2013 VT 79


In re D.D. (2012-417)
 
2013 VT 79
 
[Filed 13-Sep-2013]
 
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.
 
 

2013 VT 79

 

No. 2012-417

 

In re D.D., Juvenile


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Franklin Unit,


 


Family Division


 


 


 


March Term, 2013


 


 


 


 


Martin
  A. Maley, J. (disposition); Linda Levitt, J. (merits adjudication)


 

Matthew F. Valerio, Defender General, and Anna Saxman,
Deputy Defender General,
  Montpelier, for Appellant-Father.
 
Michael Rose, St. Albans, for Appellant-Mother.
 
William H. Sorrell, Attorney General, and Robert F.
McDougall, Assistant Attorney General,
  Montpelier, for Appellee Department for Children and
Families.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.   Father appeals the trial court’s
conclusion that his son D.D. is a child in need of care or supervision (CHINS)
because he was without proper medical care necessary for his well being under
33 V.S.A. § 5102(3)(B).  Father argues that the record did not support the
trial court’s factual findings, which in turn did not support the trial court’s
legal conclusion.  The State challenges the timeliness of father’s appeal
and, on the merits, argues that the trial court’s findings and conclusions were
adequately supported.  We conclude father’s appeal is untimely but reach
the merits in this instance and affirm the trial court’s substantive
determination. 
¶ 2.            
Child, D.D., was born in 2007 with obstructive uropathy, a condition
which blocked and scarred his kidneys.  As a result of this disorder,
child’s kidney function will deteriorate over time, and he will inevitably need
dialysis or a transplant.  Child requires ongoing medical care and
supervision to help delay these invasive treatments.  This medical care
consists primarily of: monitoring of weight, kidney function, and
red-blood-cell count; regular catheterization to relieve pressure on his
kidneys; and weekly shots of the drug Epogen to prevent kidney-disease-related
anemia.  
¶ 3.            
Faced with perceived concerns about parents’ ability to ensure child
receives the routine care his condition demands, the Department for Children
and Families (DCF) petitioned in February 2012 to have the then-four-year-old
child declared CHINS.  Based on an affidavit from a DCF caseworker, the
court granted an emergency request to temporarily transfer custody to DCF and
scheduled a temporary-care hearing for the following day, February 10,
2012.  Parents, their appointed attorneys, the DCF attorney and a guardian
ad litem participated in the temporary-care hearing.  Following the
hearing, the trial court issued a temporary-care order continuing DCF
custody.  In its order, the court concluded, on the basis of DCF’s
accompanying affidavit, that returning child to parents could result in
substantial danger to child’s health, welfare, or safety.  The court also
found that DCF exercised due diligence to prevent child’s unnecessary
removal.  
¶ 4.            
Some four months after the temporary care hearing, the court held a
merits hearing.  The hearing began on May 11, 2012 and was continued on
June 20, 2012.  
¶ 5.            
Child’s primary-care physician testified at the May hearing.  The
physician, who had treated child since birth, indicated that child’s condition
was generally “great” apart from his chronic kidney disorder, which required
close, routine monitoring.  The physician also testified that parents
routinely contact her when they have concerns about child’s health, and
although child has occasionally missed appointments because of transportation
problems, parents follow up and reschedule when this occurs.  In
discussing child’s degenerative kidney disorder, the doctor stressed the
importance of regular laboratory monitoring.  Any deterioration in child’s
organ function would not necessarily be readily apparent based simply on
physical observation, and for that reason healthcare providers rely on
laboratory testing to monitor child’s progression.  The physician
indicated that the lab work was conducted at Fletcher Allen Health Care (FAHC).

¶ 6.            
A nephrologist from FAHC also testified at the merits hearing.  As
of the time of the hearing, the nephrologist reported that child’s kidneys were
functioning at two-thirds capacity.  The nephrologist testified that
physicians could only slow the progression of child’s disease to give him more
time to grow and develop before transplanting a kidney.  When child
eventually needs a transplant, it would likely be preceded by a period of dialysis
requiring even more frequent visits to the health center.  Afterward,
child would need more frequent and regular medication to avoid rejection. 

