In re D.D., 12–417.

Citation82 A.3d 1143, 194 Vt. 508, 2013 VT 79
Case DateSeptember 13, 2013
CourtUnited States State Supreme Court of Vermont


Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for AppellantFather.

Michael Rose, St. Albans, for AppellantMother.

William H. Sorrell, Attorney General, and Robert F. McDougall, Assistant Attorney General, Montpelier, for Appellee Department for Children and Families.



¶ 1. Father appeals the trial court's conclusion that his son D.D. is a child in need of care or supervision (CHINS) because he was without proper medical care necessary for his well being under 33 V.S.A. § 5102(3) (B). Father argues that the record did not support the trial court's factual findings, which in turn did not support the trial court's legal conclusion. The State challenges the timeliness of father's appeal and, on the merits, argues that the trial court's findings and conclusions were adequately supported. We conclude father's appeal is untimely but reach the merits in this instance and affirm the trial court's substantive determination.

¶ 2. Child, D.D., was born in 2007 with obstructive uropathy, a condition which blocked and scarred his kidneys. As a result of this disorder, child's kidney function will deteriorate over time, and he will inevitably need dialysis or a transplant. Child requires ongoing medical care and supervision to help delay these invasive treatments. This medical care consists primarily of: monitoring of weight, kidney function, and red-blood-cell count; regular catheterization to relieve pressure on his kidneys; and weekly shots of the drug Epogen to prevent kidney-disease-related anemia.

¶ 3. Faced with perceived concerns about parents' ability to ensure child receives the routine care his condition demands, the Department for Children and Families (DCF) petitioned in February 2012 to have the then-four-year-old child declared CHINS. Based on an affidavit from a DCF caseworker, the court granted an emergency request to temporarily transfer custody to DCF and scheduled a temporary-care hearing for the following day, February 10, 2012. Parents, their appointed attorneys, the DCF attorney and a guardian ad litem participated in the temporary-care hearing. Following the hearing, the trial court issued a temporary-care order continuing DCF custody. In its order, the court concluded, on the basis of DCF's accompanying affidavit, that returning child to parents could result in substantial danger to child's health, welfare, or safety. The court also found that DCF exercised due diligence to prevent child's unnecessary removal.

¶ 4. Some four months after the temporary care hearing, the court held a merits hearing. The hearing began on May 11, 2012 and was continued to June 20, 2012.

¶ 5. Child's primary-care physician testified at the May hearing. The physician, who had treated child since birth, indicated that child's condition was generally “great” apart from his chronic kidney disorder, which required close, routine monitoring. The physician also testified that parents routinely contact her when they have concerns about child's health, and although child has occasionally missed appointments because of transportation problems, parents follow up and reschedule when this occurs. In discussing child's degenerative kidney disorder, the doctor stressed the importance of regular laboratory monitoring. Any deterioration in child's organ function would not necessarily be readily apparent based simply on physical observation, and for that reason healthcare providers rely on laboratory testing to monitor child's progression. The physician indicated that the lab work was conducted at Fletcher Allen Health Care (FAHC).

¶ 6. A nephrologist from FAHC also testified at the merits hearing. As of the time of the hearing, the nephrologist reported that child's kidneys were functioning at two-thirds capacity. The nephrologist testified that physicians could only slow the progression of child's disease to give him more time to grow and develop before transplanting a kidney. When child eventually needs a transplant, it would likely be preceded by a period of dialysis requiring even more frequent visits to the health center. Afterward, child would need more frequent and regular medication to avoid rejection.

¶ 7. The nephrologist indicated that as part of the treatment to slow the progression of child's kidney disease and delay the inevitable transplant, it is imperative that child visit the hospital at least every three months for testing. According to the nephrologist and a member of the hospital administrative staff, child missed at least some scheduled appointments. Many of the missed appointments were attributed to transportation difficulties, while others were weather-related. On at least one occasion, mother simply forgot an appointment despite the pediatrician's assertion that she had called to remind the family of the appointment.

