One parent had admitted that the child
was CHINS, and admitted specifically that she was unable to adequately care for
B.R. due to long-term substance abuse and her failure to access and engage in
services to address her drug use and its impact on B.R.  While father had
admitted to at least a history of drug problems and some sort of
self-treatment, the court found it unnecessary to make a separate CHINS finding
as to father.  These types of issues, the court explained, needed to be
addressed at disposition.  As to B.R., however, the court was very satisfied
that he was at risk of being harmed in his living situation with parents. 
Father appealed from the court’s order.  
¶ 12.        
Father argues that there was insufficient evidence to establish that
B.R. was CHINS.  He maintains that the presence of one admitted drug-addicted
parent in a household does not suffice, and that there was no other evidence to
show that B.R. was without proper parental care necessary for his well-being or
that his welfare was at risk.  According to father, the court relied on a
presumption in reaching its conclusion, and its decision is therefore constitutionally
infirm.  
¶ 13.        
We reject these arguments.  As the trial court recognized, the “focus of
a CHINS proceeding is the welfare of the child.”  In re C.P., 2012 VT
100, ¶ 28, 193 Vt. 29, 71 A.3d 1142.  The State must prove, and the court must
determine, if the allegations in a CHINS petition have been established.  33
V.S.A. § 5315(a), (f), (g).  The State’s burden of proof is a
preponderance of the evidence.  Id. § 5315(a).  This standard of
proof balances the State’s interest in “ensuring the safety and welfare of the
child” with the parents’ interest “in maintaining family integrity.”  In re
M.L., 2010 VT 5, ¶ 7, 187 Vt. 291, 993 A.2d 400 (quotation omitted). 
It is particularly appropriate because “parents’ rights are at most temporarily
curtailed in a CHINS proceeding.”  Id.  
¶ 14.        
If the trial court finds that the allegations in the CHINS petition have
been established, it must order DCF to prepare a disposition case plan and set
the matter for a disposition hearing.  Id. § 5315(g).  It is at the
disposition hearing where “the determination of parental unfitness, which
triggers the transfer of custody away from the parents, must be made.”  In
re R.L., 148 Vt. 223, 227, 531 A.2d 909, 911 (1987).  If the court
determines that the allegations in a CHINS petition have not been
established, it must dismiss the CHINS petition and vacate any temporary orders
made in connection with the CHINS proceeding.  33 V.S.A. § 5315(f).  As discussed
below, the trial court here properly focused on B.R.’s welfare, rather than on
the respective unfitness of each parent, and it did not err in adjudicating B.R.
as CHINS.  
¶ 15.        
A child is CHINS when 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).  This language must be liberally
construed.  See In re N.H., 135 Vt. 230, 234, 373 A.2d 851, 855 (1977)
(“[A] statute providing the basis for determining who are neglected children
should be liberally construed so as to aid the purpose of its enactment.”).  We
have expressly recognized that because a child’s well-being is the central
concern in a CHINS proceeding, “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.  
¶ 16.        
In In re N.H., for example, we upheld a CHINS finding where only
one parent was culpable and the other was blameless.  In that case, N.H. was abused
while in her mother’s care.  The child’s father was not living with the mother
at the time, played no role in the abuse, and the State did not show that the
father was otherwise culpably disinterested in the child’s welfare.  We agreed
with the trial court that the child was CHINS, despite the father’s professed
willingness and ability to parent her, and found that any other conclusion
would frustrate the express statutory purpose of providing for the child’s
welfare.  In re N.H., 135 Vt. at 235, 373 A.2d at 855-56.  
¶ 17.        
The father in In re N.H. raised an argument similar to that presented
here.  Focusing on the word “parents” in the juvenile statutes, he maintained
that N.H. could not be CHINS unless it was affirmatively shown that both
parents were involved in the circumstances giving rise to the trial court’s
jurisdiction.  In addressing this argument, we emphasized that the trial court had
no power to proceed to disposition unless it first concluded that a child was
CHINS.  Id. at 235, 373 A.2d at 855.  Absent such finding and the
assumption of jurisdiction, there was “a strong possibility” that the child would
“be returned to the same situation from which it has been taken.”  Id.  Additionally,
without a CHINS finding, there was “no assurance that the parent who ha[d] not
participated in the abuse, and ha[d] avowed his desire to assume custody, [would]
in fact receive custody.”  Id.  We found nothing in the statutory
language that would compel such an outcome. We thus concluded that the trial
court was justified in assuming jurisdiction and upheld its determination that
