In re H.T. & M.L.
| Decision Date | 17 January 2020 |
| Docket Number | No. 19-282,19-282 |
| Citation | 227 A.3d 504 |
| Court | Vermont Supreme Court |
| Parties | IN RE H.T. & M.L., Juveniles |
Sarah Star, Middlebury, for Appellant Father.
Michael Rose, St. Albans, for Appellant Mother.
Allison N. Fulcher of Martin & Delaney Law Group, Barre, for Appellees Juveniles.
Thomas J. Donovan, Jr., Attorney General, Montpelier, and Martha E. Csala, Assistant Attorney General, Waterbury, for Appellee Department for Children and Families.
PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Grearson, Supr. J. and Morris, Supr. J. (Ret.), Specially Assigned
¶ 1. Parents appeal from the termination of their rights in M.L., born in 2014, and H.T., born in 2015, following a long-delayed initial disposition hearing. They argue that: the court committed plain error in accepting their stipulation that the children were in need of care or supervision (CHINS); their due process rights were violated by delays in the proceedings; and the court erred in concluding that they would not be able to parent the children within a reasonable time. We affirm.
¶ 2. The Department for Children and Families (DCF) has been involved with the family since 2014, when it obtained custody of M.L. and an older half-sibling, A.L.1 M.L., then two months old, had bruises on her face, and A.L., then two-and-a-half, cut himself with a razor due to inadequate supervision. M.L. was returned to parents' custody in April 2015 and H.T. was born three months later.
¶ 3. In July 2016, DCF filed a petition alleging that H.T. and M.L. were CHINS. Following a temporary-care hearing, the children were taken into temporary DCF custody. The court issued a written temporary-care order (TCO) in September 2016.
Because this order forms the basis of the CHINS determination, we set forth the findings in detail. The findings were made by clear and convincing evidence unless otherwise noted and they were based on nonhearsay unless otherwise stated.
¶ 4. The findings reflect the following. Sometime after April 2015, when M.L. was returned to parents' care, she began exhibiting concerning behavior at preschool. She would scream and cry multiple times a week in ways that differentiated her from the other children. The court found by a preponderance of the evidence that there was a correlation between M.L.'s return to parents' home and her concerning behavior. The preschool teacher met with parents in May 2016 and parents agreed that M.L. should have a mental-health assessment. The teacher subsequently observed scratches on M.L. and what looked like a rug burn on her inner thighs. The teacher contacted DCF about the latter condition. The court found it more likely than not that M.L.'s rash was the product of at least minor neglect.
¶ 5. A.L. was in DCF custody at the time of the temporary-care order. See 33 V.S.A. § 5308(c) (). The court found that when A.L. came into DCF custody, his behavior was out of control. He was hurting other people and hurting animals. His behavior improved in foster care. The court found by a preponderance of the evidence that his behavior improved because he was removed from mother's care. Mother was not in control during supervised visits with A.L. Her home was chronically unclean; a DCF employee who brought A.L. for a visit observed dog feces on the floor, old food stuck to a highchair, and trash strewn all over H.T.'s room. There were piles of dirty dishes and three bags of trash in the children's bedroom. Father saw no issue with the home's condition, which the court found troubling.
¶ 6. The TCO noted that DCF had been involved with the family for five years and provided the parties with extensive support, including Family Time coaching, Nurturing Parents group, financial support, daycare, early education, counseling, and regular treatment-team meetings. In terms of custody, the court found it difficult to determine what additional services DCF could provide to parents to keep the children in the home.
