In re B.E.

• Decision Date: 21 October 2022
• Docket Number: 22-AP-164
• Parties: IN RE B.E. & M.E., Juveniles
• Court: Vermont Supreme Court

288 A.3d 180

IN RE B.E. & M.E., Juveniles

No. 22-AP-164

Supreme Court of Vermont.

October Term, 2022

October 21, 2022

Sarah Star, Middlebury, for Appellant Father.

Jared C. Bianchi, Bennington County Deputy State's Attorney, Bennington, for Appellee State.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

EATON, J.

¶ 1. Father appeals the family division's order extending the expiration date of a conditional custody order (CCO) giving him legal custody of minor children B.E. and M.E. with certain limitations and requirements. Father argues that the court failed to find that there had been a change in circumstances justifying extension of the order as required by 33 V.S.A. § 5320a(a). He contends that without such a finding, the court lacked authority to issue an extension, and the CCO should have been vacated and the children returned to his full custody without conditions. We agree, and therefore reverse and remand for the court to vacate the CCO.

¶ 2. Parents are married and have two sons, B.E. and M.E. B.E. was born in July 2015 and M.E. was born in September 2017. In April 2021, the State filed a petition alleging that B.E. and M.E. were children in need of care or supervision (CHINS) based on reports that mother was abusing cocaine and other substances and B.E. had missed forty-five days of kindergarten. At the time of the petition, father had been arrested for domestic assault and was subject to a condition prohibiting him from contacting mother or the children or going to the family home.

¶ 3. The court issued an emergency care order transferring custody of the children to the Department for Children and Families (DCF). Father's conditions of release were subsequently modified to permit him to have contact with the children with the permission of the family court. In May 2021, the parties agreed that the children should be placed with father in the family home subject to conditions, and that mother would vacate the home. The court issued a temporary order giving father conditional custody of the children. The order required father to ensure that the children attended school and received medical and dental care. It also required him to complete a parenting class, sign releases to DCF, maintain safe and stable housing, work with service providers including Easterseals for economic and parenting supports, continue to participate in medically assisted substance-abuse treatment, and not allow unsupervised contact between the children and mother.

¶ 4. In July 2021, the parties stipulated to the merits of the CHINS petition. In September 2021, the court issued a disposition order that continued custody with father under similar conditions as the temporary CCO, except that the court removed the condition prohibiting father from allowing unsupervised contact between the children and mother. By that point, parents had reunited and mother was living in the home. The CCO stated that it would expire on March 2, 2022, and that the court would hold a review hearing in December 2021.

¶ 5. At the December 2021 hearing, the State and DCF informed the court that parents had made excellent progress and that they expected the CCO to expire in March 2022. The children were attending school, although B.E. was frequently a few minutes late. Both children were up to date on their medical and dental appointments, and parents were ensuring that their basic needs were met. Father had completed a parenting class, had maintained safe and stable housing, was cooperating with DCF and service providers, and was maintaining sobriety and participating in treatment.

¶ 6. However, in early January 2022 the State requested a status conference based on DCF's concerns that both children had recently missed several days of school, B.E. had not shown up for his most recent pediatric visit, and mother had tested positive for cocaine twice in December. At a hearing later in January, a DCF case worker told the court that the children were caught up on their medical visits but B.E. continued to arrive late to school and mother was not engaging in substance-abuse treatment.¹

¶ 7. At a subsequent hearing in February 2022, the State indicated that it wanted to extend the CCO, which was due to expire the following month. Parents opposed the request. The court ordered that the existing CCO would remain in effect pending an evidentiary hearing.

¶ 8. The court held a hearing on the State's motion to extend the CCO in May 2022. A representative from Easterseals testified that she had worked with parents to obtain economic and nutritional assistance, to acquire academic supports for the children, and to improve the children's school attendance through various strategies. She stated that the children were caught up on their medical and dental appointments, which had been a primary area of concern early in the case. She did not feel that the family needed further engagement with Easterseals. A DCF case worker testified that although the parents had made progress, it would be beneficial to extend the CCO into the next school year to ensure "everything stays on track." She testified that B.E. had begun taking the school bus, which had significantly improved his timely attendance at school. She testified that father had been cooperative and had generally complied with the CCO conditions. She said that her main concern was ensuring that the children continued to attend school on time. Mother and father each testified and stated that they intended to keep using the strategies that had helped improve the children's school attendance.

