In re B.R.

Decision Date25 April 2014
Docket NumberNo. 13–388.,13–388.
Citation2014 VT 37,97 A.3d 867
CourtVermont Supreme Court
PartiesIn re B.R., Juvenile.


Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Appellant.

William H. Sorrell, Attorney General, Robert F. McDougall and Bridget Asay, Assistant Attorneys General, Montpelier, for Appellee State.

Michael Rose, St. Albans, for Appellee Juvenile.

Present: REIBER, C.J., DOOLEY, SKOGLUND and ROBINSON, JJ., and DAVENPORT, Supr. J., Specially Assigned.


¶ 1. Father appeals from the trial court's order adjudicating B.R. a child in need of care or supervision (CHINS). He argues that the court's decision is not supported by the evidence. We affirm.

¶ 2. B.R. was born in November 2012. On Monday, March 4, 2013, the Department for Children and Families (DCF) filed a petition alleging that B.R. was CHINS, and it obtained an emergency care order.1 DCF's supporting affidavit included, among other things, mother's alleged acknowledgement of a long history of significant drug use including intravenous opiate use and cocaine use. The affidavit also recounted events that allegedly occurred shortly before the CHINS petition was filed, including the circumstances surrounding mother's Friday, March 1, 2013, arrest for driving under the influence of drugs with her two older children in the car; mother's statements to the arresting officers about being stopped the day before for possessing a methadone pill and crystal methamphetamine, drugs that she stated belonged to father; mother's admission to the arresting officers that she had cooked methamphetamine with father at the family's home the night before her DUI arrest; mother's concern at that time about B.R.'s welfare in father's care, and her fears that father had taken the three-month-old child to a “meth house” in New York; and mother's subsequent statements to police on Saturday, March 2, that she had retrieved B.R. from a “meth house” in New York where father had taken him.

¶ 3. Following a March 6, 2013 temporary care hearing, the court transferred temporary custody of B.R. to DCF based on the parties' stipulation and the affidavit referenced above. The court found that mother was addicted to drugs and unable to care for B.R., and that father might also be addicted and unable to care for B.R. B.R. was placed with his maternal great-grandmother. Father agreed to this plan.

¶ 4. At the September 2013 merits hearing, mother stipulated that she “was unable to adequately care for [B.R.] due to long-term substance abuse and her failure to access and engage in services” to address her drug use and its impact on B.R. The allegations in DCF's affidavit were reserved for the disposition hearing. Father did not stipulate that B.R. was CHINS, and the merits hearing went forward.

¶ 5. The State first sought to introduce testimony from the state trooper who had stopped mother for DUI, including statements that mother allegedly made to him about father's involvement in making methamphetamine at the family's home, and father taking B.R. to a meth house in New York where mother later retrieved him. The court excluded the trooper's testimony as inadmissible hearsay.

¶ 6. Following a brief recess, the State indicated that it lacked the evidence to go forward. The court queried whether any additional evidence was necessary. It explained that mother, who was at least one and possibly the only custodial parent, had admitted that B.R. was CHINS, which would result in a disposition hearing no matter what. The court found nothing in the statute that required a finding against both parents individually before taking a child into custody and moving to disposition. It found that the allegations in the CHINS petition had clearly been established based on mother's admission, and given that B.R. had been living with mother.

¶ 7. A question then arose as to B.R.'s whereabouts on the day the CHINS petition was filed. After a discussion between the court and counsel, the court granted the State's request to reopen the evidence. The State then presented evidence from a DCF social worker who had been working with the family since July 2012. She testified that mother and father had been sharing an apartment in Swanton, Vermont, and that B.R. was living there as well.

¶ 8. The social worker went on to describe the creation of a safety plan in which B.R. was to live with mother's parents. She testified that the plan was put in place around the time that mother had retrieved B.R. from the alleged meth house in New York. The court overruled father's counsel's hearsay objection to this testimony, explaining that it was trying to determine when the safety plan was created. The witness then stated that mother had retrieved B.R. from father's care in New York, and, subsequent to that, the baby resided with mother's father and stepmother.