¶ 7.            
The nephrologist indicated that as part of the treatment to slow the
progression of child’s kidney disease and delay the inevitable transplant, it
is imperative that child visit the hospital at least every three months for
testing.  According to the nephrologist and a member of the hospital
administrative staff, child missed at least some scheduled appointments. 
Many of the missed appointments were attributed to transportation difficulties,
while others were weather-related.  On at least one occasion, mother
simply forgot an appointment despite the pediatrician’s assertion that she had
called to remind the family of the appointment.
¶ 8.            
At a minimum, parents canceled or rescheduled appointments initially
slated for September 13, 2011; January 10, 2012; January 12, 2012; January 24,
2012; and January 31, 2012.  Between February 2011 and January 2012,
parents brought child to only two scheduled appointments: one in June 2011 and
another in November 2011.[1] 
Before the June appointment, the last time the nephrologist had seen child was
September 2010.  To establish this calendar of hospital visits, the court
permitted a social worker to testify from a list of appointment dates compiled
by an unknown staffer over parents’ hearsay objection.  Based on that
list, the social worker described the reasons for which the appointments were
missed or rescheduled.  The social worker testified that parents missed
the February 2011 appointment without rescheduling.  The May 26, 2011
appointment was canceled because of transportation problems, but rescheduled for
June 9.  In September 2011, the family offered no excuse for not showing
up.  Despite several rescheduling calls, child attended appointments in
June 2011, November 2011, and February 2012.  The family called to
cancel and reschedule the January 2012 appointment four times because of
transportation and bad roads.  
¶ 9.            
A home-care nurse who has treated child for about four years also
testified at the hearing.  The nurse indicated that she visits child
weekly, at which time she monitors child’s growth; checks on his vesicostomy—a
surgical hole in the bladder used for catheterization; tracks his urine output;
and administers his weekly Epogen shot, which parents obtain from a
pharmacy.  The nurse offered a mixed perspective on parents’ ability to
care for child.  The nurse testified that parents properly performed the
catheterization and, in fact, mother showed the nurse how to perform the
drainage.  Despite parents’ apparent attentiveness in this respect, however,
the nurse recalled several occasions on which child did not receive his Epogen
shot, the importance of which the nurse and other healthcare providers had
stressed.  Specifically, the child did not receive his shot as scheduled:
once in October 2011, when parents did not hear the nurse knocking on the door
of the house; once in September 2011, when parents forgot to pick up the
medication at the pharmacy; and once in February 2012, after child had been
placed in temporary DCF custody.  The number of shots missed may have been
more extensive, according to the nurse’s testimony. 
¶ 10.        
As a general matter, the nurse recalled that the family’s frequent
relocations at times made keeping scheduled appointments difficult.  The
nurse said that on occasion several weeks had passed when she could not locate
the family because they had moved.  According to the nurse, the family
moved about seven times during the time she treated child.  The locations
to which the family moved offered varying levels of accommodations for parents,
child and his siblings.  The residences did not always have water.  
¶ 11.        
Mother testified that there was a two-week gap in visiting-nurse
coverage when the family moved from Berkshire to Enosburg in May 2011. 
According to mother, the nurse’s GPS had misdirected her.  
¶ 12.        
With respect to hospital and doctor care, mother reported that the
family met with healthcare providers in August 2011 to discuss ongoing
treatment plans.  During the meeting, the family agreed to make sure child
went to FAHC once every three months.  According to mother, the family did
not make it to a September 2011 appointment at FAHC because they were in the
process of moving.  Mother stated that it was a hectic time and she forgot
about the appointment.  At the same time, father got a MRSA
infection following surgery.  Mother recalled that lack of transportation
made it difficult to attend appointments.  Mother described Medicaid
transportation as an unreliable substitute, either failing to pick up the
family to travel to scheduled appointments or leaving them stranded in
Burlington afterward.  Mother indicated that these transportation
difficulties did not have a material impact on child’s care.  She noted,
for example, that when she contacted FAHC about the four rescheduled January
appointments, she was told that it was not necessary to travel to FAHC and to
make alternate arrangements to bring child to a pediatrician in Enosburg to
have the blood work done at that time.
¶ 13.        
Mother also described her history with substance abuse.  She
explained that she did not attend Brattleboro Retreat for treatment as she
initially planned, but did complete Act One substance-abuse programming and had
been clean for sixty days at the time of the hearing.
¶ 14.        
Father testified during the hearing, describing the family’s
transportation and living situations.  He stated that in 2011 the family
did not have transportation.  With regard to housing, father reported that
the family had moved out of a camper they had occupied on a relative’s property
and had housing with room for child.  
¶ 15.        
The hearing was continued to June 20, 2012, at which time the trial
court orally summarized its findings and ordered DCF to submit proposed written
findings.  Among the court’s oral findings were that:
·        
Child suffers from a serious obstructive kidney disorder requiring
medical treatment, including draining child’s bladder to relieve
pressure.  
·        
Regular treatment and doctor contact is necessary to delay
kidney-function loss leading to eventual dialysis and transplant; “otherwise,
the kidneys will fail prematurely.”  
·        
Appropriate doctor contact includes monthly visits to the pediatrician
and visits every three months to the nephrologist in Burlington.  
·        
Before June 2011, the specialized kidney doctors had last seen child in
September 2010. 
·        
Parents “regularly failed to follow a schedule, which makes it difficult
for the doctor to track the kidney function and whether or not the child is
suffering from anemia.”  
·        
Parents missed two nephrology appointments without calling, one in
February 2011, and another that mother forgot in September 2011, less than two
weeks after a meeting between medical workers and parents to discuss the
importance of regular doctor appointments.  
·        
Parents canceled a May 26, 2011 nephrology appointment because of
transportation issues, but went on June 9, 2011.  
·        
Parents brought child to a nephrology appointment as scheduled in
November 2011.  
·        
Parents canceled but rescheduled nephrology appointments four times in
January 2012, the first for lack of transportation, the second because of bad
roads, and the last two for no reason.  
·        
Child attended a scheduled nephrology appointment in February 2012 after
he was in DCF custody.  
·        
Lab work showed child was iron deficient in June 2011 at the lowest
level recorded to date.  
·        
Child must be administered Epogen or his red blood cells, important for
growth, brain development, and learning, will decline.    
·        
Family lacks “vehicle, transportation, access to a vehicle, license, has
difficulty making appointments.”    
·        
Family has moved multiple times, meaning “that the nurse, who brings the
weekly Epogen shots to the family, sometimes has no idea where the family has
been.”  
·        
“[T]here were a number of missed [Epogen] shots, according to the
visiting nurse.”  
·        
Family “suffers from instability” and “there is substance abuse.”  
 
Based on these findings, the court
concluded child was without proper parental care with respect to medical
treatment and continued DCF custody with family visits.  
¶ 16.        
The court noted in a scheduling order that its findings were on the
record, that child was CHINS, that “parents go to appts,” that child “misses
parents,” and that “[mother] is in substance abuse treatment.”  A short
time later, the trial court ordered a case plan from DCF.  
¶ 17.        
About a month later, DCF submitted its proposed findings.  The
trial court adopted DCF’s proposal verbatim, handwriting “so found” and
signing, despite the fact that the proposed written findings differed in many
significant respects from the court’s earlier oral findings and, in at least
one case, directly contradicted the court’s own entry orders.  Among the
proposed written findings not contained in the oral findings were:
·        
DCF received a report from FAHC June 17, 2011, regarding inadequate
care. 
·        
An employee of FAHC reported that parents had not picked up an
antibiotic for child. 
·        
FAHC records reflected two canceled appointments in January 2010, one
because of a car not starting and another to coordinate with a surgical
doctor.  The same records reflect that mother canceled an early February
appointment but did arrive for the rescheduled February 25 appointment; that
family missed without calling a May 2010 appointment; that family attended a
September 2010 appointment; that family canceled a September 16 appointment and
a December appointment.  
·        
Parents are not employed so there is little income for the household.
·        
Mother has “admitted substance abuse history but has yet to follow
through with treatment.”    
 
