Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-449

                                         APRIL TERM, 2015

 In re M.S., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 82-8-14 Wmjv

                                                            Trial Judge: Katherine A. Hayes

                          In the above-entitled cause, the Clerk will enter:

       Mother appeals from an adjudication by the family division of the superior court that her
son, M.S., is a child in need of care or supervision (CHINS). We affirm.

        Mother has two children, M.K, born in November 2008, and M.S., born in December
2012. In April 2014, the Department for Children and Families (DCF) filed CHINS petitions
alleging that mother had abused M.K. and that M.S. was at risk of similar abuse. 33 V.S.A.
§ 5102(3)(A) (defining CHINS as meaning, among other things, child who has been abused or
abandoned by parent, guardian or custodian). The allegations of abuse were based on mother’s
conduct captured by a video camera outside of her apartment. The video showed mother
forcefully flinging M.K. to the ground and kicking her foot towards his face. On July 31, 2014,
following a hearing, the family court adjudicated M.K. CHINS, but denied DCF’s petition with
respect to M.S., concluding that DCF had not demonstrated that M.S. was at risk of similar
abuse. Mother appealed the family court’s ruling as to M.K., and we affirmed the court’s
decision in January 2015. See In re M.K., 2015 VT 8, ___ Vt. ___.

       Meanwhile, the day after the family court denied the first CHINS petition with respect to
M.S., DCF filed a second CHINS petition alleging this time that M.S. was without proper
parental care. See 33 V.S.A. § 5102(3)(B) (defining CHINS as meaning, among other things,
child “without proper parental care or subsistence, education, medical, or other care necessary
for his or her well-being”). In response to this second petition, the family court issued an
emergency care order regarding M.S., who has remained with his brother in the same foster
home since the boys were taken into DCF custody in April 2014. Following a contested merits
hearing held over two days in November 2014, the family court issued a decision adjudicating
M.S. as CHINS based on the following rationale:

                [M.S.] was identified very early as a child with special
                developmental needs, and, as stated above, the mother made
               valiant efforts to get all the help she could to assist her in meeting
               them. However, despite those efforts, [M.S.] did not grow or learn
               as fast as he should have, and the court concludes that this was in
               part due to the mother’s inability to provide him with care that he
               needed. This conclusion is based largely on the fact that [M.S.]
               has grown both developmentally and physically much more
               quickly since he was taken from his mother’s custody. The court
               concludes that it is likely that the mother’s own struggle to meet
               her own basic needs, despite significant disabilities, and without
               supports for herself that might have assisted her, interfered with
               her ability to care for others, including [M.S.], despite her good
               intentions. Mother’s stress and anxiety, her frustration when
               things did not work out as she had hoped, or when she became
               overwhelmed, her inability to calm herself, and her occasional
               outbursts of anger increased [M.S.’s] stress, and were an obstacle
               to his development. The mother’s acts of abuse towards [M.K.] on
               April 21, 2014 are also a factor here. [M.S.] was a witness to that
               incident, and that can only have been traumatic and painful for him
               to see. . . . The mother’s other outbursts of anxiety, distress, and
               anger at the childcare center, and at visits, show that this was not
               an isolated incident of loss of temper and control.

        Mother appeals the family court’s CHINS decision, arguing that: (1) the court’s
conclusion that M.S. was CHINS was based on an impermissible assumption that a person with a
disability cannot be a good parent; (2) the court erred in taking judicial notice of the findings in
the prior CHINS proceeding; and (3) the evidence does not support the court’s findings or its
CHINS adjudication.

         At the outset, we reject mother’s argument that the family court erred by taking judicial
notice of the findings in the prior CHINS proceeding. In the merits decision on appeal in the
instant CHINS proceeding, the court found that “[t]he parties stipulated in this case that the court
could take judicial notice of its findings in [the earlier CHINS] case.” Mother does not challenge
this statement, which is supported by the record. By expressly agreeing to allow the family court
to take judicial notice of the findings in the prior CHINS proceeding, mother has waived this
claim of error on appeal. See In re D.C., 2012 VT 108, ¶ 13, 193 Vt. 101 (concluding that
mother waived right to challenge on appeal procedure that she stipulated to in family court).

        Next, we consider mother’s argument that the family court’s adjudication of CHINS was
based on its impermissible assumption that a person with a disability cannot be a good parent.
Mother presumes that the court made this assumption based on the court’s statement, quoted
above, that despite mother’s good intentions, her significant disabilities and lack of supports for
herself that might have assisted her interfered with her ability to care for M.S. We will not
presume from this statement that the court based its decision in this case on its belief that a
person with a disability cannot be a good parent. The court’s focus was on whether M.S. was



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without proper parental care to the degree that it affected his well-being. In addressing that
question, the court considered mother’s conduct, which was impacted by her disability. The fact
that the court noted the impact of mother’s disability on her conduct towards M.S. and others
does not suggest that the court was adjudicating M.S. CHINS because mother had a disability.
Rather, the court addressed whether mother’s inability to control the symptoms of her disability
left M.S. without proper parental care such that it negatively impacted his well-being. In short,
the focus was on M.S. and only indirectly on mother’s disability.