¶ 9. The social worker then provided additional testimony about parents' living situation. She explained that she met with parents shortly after the CHINS petition was filed and, at that point, they both stated to her that they were still residing together in the Swanton apartment. During that meeting, the social worker discussed parents' drug use, and parents admitted to prior and current substance-abuse issues. Father stated that he had been in inpatient substance-abuse treatment twice, that he had plans to go to the Brattleboro Retreat that week, and that he was currently using opiates and Suboxone off the street to prevent sickness.

¶ 10. On cross-examination, the social worker acknowledged that she had not visited the Swanton apartment between February 20 and March 4. She explained that, during that time, she had spoken with father and was focused on having him complete a substance-abuse assessment. The social worker also indicated that she had not made the safety plan, and that another DCF social worker told her where B.R. was during the weekend prior to the filing of the CHINS petition. Father's attorney then moved to strike the social worker's testimony concerning B.R.'s whereabouts between February 20 and March 4 on hearsay grounds. The court overruled the objection, noting that the testimony had come in previously without objection. The court went on to explain that the critical issue for the court was whether the social worker knew from her own visits that father and mother were living together. The social worker reiterated that that was the case.

¶ 11. At the close of the hearing, the court concluded that DCF had established the allegations in the CHINS petition. It explained that the issue before it was not whether mother was a CHINS mother or father was a CHINS father, but rather, whether B.R. was a child in need of care or supervision at the time of the hearing. It found that B.R. had been living with parents prior to the filing of the CHINS petition. One parent had admitted that the child was CHINS, and admitted specifically that she was unable to adequately care for B.R. due to long-term substance abuse and her failure to access and engage in services to address her drug use and its impact on B.R. While father had admitted to at least a history of drug problems and some sort of self-treatment, the court found it unnecessary to make a separate CHINS finding as to father. These types of issues, the court explained, needed to be addressed at disposition. As to B.R., however, the court was very satisfied that he was at risk of being harmed in his living situation with parents. Father appealed from the court's order.

¶ 12. Father argues that there was insufficient evidence to establish that B.R. was CHINS. He maintains that the presence of one admitted drug-addicted parent in a household does not suffice, and that there was no other evidence to show that B.R. was without proper parental care necessary for his well-being or that his welfare was at risk. According to father, the court relied on a presumption in reaching its conclusion, and its decision is therefore constitutionally infirm.

¶ 13. We reject these arguments. As the trial court recognized, the “focus of a CHINS proceeding is the welfare of the child.” In re C.P., 2012 VT 100, ¶ 28, 193 Vt. 29, 71 A.3d 1142. The State must prove, and the court must determine, if the allegations in a CHINS petition have been established. 33 V.S.A. § 5315(a), (f), (g). The State's burden of proof is a preponderance of the evidence. Id. § 5315(a). This standard of proof balances the State's interest in “ensuring the safety and welfare of the child” with the parents' interest “in maintaining family integrity.” In re M.L., 2010 VT 5, ¶ 7, 187 Vt. 291, 993 A.2d 400 (quotation omitted). It is particularly appropriate because “parents' rights are at most temporarily curtailed in a CHINS proceeding.” Id.

¶ 14. If the trial court finds that the allegations in the CHINS petition have been established, it must order DCF to prepare a disposition case plan and set the matter for a disposition hearing. Id. § 5315(g). It is at the disposition hearing where “the determination of parental unfitness, which triggers the transfer of custody away from the parents, must be made.” In re R.L., 148 Vt. 223, 227, 531 A.2d 909, 911 (1987). If the court determines that the allegations in a CHINS petition have not been established, it must dismiss the CHINS petition and vacate any temporary orders made in connection with the CHINS proceeding. 33 V.S.A. § 5315(f). As discussed below, the trial court here properly focused on B.R.'s welfare, rather than on the respective unfitness of each parent, and it did not err in adjudicating B.R. as CHINS.

¶ 15. A child is CHINS when 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). This language must be liberally construed. See In re N.H., 135 Vt. 230, 234, 373 A.2d 851, 855 (1977) ([A] statute providing the basis for determining who are...

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