NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
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                                            2019 VT 12

                                           No. 2018-356

In re B.B., B.C., and B.B., Juveniles                            Supreme Court

                                                                 On Appeal from
                                                                 Superior Court, Franklin Unit,
                                                                 Family Division

                                                                 January Term, 2019


Martin A. Maley, J.

Sarah R. Star, Attorney & Counselor at Law, P.C., Middlebury, for Appellant Mother.

Ashley A. Harriman, Franklin County Deputy State’s Attorney, St. Albans, for Appellee.

Michael Rose, St. Albans, for Appellees Juveniles.


PRESENT: Skoglund, Robinson, Eaton and Carroll, JJ.


       ¶ 1.    CARROLL, J.          Mother appeals an order concluding that her children were

children in need of care or supervision (CHINS) due to educational neglect.1 On appeal, mother

argues that (1) the court erred in not requiring the State to demonstrate that the children’s absences

were without justification; (2) the evidence does not support the court’s finding that missing school

caused the children harm; (3) the existence of Individualized Education Plans (IEPs) for the two

young children, who were not legally required to attend school, does not support a finding of



       1
          The merits determination became appealable after the disposition order was issued. See
33 V.S.A. § 5315(g) (explaining that merits adjudication “is not a final order subject to appeal
separate from the resulting disposition order”).
educational neglect; and (4) the court erred in admitting the school attendance records. We affirm

as to B.C. and reverse and remand the CHINS determinations as to Bo.B. and Br.B.

       ¶ 2.    The court found the following. In April 2018, the State filed a petition alleging that

B.C., born in January 2007, Bo.B., born in May 2012, and Br.B., born in April 2013, were CHINS

for lack of proper education necessary for their well-being. 33 V.S.A. § 5102(3)(B). At the time,

B.C. was in fifth grade, Bo.B. was in kindergarten, and Br.B. was in preschool two days a week.

Bo.B. and Br.B. had IEPs and received support services at school, including speech therapy. B.C.

had been referred to an educational support team because she was not meeting certain achievement

levels in her educational program. In prior years, there had been three educational neglect/truancy

assessments involving B.C. The assistant principal of the children’s school testified that the

classroom teachers take daily attendance that is recorded in an electronic database from which

reports can be generated. Absences are considered excused if a parent calls and declares that the

student will not be attending. Over mother’s objection, the court admitted computer-generated

attendance reports for all three children, concluding that they were business records.

       ¶ 3.    The assistant principal was concerned because all three children had a significant

number of absences from school and contacted mother to schedule a meeting. The assistant

principal also made a referral to Northwest Counseling Services (NCSS) for both B.C. and Bo.B.

for a home/school coordinator and a truancy specialist. The assistant principal explained that

although Br.B. and Bo.B. were not required by law to attend school, the structure, routine,

consistency, and social skills that children build in preschool and kindergarten are important for

preparing them for first grade. In January 2018, the assistant principal reported to the Department

for Children and Families (DCF) that B.C. had missed twenty-two days and Bo.B. had missed

thirty-two days of school and all absences were unexcused.2 Due to his absence from school,


       2
           By March 2018, B.C. and Bo.B. had missed thirty-eight and fifty days of school,
respectively.
                                           2
Bo.B. was not receiving speech therapy. DCF contacted mother, who asserted that the absences

were occurring because she was not receiving sufficient support from the school, the children were

often absent due to illness, and transportation was a barrier. When asked, mother did not appear

to understand the details of Bo.B.’s IEP. DCF set up a plan to implement services through NCSS

in March, however, mother cancelled the meeting.

       ¶ 4.    The court found that the three children were CHINS due to the parents’ inability to

provide for the children’s educational needs. The court found that the children’s absences resulted

in missed educational opportunities that put them at risk of harm, especially in light of their needs.

The court did not credit mother’s assertion that the school did not act appropriately to assist her.

The court explained that the school had acted appropriately to provide mother services to address

the children’s needs, but mother rejected the services, further placing the children at risk of harm.