¶ 18.        
At a disposition hearing in September 2012, parents agreed to DCF’s
continued custody subject to a transitional plan to reunite child with his
parents in sixty days.  The court held a disposition hearing on October 9,
2012.  The court entered a disposition order two days later.  Father
appealed the trial court’s merits determination on November 8, 2012.  
¶ 19.        
On appeal, father argues (1) that the written findings, which the court
adopted verbatim without scrutiny, are not supported by the record; (2) that
the trial court improperly admitted hearsay evidence consisting of a tally of
missed medical appointments drafted by an unnamed clinic staffer; and (3) that
neither the court’s oral nor written findings support its conclusion the child was
without proper medical care.  While DCF acknowledges the inadequacy of
some written findings, it nonetheless maintains that the relevant ones—written
and oral—do find support in the record and are sufficient to support the trial
court’s legal conclusion that child was a CHINS.  DCF also challenges the
timeliness of father’s appeal.
I.
¶ 20.        
We begin with DCF’s argument that father’s appeal was untimely
filed.  Vermont Rule of Appellate Procedure 4 requires a party to file a
notice of appeal within thirty days of the entry of judgment or order
appealed.  The timely filing of a notice of appeal is “a jurisdictional
requirement.”  In re L.B., 147 Vt. 82, 84, 510 A.2d 1319, 1321
(1986).  The parties agree that father did not file a notice of appeal within
thirty days of the date of the CHINS determination, but disagree as to whether
his notice of appeal was nonetheless effective to challenge the merits
adjudication.  Their disagreement stems from the bifurcated nature of
Vermont’s child abuse and neglect proceedings.  See In re L.S., 147
Vt. 36, 38, 509 A.2d 1017, 1019 (1986) (explaining “bifurcated nature of
juvenile proceedings”).  First, there is a merits adjudication during
which the State must prove the allegations in the CHINS petition, and the court
must find by a preponderance of the evidence whether the child is abused or
neglected.  See 33 V.S.A. § 5315 (requiring state to prove by
preponderance of evidence that child is in need of care and supervision at
merits).  Second, there is a disposition hearing, which decides the terms
of the child’s placement and protection.  Id. § 5318(a)
(directing court to make orders related to child’s custody at disposition).
 In this case, a merits decision was entered on July 25, 2012, and a
disposition order was entered on October 11, 2012.  Father filed a notice
of appeal on November 8, 2011, seeking to appeal both the merits and the
disposition orders.  The State argues that the merits decision was a final
order and that father’s appeal—filed beyond the thirty-day appeal period—was
untimely.  Father argues that this Court should permit appeals of CHINS
decisions after disposition, which father deems the final order.
¶ 21.        
Therefore, the timeliness of father’s appeal depends on two questions:
whether a CHINS merits decision is a final appealable order and whether failure
to appeal that decision within thirty days forecloses the right to later
challenge it.  In answer, we conclude that the merits decision is a final
order and that failure to bring an appeal of that order within thirty days bars
subsequent challenges to the order.  
¶ 22.        
We begin with the finality question.  Generally, the test for
finality is whether an order has disposed of all matters before the court by
settling the rights of the parties.  See In re A.D.T., 174 Vt. 369,
373, 817 A.2d 20, 24 (2002); In re Petition No. 152 by Cent. Vt. Ry., Inc.,
148 Vt. 177, 178, 530 A.2d 579, 580 (1987).  In juvenile proceedings,
finality is measured differently from other types of cases given the important
rights at stake and the ongoing nature of the proceeding.  The statute on
child-neglect proceedings indicates that a disposition is a final order, 33
V.S.A. § 5318(d), but, unlike some other states’ statutes, does not otherwise
define which orders are final and appealable.[2]  
¶ 23.        
Thus, we must examine the nature of the CHINS decision.  The merits
adjudication conclusively establishes for the first time the facts that justify
state intervention into the family.  No further factual development is
necessary for review, and the subsequent proceedings, including disposition,
relate to different matters.  For these reasons, we concluded in our
recent decision In re C.P., 2012 VT 100, ___ Vt. ___, ___ A.3d ___, that
a CHINS merits adjudication was a final appealable order.  In In re
C.P., the State sought termination at the initial disposition, and the
parents attempted to challenge the court’s jurisdiction to adjudicate the
child-neglect proceeding.  We held that parents could not collaterally
attack the underlying CHINS merits adjudication on jurisdictional grounds when
they failed to challenge that jurisdiction during the initial stages of the
proceeding or to appeal the CHINS decision.  Id. ¶ 20.  We
explained: “[A] CHINS proceeding determines issues critical to the child’s
welfare and custody status, and while not the last word on the subject, it is
certainly a final judgment.”  Id. ¶ 28.  This holding was
consistent with prior published and unpublished decisions of this Court holding
that a CHINS decision is a final judgment.  See In re P.J., 2009 VT
5, ¶ 11, 185 Vt. 606, 969 A.2d 133 (mem.) (noting that res judicata applies to
CHINS decision because CHINS is “a final judgment”); In re M.A.V., No.
2011-120, 2011 WL 4975620 (Vt. Aug. 15, 2011) (3-Justice mem.) (dismissing as
untimely CHINS appeal filed beyond thirty-day appeal period).  
¶ 24.        
To hold otherwise would be detrimental to both parents and
children.  Parents’ interests in the care and management of their children
may be harmed by requiring them to wait until after disposition for appellate
review.  Although disposition should occur within thirty-five days after a
CHINS adjudication, 33 V.S.A. § 5317(a), this timeline is not
mandatory.  See In re J.R., 153 Vt. 85, 92-93, 570 A.2d 154, 157-58
(1989) (holding that nothing in juvenile statutes suggests that delay in
holding disposition hearing beyond statutory time limit voided disposition
order or CHINS adjudication).  In reality, there can be much longer
delays.  See, e.g., In re H.F., No. 2012-064, 2012 WL 6827286 (Vt.
Nov. 8, 2012) (3-Justice mem.) (nineteen months between contested CHINS and
final disposition order); In re S.M., No. 2010-445, 2011 WL 4974788 (Vt.
Mar. 4, 2011) (3-Justice mem.) (CHINS in June 2009 and termination at initial
disposition after hearing in August 2010).  During the interim period
between CHINS and disposition the court is authorized to issue orders for the
child’s temporary care.  33 V.S.A. § 5317(e).  Therefore, pending a
disposition hearing, the child may be placed outside of the parents’ care.
¶ 25.        
Leaving parents without the right to review until after disposition—a
potentially considerable length of time—could result in a long separation
period, which in turn could permanently damage the parent-child bond,
especially for a young child.  Thus, although a CHINS determination does
not permanently resolve the child-neglect proceeding, it is, nonetheless, a
final, appealable order because it can result in a prolonged intrusion into
parents’ “fundamental liberty interest . . . in the care, custody,
and management of their child.”  Santosky v. Kramer, 455 U.S. 745,
753 (1982).  
¶ 26.        
In addition, the child’s best interests favor immediate review of the
merits decision.  The Legislature has demonstrated a preference for
providing children with permanency and stability.  See 33 V.S.A. §
5101(a)(4) (directing that juvenile statutes should be construed “[t]o assure
that safety and timely permanency for children are the paramount
concerns”).  This policy is best served by resolving the child’s status as
quickly as possible since children continue to develop and form relationships
during the period between a merits adjudication and disposition.  If a
CHINS adjudication is made in error, it is far better for the child to have the
error remedied immediately so that she may be returned to her parents’ care
before a long period of separation has harmed the relationship.  Alternatively,
allowing parents to wait until after disposition to challenge a CHINS order
could increase periods of disruption and uncertainty for a child, who has
formed important relationships pending disposition.  
¶ 27.        
Other courts have similarly held that in the context of juvenile
proceedings, traditional notions of finality are not applicable and temporary
interim orders may be final appealable orders.  See In re Doe, 883
P.2d 30, 35 (Haw. 1994) (citing cases).  As explained above, these courts
make such allowances because a parent’s fundamental right to custody and
control of their children is at stake and because the nature of juvenile
proceedings is different from other types of cases in that they involve an
ongoing and evolving process.  For these reasons, other courts have also
required parties to immediately appeal a neglect or dependency adjudication.[3]  See, e.g., Lindsey M. v. Ariz.
Dep’t of Econ. Sec’y, 127 P.3d 59, 61-62 (Ariz. Ct. App. 2006) (both
dependency adjudication and disposition are appealable orders); In re
Shamika F., 773 A.2d 347, 361 (Conn. 2001) (temporary order in child
custody proceeding immediately appealable, and cannot be challenged at
termination); In re Stephen M., 953 A.2d 668 (Conn. App. Ct. 2008)
(adjudication of neglect is final, and party must appeal or lose opportunity to
challenge); In re V.S., 495 S.E.2d 142, 145 (Ga. Ct. App. 1997)
(unappealed order finding children were deprived cannot be challenged at
termination); Hooper v. Rockwell, 513 S.E.2d 358, 364 (S.C. 1999) (order
after merits hearing and later order regarding treatment, placement or
permanent plan are both final orders that must be timely appealed).
¶ 28.        
These courts emphasize that children have a strong interest in avoiding
belated challenges to juvenile orders.  A long period of time in foster
care has the potential to establish a stable long-term relationship for a child
and “[a] grave injustice would be committed against children if a parent were
permitted to appeal from a judgment of temporary custody long after they had
established a stable relationship with foster parents.”  In re Shamika
F., 773 A.2d at 361-62.  In addition, an immediate appeal protects the
