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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-295

                                      DECEMBER TERM, 2014

 In re C.C., C.C. and B.C., Juveniles                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 92/93/94-9-13 Bnjv

                                                            Trial Judge: David Howard

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

       Father appeals the court’s order adjudicating his children, Cha.C., Che.C., and B.C. as
children in need of care or supervision (CHINS). Father argues that the evidence does not
support the court’s findings about father’s actions or that those actions amounted to abuse.
Father further contends that his treatment of one child is not sufficient to support a CHINS
adjudication for the other children. We affirm.

       Father and mother have twins, Cha.C. and Che.C., a boy and a girl, respectively, born in
May 2013, and another son B.C., born in August 2009. Based on allegations that father had
abused Cha.C., as well as allegations concerning mother that are not relevant to this appeal, the
Department for Children and Families (DCF) filed a petition alleging all three children were
CHINS.

        The trial court held a contested hearing over two days. Based on the evidence, the court
found as follows. The conduct supporting the CHINS petition took place while mother, father,
and their children were visiting friends in September 2013. Mother and her friend Mary left the
friends’ home to go to the store, leaving father to care for the children. At the time, there were
several other individuals also at the house, including Mary’s adult brother Philip, and Mary’s
son, H.N., who was in second grade. Both H.N. and Philip observed father treat the male twin
Cha.C. in a manner that concerned them. Philip, who had been friends with mother and father
for many years, heard Cha.C. crying and saw father lift the infant from a car seat so the child’s
head hit the ceiling. Philip then watched father throw Cha.C. down on a bed. H.N., who was on
the bed, observed Cha.C. drop from a distance of twelve to sixteen inches and felt the bed move
when the baby hit the bed. Philip also witnessed father hold the child and vigorously rock him in
an angry manner. Philip stated that father was frustrated and angry at the time, and that father
made a remark about not liking being left in charge of the children.

       Philip immediately told his mother, who was also at the home. When Mary told mother
through text messages about what Philip had seen, mother indicated that she was aware father
was too rough with the infants and she had concerns for their safety. However, she defended
father, and indicated that she would not contact police. Eventually DCF and police became
involved. When father was confronted about what happened, he admitted to being frustrated and
generally to acting in the manner described by Philip and H.N., but the details about the amount
of force he had used differed. Father has a conviction for domestic assault against mother from
2010.

        The trial court found that there was clear and convincing evidence to support a finding of
CHINS, both because the child lacked proper care, see 33 V.S.A. § 5102(3)(B), and on account
of abuse, see id. § 5102(3)(A). Although the court was concerned about the fact that Cha.C.’s
head hit the ceiling, it did not find that that action alone would support a CHINS finding.
However, the court concluded that father had tossed or thrown the child to the bed with
excessive force, posing a risk of injury to the child. The court found that father’s actions were
done out of anger and frustration, more abusive than father admitted, and put Cha.C. at risk of
harm. The court explained that although the evidence focused on the male twin, there was
sufficient evidence to demonstrate that all three children were at risk of harm from father. Based
on mother’s statements about father’s treatment of the children and her lack of action to protect
them, the court also found that the other children were at risk because mother demonstrated that
she would not protect the children from father’s anger and stress. The court adjudicated all three
children as CHINS. Father appeals.

        A juvenile may be adjudicated as CHINS when, among other things, the child “has
been . . . abused by the child’s parent” or is “without proper parental care . . . necessary for his or
her well-being.” 33 V.S.A. § 5102(3)(A), (B). On appeal from a CHINS adjudication, this
Court will uphold the family court’s factual findings unless clearly erroneous and its legal
conclusions if supported by the findings. In re D.D., 2013 VT 79, ¶ 34, 194 Vt. 508.

        Father first argues that three of the court’s findings regarding father’s treatment of Cha.C.
are not supported by the evidence. Father first claims that there was no evidence to demonstrate
that Cha.C.’s head “hit” the ceiling when father lifted him out of his car seat because there was
no sound of contact and no evidence of injury at the likely place of impact. Philip testified that
he saw father lift the baby up and “hit its head off the ceiling.” Further, an investigating
detective testified that three days later Cha.C. had a red mark on his forehead just below the
hairline. Although father contends that the location of the red mark does not coincide with
Philip’s testimony regarding the point of impact, whether the impact caused the red mark was not
part of the court’s finding. The court simply found that father had caused the baby’s head to
“hit” the ceiling, and Philip’s testimony supported this finding. Moreover, the court carefully
explained that the action of lifting the child so his head hit ceiling did not alone demonstrate that
Cha.C. was abused and without proper parental care, since it could have been accidental and
there was limited evidence that it was done with any force. The court noted, though, that the
evidence that the father hit the child’s head against the ceiling reinforced that father undertook
his next action—throwing the child onto the bed— out of anger and stress. The combination of
the acts is what showed that Cha.C. was at risk of harm.

