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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-293

                                      FEBRUARY TERM, 2015

 In re B.K., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 138-4-11 Cnjv

                                                            Trial Judge: Allison Sheppard Arms

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

        In this child-neglect proceeding, mother appeals the family court’s order modifying a
prior disposition order by transferring custody of juvenile B.K. from mother to father. On
appeal, mother argues that the family court’s admission of hearsay statements by B.K.’s therapist
regarding B.K.’s diagnoses and needs resulted in reversible error. We affirm.

        B.K. was born in September 2003. In April 2011, a petition was filed alleging that B.K.
was a child in need of care or supervision (CHINS) due to lack of proper parental care. The
State subsequently also alleged that B.K. was CHINS because he was beyond the control of his
mother, and mother stipulated to CHINS on this basis. The court transferred custody of B.K. to
his maternal grandfather subject to a conditional custody order. The goal of the initial
disposition order was reunification with mother.

        Father, who had not seen B.K. since September 2009 when he went to jail, first appeared
in the case in May 2011 shortly after his release from jail. Father became increasingly active
throughout the CHINS proceedings and was granted parent-child contact.

        In January 2013, the court returned custody of B.K. to his mother under a conditional
care order, specifying parent-child contact for father. There were several post-disposition review
hearings, which resulted in an order granting father increased parent-child contact. In October
2013, the court held a hearing, and adopted a new case plan with concurrent goals of
reunification with mother or transfer of custody to father. Father moved for transfer of custody
in January 2014. Father was living with his wife and two small children and employed. The
court viewed this motion as one to modify the prior disposition order, and held a hearing over
three days.

       The court issued a lengthy written decision. The court found that while mother had
shown some progress, she had not successfully engaged in case-plan recommendations. The
case plan goals required mother to participate in therapy, follow treatment recommendations,
provide releases to DCF, ensure B.K.’s medical and therapeutic needs were met and follow
recommendations of B.K.’s treating physician, work with family-support programs, and follow
parent-child contact orders. An Intensive Family Based Services (IFBS) program was offered to
mother, but mother was unsuccessful in completing the program. The program recommended
that mother set limits and age-appropriate expectations for B.K., work on communication with
father, refrain from engaging in adult conversation around B.K., and address her mental-health
needs. The court found mother did not successfully engage in IFBS, or make progress on
reaching the goals.

       Because concerns remained at the end of IFBS, both parents were referred to Easter
Seals. As to mother, Easter Seals focused on the unfinished work from IFBS. One identified
concern was B.K.’s schedule. The counselor testified that B.K.’s therapist had reported that B.K.
felt he did not have a home and was over scheduled with too many transitions between
households. B.K. was spending overnights with his grandfather, his mother and his father. The
counselor recommended that B.K. spend school nights at either mother or father’s, and that some
of B.K.’s activities be eliminated. The court found that mother had not made efforts to reduce
the adverse impact of B.K.’s disruptive schedule. The court found that mother did not engage
with Easter Seals—mother was resistant to ensuring B.K. had his medication while in father’s
home, had not made progress in limiting adult conversation around B.K., and did not engage in
opportunities to improve her parenting techniques.

        The court found that father actively engaged with Easter Seals, was open to and
implemented suggestions. Father set expectations for behavior, and followed through on
discipline. The court found that father’s ability to care for B.K. had improved, and that B.K. had
healthy and growing relationships with the members of father’s household.

        Based on these findings, the court concluded that mother’s lack of progress amounted to
a change in circumstances. See 33 V.S.A. § 5113 (allowing court to modify prior disposition
upon a change in circumstances); In re B.W., 162 Vt. 287, 291 (1994) (explaining that change is
circumstances is most often found when parent’s ability to care for child has “stagnated or
deteriorated” (quotation omitted)).

        The court further concluded that a transfer of custody to father was in B.K.’s best
interests. The court found that mother was important in B.K.’s life, but that his interaction and
relationship with mother had not improved. The court found that mother had had access to
numerous service providers, but had failed to engage in programming or make significant
progress, and would not able to parent within a reasonable period of time. On the other hand,
B.K.’s attachment to father and members of his household was growing. Father had worked hard
to address his parenting skills and improve his parenting, and was successfully making
adjustments to support B.K. Therefore, the court granted father’s motion to transfer custody.

         On appeal, mother argues that the admission of B.K.’s therapist’s hearsay statements was
prejudicial error. At the hearing, B.K.’s therapist did not testify, but there was testimony from
two witnesses concerning her statements and opinions. The DCF caseworker testified that
B.K.’s therapist communicated that B.K. was overscheduled and lacked a settled structure. In
addition, the Easter Seals worker testified that she received information about B.K.’s diagnoses
from B.K.’s therapist and that the therapist had raised issues regarding overscheduling of
activities and the number of transitions between households. In both instances, mother objected
that the information required testimony from a qualified expert, and the court denied the
objection.

       Mother concedes that hearsay is admissible at a disposition proceeding. 33 V.S.A.
§ 5317(b) (“Hearsay may be admitted and may be relied on to the extent of its probative value.”).
Nonetheless, mother argues that the court improperly relied on the diagnoses and opinions of the

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therapist because that was technical information, which was required to be presented through
expert testimony as set forth in Vermont Rule of Evidence 702. See V.R.E. 702 (explaining that
witness qualified as an expert can testify to matters requiring “scientific, technical, or other
specialized knowledge” to assist trier of fact). According to mother, this error was prejudicial
because the court relied on the hearsay statements regarding B.K.’s needs and mother’s failure to
address them in its change-of-circumstances and best-interests analyses.

        There was no error. Unlike a merits adjudication, the juvenile proceedings statue does
not delineate that the Rules of Evidence apply at a disposition proceeding; rather, the statute
specifically allows the admission of hearsay to the extent it is probative. Compare 33 V.S.A.
§ 5315(d) (requiring a merits adjudication to “be conducted in accordance with the Vermont
Rules of Evidence”), with id. § 5317(b) (allowing admission of hearsay at disposition and
containing no requirement that proceedings comply with rules of evidence). Here, the court did
not err in admitting the hearsay statements of B.K.’s prior diagnoses and the opinion of his
therapist as to the negative impact of over scheduling because this information was probative and
relevant for explaining how DCF and Easter set the plan of services and expectations for mother.

        Moreover, the court’s findings did not hinge on the hearsay statements about the expert’s
diagnosis or recommendations. The court’s decision on change of circumstances was based on
mother’s lack of engagement. The court found that mother’s progress had stagnated because
despite the many services offered to her, mother had not made progress in addressing the issues
that caused B.K. to come into custody in the first place. Further, the court’s analysis of B.K.’s
best interests did not depend on the hearsay, but on a proper assessment of both parents’
relationship with B.K., B.K.’s adjustment to his community, the role each parent played in
B.K.’s life, and the likelihood each parent would be able to assume parental duties within a
reasonable time. See 33 V.S.A. § 5114(a) (listing best-interests factors). The court found that
mother played a role in B.K.’s life, but her parenting skills had not improved and her progress
was insufficient to demonstrate that she would be able to parent B.K. within a reasonable period
of time. In contrast, father had made improvements in his parenting skills and B.K. had an
increasingly strong relationship with father and the members of his household. The court’s
findings are supported by the evidence, and there are no grounds for reversal. See In re B.W.,
162 Vt. at 291 (stating that court’s findings will withstand review “unless they are clearly
erroneous”).

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Harold E. Eaton, Jr., Associate Justice




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