parents’ interest in avoiding disruption to family integrity.  Id. 
If parents have to wait to appeal a merits adjudication, then there may be a
resulting unacceptable infringement on the parents’ rights.  Hooper,
513 S.E.2d at 364.
¶ 29.        
Father posits that parents should not have to choose whether to appeal a
merits decision immediately, but should be able to do so then or after
disposition.  Father argues that this would be consistent with In re
C.P., 2012 VT 100, which he construes as not limiting appeals to only after
CHINS, but leaving open the possibility that a CHINS order could also be
appealed after disposition.  Our research reveals only one decision
adopting such a process.  See In re Calvin, No. 2001–G–2379,
2002-Ohio-6468, ¶ 25 (Ct. App. Nov. 22, 2002).  We decline to allow a dual
appeal system.  It would create uncertainty about the finality of the
CHINS order and the decisions made therein.  It is important for the
parties to be able to rely on the merits adjudication so that they can move
forward with services for the parents and planning for the child’s best
interests, whether that involves returning the child to the home or proceeding
with adoption.
¶ 30.        
We recognize that the parents’ decision about whether to contest the
merits could depend on the outcome of the disposition hearing. 
Disposition hearings may result in a wide range of outcomes from family
reunification to termination of parental rights.  See 33 V.S.A.
§ 5318(a)(1) (order may continue or return legal custody to the custodial
parent); id. § 5318(a)(5) (order may terminate all parental rights and
responsibilities).  A parent may decide not to challenge a CHINS
adjudication provided that the outcome at disposition returns the child to the
home or places the child with a relative.  It would be wasteful to require
a party to pursue a time-consuming and potentially unnecessary appeal in that
situation.[4] 
To prevent such inefficiencies, following a CHINS appeal, parties may move this
Court to hold the merits appeal in abeyance pending a final disposition
order.  V.R.A.P. 33(b) (providing that Court may issue “all necessary
scheduling orders”).  Following disposition, the appealing party may move
to dismiss the appeal or to consolidate the merits appeal with the disposition. 
Certainly, such a process would not be appropriate in all cases, but would be
available to parties to prevent unnecessary briefing and argument in cases
where, after disposition, a parent opts not to pursue the appeal. 
¶ 31.        
Regardless of whether the CHINS appeal is stayed pending a final
disposition order, it is important to emphasize that an appeal of the merits
would not delay or stay proceedings in the family division, including the
disposition hearing.  Under V.R.F.P. 12(d)(2)(C), and V.R.A.P. 8(c), orders
in juvenile matters are not stayed pending appeal, and the family division
retains jurisdiction to modify, vacate and enforce its orders.  Father
argues that an appeal of a merits decision would divest the family division of
jurisdiction to proceed with disposition because disposition is not a
modification or enforcement of a prior order.  Although the rules specify
that the family division has jurisdiction to modify and enforce orders, the
rules do not prevent the family division from exercising its jurisdiction to
issue a disposition order.  The purpose of allowing jurisdiction to
continue in the family division is to further the Legislature’s goal of
resolving neglect and dependency cases in a timely way so that children can
achieve permanency.  This purpose is best served by allowing disposition
to proceed while the CHINS merits decision is on appeal.   
¶ 32.        
In this case, father appealed beyond the thirty-day time frame, and therefore
his appeal of the CHINS decision was untimely.  Father argues that this
Court has routinely allowed appeals of the merits after disposition, and that
he should not be punished for relying on those cases.  We recognize that
our jurisprudence regarding the appropriate time to appeal CHINS determinations
has not been consistent.  See In re D.C., 160 Vt. 608, 610, 648
A.2d 816, 817 (1993) (mem.) (reversing merits decision where appeal notice
filed after disposition); In re B.B., 155 Vt. 365, 368, 584 A.2d 1126,
1127 (1990) (same).  But see In re M.A.V., No. 2011-120, 2011 WL
4975620, at *1 (Vt. Aug. 15, 2011) (unpublished mem.) (dismissing as untimely
appeal filed more than thirty days after CHINS merits adjudication where party
did not also appeal disposition).  Particularly, where In re C.P.,
2012 VT 100, had not yet issued before father’s notice of appeal was due in
this case, his obligation to immediately appeal the decision was not
evident.  Given the uncertainty regarding whether a merits decision had to
be appealed immediately or could instead be combined with an appeal of
disposition, it would be fundamentally unfair to foreclose father from
appealing the merits decision where important rights are at stake.  See In
re A.D.T., 174 Vt. 369, 375, 817 A.2d 20, 25 (2002) (reaching merits of
mother’s untimely appeal of termination order given important rights at
stake).  We, therefore, apply our decision prospectively and reach the
merits of father’s appeal.  
II.
¶ 33.        
Father argues that many of the court’s written findings were
insufficiently supported, if at all.[5] 
We agree, but conclude that the remaining findings, which are supported by the
record, are sufficient to support the court’s ultimate conclusion.[6]   
¶ 34.        
A child is “in need of care or supervision” when, among other possible
situations, he is “without proper parental care or subsistence, education,
medical, or other care necessary for
his . . . well-being.”  33 V.S.A. § 5102(3)(B). 
When reviewing a CHINS decision, we uphold the court’s factual findings unless
clearly erroneous and the court’s legal conclusions when supported by those
findings.  In re M.L., 2010 VT 5, ¶ 8, 187 Vt. 291, 993 A.2d
400.  Findings lacking any evidentiary support are necessarily
erroneous.  See In re D.B., 2003 VT 81, ¶ 4, 175 Vt. 618, 833 A.2d
1246 (mem.) (reversing where findings in termination-of-parental-rights case
were devoid of evidentiary support).  In juvenile proceedings, unsupported
findings do not lead to reversal “[i]f the ‘remainder of the court’s findings,
which are supported by the record, are sufficient to sustain the
decision.’ ”  In re B.M., 165 Vt. at 205, 679 A.2d at 898
(quoting In re A.F., 160 Vt. 175, 178, 624 A.2d 867, 869 (1993)).
¶ 35.        
We agree with father that many of the written findings were wholly
unsupported by the record.  For example, we note that DCF concedes that
seven of eight FAHC appointment dates in 2010 were wholly unsupported anywhere
in the record and should not have been included in the proposed written
findings reflexively adopted by the trial court.  We note also that the
court’s written finding that mother had yet to follow up with substance-abuse
treatment directly contradicts both the court’s own notation on a scheduling
order that mother was, in fact, getting treatment and mother’s uncontroverted
testimony that she had received treatment and had been clean for sixty days, as
evidenced by lab results.  Although there was testimony regarding parents’
failure to pick up an Epogen shot, there was no testimony at all regarding an
infection or failure by the parents to procure antibiotics.  Other written
findings contain minimal support in the record, although we conclude that they
are immaterial to the ultimate decision and thus, if error at all, would
constitute only harmless mistakes.  It is not clear, for example, whether
DCF received the alleged June 2011 report from FAHC indicating that child was
not receiving adequate care.  Although a hospital social worker testified
to having concerns and to speaking with DCF about the family’s situation, no
one from DCF testified and no report was introduced into evidence. 
Similarly, the court found in both its oral and written findings that parents
had difficulty with transportation.  Father contends that there was no
evidence to support the conclusion that family currently lacks access to
transportation and that, in fact, people at their new residence could provide
transportation.  Whether that situation had ameliorated since parents
moved in with family, however, was irrelevant to the observation that in the
past parents had missed or been forced to reschedule medical appointments
because of difficulty obtaining transportation. 
¶ 36.        
Even accounting for these clearly erroneous findings, we conclude that
the remainder of the court’s written findings support the court’s conclusion
that child was a CHINS due to medical neglect.[7]  Child has a serious kidney disorder
that will cause a progressive decline in organ function.  Child needs
“constant and consistent monitoring and treatment to delay loss of kidney
function and, more immediately, to delay the need for dialysis or transplant.” 
Child requires Epogen shots on a regular basis and regular appointments to a
kidney specialist.  Despite parents’ acknowledgement of the need for
routine monitoring, they have missed several appointments.[8]  Although the court’s written
findings regarding the missed appointments are not all supported, the record
reflects that the parents missed some of these important visits.  The
nephrologist testified that she had not seen child between September 2010 and
June 2011, meaning that child missed at least one scheduled appointment in
February 2011.  Mother also acknowledged missing a September appointment
at the hospital because she forgot.  By parents’ own admission, there were
several times when transportation posed an issue and they were forced to
repeatedly reschedule hospital appointments, even if child was not late for a
necessary check-up.  It is also undisputed that child must receive regular
Epogen shots to avoid kidney-disease-related anemia.  The visiting nurse
testified that on at least two occasions she was unable to administer the
weekly shot.  
¶ 37.        
Given child’s undisputed health issues and parents’ documented inability
on multiple occasions to arrange for care, we conclude that the trial court
findings that have support in the record are sufficient to justify the court’s
conclusion that child was a CHINS because of medical neglect.  See In
re B.M., 165 Vt. at 205, 679 A.2d at 898.  Because there are
sufficient written findings to support the court’s ultimate conclusion, there
are no grounds for reversal.  
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 
 
