In re B.C., 18-118

• Decision Date: 16 November 2018
• Docket Number: No. 18-118,18-118
• Citation: 203 A.3d 515
• Parties: IN RE B.C., Juvenile
• Court: Vermont Supreme Court

203 A.3d 515

IN RE B.C., Juvenile

No. 18-118

Supreme Court of Vermont.

September Term, 2018

November 16, 2018

Matthew Valerio, Defender General, Marshall Pahl, Appellate Defender, and Ryan K. Krause, Law Clerk (On the Brief), Montpelier, for Appellant Mother.

Sarah A. Baker, Franklin County Deputy State's Attorney, St. Albans, for Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Grearson, Supr. J., Specially Assigned

ROBINSON, J.

¶ 1. Mother appeals from an order of the superior court, family division, adjudicating her son, B.C., a child in need of care or supervision (CHINS). She challenges: (1) the court's admission of evidence of father's out-of-court statements; (2) the court's reliance on findings from a prior CHINS determination; and (3) the sufficiency of the evidence, especially given that B.C. was in the custody of the Department for Children and Families (DCF) when the State filed the petition. We conclude that the family division erred by admitting evidence of father's out-of-court statements, and that without that testimony, and in light of the court's findings with respect to other evidence, the remaining evidence would be insufficient to support a CHINS determination. Accordingly, we reverse the court's order.

¶ 2. B.C. was born on December 31, 2016. Mother has two other children who were removed from her care prior to B.C.'s birth,¹ at which time DCF was providing services to mother and B.C.'s father to address concerns over substance abuse and domestic violence. Within days after B.C.'s birth, the family division granted DCF temporary emergency custody of the infant, and the State filed a CHINS petition seeking a determination that B.C. was without proper parental care necessary for his well-being. See 33 V.S.A. § 5102(3)(B).

¶ 3. After the parties agreed to continued temporary DCF custody, B.C. was first placed with his paternal grandmother. In March 2017, he was transitioned to the home of his paternal aunt and uncle. DCF's plan contemplated reunification with both parents, who at the time intended to co-parent B.C. Through the first two months of 2017, both parents appeared to be making good progress towards reunification. But in mid-March, father relapsed in his substance abuse recovery, and mother represented to DCF that she had separated from father and planned to parent B.C. alone. In the ensuing months, DCF was unclear about whether mother was being fully transparent about her relationship and living situation, and perceived a decline in mother's engagement with the reunification plan.

¶ 4. Hearings on the January 2017 CHINS petition were held on March 16 and April 27 of 2017. During the first week of May 2017, mother canceled a visit with B.C., missed a substance abuse counseling appointment, was arrested for allegedly assaulting father following an altercation at her apartment, and relapsed by using benzodiazepines on one occasion.

¶ 5. The circumstances surrounding the alleged assault, as later found by the family division, were as follows. On May 5, father refused to leave the apartment he had previously occupied with mother after stopping by to pick up his mail and some of his clothing. Mother's father called the police for help in making father leave. The police responded, but concluded that they had no legal grounds to remove father from the apartment and advised mother to initiate an eviction proceeding. Two or three hours later, mother called her own father back crying. She reported that father had just thrown a coffee table at her, breaking a window and almost hitting her. Mother's father returned to the apartment and saw a coffee table with glass shards in it. He again called the police, and the police returned to the residence. They spoke with father again, and concluded they could not make him leave the residence. Mother and her father then went to the police station to seek a relief-from-abuse order. They completed a petition, but the dispatcher declined to accept it.

¶ 6. The next morning, when the individual who was to supervise mother's visit with B.C. arrived at mother's apartment to pick mother up, father was still at the apartment. The visitation supervisor told father to leave because he could not be present when mother had B.C. at the apartment. The supervisor left without mother to pick up B.C. When she returned to mother's apartment with B.C. shortly after 9:00 a.m., father was just leaving; the supervisor remained in her car with the child until father went up the street. Then the supervisor brought the child into the apartment and locked the door, and mother and B.C. began what the visit supervisor observed to be a "totally normal" visit. Around 10:30 a.m. that day, the police responded to a report that a man had been stabbed. They found father near a grocery store parking lot, and observed a stab wound on father's chest and a shallower laceration on his back. Father reported that mother had stabbed him. While mother was still visiting with B.C., the police returned to her apartment and arrested her. She was released from jail two days later, on May 8.²

¶ 7. On May 17, 2017, while its initial petition was still under advisement, the State filed a new petition alleging that B.C. was without proper care necessary for his well-being. The affidavit in support of the petition cited pending drug charges against father, the parents' tumultuous relationship, mother's suspected impairment on several occasions, her missed visits and meetings with service providers, and the events of May 6, including the aggravated domestic assault charge mother faced.