N.H. was an abused child without proper parental care and control.  
¶ 18.        
In In re F.P., 164 Vt. 117, 665 A.2d 597 (1995), we again upheld
a CHINS adjudication where only one parent was the abuser and the other parent
played no role in the abuse.  In that case, the trial court dismissed the CHINS
petition as to the children’s mother, rejecting the State’s contention that the
mother had failed to protect the children.  The court nonetheless retained
jurisdiction to consider disposition given its conclusion that the children
were CHINS due to the father’s abuse and his failure to provide the children
with proper parental care necessary for their well-being.  Although the parents
lived together, we agreed with the trial court that the children were without
parental care necessary for their well-being.  
¶ 19.        
As in the instant case, the father in In re F.P. argued that the
trial court was obligated to dismiss the CHINS petition once the State failed
to prove its allegations against the mother.  In other words, he asserted that
the statute required the court to find the children CHINS with regard to both
parents before it could proceed to disposition.  As previously noted, the juvenile
statutes, both then and now, require the court to retain jurisdiction to
consider disposition if it finds that the allegations in a CHINS petition are
established, and conversely, to dismiss the petition if the allegations are not
established.  See id. at 120-21, 665 A.2d at 600; see also 33 V.S.A. § 5315(f),
(g) (current statutory provisions so providing).  Thus, the father essentially
argued that if the allegations against one parent were not established, but the
allegations against the other were, then the statutory language requiring dismissal
trumped the provision requiring the court to proceed to disposition.  
¶ 20.        
We rejected this argument.  In doing so, we considered our prior case
law and looked to the purposes served by a CHINS proceeding.  We explained that
the father’s construction of the law would require the trial court to dismiss a
case and return a child to an abusive home merely because the State failed to
establish the allegations against one of the parents.  This construction, we
concluded, was directly contrary to the protective nature of CHINS proceedings
and it would serve only to further endanger a child.  “Because the focus of a
CHINS proceeding is on the child’s welfare,” we concluded, “the purpose of [the
juvenile-protection law] is furthered where the court retains jurisdiction . .
. if the allegations in the petition are established as to one parent and the
court concludes the children are either abused or lack proper parental care
necessary for their well-being.”  In re F.P., 164 Vt. at 122, 665 A.2d
at 601.  Given our conclusion, we found it unnecessary to address the father’s
argument that the court violated a host of state and federal constitutional
provisions by retaining jurisdiction to consider disposition when it was
required to dismiss the case.
¶ 21.        
The dissent distinguishes In re N.H. because the parents in that
case were living apart and the custodial parent was responsible for abuse of
the child.  Post, ¶ 31.  Father distinguishes In re F.P.
because, although father and mother resided together, the father in that case
abused the child so dismissal of the petition would place the child right back
in the home with the father.  Here, father argues that although mother
stipulated that she is unable to provide proper care to the child, there is no
evidence, and therefore no finding, that father is unable to provide proper
care.
¶ 22.        
Particularly with respect to In re F.P., we conclude that the
distinction does not represent a meaningful difference.  Six children were
involved in In re F.P.  The trial court found that the father had abused
one child and, as a result of the father’s actions only, five children were
without proper parental care necessary for their well-being.  The trial court rejected
the State’s contention that the children were CHINS because mother failed to
protect them.  We held that the governing statute, 32 V.S.A. § 5526,
authorized a finding of CHINS “when only one parent might be responsible for
the children’s lack of care” and concluded that the court has “jurisdiction
under § 5526 if the allegations in the petition are established as to one
parent and the court concludes the children are either abused or lack proper
parental care necessary for their well-being.”  In re F.P., 164 Vt. at
121, 665 A.2d at 600.  Father here reads the holding to mean that the State
must prove that the children “lack care necessary for their well-being” from
either parent, but that conclusion is possible only if CHINS were found with
respect to each parent, exactly what the trial court did not find in In re
F.P.  Moreover, that construction of In re F.P. would allow the
children to be returned to the household and situation from which they were
taken, a clearly unacceptable result.[2] 