¶ 38.        
ROBINSON, J., concurring in part, dissenting in part.  
I agree that the merits adjudication was a final, appealable order, and that
father’s notice of appeal, filed after disposition, was untimely.  I also
agree that given the gravity of rights at issue and the lack of clarity in our
prior decisions, that we should reach the merits of father’s appeal.  I
cannot agree, however, that notwithstanding the trial court’s erroneous
findings we should affirm the trial court’s conclusion that D.D. was a child in
need of care or supervision (CHINS).  Therefore, I concur in Part I and
dissent as to Part II.
¶ 39.        
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. 230, 236, 373 A.2d 851, 856 (1977)
(citing Meyer v. Nebraska, 262 U.S. 390 (1923); Prince v. Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S. 645 (1972)). 
The State’s authority to interfere with that relationship in the name of
protecting children is “awesome,” and is accordingly subject to statutory and
constitutional restraints.  In re N.H., 135 Vt. at 235-37, 373 A.2d
at 855-57.  “Accordingly, any 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.”
 Id. at 235, 373 A.2d at 855.  
¶ 40.        
Moreover, our laws contemplate separation of a child from his or her
parents only when necessary for the child’s welfare or in the interests of
public safety, and require that a court, “[i]n determining that a child is
endangered and that State intervention is
necessary, . . . act with great care in deciding what type
of intervention is appropriate.”  Id. at 236, 373 A.2d at
856.  Such solicitude for protecting the parent-child relationship unless
otherwise necessary to protect the child’s welfare protects not only parents’
constitutional rights, but the important interest many children have in
maintaining the central relationship or set of relationships in their
lives.  See Bell v. Squires, 2003 VT 109, ¶ 18, 176 Vt. 557,
845 A.2d 1019 (mem.) (recognizing in divorce context that “a child’s best
interests are plainly furthered by nurturing the child’s relationship with both
parents” (citation omitted)).  
¶ 41.        
For the above reasons, the Legislature has long required that a CHINS
order be supported by adequate findings on the record.  See 33 V.S.A.
§ 5315(e); id. § 5526 (repealed); 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.”); see also E.J.R. v. Young, 162 Vt. 219, 225, 646 A.2d 1284,
1288 (1994) (requirement that disposition orders be supported by
findings on record “goes to the solemn responsibility the justice system owes
to Vermont citizens when a child is to be removed from the parental home.”).
¶ 42.        
In this case, we have two sets of findings.  The written findings,
prepared by the State and endorsed by the trial court, are rife with assertions
that are unsupported by the evidence:  
·        
The written findings state that child’s kidney function level was
declining.  Although the record evidence suggested that his kidney
function was expected to decline over time, the only testimony about his
trajectory during the year preceding the merits hearing suggested that his
function had remained stable or even improved.
·        
The written findings asserted that mother had failed to follow-up on
treatment for an admitted substance abuse problem.  The only evidence in
the record at the merits hearing was that mother had completed a substance
abuse program and was sixty days clean.  
·        
The written findings indicate that a Fletcher Allen Health Care (FAHC)
social worker reported that parents failed to pick up an antibiotic needed to
treat an infection.  There was no such testimony.
·        
The written findings list a host of specialist appointments that child
assertedly missed in 2010—none of which were the subject of any testimony in
the merits hearing.  
·        
The written findings state that someone from FAHC reported to DCF in
June 2011 that child was not receiving proper care.  There was no evidence
to support this finding.
 
