Dalmer v. State

Decision Date15 August 2002
Docket NumberNo. 99-479.,99-479.
Citation811 A.2d 1214
PartiesBrain DALMER, et al. v. STATE of Vermont, et al.
CourtVermont Supreme Court

Harold B. Stevens, Stowe, for Plaintiff-Appellant.

Philip C. Woodward and Afi Ahmadi of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendants-Appellees.

William H. Sorrell, Attorney General, and James C. Shea and Michael O. Duane, Assistant Attorneys General, Montpelier, for Amicus Curiae Department of Social and Rehabilitation Services.

Present: DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ., and BURGESS, D.J., Specially Assigned.


In December 1993, Jeremy Dalmer ran away from home for the first of five separate times during the ensuing two years. This act is at the center of this litigation. In December 1995, Brian Dalmer and his wife Colleen Dalmer, parents of Jeremy, filed this lawsuit against defendants, the Vermont Department of Social and Rehabilitation Services (SRS), Gerald Jeffords (an SRS employee), the Lamoille Family Center (LFC) and David Connor (an LFC employee), alleging: defendants negligently took and retained custody of Jeremy in violation of the Juvenile Proceedings Act, 33 V.S.A. §§ 5501-5561; defendants deprived plaintiffs of their fundamental liberty interest in family integrity in violation of their civil rights, 42 U.S.C. § 1983; SRS maliciously brought an action to terminate plaintiffs' parental rights; defendants negligently placed Jeremy in foster homes where he was neglected and did not receive proper care, food or supervision; and defendants intentionally inflicted emotion distress on plaintiffs. The trial court granted summary judgment to defendants on the civil rights claim. After testimony in a jury trial concluded, the trial court granted judgment as a matter of law on the remaining claims. Appellants then dismissed all claims against Gerald Jeffords and SRS, leaving only those against Connor and LFC. Father appeals both the summary judgment and the judgment as a matter of law as to these defendants. We affirm.

The material facts in this case are not in dispute. On December 26, 1993, Jeremy Dalmer, who was fifteen years old at the time, had an argument with his father over some house rules, including ones relating to curfews, television viewing, snowboarding, and other issues about Jeremy's lifestyle. That night, Jeremy ran away from home. He traveled thirty-five miles by bicycle through the cold snow to a motel in Morrisville, where he stayed the night. The next day he rode his bicycle to a nearby friend's house. That day, December 27, his friend's mother contacted Washington County Youth Services, which advised her to contact SRS. She told Jeremy that she was uncomfortable with him staying at her house without his parents' permission, so he left her residence and went to the Fisk residence.

The next day, Jeremy contacted the Morrisville SRS office himself to inform them that he ran away from home. SRS referred Jeremy's case to the LFC and David Connor. LFC had a contract with SRS to run the LINK program (the Lamoille Inter-agency Network for Kids) to provide shelter and other services to unmanageable youths and runaways in the area. LINK is a program "to assist children who have run away for the purpose of reuniting them with their parents, guardian or legal custodian." 33 V.S.A. § 5511(3). Connor was the director of this program. Prior to this, Connor had no contact with Jeremy. On December 29, Connor contacted Jeremy's mother and father and told them that their son had run away from home. Connor obtained a history of Jeremy's problems from his father, who demanded that Connor return Jeremy to his parents' home. Connor refused to force Jeremy to go home because Jeremy had made it clear that, if forced to return home, he would run away again. Connor did attempt to negotiate Jeremy's return to his home, rather than calling the police to have them take Jeremy into their custody as a runaway. Father rejected Connor's attempts at reconciling the parties and continued to demand that the LFC and SRS return Jeremy to his home.

While Jeremy was staying at the Fisk residence, Connor drove him thirty miles to school each day. During the daily drives he encouraged Jeremy to return home; he also told Jeremy that he had legal options other than going home, including turning himself over to SRS custody. Despite Connor's encouragement to return home, Jeremy chose to remain with the Fisks. On January 6, 1994, at Jeremy's request, Jeremy entered the LINK shelter program and began to stay with the Stone family. At the Stone residence, Jeremy was allowed to watch television and stay out later than his parents had allowed him to when he was living at home. While Jeremy was staying with the Stones, Connor continued to encourage Jeremy to go back to his family. Jeremy also spoke with his family a number of times on the telephone and returned home to eat several meals with them.