¶ 23.        
In this case, the evidence shows that B.R. was living with mother and
father.  Mother has admitted that she cannot adequately care for B.R. due to
long-term substance abuse and her failure to access and engage in services to
address her use and that her substance abuse had an impact on the children.  Mother’s
admission establishes that B.R. was without proper parental care necessary for
his well-being, as required by 33 V.S.A. § 5102(3)(B).[3] 
That admission is entirely inconsistent with father’s position that mother’s
substance abuse had no adverse impact on the child because father can provide
the necessary parental care.  Moreover, father’s legal argument would lead to the
same result rejected by our prior decisions.  It would allow a child to be
returned to an unsafe home and possibly returned to the custody of the parent
who has admitted his or her inability to care for that child.  The law does not
require such a result.  Father’s legitimate interests can be protected at
disposition.  
¶ 24.        
In reaching this conclusion, we do not rule, as father has argued, that
“presence of one parent with a substance abuse problem in a two-parent
household necessarily places children in the household at risk.”  Father might
have an argument that our cases use a de facto presumption if mother’s
admission contained no specification of what she was admitting.  Here, the
admission goes further and concedes that mother’s substance abuse had an impact
on the child.  The admission was made in the context of stipulating to “the
merits,” that is, it was a concession by mother that her behavior, as recited,
rendered the child without proper parental care necessary for his well-being.  Because
we do not accept that the court’s decision rests on a presumption, we decline
to reach father’s constitutional arguments that such a presumption would be
invalid.  Cf. Stanley v. Illinois, 405 U.S. 645, 649 (1972) (holding
that unwed father was entitled to hearing on his fitness as a parent before his
children could be taken from him, and rejecting as “constitutionally repugnant”
a state law that presumed unwed fathers to be unfit parents).  
¶ 25.        
Father next argues that there was no admissible evidence to establish
where B.R. was living during the time leading to the CHINS petition.  We
disagree.  The social worker testified that she had been working with the
family since July 2012.  She stated that she knew from her conversations with
parents, and from conducting home visits, that the family, including B.R., was
living together in an apartment in Swanton.  When she visited parents shortly
after the CHINS petition was filed, parents stated to her that they were “still”
residing in the Swanton apartment.  All of this testimony was admissible.  
¶ 26.        
The fact that the social worker did not visit the home between February
20 and March 4 does not render her testimony inadmissible, as father suggests. 
Certainly, it was reasonable under these circumstances both for the social
worker, and the court, to conclude that B.R. was living, and continued to live,
with parents in the same household until around the time that the CHINS
petition was filed.  See In re L.M., 2014 VT 17, ¶ 30, __ Vt. __,
__ A.3d __ (recognizing that in conducting its analysis, trial court may “draw
upon its own common sense and experience” (citation omitted)); see also State
v. Kerr, 143 Vt. 597, 603, 470 A.2d 670, 673 (1983) (“[P]roof of facts
includes reasonable inferences properly drawn therefrom.”).  B.R.’s precise
location just prior to the CHINS filing is of no moment.  See In re L.M.,
2014 VT 17, ¶ 20 (explaining that court is not limited to considering
child’s well-being on precise day CHINS petition is filed, and that, “[o]bviously,
the circumstances leading up to the filing of the CHINS petition are relevant”).
¶ 27.        
Finally, father argues that if this Court upholds the CHINS adjudication
without requiring a showing that B.R. was “without proper parental care,” then
the trial court must issue a disposition order discharging custody of B.R. to
father.  In support of this argument, father relies on language in In re N.H.
that concerns the trial court’s disposition order, not its CHINS finding.  We
reject the premise of father’s argument, and note that the procedure advanced
by father is wholly at odds with the statutory scheme created by the
Legislature.  The trial court here properly determined, based on the evidence,
that B.R. was CHINS, and thus, by statute, it was obligated to proceed to
disposition.  The focus of the CHINS proceeding was on B.R.’s welfare; the question
of father’s fitness to parent B.R. will be addressed at disposition.[4] 
We find no grounds to disturb the trial court’s decision.  
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
¶ 28.        
ROBINSON, J., dissenting.   I am very concerned that in the
course of affirming a CHINS finding that may well be warranted on the facts, if
not on the evidentiary record, the majority has made a significant shift in the
law governing these challenging and often tragic cases implicating the rights
and well-being of children and their parents, thereby dramatically reducing the
State’s evidentiary burden in these cases. 
¶ 29.        
The trial court was right to reject a
framework in which a child has a “CHINS mother” or a “CHINS father.”  A
CHINS finding focuses only on the child, and it reflects a determination, on
the basis of the competent evidence in the record, that a child is in need of care
and supervision.  33 V.S.A. § 5315(a).  That is why a CHINS proceeding is
captioned as an “In re” proceeding, rather than a “State v. Parent”
proceeding.  Although custodial parents are entitled to be heard as parties in
a CHINS case, a court does not make a CHINS determination “against” or “as to” one
parent or another.  Rather, a CHINS finding reflects that a child has
been abandoned or abused by the child’s parent, guardian or custodian; is
without proper parental care or subsistence, education, medical or other care
