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, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                            2018 VT 126

                                           No. 2018-118

In re B.C., Juvenile                                             Supreme Court

                                                                 On Appeal from
                                                                 Superior Court, Franklin Unit,
                                                                 Family Division

                                                                 September Term, 2018


Nancy J. Waples, J.

Matthew Valerio, Defender General, Marshall Pahl, Appellate Defender, and Ryan K. Krause,
 Law Clerk (On the Brief), Montpelier, for Appellant Mother.

Sarah A. Baker, Franklin County Deputy State’s Attorney, St. Albans, for Appellee.


PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Grearson, Supr. J.,
         Specially Assigned


       ¶ 1.    ROBINSON, J.         Mother appeals from an order of the superior court, family

division, adjudicating her son, B.C., a child in need of care or supervision (CHINS). She

challenges: (1) the court’s admission of evidence of father’s out-of-court statements; (2) the court’s

reliance on findings from a prior CHINS determination; and (3) the sufficiency of the evidence,

especially given that B.C. was in the custody of the Department for Children and Families (DCF)

when the State filed the petition. We conclude that the family division erred by admitting evidence

of father’s out-of-court statements, and that without that testimony, and in light of the court’s

findings with respect to other evidence, the remaining evidence would be insufficient to support a

CHINS determination. Accordingly, we reverse the court’s order.
       ¶ 2.    B.C. was born on December 31, 2016. Mother has two other children who were

removed from her care prior to B.C.’s birth,1 at which time DCF was providing services to mother

and B.C.’s father to address concerns over substance abuse and domestic violence. Within days

after B.C.’s birth, the family division granted DCF temporary emergency custody of the infant,

and the State filed a CHINS petition seeking a determination that B.C. was without proper parental

care necessary for his well-being. See 33 V.S.A. § 5102(3)(B).

       ¶ 3.    After the parties agreed to continued temporary DCF custody, B.C. was first placed

with his paternal grandmother. In March 2017, he was transitioned to the home of his paternal

aunt and uncle. DCF’s plan contemplated reunification with both parents, who at the time intended

to co-parent B.C. Through the first two months of 2017, both parents appeared to be making good

progress towards reunification. But in mid-March, father relapsed in his substance abuse recovery,

and mother represented to DCF that she had separated from father and planned to parent B.C.

alone. In the ensuing months, DCF was unclear about whether mother was being fully transparent

about her relationship and living situation, and perceived a decline in mother’s engagement with

the reunification plan.

       ¶ 4.    Hearings on the January 2017 CHINS petition were held on March 16 and April 27

of 2017. During the first week of May 2017, mother canceled a visit with B.C., missed a substance

abuse counseling appointment, was arrested for allegedly assaulting father following an altercation

at her apartment, and relapsed by using benzodiazepines on one occasion.

       ¶ 5.    The circumstances surrounding the alleged assault, as later found by the family

division, were as follows. On May 5, father refused to leave the apartment he had previously

occupied with mother after stopping by to pick up his mail and some of his clothing. Mother’s


       1
          Mother’s two other children were adjudicated CHINS in a January 2016 order that was
admitted as an exhibit at the merits hearing in this case. Approximately a year before the December
2017 merits hearing in this case, one of those children was placed in the conditional custody of the
partner of that child’s father. In early 2017, mother relinquished her parental rights to the other
child, who has since been adopted.
                                                    2
father called the police for help in making father leave. The police responded, but concluded that

they had no legal grounds to remove father from the apartment and advised mother to initiate an

eviction proceeding. Two or three hours later, mother called her own father back crying. She

reported that father had just thrown a coffee table at her, breaking a window and almost hitting

her. Mother’s father returned to the apartment and saw a coffee table with glass shards in it. He

again called the police, and the police returned to the residence. They spoke with father again, and

concluded they could not make him leave the residence. Mother and her father then went to the

police station to seek a relief-from-abuse order. They completed a petition, but the dispatcher

declined to accept it.