These various clear errors
hopelessly compromise the trial court’s written findings in this case,
undermining the level of confidence in the trial court’s assessment of the
situation that we require in order to uphold a State intervention of this
gravity.[9]
¶ 43.        
The majority concludes that the trial court’s ultimate conclusion is
affirmable notwithstanding the carelessness of the trial court’s written
findings because the remaining findings can support the trial court’s
ultimate conclusion.  Ante, ¶ 36.  Removing a child from a
loving, effective parent in the absence of a considered determination of harm
and risk to the child on the basis of well-supported findings is not in a
child’s best interests.  Given the multiple material misapprehensions of
the record apparent in the trial court’s findings, I cannot assume that, had
the trial court properly understood the facts, it would have made a CHINS
finding nor that a CHINS finding and removal of child from his parents are in
child’s best interests; under these circumstances, affirmance may very well be
contrary to child’s well being.[10] 

¶ 44.        
I would be more willing to look beyond the problematic findings in this
case if the evidentiary record compelled a CHINS finding without regard to the
trial court’s actual findings.  But it does not.  This is not a case
of abuse.  There is no suggestion that either parent raised a hand against
child or allowed another to do so.  Nor are there findings that, apart
from the issues concerning his medical care, these parents neglected child’s
basic physical, developmental and emotional needs.  Setting aside for a
moment the trial court’s appropriate concerns about the parents’ attentiveness
to child’s medical needs, the trial court’s findings do not suggest a broken
parent-child bond, an unacceptably unstable home environment, a lack of
attentiveness to child’s educational or developmental needs, a failure to
provide appropriate nourishment or shelter, physical or emotional dangers to
child in his home, or exposure to domestic violence, drug abuse or other risks
commonly seen in CHINS cases.[11] 
Nobody questions that child and his parents had a loving relationship.  At
the end of the merits hearing, the trial court acknowledged that the child was
“confused, unhappy, doesn’t want to be where he is, wants to be home with [his
parents].”
¶ 45.        
Even with respect to child’s medical care, this is not an open-and-shut
case.  In addition to ordinary medical care, child’s condition requires
regular catheterization, weekly shots and evaluation of his growth and surgical
site, and quarterly testing with a nephrology specialist at FAHC.  Nobody
disputes that parents were appropriately catheterizing the child.  Child’s
pediatrician testified that parents routinely contacted her when they had
concerns about child’s health, and that parents follow-up and reschedule when
they occasionally miss scheduled appointments due to transportation
problems.  Child’s pediatrician testified that there is some flexibility
with respect to the administration of the weekly shots, and that child
generally needs the shots within one to two weeks.  The visiting nurse who
had visited the family, on average, once a week for four and one-half years for
the purpose of giving these shots and evaluating his progress, identified only
a handful of occasions when she was not able to provide child’s weekly shot and
evaluation on the scheduled date.  She did not testify that on these
several occasions, as a result of the missed weekly appointment, child went
without the shots beyond the acceptable two-week window.  
¶ 46.        
Given the above, the State’s CHINS case necessarily rests almost
entirely on the parents’ failure to get child from northern Franklin County to
Burlington for regular quarterly lab tests and appointments with
specialists.  In particular, child did not see the specialist between
September 2010 and June 2011—a far longer period than the medically required
three months.  Parents then missed a September 2011 appointment and child
did not see the specialist until November 2011.  Again, the approximate
five-month gap was substantially longer than appropriate.  Parents called
FAHC in advance to reschedule several January 2012 appointments, but had a
still-timely February 2012 appointment on the books when DCF sought custody
through a temporary-care order.  The State’s decision to seek custody of
child thus rested almost entirely on a nine-month gap in specialist evaluation
between September 2010 and June 2011, and a five-month gap—two months longer
than the required three-month interval—between June and November of 2011. 