The court acknowledged that the younger two children were not required to attend school by

statute, but found that they were at risk of harm for two reasons. First, both younger children were

on IEPs and were receiving services during school. Second, the older child had a pattern of

excessive school absences, and the court determined that this was a pattern relevant to the younger

children. Therefore, the court concluded that all three children were CHINS for educational

neglect. Mother appeals.

       ¶ 5.    A child is “in need of care or supervision” when, among other things, the child “is

without proper parental care or subsistence, education, medical, or other care necessary for his or

her well-being.”    33 V.S.A. § 5102(3)(B).      The State has the burden of establishing by a

preponderance of the evidence that a child is CHINS. Id. § 5315(a). “Because the critical focus

in a CHINS proceeding is on the child’s well-being, the State is not required to demonstrate that

the child has suffered actual harm, but rather is subject to a risk of harm.” In re J.C., 2016 VT 9,

¶ 7, 201 Vt. 192, 138 A.3d 830. “On review of the court’s CHINS decision, we will uphold the

court’s findings of fact unless they are clearly erroneous; we will uphold the court’s legal

                                                  3
conclusions where supported by its findings.” In re M.L., 2010 VT 5, ¶ 8, 187 Vt. 291, 993 A.2d

400.

       ¶ 6.    We first address mother’s argument that the State failed to prove that the children’s

absences were unjustified. The State can demonstrate that a child is CHINS under one of four

possibilities: abandonment, lack of proper parental care, beyond parental control, and truancy. 33

V.S.A. § 5102(3)(A)-(D).      Mother’s appeal raises the issue of the difference between

demonstrating CHINS based on lack of proper parental care for education versus truancy. In

truancy cases, children are CHINS if they are “habitually and without justification truant from

compulsory school attendance.” Id. § 5102(3)(D). In these cases, the State has the burden of

proving that absences are without justification by a preponderance of the evidence. In re J.H.,

2013 VT 31, ¶ 13, 193 Vt. 541, 70 A.3d 1054. In truancy cases, under § 5102(3)(D), the State is

not required to show the children are being harmed or at risk of harm. In contrast, the State need

not prove that absences were without justification to demonstrate educational neglect under

§ 5102(3)(B). However, there is no presumption that chronic absence from school amounts to risk

of harm. In a CHINS based on educational neglect, the State must show that the children lack the

education necessary for their well-being. Because this is not a truancy case, the State was not

required to demonstrate that the absences were unjustified, but it was required to show that the

children lacked the education necessary for their well-being.

       ¶ 7.    Mother argues that the court erred in finding that the children were CHINS because

she asserts that the evidence does not show the children’s well-being was negatively impacted by

missing school. She claims that staying at home was best for the children’s well-being in this case

because the children were sick and B.C. suffers from depression and anxiety, stemming from being

bullied at school. Mother claims that the court essentially found that missing school is per se

educational neglect without any finding that the absences harmed the children.



                                                 4
       ¶ 8.    When reviewing findings, we construe the evidence to support the findings if

possible and “construe the findings to support the judgment if they may reasonably be so

construed.” In re M.O., 2015 VT 120, ¶ 7, 200 Vt. 384, 131 A.3d 738. Because the CHINS

proceeding focuses on the welfare of the child, the question is not whether the child suffered actual

harm, but whether the child is at risk of harm. Id. ¶ 6.