       ¶ 6.    The next morning, when the individual who was to supervise mother’s visit with

B.C. arrived at mother’s apartment to pick mother up, father was still at the apartment. The

visitation supervisor told father to leave because he could not be present when mother had B.C. at

the apartment. The supervisor left without mother to pick up B.C. When she returned to mother’s

apartment with B.C. shortly after 9:00 a.m., father was just leaving; the supervisor remained in her

car with the child until father went up the street. Then the supervisor brought the child into the

apartment and locked the door, and mother and B.C. began what the visit supervisor observed to

be a “totally normal” visit. Around 10:30 a.m. that day, the police responded to a report that a

man had been stabbed. They found father near a grocery store parking lot, and observed a stab

wound on father’s chest and a shallower laceration on his back. Father reported that mother had

stabbed him. While mother was still visiting with B.C., the police returned to her apartment and

arrested her. She was released from jail two days later, on May 8.2




       2
          As the family division noted, mother’s father testified that father had threatened to stab
himself and accuse mother of doing it if they kept calling the police on him. However, the court
neither credited nor rejected this testimony. Krupp v. Krupp, 126 Vt. 511, 514 (1967) (“A
recitation of evidence in findings is not a finding of facts contained in the testimony related and it
cannot be so construed.”).
                                                   3
       ¶ 7.    On May 17, 2017, while its initial petition was still under advisement, the State

filed a new petition alleging that B.C. was without proper care necessary for his well-being. The

affidavit in support of the petition cited pending drug charges against father, the parents’

tumultuous relationship, mother’s suspected impairment on several occasions, her missed visits

and meetings with service providers, and the events of May 6, including the aggravated domestic

assault charge mother faced.

       ¶ 8.    On May 19, 2017, two days after the second petition was filed, the family division

held a temporary care hearing concerning the initial CHINS petition. Following the hearing, the

court denied the initial petition on the ground that the State had not proved that at the time the

petition was filed B.C. was at substantial risk of physical or emotional harm. That same day,

however, the court also issued an order maintaining B.C. in the temporary custody of DCF, with

supervised parental visitation, in response to the State’s newly filed CHINS petition.

       ¶ 9.    At a September 2017 temporary care hearing, after learning that mother had been

admitted to the Lund Center and was progressing well there with B.C., the family division issued

a conditional custody order (CCO) placing B.C. in mother’s custody while she remained at the

Center, pending a disposition order. On December 7, 2017, the State amended its May 17 petition

by changing the date of when B.C. was alleged to be CHINS from May 17 to May 19—the day

that the family division denied the initial CHINS petition.

       ¶ 10.   Following a December 11, 2017, merits hearing on the second CHINS petition, on

January 30, 2018 the court granted the petition and adjudicated B.C. CHINS. The court concluded

that B.C. was CHINS at the time the second petition was filed because mother had relapsed on

benzodiazepines, her ability to effectively engage with DCF and B.C. was impaired in the months

preceding the petition, she missed several scheduled appointments and visits, and she had been

involved in an altercation with father in close temporal proximity to a visit with B.C. at the location

of the visit. The court also assigned some probative value to evidence that mother repeatedly


                                                  4
exposed at least one of her older daughters to the presence of an abusive and volatile former

partner, as reflected in findings in a prior CHINS decision involving mother’s older daughters that

was admitted into evidence in the merits hearing in this case. The court acknowledged mother’s

recent progress at Lund, but noted mother’s history of exposing her children to domestic violence

and the challenges she would face in transitioning into the community from the structured

environment of Lund. The court concluded that, in order to protect B.C.’s welfare and safety, the

child’s continued custody with mother would be “subject to the condition that she continue to

adhere to the provisions of DCF’s reunification plan.”3

       ¶ 11.   Mother appeals the family division’s CHINS determination, arguing that: (1) the

court erred in admitting father’s out-of-court statements as admissions by a party-opponent; (2) the

court improperly relied on, as substantive evidence, findings set forth in the CHINS decision

involving mother’s older children; and (3) there was insufficient evidence that B.C. had been

harmed or was at risk of harm at the time the State filed its second CHINS petition, especially

given that B.C. had been in DCF custody for months.4 We conclude that the family division erred

in admitting father’s out-of-court statements implicating her, and that, without those statements,

the evidence, as found by the court, does not support the court’s CHINS determination.