        The real issue in this case—whether the State’s evidence supports the family court’s
conclusion that M.S. is without proper parental care—presents a close question. Mother
acknowledges that there was plenty of evidence demonstrating that M.S. has significant special
needs and that mother has a disability—a traumatic brain injury from a childhood accident—that
affects her emotions and impulse controls. But she contends that there is virtually no evidence
demonstrating that M.S.’s special needs resulted from her not providing M.S. with proper
parental care or that her disability had any impact on his physical or emotional development.

       As indicated above, the family court concluded that M.S.’s failure to develop physically
and mentally as fast as he should have was due in part to mother’s inability, despite her efforts,
to provide him with the care he needed to thrive, given his special developmental needs. The
court based this conclusion “largely on the fact that [M.S.] has grown both developmentally and
physically much more quickly since he was taken from the mother’s custody.” The court cited
mother’s own stress and anxiety and her inability to control her emotions and temper as obstacles
to M.S.’s development.

        Mother argues that the evidence does not support the family court’s finding that M.S.
developed much more quickly since he was taken into DCF custody, and that the court’s findings
do not support its conclusion that M.S. was without proper parental care or that M.S.’s slow
development was the result of her conduct. She points out that the only doctor to testify at the
CHINS hearing had seen M.S. one time after he came into foster care and did not testify that
M.S. had developed significantly after coming into DCF custody. Mother acknowledges that
after coming into DCF custody M.S. moved from the fourth percentile to the eighth percentile in
weight, but argues that no evidence indicated that such a change was significant. According to
mother, contrary to the court’s finding of neglect, the evidence demonstrates that she was
persistent in providing M.S. with medical attention, nutritionists, preschool, and other services.

        As noted, mother does not challenge evidence concerning her conduct, which apparently
stems from her disability. She does not dispute the family court’s findings concerning how her
disability made it difficult for her to control her emotions and impulses. The court described one
incident when mother became upset while at M.K.’s daycare and deliberately banged her head
against the cubbies where the children had their clothing. The director of M.S.’s child care
center testified that mother “could turn on me” and become aggressive “in a moment’s notice
when we were having a conversation if something went askew that she didn’t like.” She would
swear and become so agitated she would begin to shake and “have this facial expression like she
was going to blow or hit something.” She testified that mother’s behavior “really frightened me”



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and she “just didn’t know when it was going to happen” or “what I might say that would turn it.”
She described mother coming into the center like a “whirlwind” with a lot of “stress and anxiety”
and how she would lose her temper with M.S., “grabbing him.” She testified that mother “was
just like a stress ball entering the program, and everybody around her felt it, parents
complained.” She described this conduct on mother’s part as occurring “regularly.” Asked how
M.S. reacted to this behavior, the director testified that he would either “shut down” or be
“screaming.”

        The DCF caseworker assigned to M.S. also testified about mother’s conduct. He
observed her on several occasions “become overwhelmed emotionally and have a physical
response.” He described an incident in the spring of 2014 when mother became confrontational,
raising her voice and putting her arms in the air, after wrongly assuming that he was changing a
visiting schedule. According to the caseworker, the children who were present reacted by
putting their heads down and becoming quiet. The caseworker also testified that mother had
similar physical responses at team meetings and on one or two occasions swore and became
verbally aggressive. In considering mother’s conduct, the court also took into account the
incident that led to the first CHINS petitions, in which she flung M.K. to the ground in the
presence of M.S.

         Nor does mother challenge the evidence or the court’s findings concerning M.S.’s special
needs. A child interventionist and pediatric physical therapist who had worked with M.S. since
he was six months old described M.S. as a “quite rigid” baby who “moved very quickly through
space” and “had a hard time regulating himself” and “was easily overwhelmed by his
environment.” She likened M.S. to “a little pinball” who “couldn’t sustain attention to a toy” or
“get comfortable.” She testified that he was so stiff that he had difficulty grasping a toy and that
his constant movement was unsafe at times. She stated that they tried to slow things down for
him by giving him “really controlled sensory stimulation” to relax his muscle tone. The therapist
testified that after M.S. began walking he paid little attention to obstacles in his environment, just
plowing through them, and he showed “all along decreased responsiveness to pain.” The court’s
unchallenged finding, based on this and other testimony, was that M.S. “needed a calm, quiet
environment to work on all of these issues.”

       While mother acknowledges the family court’s findings regarding her conduct and M.S.’s
needs, she rejects the court’s conclusion that her behavior has played a role in M.S.’s
developmental delays to the point that the child is without proper parental care. We conclude
that there is sufficient evidence of a connection between mother’s actions and M.S.’s
developmental delays for the court to adjudicate the child CHINS.