necessary for his or her well-being; is without or beyond the control of his or
her parent, guardian or custodian; or is habitually and without justification
truant from compulsory school attendance.  33 V.S.A. § 5102(3).  Even
though both custodial parents are entitled to participate in the CHINS
proceeding as parties, none of these findings necessarily implicates the
conduct of both of a child’s parents.[5] 
Given this legal framework, it is not at all surprising that there are cases in
which a CHINS finding stands even in the absence of evidence that one of the
child’s parents has done anything wrong.  The most obvious example is a
situation in which a custodial parent has abused a child, while the noncustodial
parent played no role in the abuse.  See In re N.H., 135 Vt. 230, 235,
373 A.2d 851, 855-56 (1977) (concluding court’s assertion of jurisdiction and
finding that child was abused was warranted where child was undisputedly abused
and neglected in mother’s household, notwithstanding lack of culpable conduct
by noncustodial father).  Since this Court’s decision in In re N.H., the
Legislature has amended the statute defining CHINS in a way that makes it clear
that the fact of abuse by a parent, guardian or custodian is sufficient
to support a CHINS finding.  33 V.S.A. § 5102(3)(A).  That makes sense; a
child who has been abused by a parent is a child in need of care or supervision,
even if the child has another parent who had no knowledge or complicity in the
abuse.  
¶ 30.        
The same is true even if the noncomplicit parent is a custodial parent. 
In In re F.P., this Court considered allegations that a father, who was
the children’s primary caregiver, engaged in excessive corporal punishment,
touched his oldest daughter’s breasts inappropriately, and masturbated in front
of her.  164 Vt. 117, 119, 665 A.2d 597, 599 (1995).  Father argued that
because the State had dismissed claims of wrongdoing against mother, it could
not proceed to disposition on the basis of a CHINS finding as a result of father’s
conduct.  This Court rejected that claim, and explained, “if the allegations in
the petition are established as to one parent and the court concludes that the
children are either abused or lack proper parental care necessary for their
well-being,” a CHINS finding and disposition hearing is appropriate.  Id.
at 122, 665 A.2d at 601.  Again, we emphasized that the focus is not the
culpability or conduct of one parent versus the other; it is whether the child
is abused or lacks proper parental care.
¶ 31.        
For this reason, even in the context of cases of neglect—as opposed to
outright abuse—in which the CHINS finding rests on a determination that a child
“is without proper parental care or subsistence, education, medical or other
care necessary for his or her well-being,” a court is not required in every
case to evaluate the conduct of both of a child’s parents.  It is not at all
uncommon for a court to make a CHINS finding on the basis that the custodial
parent is not providing proper parental care, even if a noncustodial parent
might have the ability to assume custody and provide appropriate care.  See In
re N.H., 135 Vt. at 235, 373 A.2d at 856 (affirming trial court’s finding
that the child was “an abused child without proper parental care and control”
notwithstanding availability of noncustodial parent who was not complicit in
the abuse).  This makes sense.  If a child is relying on a custodial parent for
parental care, and that parent is not providing it, the child is at that time
in need of care or supervision, even if prospectively—e.g., at disposition—the
other parent may be in a position to step in and provide the necessary care. 
¶ 32.        
On the other hand, a child who lives with a responsible and capable
parent who is meeting the child’s needs is not a CHINS just because a
noncustodial, nonabusive parent who is not caring for the child is incapable of
meeting the child’s needs.  The fact that the noncustodial parent is incapable
of providing the child with proper parental care is of no consequence if the
child is living with and cared for by a custodial parent who is fully meeting
the child’s needs and promoting the child’s well-being.  I cannot cite a case
to support this proposition because such cases do not exist; the State does not
initiate CHINS cases based on inadequate parental care by a noncustodial parent
when a child is living with a parent who is providing responsible care that
meets the child’s needs and promotes the child’s well-being.
¶ 33.        
That brings us to this case.  The question is: if that same incapable but
nonabusive noncustodial parent moves in with the capable, responsible parent
and the child, rather than living separately, does the child automatically
become CHINS without regard to whether the capable parent continues to
singlehandedly effectively meet the child’s needs?  Despite all of the
inadmissible testimony impugning father that is recounted in the majority
opinion,[6]
that is what this case boils down to.  The question presented is whether a
child who lives with two parents is necessarily CHINS because one of those
parents admits to a drug problem and agrees that she is incapable of caring for
the child, without regard to whether that parent is actually caring for the
child, and without regard to what the second parent in that two-parent home is
doing to provide parental care.  The trial court explained its ruling as
follows:
In
this case, one parent has admitted to merits, and she admitted to the
following:  That the mother was unable to adequately care for her children due
to long-term substance abuse and her failure to access and engage
in . . . services to address her use and its impact on the
children . . . and there has been evidence to establish
that the child and the parents lived together before and after the filing of
the affidavit.  So I’m satisfied that [B.R.], the [six-month-old] boy, was a
child in need of care and supervision.
 