       ¶ 12.   The general law concerning CHINS petitions is settled. A child may be adjudicated

CHINS if at the time the petition is filed 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);

see In re M.L., 2018 VT 32, ¶ 16, ___ Vt. ___, 186 A.3d 618 (stating that “in evaluating the State’s


       3
         At the time of the merits hearing, father’s paternity had not been established by testing,
but no party had disputed it. Father did not actively participate in the CHINS proceedings and,
although he was represented by counsel in the merits hearing, he did not personally appear at the
merits hearing. Nor has he appealed that order.
       4
          On March 7, 2018, following its CHINS merits determination, the family division issued
a disposition order assigning conditional custody to mother. Following a hearing on August 21,
2018, the court returned custody to mother without conditions and closed the case. We denied the
juvenile’s motion to dismiss mother’s appeal as moot.
                                                5
CHINS petition, we focus on the circumstances at the time the State filed the petition,” but noting

that “circumstances leading up to the filing of the CHINS petition may be relevant to the court’s

assessment”). “[T]he 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). “A child need not suffer actual harm

before he or she can be adjudicated CHINS.” In re M.O., 2015 VT 120, ¶ 6, 200 Vt. 384, 131

A.3d 738 (quotation omitted). The State must prove the lack of proper parental care by a

preponderance of the evidence. Id. On appellate review, “[t]he court’s findings will stand unless

clearly erroneous, and its legal conclusions will stand if supported by the findings.” Id. ¶ 7.

       ¶ 13.   Applying these standards, we conclude that the family division improperly

admitted evidence of father’s out-of-court statements. We further conclude that the admissible

evidence, as found by the court, is insufficient to support the CHINS determination.

                        I. Admission of Father’s Out-Of-Court Statements

       ¶ 14.   On appeal, mother argues that the family division erred in admitting, pursuant to

Vermont Rule of Evidence 801(d)(2), father’s statements accusing her of stabbing him. She argues

that, as a noncustodial parent, father was not a party to the merits proceeding. The question of

whether father’s out-of-court statements are excluded from the definition of hearsay pursuant to

Rule 801(d)(2) for the purposes of this merits hearing is a question of law that we review without

deference to the trial court. State v. Amidon, 2008 VT 122, ¶ 16, 185 Vt 1, 967 A.2d 1126

(explaining that interpretation of procedural and evidentiary rules is question of law that we review

without deference).

       ¶ 15.   Vermont Rule of Evidence 801(d)(2) excludes from the definition of hearsay,

among others, a statement that is “offered against a party and is . . . [the party’s] own statement.”

The exclusion encompasses any statements made by and offered against a party opponent, and

need not have been against the declarant’s interest when made. State v. Bernier, 157 Vt. 265, 268,

597 A.2d 789, 791 (1991).


                                                 6
       ¶ 16.   The family division’s ruling that father’s statements were admissible in this case

rests on two distinct legal conclusions, both challenged on appeal. First, the statements are

admissible against father because he is a party to this CHINS case and the statements were contrary

to his interests in the proceedings. Second, assuming the statements were admissible against

father, it was proper to consider them in this CHINS merits proceeding regardless of whether they

were independently admissible “against mother.”5 We do not address the second of these implicit

conclusions because we conclude on this record that the statements were not properly offered

against father in the CHINS proceeding. We draw support for this conclusion from our recent

consideration of a similar case as well as the purposes of the hearsay rule and the exclusion in

801(d)(2). Further, we conclude that the family division’s error on this point is not harmless.

       ¶ 17.   Our discussion of a similar issue in this Court’s recent decision in In re L.M.,

supports our conclusion that the out-of-court statements were not offered against father in this

CHINS proceeding. 2014 VT 17, 195 Vt. 637, 93 A.3d 553. In L.M., we concluded that the family

division had improperly admitted evidence of the mother’s out-of-court statements in a CHINS

merits hearing in which the father was also a party after the mother stipulated to the merits. We

concluded that the mother’s statements were not being offered against her because she had

admitted that the child was CHINS by stipulating to a merits determination. Id. ¶ 16. We further

emphasized that there was no basis for allowing the mother’s statements to be used against the


       5
           Compare In re Care & Prot. of Sophie 865 N.E.2d 789, 796 (Mass. 2007) (rejecting
argument that because statements were admissible against at least one party they should be
admitted in child-protection proceeding, and explaining that inadmissibility against one party
trumped admissibility of evidence against other, thereby requiring exclusion), and Cochran v. Ark.
Dep’t of Human Servs., 860 S.W.2d 748, 750 (Ark. Ct. App. 1993) (declining to allow out-of-
court statements by one party in child welfare proceeding because father had never made,
acquiesced in or adopted statements, and explaining that “[w]here . . . the interests of coparties are
all dependent on the existence of a particular fact, the admission of one of them with respect to
such fact cannot be received, because it could have no effect as to [that party] without affecting
the others” (quotation omitted)), with In re J.M. & J.M., 804 S.E.2d 830, 834 (N.C. Ct. App. 2017)
(concluding that because issue in child protection case concerns conditions surrounding child, and
not culpability of any particular parent, trial court could rely on evidence that is admissible against
either parent).
                                                    7
father. Id. In ascribing significance to the mother’s stipulation, we looked beyond the mother’s

status as a party to the CHINS proceeding (she clearly was), and considered whether in any real

sense the proffered evidence was offered “against” her.