¶ 9. At the close of the hearing, the court made oral findings that the parents had actively engaged with DCF and Easterseals and had made "very positive progress" in getting the children caught up in their medical, dental, and physical-therapy needs. However, it expressed concern that there was not yet a track record of parents being able to maintain regular school attendance without significant support from Easterseals. It found that vacating the CCO would be "imprudent" and stated that it would continue supervision into the new school year. It accordingly issued an order extending the CCO for a further six months, until November 12, 2022. On the written order, the court checked a box indicating that the CCO was being extended "because reasonable progress toward reunification is being made and additional time is in the children's best interest." This appeal followed.

¶ 10. On appeal, father argues that the family division lacked authority to extend the CCO without first finding that there had been a change in circumstances sufficient to justify modifying the existing order. This is a question of law that we review without deference to the trial court. See In re A.M., 2019 VT 79, ¶ 8, 211 Vt. 198, 222 A.3d 489. As discussed below, we agree that a finding of changed circumstances was required to extend the CCO in this case and that the court's failure to make that finding requires reversal of its order.

¶ 11. "A CHINS case is a legislatively created proceeding in which the family division of the superior court is vested with special and limited statutory powers." Id. ¶ 9. "We strictly construe the family court's grant of authority, and we do not infer jurisdiction where it does not explicitly exist." Off. of Child Support ex rel. Lewis v. Lewis, 2004 VT 127, ¶ 7, 178 Vt. 204, 882 A.2d 1128. "Generally, unless statutory authority exists for a particular procedure, the juvenile court lacks the authority to employ it." In re J.S., 153 Vt. 365, 370, 571 A.2d 658, 661 (1989).

¶ 12. At the disposition phase of a CHINS case, the family division is authorized to issue a CCO returning legal custody of the child to the custodial parent subject to conditions set by the court. 33 V.S.A. § 5318(a)(1). An initial CCO to a parent can last for up to six months. See id. § 5320a(a) (stating presumptive duration of CCO to parent is "no more than six months" from date of disposition order or CCO, whichever is later). At issue is whether the family division has authority to extend the duration of a CCO to a parent without a finding of changed circumstances if it finds that the parent is making progress toward reunification but additional court supervision is in the child's best interests. We resolve this question by looking to the language of the statute. "When interpreting a statute, our primary goal is to effectuate legislative intent as expressed in the words of the statute itself." In re C.L.S., 2021 VT 25, ¶ 10, 214 Vt. 379, 253 A.3d 443. If the statutory language is clear on its face, we consider the plain meaning of the language to represent the Legislature's intent. In re D.K., 2022 VT 36, ¶ 11, ––– Vt. ––––, 282 A.3d 1195.

¶ 13. The relevant statute here is 33 V.S.A. § 5320a, which governs the duration of CCOs to parents and nonparents. Subsection (a), which pertains to parents, provides in relevant part:

Whenever the court issues a conditional custody order transferring custody to a parent either at or following disposition, the presumptive duration of the order shall be no more than six months from the date of the disposition order or the conditional custody order, whichever occurs later, unless otherwise extended by the court after hearing. At least 14 days prior to the termination of the order, any party may file a request to extend the order pursuant to subsection 5113(b) of this title. Upon such motion, the court may extend the order for an additional period of time not to exceed six months.

33 V.S.A. § 5320a(a). We agree with father that subsection (a)’s reference to 33 V.S.A. § 5113(b), which allows the family division to modify an existing order "on the grounds that a change in circumstances requires such action to serve the best interests of the child," makes clear that the court must find a change in circumstances before it may modify a CCO to a parent to extend its expiration date. This requirement is consistent with 33 V.S.A. §...