¶ 34.        
The trial court then went on to describe mother’s admission of serious
drug problems in conversations with the social worker, and father’s admission
to that social worker of “at least a history of drug problems and some sort of
self-treatment through Buprenorphine.”  The court concluded, “the presence of
one admitted and addicted parent in the household, I think, qualifies the child
as a . . . child in need of care and supervision.”  
¶ 35.        
There are three ways to interpret the basis for the trial court’s CHINS
determination.  First, the ruling could rest on the presumption that one drug
addicted parent in the household is sufficient to render the child CHINS, with
no further evidence.  Such a presumption is way overbroad and cannot substitute
for actual evidence that, for example, as a result of that parent’s addiction,
the child’s needs are not being met, or that, for example, the other parent is
likewise unable or unwilling to effectively parent the child.  See In re L.M., 2014 VT 17, ¶ 39, ___ Vt. ___,
___ A.3d ___ (Robinson, J., dissenting) (“[I]f the State is to take the awesome
step of interposing itself into the parent-child relationship, it cannot rely
on broad generalizations or per se rules; it must have some individualized
evidence that a child is without proper parental care necessary for the child’s
well-being.”).  The kind of blanket presumption articulated by the trial
court could warrant State intervention with respect to countless children who
are not lacking for proper parental care but have an alcoholic or drug-addicted
parent, raising a host of constitutional issues, and deterring parents with
addiction problems from seeking treatment.
¶ 36.        
This presumption is not the basis for the majority’s affirmance, as the
majority expressly rejects the suggestion that the trial court’s judgment rests
on a presumption that the presence of one parent with a substance abuse problem
in a two-parent household necessarily places the children at risk.  Ante,
¶ 24.  The majority’s conclusion in this regard is puzzling, as the trial
court itself articulated just that blanket presumption.  But its decision not
to embrace that presumption in affirming the trial court’s decision is well founded. 