       ¶ 18.   This focus makes sense, given that the purposes of the hearsay prohibition and the

801(d)(2) exclusion support exclusion of the evidence. Citing the Reporter’s Notes to V.R.E. 801,

we acknowledged in L.M. that the 801(d)(2) exclusion arises from the nature of the adversary

system. 2014 VT 17, ¶ 17. In particular, the hearsay rule is designed to preclude admission of

out-of-court statements that cannot be cross-examined by the party against whom they are offered;

however, when the out-of-court statements were made by the party against whom they are offered,

that party cannot cross-examine itself. Id. We acknowledged that that party is free to take the

stand to explain the statement, but concluded that the hearsay rule, designed to ensure that parties

can test all the testimonies against them through cross-examination, is not relevant when the

testimony is the party’s own. Id. (citing In re V.N.W., 292 P.3d 548, 554 (Or. 2012) (en banc)).

Thus, in L.M., where mother had no further interest in the CHINS proceeding, even though she

remained a party and could have asserted her interests, it would have been a fiction to say that the

statements were offered “against” her.

       ¶ 19.   In this case, assuming that father was a party to the CHINS proceeding, because he

was a noncustodial parent and did not assert any interests at the CHINS stage, he, like the mother

in L.M., had no interest in the CHINS proceeding such that the statements were admissible against

him. As noted above, by the time of this CHINS petition, father was noncustodial. His

nonparticipation did not defeat an effective CHINS adjudication. See In re M.S., 2017 VT 80,

¶ 32, __ Vt. __, 176 A.3d 1124 (explaining that family division had properly concluded that child

was without proper supervision in custody of his mother, and that noncustodial father’s absence

from the merits hearing did not undermine CHINS determination). Nor did father assert any

interests relative to the CHINS determination. His lawyer participated in the merits hearing, but


                                                 8
offered no witnesses, made no argument, and took no position as to the merits determination.

Where father asserted no interests in the CHINS merits proceeding, we cannot conclude that the

out-of-court statements were properly offered “against” father.

       ¶ 20.   Nor can we say that the family division’s admission of the hearsay evidence was

harmless. Although the court did not make a finding that mother stabbed father, its merits

determination rested in substantial part on its conclusion that an “altercation” occurred between

mother and father in close temporal proximity to the child’s visit, representing a failure of mother

to address concerns about domestic violence. But based on the family division’s findings, the only

thing that happened the morning of the visit was that father was in mother’s home when the visit

supervisor showed up to pick up mother, and he left as she was returning with the child.

       ¶ 21.   Significantly, the family division did not find that father continued to live with

mother despite mother’s claims to the contrary. Rather, the court apparently credited mother’s

testimony that father occasionally stopped by to get his mail and pick up clothes, and that the night

before the altercation mother had made repeated efforts to remove father from her home after he

stopped by, including calling the police twice and trying to file a relief-from-abuse petition.

Instead, the family division’s conclusion that mother had failed to address concerns about domestic

violence was based on an altercation between mother and father shortly before mother’s visit with

B.C.

       ¶ 22.   The only altercation between mother and father identified in the court’s findings

occurred the night before, when mother repeatedly sought the intervention of police, and was

frustrated in her attempt to seek a court order requiring father to stay away from the home. The

family division’s finding that an altercation occurred between mother and father in close temporal

proximity to mother’s visit with the child was necessarily based in part on father’s out-of-court

statements accusing mother of inflicting the stab wounds he had an hour-and-a-half after leaving

mother’s home. And the finding that mother and father had an altercation in close temporal


                                                 9
proximity to mother’s visit with B.C. was the basis for the family division’s conclusion that mother

had failed to appropriately address concerns about domestic violence. Without father’s improperly

admitted out-of-court statements, the court’s finding that mother had failed to appropriately

address concerns about domestic violence cannot stand. This finding was critical to the court’s

CHINS determination.