       A pediatrician who examined M.S. in June 2014 at his eighteen-month checkup testified
about the history of M.S.’s checkups at her office and the various concerns arising out of those
checkups. The pediatrician testified that M.S.’s weight, height, and head size were within the
normal range at birth but became a concern later. According to the pediatrician, at M.S.’s six-
month visit, her office was becoming “very concerned” about M.S.’s failure to gain weight.
There were also concerns that M.S. was behind in language and problem-solving skills. At



                                                  4
eighteen months, M.S. was in the eighth percentile for weight and the first percentile for head
circumference. The pediatrician testified that there did not appear to be any medical reason for
the failure to gain weight, and preliminary tests failed to show that autism was a factor or that
there were other genetic factors. She also generally testified that a child’s environment is “a
huge factor,” and that the effects of “toxic stress in the home” can have “a huge impact on
children.” She stated that she could not know for sure what was causing M.S.’s small head and
failure to gain weight, but that there was a “disconnect” between what mother was saying about
M.S.’s development and the concerns raised by service providers.

        Several witnesses testified about M.S.’s condition both before and after he was removed
from mother’s custody. The physical therapist testified that M.S. would get rigid, intensely
distressed, and less available for being consoled in a loud, chaotic environment. She stated that
she and mother “had several discussions on how [M.S.] was very sensitive to how she was
feeling.” When asked if she had seen changes in M.S. since he had been taken into DCF
custody, the therapist stated that M.S. initially had a difficult transition but within two to three
weeks seemed “really happy, laughing, starting to attend more to toys.” According to the
therapist, once M.S. got into a consistent routine, “he looked very relaxed, not as stiff, sustaining
attention to tasks” and was “becoming better at controlling the speed and direction of his
movement through space.”

        M.S.’s DCF caseworker also saw significant changes since M.S. had come into DCF
custody. He testified that when M.S. first came into DCF custody he would want to play by
himself and would move from one thing to the other very quickly and recklessly. According to
the caseworker, by the time of the merits hearing three months later, M.S. appeared to be more
interactive while playing. Similarly, the director of the child care center that M.S. attended from
November 2013, when he was eleven months old, until August 2014 testified about M.S.’s
“phenomenal” progress since coming into DCF custody. The director testified that when M.S.
came into DCF custody, he was hyper and anxious and “out of control in his body.” He moved
over toys and other children “like they didn’t exist.” According to the director, M.S. had a “flat
affect.” His eyes were vacant, and he did not respond to people or make normal eye contact with
them. His verbal communication skills were underdeveloped. He was very pale and
“extraordinarily thin.” The director testified that within a couple weeks of being placed in DCF
custody, M.S.’s appearance and behavior “changed dramatically.” Moreover, he was coming
into daycare with food that was in line with what the nutritionist was recommending, and he
noticeably gained weight and his hair began to thicken. His complexion became rosier and his
eyes clearer. He begin playing with other children in a purposeful way, and he began going to
caregivers when he was hurt or experienced pain. The director testified that she regularly
observed M.S. because of her concern for him and that there was “no doubt . . . in [her] mind”
that the change in his appearance and behavior occurred after he was taken from mother’s home.

        The above evidence indicated that M.S.’s special needs required a structured, non-
stressful environment, and that mother was unable to provide such an environment, resulting in
M.S.’s failure to develop. Although much of the evidence was circumstantial in nature, it was
sufficient for the family court to conclude that M.S.’s developmental delays were the result, at



                                                 5
least in part, of a stressful home environment resulting from mother’s failure to regulate her
emotions and impulses, and that M.S. was CHINS because of his failure to thrive in mother’s
care. Like the State, we entirely agree with mother that a parent’s disability, in and of itself,
cannot be a sufficient basis to support a CHINS adjudication. But when there is evidence, as
here, that the parent’s behavior—irrespective of whether it is a result of a disability—is the cause
of a child’s failure to thrive, that evidence may support a CHINS adjudication. See In re D.D.,
2013 VT 79, ¶ 34, 194 Vt. 508 (stating that family court’s factual findings will be upheld “unless
clearly erroneous and the court’s legal conclusions [will be upheld] when supported by those
findings”). In any event, we reiterate that “[t]he focus of a CHINS [merits] proceeding is the
welfare of the child,” In re C.P., 2012 VT 100, ¶ 28, 193 Vt. 29; that “parents’ rights are at most
temporarily curtailed in a CHINS [merits] proceeding,” In re M.L., 2010 VT 5, ¶ 7, 187 Vt. 291;
and that it is at the disposition phase of the proceedings that “the determination of parental
unfitness, which triggers the transfer of custody away from the parents, must be made.” In re
B.R., 2014 VT 37, ¶ 14, ___ Vt. ___ (quotation omitted).

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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