¶ 37.        
Second, the trial court could be saying that, as a matter of law,
because mother stipulated “to merits,” as opposed to the specific facts to
which she stipulated, a CHINS determination is warranted notwithstanding that
father has not stipulated to CHINS.[7] 
Although it does not clearly hold that one custodial parent’s stipulation to a
CHINS finding can relieve the State of its burden of proof in a CHINS case even
where another custodial parent contests the CHINS petition, the majority
opinion suggests that this may be the case.  See ante, ¶ 24.  If
this is the majority’s holding, the majority misapprehends the legal effect of
mother’s stipulation to merits in the context of father’s ongoing opposition to
the State’s petition.  A CHINS determination must be supported by adequate
findings on the record.  33 V.S.A. § 5315(e); In re M.C.P., 153 Vt.
275, 291, 571 A.2d 627, 636 (1989) (“We require that both merits and
disposition orders be accompanied by findings of fact which are sufficient to
support the court’s conclusion that the child is in need of care or supervision
or its disposition order.”).  The statute governing CHINS merits hearings
provides, that “[t]he parties,” in the plural, “may stipulate to the
merits of the petition.  Such stipulation shall include a stipulation as to the
facts that support a finding that the child is in need of care and
supervision.”  33
V.S.A. § 5315(b).  To “stipulate to CHINS” is to waive the right to put
the State to its proof on the subject, and to agree to the foundational facts
for a CHINS determination.  Mother in this case agreed to waive her right. 
Father, also a custodial parent, did not.  That makes this a contested CHINS
case.  It is inaccurate to say that the State has established CHINS “against
mother.”  Mother may acquiesce in the State’s petition, but as long as
custodial father is challenging the petition, the State has to prove that this
child is a CHINS.  Mother has no legal authority to commit father to waiving
the statutory requirement that the State prove through competent evidence that
the child is a CHINS.  See Kneeland v. Luce, 141 U.S. 437, 440 (1891) (stating
stipulation is binding only upon parties to the record who in fact assented to
it); Arnett v. Throop, 272 P.2d 308, 334 (Idaho 1954) (noting
stipulation does not bind or affect those who were not parties to it).  The
fact of mother’s stipulation would relieve the State of its obligation in a
case in which mother was the only party, but in the face of a challenge
by a custodial father, the State must prove its case, even if mother had been
willing to accept a CHINS finding without an evidentiary hearing.  To suggest
otherwise would raise serious constitutional issues, and would distort the well
understood meaning of “stipulation.”  The notion that mother, as a distinct
party from father, can waive father’s statutory right to put the State to its
proof that their child is in need of parental care and supervision, and the
constitutional liberty interest underlying that statutory right, would turn the
CHINS statute and the constitution on its ear.  See Meyer v. Nebraska,
262 U.S. 390, 399 (1923) (acknowledging right to establish home and bring up
children is among liberty interests protected by due process clause).   
¶ 38.        
Moreover, mother’s stipulation “to merits” does not itself provide the
required factual support for the legal conclusion that the child is lacking
parental care and supervision.  33 V.S.A. § 5315(e); In re M.C.P.,
153 Vt. at 291, 571 A.2d at 636. 
¶ 39.        
Finally, the trial court’s ruling could rest on the conclusion that
between the admissible testimony introduced in the hearing and mother’s
stipulation that she was unable to adequately care for her children, the trial
court had sufficient evidence to support a CHINS finding.  This appears to be
the primary basis underlying the majority’s affirmance of the trial court’s
decision, although its reference to the significance of mother’s stipulation
“to merits” creates some ambiguity on this point.  See ante, ¶ 24. 
There are two main problems with this approach.  
¶ 40.        
As a threshold matter, mother’s “admission” took the form of a
stipulation rather than testimony under oath and subject to cross-examination. 
In a colloquy with mother, the court read the statement to mother and she
answered “yes” when the court asked her if she was content to admit to the
CHINS complaint.  Mother’s “admission” was actually a stipulation that father
did not join.  It was not testimony.  Father could not cross-examine her.  To
the extent that the statement mother affirmed in the courtroom was an out-of-court
statement by her, it was not admissible as evidence against father pursuant to
any hearsay exception.  See In re L.M., 2014 VT 17, ¶¶ 16-17
(concluding mother’s out-of-court statements were inadmissible hearsay and should
not have been used against father in making CHINS determination).  For these
reasons, I have serious doubts as to whether the facts reflected in mother’s
stipulation can be relied upon to support findings in the context of a CHINS
proceeding in which custodial father challenges the petition.[8] 