        Second, father contends that the evidence does not demonstrate that his rocking posed a
risk of danger to the infant. Philip testified that father was shaking the baby in “a bad way” and



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was mad at the time. This testimony was sufficient to support the court’s finding that father
“vigorously” rocked the child. Like hitting the child’s head on the ceiling, the court did not find
that this rocking in isolation posed a risk of harm to the child. It was only in combination with
father’s other acts.

       Third, father claims that the evidence does not support the court’s finding that Cha.C.
landed on the bed “with enough force to make the bed bounce or react” and resulted in the infant
crying. Philip testified that father “threw” Cha.C. on the bed. H.N. stated that he was on the bed
and he saw a baby falling and felt the bed go up and down. H.N. further stated that after the
baby landed on the bed, he cried. This testimony fully supports the court’s findings that father
threw Cha.C. on the bed with enough force to make the bed move and that at that point Cha.C.
cried.

        Father next argues that the evidence does not support a finding of CHINS based on abuse
or lack of proper parental care. As set forth above, the court’s adjudication was based on its
findings that father used excessive force when he “tossed or threw” Cha.C. on the bed because
this action posed a risk of injury to the child. In addition, the court found that father acted out of
anger and stress and that the combination of father’s other acts—vigorously shaking Cha.C. and
roughly handling Cha.C. so his head hit the ceiling—put Cha.C. at risk of harm.

        We need not reach the question of whether these actions were sufficient to demonstrate
that father abused Cha.C. because the evidence plainly supports the court’s conclusion that
Cha.C. was CHINS for lack of proper parental care. As we have explained, “the central concern
in CHINS proceedings is the ability of the parents to render appropriate and necessary care for
the child’s well-being.” E.J.R. v. Young, 162 Vt. 219, 222-23 (1994). While the child may not
have been injured at the time by father’s actions, such injury was not a necessary prerequisite to
the CHINS adjudication, which can be shown based on the “likelihood of prospective harm to
the child.” See id. at 223 (explaining that “[a]ctual and completed harmful acts” are not a
precondition to a CHINS finding because dependency proceedings are preventative as well as
remedial in nature). The evidence demonstrated that father acted out of anger and handled the
child roughly. Such action posed a future risk of harm to the child and was sufficient to support
the court’s finding that Cha.C. was CHINS for lack of proper parental care.

        Finally, father argues that even if the evidence is sufficient as to Cha.C., it does not
establish that his other two children are CHINS. Father contends that there was no evidentiary
basis for the court’s finding that the other children were just as likely to suffer from father’s
anger and frustration. We conclude there was no error. We have long held that the family court
can determine “on the facts of each case whether the treatment of siblings is probative of neglect
or abuse of a juvenile under the court’s consideration.” In re K.B., 154 Vt. 647, 647 (mem.).
Here, the court did not err in considering father’s treatment of C.C. as relevant to whether the
other two children were at risk of harm. The evidence demonstrated that father acted out of
anger and frustration in his treatment towards Cha.C. Given the absence of any evidence that
Cha.C. was particularly likely to be the recipient of father’s anger, such treatment could have
easily been directed at Cha.C.’s twin sister, Che.C. or his four-year-old brother, B.C.




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        Moreover, other findings supported the court’s conclusion that all of the children lacked
proper parental care. The trial court pointed to mother’s expression of concern about how father
treats the children and her worry that he will harm them, as well as her refusal to admit that
father had done anything wrong despite this concern, to support its conclusion that mother would
not protect any of the children adequately from their father’s anger or stress. This sufficed to
demonstrate that all the children lacked proper parental care because they were just as likely to
be recipients of father’s anger and mother was unable to protect them from harm.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice

                                               _______________________________________
                                               Harold E. Eaton, Jr., Associate Justice




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