       ¶ 9.    Evaluating the court’s findings in this case is complicated by the fact that the

CHINS proceeding involved three children and the trial court did not explicitly separate its

findings as to each child. Nonetheless, we conclude that the evidence supports the findings, which

in turn support the court’s conclusion that B.C.’s excessive absences from school and mother’s

failure to engage in solving the problems related to the absences created a risk of harm that B.C.

was without the education necessary for her well-being pursuant to 33 V.S.A. § 5102(3)(B). The

court’s decision was not based on an assumption that B.C.’s absences were automatically

educational neglect, but on evidence particular to B.C. The court relied on the testimony of the

assistant principal and found that B.C. had excessive absences from school and had been referred

to an Educational Support Team because she was not meeting certain levels in her education.3 The

school was concerned about the absences, contacted mother, and made a referral to NCSS to

address the causes, but mother rejected these services.        The court did not credit mother’s

explanations for B.C.’s absences. The court emphasized that the children’s absences alone did not

make them CHINS; rather, it was the missed education “given their needs” and mother’s failure

to engage that created the risk of harm. The evidence supports the court’s finding that B.C. was

receiving services to address areas where she was below priority curriculum standards and



       3
           Although the court did not explicitly link B.C.’s excessive absences to the referral for
services, this is implicit from the context of the court’s finding, which indicates that the referral
was recent and discusses the absences in conjunction with the referral. We adopt this inference of
the evidence because it is the construction that supports the judgment. See In re M.O., 2015 VT
120, ¶ 7 (findings will be construed to support judgment).
                                                  5
therefore it was important to be at school to get those services. The evidence also demonstrated

that mother did not follow through or cooperate to engage in services to solve the excessive

absences and to address the failure to achieve curriculum standards. The combination of B.C.’s

excessive absences, her performance below academic standards, and mother’s lack of engagement

to rectify these issues created a risk of harm of educational neglect.

       ¶ 10.   The analysis is different for Bo.B. and Br.B., however, because they are not

required by law to attend school. The trial court relied on the testimony of the assistant principal

that these children learned important skills at school, but there was no indication that a lack of

these skills, such as early literacy and math and social skills, at a young age equated to lack of

education necessary for the well-being. Although the evidence suggests that the younger two

children would benefit from attending kindergarten and preschool, the Legislature has determined

that children of this age are not required to attend school. The trial court also relied on the fact

that the younger children were receiving services at school to address issues in their IEPs.

However, by statute, services for non-school-age children are voluntary, and a parent’s decision

to refuse aid or discontinue services for a young child may not be used to presume neglect. 33

V.S.A. § 4701(a).4 Here, the evidence was insufficient to demonstrate that Bo.B. and Br.B. were

at risk of harm for educational neglect given that they were not required to attend school and

mother could discontinue the services related to their IEPs without any presumption of neglect.

       ¶ 11.   Mother’s final argument is that the children’s attendance records were inadmissible

hearsay. The trial court has discretion in making evidentiary decisions and we review for an abuse

of discretion. Gilman v. Towmotor Corp., 160 Vt. 116, 122, 621 A.2d 1260, 1263 (1992).



       4
           Mother cited this statute for the first time in her reply brief. Nonetheless, we consider
the impact of the statute because mother’s principal brief raised the argument of whether a non-
school-age child’s placement on an IEP was insufficient to presume educational neglect. See Vt.
Nat’l Bank v. Dowrick, 144 Vt. 504, 509, 481 A.2d 396, 399 (1984) (stating that issues raised for
first time in reply brief will not be addressed).
                                                    6
       ¶ 12.   Vermont Rule of Evidence 803(6) excepts from the hearsay rule records or data,

including compilations, “made at or near the time by, or from information transmitted by, a person

with knowledge, if kept in the course of a regularly conducted business activity, and if it was the

regular practice of that business activity to make” the report. The requirements of the rule must

be shown “by the testimony of the custodian or other qualified witness.” V.R.E. 803(6). At the

hearing, mother’s attorney objected to admission of the records on the ground that they could be

introduced only through the testimony of the records custodian. The court admitted the records

under Rule 803(6), based on the testimony of the assistant principal, who explained that teachers

take and input daily attendance into an electronic database, the data is collected, and then kept as

part of the regular routine. The trial court acted within its discretion in viewing the assistant

principal as a qualified witness and admitting the records based on her testimony.

       Affirmed as to B.C.; reversed and remanded as to Bo.B. and Br.B.


                                               FOR THE COURT:



                                               Associate Justice




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