¶ 41.        
More importantly, even assuming that mother’s stipulation to the factual
finding reflected in the record can be treated as admissible evidence, it is
insufficient to support a CHINS determination in this case.  The court
expressly found that the child lived with both mother and father at the time of
the CHINS petition.  Assuming that the trial court could properly conclude on
the basis of mother’s stipulation that the State had established that mother
was unable to adequately care for the child, that finding alone would not
support a CHINS determination in the context of the two-parent household at
issue in this case.  The trial court did not make any findings that the child
was left in mother’s care, or that the child’s needs were not being met in
their two-parent home.  Nor could it have; nobody offered any admissible
testimony to support either of these propositions.  Although we are led by the inadmissible
proffered testimony and allegations in DCF’s petition to believe otherwise,
father in this case could be the picture of responsibility—capably caring for
the child day in and day out, meeting all of the child’s material, emotional
and developmental needs, except when he leaves the child with responsible caregivers
so he can earn a wage to feed his family.  Even so, the implication of the
trial court’s decision is that on the basis of mother’s inability to herself
care for the child, the child is CHINS.  
¶ 42.        
In reaching this conclusion, the trial court made the leap from (1) mother
admits that she is unable to adequately care for her child to (2) the child is
not getting “proper parental care or subsistence, education, medical, or
other care necessary for [the child’s] well-being,” 33 V.S.A.
§ 5102(3)(B), without any further examination of father’s fitness or
caregiving.  In fact, the trial court concluded, “I’m not going to make a
separate CHINS finding as to the father.  We don’t know too much, at this
point, about him.  As to [B.R.], the baby, I’m quite satisfied that he was at
risk of being harmed in that setting.”  Having correctly acknowledged that
there is no such thing as a “CHINS mother” or a “CHINS father,” it is not
entirely clear what the trial court meant when it declined to make a CHINS
finding “as to father,” but I infer that the court concluded that it was not
necessary to determine whether father had himself engaged in neglectful or
abusive behavior because mother’s admission alone was sufficient to support a
determination that the child was a CHINS.
¶ 43.        
This turns the framework of child-focused CHINS determinations on its
ear.  Just as the fact that one parent in a two-parent household is neither
culpable nor complicit does not preclude a court from making a CHINS
finding if the other parent has abused the child or has acted in a way that
left the child without proper parental care, the fact that one parent in a
two-parent home is incapable of caring for the child does not alone support
a CHINS finding if the child is not, in fact, wanting for parental care thanks
to the other parent’s efforts.  To the extent that the trial court’s ruling
rests on the notion that if mother is incapable of caring for the child, the
child is CHINS, even if father lives with mother and child and provides proper
parental care, the ruling cannot be right.  Such an approach shifts the framework
away from the question of whether the child is receiving proper parental care
to the question of whether one parent or the other is providing such care.  And
it allows the State to intervene in the parent-child relationship without
evidence that the child is actually CHINS as defined by statute.  33 V.S.A.
§ 5102(3)(B); see In re N.H., 135
Vt. at 235, 373 A.2d at 855 (“[A]ny time the State seeks to interfere with the
rights of parents on the generalized assumption that the children are in need
of care and supervision, it must first produce sufficient evidence to
demonstrate that the statutory directives allowing such intervention are fully
satisfied.”).
¶ 44.        
The majority leans heavily on the fact
that mother’s admission “concedes that mother’s substance abuse had an impact
on the child.”  Ante, ¶ 24.  Mother conceded only that she was
“unable to adequately care for her children due to long term substance abuse
and her failure to access and engage in . . . services to
address her use and its impact on the children.”  Because she referenced her
failure to engage in services to address her use “and its impact on the
children,” the majority infers that mother concedes not only that her drug
abuse had an impact on her children, but that the impact was sufficiently
serious and adverse as to leave the child without proper parental care or
subsistence, education, medical or other care necessary for his well-being. 
This inference may well be true, but there is nothing in the evidence that
points us to that conclusion.  It is nothing more than an assumption embraced
to fill the gap between DCF’s allegations and the actual evidence the State
presented at the merits hearing.
¶ 45.        
By treating mother’s stipulation as testimony admissible against father,
I fear the majority has created new and ill-advised law pursuant to which
either of two custodial parents, for any reason, can deprive the other of the
constitutional right to put the State to its evidence in a CHINS case simply by
“stipulating”—as opposed to testifying under oath and subject to cross-examination—to
the CHINS determination itself, as well as to any alleged predicate facts.  The
statute does not contemplate that result, and I do not believe the U.S. Constitution
countenances it.  See, e.g., Stanley v. Illinois, 405 U.S. 645, 651
(1972) (“ ‘It is cardinal with us that the custody, care and nurture of
the child reside first in the parents, whose primary function and freedom
include preparation for obligations the state can neither supply nor hinder.’ ”
(quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944))).
¶ 46.        
More important, in this case, the predicate facts to which mother
stipulated were simply insufficient to support a CHINS order.  By suggesting
that mother’s reference to the impact of her drug addiction on her child is
sufficient to support a conclusion that the child is CHINS without any
consideration of whether father has assumed the full responsibilities of
parenthood and is effectively meeting the child’s needs for parental care, the
majority lowers the evidentiary bar to establishing CHINS to the ground.  We
have long recognized that “the freedom of
children and parents to relate to one another in the context of the family,
free of governmental interference, is a basic liberty long established in our
constitutional law.”  In re N.H., 135 Vt. at 236, 373 A.2d at 856
(citing Meyer, 262 U.S. at 399).  As a consequence, the state’s authority to interfere with the
parent-child relationship in the name of protecting children is “awesome,” and
is accordingly subject to statutory and constitutional restraints.  Id.
at 235-37, 373 A.2d at 855-57.  Perhaps the most significant requirement at
this stage of a proceeding is that the state present sufficient competent
evidence to support a finding that a child is a CHINS, as that term is defined
by statute.  33 V.S.A. §§ 5102(3), 5315.  By affirming a CHINS
determination on this record, I believe the majority fails to recognize the
awesome nature of the power the State is asserting here, and the attendant
restraints on that power.[9]
¶ 47.        
I emphasize that I am not setting an unduly high bar for the State
here.  The majority has recited extensive inadmissible testimony from a social
worker about things mother said about father.  Much of the testimony,
inadmissible against father, would be admissible if offered through mother
herself, rather than a third party repeating mother’s alleged statements. 
Mother was in the courtroom on the morning of the merits hearing.  If mother
had herself testified to even one of the scandalous claims about father’s
behavior relayed secondhand and inadmissibly by the social worker or the state
trooper, I have no doubt that a CHINS determination would have been warranted. 
But mother did not testify.  Indeed, the State itself recognized the thinness
of its case when it indicated to the court that it lacked the evidence to go
forward once the court sustained father’s objection to the trooper’s hearsay
testimony. 
¶ 48.        
Nor am I suggesting that the State should return the child to father in
the face of evidence that the child faces danger at home with mother and
father.  I am suggesting instead that if the State is going to take the
serious step of intervening in the parent-child relationship, it needs to provide
that evidence, and not just innuendo, to support its actions.  Subpoena
mother.  Subpoena father.  If either or both invokes the right to
self-incrimination, talk to their family and friends and subpoena a witness who
can transform even one of the allegations on the table into actual evidence.  
¶ 49.        
In the face of claims, albeit inadmissible ones, that father took the
infant to a “meth house,” what court would want to deny a CHINS petition?  But,
as the trial court recognized, the rules of evidence apply in CHINS cases.  33
V.S.A. § 5315(d).  The serious constitutional concerns implicated by the
State’s intervention, as well as the fact that children are not necessarily
well served by state intervention in the absence of evidence warranting that
intervention, call for strict adherence to the rules of evidence and the state’s
statutory proof requirements—not a well-intentioned departure from those
limitations on the state’s power.  Because of the unquestioned urgency of
protecting children from abuse and neglect, it is vital that the State do the
work of putting together a sufficient case to support its intervention.  This
child, and other Vermont children, deserve no less.