¶ 8. On May 19, 2017, two days after the second petition was filed, the family division held a temporary care hearing concerning the initial CHINS petition. Following the hearing, the court denied the initial petition on the ground that the State had not proved that at the time the petition was filed B.C. was at substantial risk of physical or emotional harm. That same day, however, the court also issued an order maintaining B.C. in the temporary custody of DCF, with supervised parental visitation, in response to the State's newly filed CHINS petition.

¶ 9. At a September 2017 temporary care hearing, after learning that mother had been admitted to the Lund Center and was progressing well there with B.C., the family division issued a conditional custody order (CCO) placing B.C. in mother's custody while she remained at the Center, pending a disposition order. On December 7, 2017, the State amended its May 17 petition by changing the date of when B.C. was alleged to be CHINS from May 17 to May 19—the day that the family division denied the initial CHINS petition.

¶ 10. Following a December 11, 2017, merits hearing on the second CHINS petition, on January 30, 2018 the court granted the petition and adjudicated B.C. CHINS. The court concluded that B.C. was CHINS at the time the second petition was filed because mother had relapsed on benzodiazepines, her ability to effectively engage with DCF and B.C. was impaired in the months preceding the petition, she missed several scheduled appointments and visits, and she had been involved in an altercation with father in close temporal proximity to a visit with B.C. at the location of the visit. The court also assigned some probative value to evidence that mother repeatedly exposed at least one of her older daughters to the presence of an abusive and volatile former partner, as reflected in findings in a prior CHINS decision involving mother's older daughters that was admitted into evidence in the merits hearing in this case. The court acknowledged mother's recent progress at Lund, but noted mother's history of exposing her children to domestic violence and the challenges she would face in transitioning into the community from the structured environment of Lund. The court concluded that, in order to protect B.C.'s welfare and safety, the child's continued custody with mother would be "subject to the condition that she continue to adhere to the provisions of DCF's reunification plan."³

¶ 11. Mother appeals the family division's CHINS determination, arguing that: (1) the court erred in admitting father's out-of-court statements as admissions by a party-opponent; (2) the court improperly relied on, as substantive evidence, findings set forth in the CHINS decision involving mother's older children; and (3) there was insufficient evidence that B.C. had been harmed or was at risk of harm at the time the State filed its second CHINS petition, especially given that B.C. had been in DCF custody for months.⁴ We conclude that the family division erred in admitting father's out-of-court statements implicating her, and that, without those statements, the evidence, as found by the court, does not support the court's CHINS determination.

¶ 12. The general law concerning CHINS petitions is settled. A child may be adjudicated CHINS if at the time the petition is filed he or she "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) ; see In re M.L., 2018 VT 32, ¶ 16, ––– Vt. ––––, 186 A.3d 618 (stating that "in evaluating the State's CHINS petition, we focus on the circumstances at the time the State filed the petition," but noting that "circumstances leading up to the filing of the CHINS petition may be relevant to the court's assessment"). "[T]he focus of a CHINS proceeding is the welfare of the child." In re B.R., 2014 VT 37, ¶ 13, 196 Vt. 304, 97 A.3d 867 (quotation omitted). "A child need not suffer actual harm before he or she can be adjudicated CHINS." In re M.O., 2015 VT 120, ¶ 6, 200 Vt. 384, 131 A.3d 738 (quotation omitted). The State must prove the lack of proper parental care by a preponderance of the evidence. Id. On appellate review, "[t]he court's findings will stand unless clearly erroneous, and its legal conclusions will stand when supported by the findings." Id. ¶ 7.

¶ 13. Applying...