                                   II. Sufficiency of the Evidence

       ¶ 23.   We reverse rather than remand because we conclude that without this evidence, the

remaining evidence, as found by the family division, would be insufficient to support a CHINS

determination. Although the court’s CHINS determination rested in large part on its findings

regarding mother’s failure to address domestic violence concerns, the court also made several other

findings in support of its decision. First, mother had recently missed several visits and scheduled

appointments, including substance abuse counseling, and had relapsed on benzodiazepines on one

occasion shortly before the petition was filed. Second, in the months preceding the State’s filing

of its petition, mother exhibited signs of impairment during several meetings with DCF and one

visit with B.C. The court concluded that, regardless of whether mother was actually impaired as

a result of illicit drug use, as DCF personnel suspected, their testimony as to mother’s mental state

was probative of mother’s ability to effectively engage with both DCF and B.C. at those times and

to adequately supervise B.C. And finally, the court concluded that the merits findings from an

earlier CHINS proceeding concerning mother’s two older daughters had “some probative value”

to show that mother had “repeatedly exposed at least one of her children to the presence of an

abusive and volatile former partner.” These findings, and the evidence underlying them, cannot

support a CHINS determination. We consider each in turn, bearing in mind the applicable

standards at the merits hearing.

       ¶ 24.   “[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


                                                 10
evidence to demonstrate that the statutory directives allowing such intervention are fully satisfied.”

In re N.H., 135 Vt. 230, 235, 373 A.2d 851, 855 (1977).

       ¶ 25.   Mother’s admitted single use of benzodiazepines on May 5, 2017, while B.C. was

in DCF custody and being cared for by others, is minimally probative of the child’s status as

CHINS two weeks later. Any connection between mother’s use of illegal drugs on that occasion

and a risk to the child is remote. Although the family division implied that mother’s relapse may

have been more enduring—it noted that she had missed substance abuse counseling

appointments—it did not find that mother was actively using on an ongoing basis at the time the

CHINS petition was filed. In fact, as noted below, it expressly declined to do so.

       ¶ 26.   Although the family division cited the testimony of the DCF caseworker and family

time coach that mother appeared at some meetings and a visit in the spring of 2017 showing signs

of impairment, the court did not determine whether mother was in fact impaired by substances on

those occasions. In particular, the DCF caseworker testified that at a shared parenting meeting in

April 2017 mother told her that she had taken too much of her prescribed medication, causing

mother to have delayed responses and to forget things. The family time coach testified that

although mother was generally very attentive during visits with B.C., on one occasion she was

“definitely off” during a visit, resulting in her not being “as attuned as she has been” in dealing

with B.C.’s fussiness. The family division concluded that, “regardless of whether mother was, in

fact, under the influence” on the occasions in question, the testimony concerning her behavior was

“probative of mother’s inability to effectively engage with both DCF and [B.C.] at these times.”

Absent any finding that mother was impaired on these occasions, the testimony concerning these

incidents does not support the court’s CHINS adjudication. A parent’s being “off” on one

occasion, and slow and forgetful on another, are not, without significantly more, grounds to

support a CHINS determination.




                                                 11
       ¶ 27.   Finally, even assuming the family division permissibly relied upon findings from a

prior CHINS decision concerning mother’s failure to protect one of her daughters from being

exposed to domestic abuse, those findings are insufficient to support this CHINS petition in the

absence of evidence supporting the inference that mother was continuing to expose her child to

such risks.6 The court’s findings, or lack thereof, on these points fail to demonstrate by a

preponderance of the evidence that B.C. was CHINS at the time DCF filed its second petition. See

33 V.S.A. § 5101(a)(3) (identifying one purpose of juvenile judicial proceedings as “separat[ing]

a child from his or her parents only when necessary to protect the child from serious harm”).7

Accordingly, we reverse.

        The superior court’s January 30, 2018 decision adjudicating B.C. to be a child in need of
care or supervision is reversed.


                                              FOR THE COURT:



                                              Associate Justice




       6
          Because we conclude that, even considering the challenged findings, the State’s evidence
is insufficient to support a CHINS determination, we do not address mother’s argument that the
family division improperly relied on the findings.
       7
            Because we conclude that the evidence was insufficient to support a CHINS
determination in the absence of the improperly admitted evidence, we do not address mother’s
additional arguments that because B.C. was in DCF custody during the months leading up to the
second CHINS petition, including the date the petition was initially filed, he could not have been
in need of care or supervision.
                                              12