¶ 47.        
Parents’ failure to timely schedule and bring child to quarterly
appointments with the specialist is no small matter.  It is clear from the
record that his medical condition is serious, and the risk of harm resulting
from undetected changes in child’s lab values is significant.  But given
parents’ attentiveness to child’s daily catheterization regimen; their
compliance, with very few exceptions, with weekly visiting nurse monitoring and
administration of shots; their demonstrated ability to identify potential
problems and willingness to contact child’s pediatrician when necessary; and
the lack of evidence of actual harm to child as a result of the delays,
although a court could make a CHINS finding, it is not compelled by this
evidence to do so. 
¶ 48.        
Moreover, the State’s response here was draconian.  At the outset,
rather than seeking a conditional custody order subjecting the parents to close
state supervision with respect to child’s visits to medical specialists, the
State removed child from his home and sought custody.  See 33 V.S.A.
§ 5308(a); id. § 5308(b)(1) (requiring return of child to
parents absent finding that return home would be contrary to child’s welfare,
and identifying conditional custody order with parents as preferred alternative
approach following temporary-care hearing).  Then, the State sought a
CHINS order and a disposition that contemplated continued foster care for an
indeterminate time.  Rather than placing child with his parents and
mobilizing its resources to ensure that the parents took him to his quarterly
appointment with the specialist—an approach that would have addressed the
specific harm warranting State intervention in the first place without
triggering a host of new harms—the State promoted a plan that severed the
day-to-day connection that cements the parent-child bond.  This was not a
brief period of foster care; by the time of the disposition hearing in this
case, child had been living away from his home and apart from his parents for
more than four months, and the disposition order contemplated an additional
period of foster care.  The risk to child’s physical health from his
parents’ failure to get him to the specialist was real, but the risk to the
young child’s mental health and well being as a result of his removal from a
loving and otherwise safe and appropriate home and placement in foster care is
also substantial and cannot be ignored.  
¶ 49.        
I realize these concerns about the State’s response go more to the
question of disposition, and that the focus of father’s appeal is the trial
court’s merits decision.  But this case highlights the gravity of a CHINS
finding and the potential consequences for parents and child of a CHINS finding
lacking the necessary support.  For the above reasons, I respectfully
dissent. 
¶ 50.        
I am authorized to state that Justice Skoglund joins this concurrence
and dissent.

 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 





[1]
 The State argues that appointments were scheduled for February 24, 2011,
and May 26, 2011, as well.  Father maintains that apart from inadmissible
hearsay evidence, there is no record support for these dates and others. 


[2] 
Some state statutes delineate in their juvenile code or relevant procedural
rules which orders are appealable.  See, e.g., Kan. Stat. Ann. §
38-2273(a) (appealable orders include temporary custody, adjudication,
disposition, finding of unfitness and termination of parental rights); Ohio
Rev. Code Ann. § 419A.205 (listing final judgments for purposes of appeal as
including jurisdictional decision, judgment disposing of petition, final
disposition, final order).