 


 


 


 


 


 


 


 


Associate Justice

 
 


[1] 
Mother has two other children by different fathers; these children were also
subject to the emergency care order.  


[2] 
The dissent, like father, does not persuasively distinguish In re F.P.
from the instant case.  The father in F.P. raised the same argument that the
dissent embraces here.  As set forth above, he asserted that the State must
make its case against both parents before a child may be found to be CHINS.  We
rejected this argument in In re F.P. and do the same here.  There was no
showing in In re F.P. that the mother was incapable of providing the
children with proper parental care necessary for their well-being, and we did
not require the State to prove this point.  So too in In re N.H., we
concluded that the child was an abused child “without parental care and control”
even though the child’s father was available to parent the child.  135 Vt. at
232, 373 A.2d at 854.  As in our prior cases, there was sufficient evidence here
to show that B.R. was without proper parental care necessary for his well-being
absent an inquiry into whether father had “assumed the full responsibilities of
parenthood.”  Post, ¶ 46.  
 


[3]
 The question of the admissibility of mother’s stipulation did not come up
below, in large part because the court did not consider it to be evidence and
father did not challenge the court’s use of the stipulation.  The dissent
argues that the stipulation is inadmissible evidence that cannot be used
against father, a position that appears to be inconsistent with its argument
that there is no such thing as a CHINS as to father or as to mother.  In any
event, the dissent raises this issue sua sponte, without the benefit of briefing
or a trial court ruling on this issue.  See post, ¶¶ 40-41.  We do
not reach this issue because it is not properly before us.  See, e.g., State
v. Taylor, 145 Vt. 437, 439, 491 A.2d 1034, 1035 (1985) (“It is only in the
rare and extraordinary case that this Court will consider, sua sponte, issues
not properly raised on appeal before us.”); State v. Settle, 141 Vt. 58,
61, 442 A.2d 1314, 1315 (1982) (“We have held, and we reiterate here that, in
all but a few exceptional instances, matters which are not briefed will not be
considered on appeal.”).  


[4] 
In fact, the case has moved to disposition with the State seeking termination
of father’s parental rights and father seeking greater time with the child. 
Mother stipulated to termination of her parental rights.  The court denied
termination of father’s parental rights as premature finding that father was
making slow progress in his ability to parent the child.  See In re B.R.,
No. 52-3-13 Frjv (Vt. Super. Ct. Apr. 7, 2014).
 


[5] 
I need not and do not address the status of noncustodial parents.  In this
case, the trial court expressly found that the child was living with both
parents in the run-up to the CHINS petition.


[6]
 In setting the factual table in this sufficiency of evidence case, the
majority opinion takes the unusual step of drawing extensively from allegations
in DCF’s CHINS petition that were not admitted into evidence in the merits
hearing, and of recounting proffered testimony that was excluded on the basis
of the Rules of Evidence. 


[7] 
Further support for this understanding of the trial court’s determination can
be found in the exchanges between the court and counsel during the course of
the merits hearing.  The trial court queried, “[W]here
does the statute say that we have to find merits against both parents in order
to have the child in custody and move to disposition?”  On the other hand, if
the stipulation to merits by one party were really sufficient to support a
CHINS determination notwithstanding the presence of a second, nonstipulating
custodial parent, the court would have ended the proceedings after mother’s
stipulation.


[8]
 Although it does not make sense to speak of a CHINS finding “against mother” or
“against father,” it is entirely appropriate to recognize that mother and
father are independent parties in a CHINS case, and the implications of the
rules of evidence with respect to a particular item of testimony may be
different as between them.  There is nothing, as the majority suggests,
inconsistent about this approach; it is what the law requires.  See ante,
¶ 23 n.3.


[9]
 To the extent that the majority is suggesting that mother’s stipulation “to
merits” is tantamount to testimony upon which the court can rely to the
conclude that the child is in need of parental care and supervision, the
majority effectively treats mother’s stipulation relieving the State of its
burden of proof as binding on father—an approach at odds with the statute and
well established constitutional protections for the reasons discussed above. 
Moreover, whether a child is in need of parental care and supervision is a legal
conclusion gleaned from the predicate facts, not a factual finding.  The
conclusion must be supported by factual findings.  33 V.S.A. § 5315(e); In
re M.C.P., 153 Vt. at 291, 571 A.2d at 636.  To the extent that the
majority suggests that mother’s stipulation as to the legal conclusion that the
child is CHINS supports an inference that the underlying facts are established,
it renders the clear statutory requirement of factual findings supporting a
CHINS stipulation a nullity.  