On January 20, 1994, Connor informed Jeremy that he could no longer take advantage of the LINK program because LINK's contract with SRS allowed for only a two-week stay at a shelter. He gave Jeremy three options: go home to his family, call his family to work out an agreement with them, or turn himself in to the police. He told Jeremy that if he did not choose one of these three options, he would be considered a runaway child and the police would detain him. That same day, Connor also informed father that the LFC's contract had ended. Jeremy did not exercise any of the three options Connor had given him. Instead, he went to the Fisk residence again, but later that night a state trooper picked Jeremy up and first took him to the state police barracks in Waterbury and then back home to his parents.

The next morning, as he promised, Jeremy ran away again; this time he took a taxi to the Morrisville police station and turned himself in as a runaway. He ran away from home again in May 1994 and a fourth time in November 1994. Finally, he ran away a fifth time in May 1995 over a dispute about his prom. After several juvenile court CHINS unmanageability hearings, the family court issued an order placing Jeremy in the legal custody of his parents and giving SRS protective supervision. Throughout the hearings, Jeremy testified that if the court ordered him to go home, he would run away again.

In December 1995, plaintiffs Brian and Colleen Dalmer sued defendants SRS, Gerald Jeffords, the LFC, and David Connor, listing the five causes of action set out at the beginning of this opinion. The trial court granted summary judgment for defendants on the civil rights and malicious prosecution claims. After hearing plaintiffs' evidence, the court granted defendants judgment as a matter of law on the remaining claims. Following the final judgment, plaintiffs dismissed all claims against SRS and Gerald Jeffords, leaving only the claims against the LFC and David Connor for our review. They have raised issues with respect to each of the counts except the malicious prosecution count.

Our understanding of the issues on appeal is somewhat affected by the confusing series of amendments, or attempted sets of amendments, to the complaint that added and dropped parties and significantly modified the central issues in the case. On the eve of trial, plaintiffs attempted to amend their complaint to modify the first and fourth causes of action. Significantly, that proposed amendment also appeared to change the parties, identifying the plaintiffs only as "Brian Dalmer and Jeremy Dalmer."

The most important amendment changed the first count from one that alleged a violation of the Juvenile Procedures Act to one that alleged that defendants were negligent or grossly negligent by taking and keeping custody of Jeremy in violation of the Juvenile Procedures Act. Plaintiff called this a "negligence per se" count. Although this amendment was never formally authorized, the court and parties proceeded as if it had occurred. See V.R.C.P. 15(b).

Plaintiffs also attempted to amend the fourth count, which alleged defendants were negligent in placing and supervising Jeremy in certain foster homes. This amendment was never formally authorized. None of plaintiffs' arguments on appeal appear to relate to this count. We therefore need not determine whether the amendment occurred.

Plaintiffs' first two appeal issues relate to the trial court's resolution of their negligence claim. As discussed above, we address these issues in relation to the first amended count. In practical terms, this means we are addressing the actions of defendants only up to and including January 1994—that is, only with respect to the first time Jeremy ran away from home. Although the proper parties were never clearly resolved, we will assume that by the time of trial the plaintiffs were Brian and Jeremy Dalmer. With that background in mind the first two issues are: (1) whether the court erred in concluding that "plaintiffs did not have a presumed negligence claim against defendants for violation" of 33 V.S.A. § 5512(c); and (2) the court erred in holding that a jury could not find that defendants were negligent and that there was no proximate cause.

The logical progression of plaintiffs' first argument is as follows: defendants violated 33 V.S.A. §§ 5511, 5512(c) by failing to return Jeremy to his father after 7 days; §§ 5511 & 5512(c) are safety statutes so violation is negligence per se; the court erred in failing to submit plaintiffs' negligence per se case to the jury. We cannot accept any of the steps of this argument.

The statutory sections on which plaintiffs rely deal generally with the taking of juveniles into custody, normally prior to the formal commencement of juvenile proceedings. Title 33, § 5510 specifies four methods by which a juvenile may be taken into custody: (1) by arrest; (2) by order of the juvenile court; (3) by a law enforcement officer who has reasonable grounds to believe that a "child is in immediate danger from his...

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