[3] 
Several other states with bifurcated neglect proceedings require a party to
wait until after disposition to appeal a merits decision.  See, e.g., In
re E.A., 638 P.2d 278, 282 (Colo. 1981) (holding that dependency
adjudication not final until after decree of disposition and both orders can be
appealed together at that time); In re Leona W., 888 N.E.2d 72, 81 (Ill.
2008) (proper method to appeal findings of abuse is after disposition); In
re Long, 313 N.W.2d 473, 477 (Iowa 1981) (merits adjudication is not final
without disposition); In re D.I.G., 114 P.3d 173, 174-75 (Kan. Ct. App.
2005) (under statute, must challenge neglect finding after temporary custody
order is issued); In re K.S., 856 S.W.2d 915, 917 (Mo. Ct. App. 1993)
(per curiam) (holding that there is no final appealable judgment until
disposition is entered); In re J.N.S., 704 S.E.2d 511, 516 (N.C. Ct.
App. 2010) (adjudication and disposition linked and adjudication not final
until after disposition); In re S.H., 337 N.W.2d 179, 180 (S.D. 1983)
(adjudicatory order not final until after disposition when time to appeal both
begins); In re Hannah S., 324 S.W.3d 520, 527 (Tenn. Ct. App. 2010)
(appeal after disposition is timely to appeal merits based on statute allowing
appeal “following the juvenile court’s disposition” (quotation omitted)). 
The reasons given for waiting until after disposition include avoiding the
duplication, waste and confusion of having two separate appeals pending from
the merits and disposition, see In re J.N.S., 704 S.E.2d at 516; Hannah
S., 324 S.W.3d at 527, and avoiding unnecessary appeals by requiring
parents to appeal the merits, see In re Long, 313 N.W.2d at 476
(explaining that parent has less desire to appeal merits if child remains with
parent at disposition).  While certainly these are valid concerns, they
are alleviated by allowing parties to move to hold the merits appeal in
abeyance pending disposition and to consolidate the appeals for
consideration.  See infra, ¶ 30.


[4] 
Father argues that requiring parents to immediately appeal a CHINS decision
will greatly increase the number of appeals filed with this Court and will
create acrimony between parents and DCF during the appeal period.  To be
sure, neither of these outcomes is desirable.  It is unlikely, however,
that there will be a flood of appeals given that the majority of CHINS
determinations are made by stipulation of the parties.  Our decision today
does not alter the grounds upon which a party may challenge a stipulated order.
 See In re Cr. M., 163 Vt. 542, 546, 659 A.2d 1159, 1162 (1995) (holding
that mother was bound by stipulated disposition, and could not challenge it at
termination); In re A.O., 161 Vt. 302, 308, 640 A.2d 537, 540-41 (1994)
(concluding that father’s stipulations to disposition plan precluded his
challenge to order based on lack of written findings).  In addition,
parents’ relationship with DCF following a finding of CHINS should not be
altered by an appeal of the merits adjudication.  If the CHINS was
contested in the family division, unfortunately, the parents and DCF may
already be in an adversarial situation.  Whatever the relationship, the
appeal does not alter parents’ incentives to cooperate with DCF pending a CHINS
appeal because proceedings in the family division will not be stayed pending
appeal.  See infra, ¶ 31.  As in all cases after a merits
adjudication, DCF will have an obligation to assist in achieving goals in the
permanency plan, and parents will have to work to achieve goals to obtain a
positive outcome at disposition. 


[5]
 DCF concedes that the court’s written findings are “in some respects
slightly overstated or characterized the evidence in a manner most supportive
of the state’s position.”  
 


[6]
 The court’s findings must be on the record, but not necessarily
written.  See 33 V.S.A. § 5315(e) (findings must be on the
record).  We are mindful, however, that the trial court voluntarily
elected to adopt—apparently without any real scrutiny—DCF’s exaggerated and, in
some instances, unsupported proposed written findings.  Given that other
findings are supported and sufficient to support the court’s conclusion that
child’s well being would suffer if he were returned home without DCF oversight,
we affirm.  See In re B.M., 165 Vt. 194, 205, 679 A.2d 891, 898
(1996) (stating that in juvenile cases decision will be affirmed even if some
findings are unsupported, where remainder of findings are sufficient to sustain
decision).
 
The dissent states that public safety may require
removal of the child from the home, post, ¶ 40.  Although public
safety may be a concern in a delinquency matter, see 33 V.S.A. § 311, it
is not related to the child’s removal in this case. 


[7] 
We do not rely on the court’s oral findings because there are sufficient
supported written findings to support the court’s ultimate conclusion.
 


[8]  We
need not decide whether the trial court erred by permitting a hospital social
worker to testify to appointment dates compiled by an undisclosed staff member
in preparation for the hearing because there was separate, admissible testimony
relating to the appointment dates relevant to our disposition of this
case.  


[9] 
In this case, where the trial court simply noted “so found” at the bottom of
the proposed findings submitted by the State, the circumstances suggest that
our recent generalization about the greater care reflected in written, as
opposed to oral, findings is not necessarily true.  Hanson-Metayer v.
Hanson-Metayer, 2013 VT 29, ¶ 46, ___ Vt. ___, 70 A.3d 1036 (noting
that preference for written over oral findings arises from “a greater
opportunity for considered analysis and careful reflection” in written findings
(citation omitted)).  This Court does not condemn the practice of relying
on, or even adopting as a whole, proposed findings submitted by the parties,
but does caution that the findings must reflect a careful review of all the
evidence.  V.R.C.P. 52(a) Reporters Notes—1987 Amendment.  I note
that counsel of record, as officers of the court, likewise have a duty to
ensure that proposed findings submitted to the court reflect the evidence
actually admitted at an evidentiary hearing, rather than the evidence counsel
hoped to admit.


[10] 
Moreover, the consequence of reversal would not be returning child to a
dangerous situation without recourse.  More than a year has passed since
the CHINS hearing at the crux of this appeal.  I do not know whether child
is still in DCF custody or whether, as contemplated by the disposition plan,
child has returned to his parents’ custody.  If the former, and if the
State had evidence based on the parents’ ongoing conduct that a return to his
parents’ custody would pose a substantial danger to the health, welfare, or
safety of child, the State would be free to take appropriate action.  33
V.S.A. § 5308(a).


[11] 
As noted above, the trial court’s written finding that mother has “admitted a
substance abuse history but has yet to follow through with treatment” was not
supported by the evidence.  The trial court made two terse oral findings
at the end of the merits hearing relating to stability and substance
abuse:  “[t]he family suffers from
instability,” and “[t]here is substance abuse.”  Although family
instability and parental substance abuse are often factors supporting a CHINS
order, in this case neither of the trial court’s conclusory statements provides
enough detail, or shows enough of a connection with child’s welfare, to add
support to the trial court’s ultimate CHINS finding.