¶ 8. At a minimum, parents canceled or rescheduled appointments initially slated for September 13, 2011; January 10, 2012; January 12, 2012; January 24, 2012; and January 31, 2012. Between February 2011 and January 2012, parents brought child to only two scheduled appointments: one in June 2011 and another in November 2011.1 Before the June appointment, the last time the nephrologist had seen child was September 2010. To establish this calendar of hospital visits, the court permitted a social worker to testify from a list of appointment dates compiled by an unknown staffer over parents' hearsay objection. Based on that list, the social worker described the reasons for which the appointments were missed or rescheduled. The social worker testified that parents missed the February 2011 appointment without rescheduling. The May 26, 2011 appointment was canceled because of transportation problems, but rescheduled for June 9. In September 2011, the family offered no excuse for not showing up. Despite several rescheduling calls, child attended appointments in June 2011, November 2011, and February 2012. The family called to cancel and reschedule the January 2012 appointment four times because of transportation and bad roads.

¶ 9. A home-care nurse who has treated child for about four years also testified at the hearing. The nurse indicated that she visits child weekly, at which time she monitors child's growth; checks on his vesicostomy—a surgical hole in the bladder used for catheterization; tracks his urine output; and administers his weekly Epogen shot, which parents obtain from a pharmacy. The nurse offered a mixed perspective on parents' ability to care for child. The nurse testified that parents properly performed the catheterization and, in fact, mother showed the nurse how to perform the drainage. Despite parents' apparent attentiveness in this respect, however, the nurse recalled several occasions on which child did not receive his Epogen shot, the importance of which the nurse and other healthcare providers had stressed. Specifically, the child did not receive his shot as scheduled: once in October 2011, when parents did not hear the nurse knocking on the door of the house; once in September 2011, when parents forgot to pick up the medication at the pharmacy; and once in February 2012, after child had been placed in temporary DCF custody. The number of shots missed may have been more extensive, according to the nurse's testimony.

¶ 10. As a general matter, the nurse recalled that the family's frequent relocations at times made keeping scheduled appointments difficult. The nurse said that on occasion several weeks had passed when she could not locate the family because they had moved. According to the nurse, the family moved about seven times during the time she treated child. The locations to which the family moved offered varying levels of accommodations for parents, child and his siblings. The residences did not always have water.

¶ 11. Mother testified that there was a two-week gap in visiting-nurse coverage when the family moved from Berkshire to Enosburg in May 2011. According to mother, the nurse's GPS had misdirected her.

¶ 12. With respect to hospital and doctor care, mother reported that the family met with healthcare providers in August 2011 to discuss ongoing treatment plans. During the meeting, the family agreed to make sure child went to FAHC once every three months. According to mother, the family did not make it to a September 2011 appointment at FAHC because they were in the process of moving. Mother stated that it was a hectic time and she forgot about the appointment. At the same time, father got a MRSA infection following surgery. Mother recalled that lack of transportation made it difficult to attend appointments. Mother described Medicaid transportation as an unreliable substitute, either failing to pick up the family to travel to scheduled appointments or leaving them stranded in Burlington afterward. Mother indicated that these transportation difficulties did not have a material impact on child's care. She noted, for example, that when she contacted FAHC about the four rescheduled January appointments, she was told that it was not necessary to travel to FAHC and to make alternate arrangements to bring child to a pediatrician in Enosburg to have the blood work done at that time.

¶ 13. Mother also described her history with substance abuse. She explained that she did not attend Brattleboro Retreat for treatment as she initially planned, but did complete Act One substance-abuse programming and had been clean for sixty days at the time of the hearing.

¶ 14. Father testified during the hearing, describing the family's transportation and living situations. He stated that in 2011 the family did not have transportation. With regard to housing, father reported that the family had moved out of a camper they had occupied on a...

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