¶ 7. The TCO court also admitted several exhibits provided by the State. One was an affidavit containing hearsay that the court deemed reliable. Based on the affidavit, the court made the following findings by a preponderance of the evidence. In late May 2016, a visit supervisor tried to reach mother for almost four hours to confirm a visit with A.L. Mother was home alone with H.T., who was then ten months old. Mother was sleeping in the middle of the day. When the supervisor arrived with A.L., there were dirty dishes piled on the stove, sink, and freezer, and clothes were strewn around the house. H.T. had not eaten lunch by 2:00 p.m. and mother initially fed him Goldfish crackers. Around the same time, M.L. arrived at preschool with scratches and unexplained bruising on both arms and across her back. Mother had kept M.L. home the day before the scratches were noticed. When asked to meet to discuss the scratches, mother was exasperated and displeased, stating that the house was a mess and that DCF was harassing her. Father expressed unhappiness about having to "deal with this [expletive]." Parents were observed spanking M.L. very hard on multiple occasions, including once leaving a red mark on her lower back. On another occasion, service providers stopped by the house and knocked for half an hour. The children could be heard inside. Mother finally answered the door; the children looked dirty, the house was messy, and mother would not let the visitors in. The court found that mother was sleeping, leaving the children unsupervised.
¶ 8. The TCO court found little to be drawn from two parenting capacity evaluations that had been done. One doctor indicated that safety was a concern and that parenting three children was a lot for mother to handle without a supportive partner. Father was not allowed to be present during mother's visits with A.L. The State asked the court to consider findings made in April 2016 relative to A.L.'s case. The court found that these findings would be cumulative to the evidence already presented.
¶ 9. Based on its findings, the TCO court concluded that M.L. and H.T. were at risk of harm. It explained that A.L. had demonstrated out-of-control behaviors culminating in injuring M.L. while mother was asleep or otherwise not paying attention. A.L.'s behaviors subsided after some time in foster care but resurfaced when he began having overnight visits with mother. The behaviors subsided again after the overnight visits ceased. The court took into consideration that A.L. had been found to be a CHINS based on similar conditions. See E.J.R. v. Young, 162 Vt. 219, 224, 646 A.2d 1284, 1287 (1994) (). M.L. started exhibiting similar behavioral problems once she was returned to parents. She was having very concerning tantrums. Service providers reported the condition of the home to be squalid. There were instances of excessive corporal punishment as well as unexplained injuries to M.L. and inattentiveness to parenting responsibilities. The court found that parents' behavior put the children at risk of harm. See generally 33 V.S.A. § 5308(a)(1) (). It concluded that the children should be in DCF custody until parents were engaged in services, working with DCF, and attentive, and the causes of M.L.'s behavior could be identified.
¶ 10. At a status conference in October 2016, the parties indicated that they were discussing a possible stipulation to CHINS. The court noted that it had recently held a contested temporary-care hearing and made findings based on direct evidence. Given this, it was not going to relitigate at a CHINS merits hearing what had just occurred in the temporary-care hearing, but parents would have the opportunity to present additional evidence. The court reiterated this in an entry order, stating that it had held a lengthy temporary-care hearing at which the parties litigated the merits of the CHINS petition. It made findings on a clear-and-convincing-evidence standard based on live testimony and concluded that the petition had merit. Given this, it scheduled the case for a two-hour merits hearing at which time parents could present any additional evidence that they believed had bearing on the merits.
¶ 11. DCF drafted an initial case plan in November 2016 with the goal of reunification with parents. The plan contained expectations for both parents, including demonstrating an increased ability to meet M.L.'s needs in a safe manner and working on listening and engaging in conversation with less blaming and aggression.
¶ 12. A CHINS merits hearing was scheduled for January 2017. At the hearing, parents indicated that they had agreed to stipulate that the children were CHINS based on the written decision from the temporary-care hearing; they signed a written stipulation to this effect. The court reviewed the stipulation with parents. It explained to them that they could have presented any additional evidence that they wanted at a merits hearing and that by entering into a stipulation, they were waiving their opportunity to do so. Parents replied that they understood. Parents stated that they entered into the stipulation knowingly and voluntarily. They indicated that they had discussed the stipulation with their attorneys and were satisfied with the attorneys' advice. The court then entered an adjudication of CHINS based on the stipulation. At the time of the court's ruling, a progressive...
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