In re L.M.

• Decision Date: 14 February 2014
• Docket Number: No. 13–355.,13–355.
• Citation: 2014 VT 17,93 A.3d 553
• Parties: In re L.M., Juvenile.
• Court: Vermont Supreme Court

93 A.3d 553

2014 VT 17

In re L.M., Juvenile.

No. 13–355.

Supreme Court of Vermont.

Feb. 14, 2014.

Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Appellant.

William H. Sorrell, Attorney General, and Martha E. Csala, Assistant Attorney General, Montpelier, for Appellee.

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

REIBER, C.J.

¶ 1. Father appeals from the trial court's order finding his daughter L.M. to be a child in need of care or supervision (CHINS). He raises numerous arguments. We affirm.

¶ 2. The record indicates the following. L.M. was born in June 2010. On May 31, 2013, the Department for Children and Families (DCF) filed a petition alleging that L.M. was CHINS.¹ The court issued a temporary care order on June 4, 2013, assigning temporary legal custody of L.M. to her paternal grandmother subject to a conditional custody order. Mother later stipulated that L.M. was CHINS due to mother's drug use and homelessness. Father did not agree that L.M. was CHINS, and his attorney indicated that he might contest mother's stipulation to the extent that it affected father's situation.

¶ 3. Neither parent attended the September 4, 2013 CHINS merits hearing. Father's mother, who had been caring for L.M. since May 31, 2013, the date the CHINS petition was filed, and a DCF social worker testified at the hearing. The DCF worker said that she first met with parents in March 2013 after DCF received a report about the family. At that time, parents were staying with mother's sister, the sister's boyfriend, and the sister's three children. Parents were sleeping on a couch in the living room. L.M. was sleeping in the top bunk of a bunk bed.

¶ 4. During this March meeting, the social worker reviewed with parents the report that had been made to DCF. She also discussed DCF's history of involvement with the parents and the pattern of homelessness, drug use, transience, and instability as evidenced by prior reports. Parents acknowledged that their behavior fell into a repetitive pattern. Father recounted the family's housing history over the prior two years, explaining that they had been kicked out of or lost two homes, stayed in shelters, been kicked out of a shelter, stayed at father's brother's house temporarily, and eventually ended up in mother's sister's home. Father also described his drug-use history. Father stated that he had been using opiates for the past ten years and that he was currently addicted to opiates. Father said he had been self-medicating with Suboxone he purchased on the street for approximately ten months and that he was on a waiting list for a program that provided Suboxone to opiate addicts.

¶ 5. Following this March conversation, the social worker recommended daycare for L.M. She also strongly recommended that father obtain a substance abuse evaluation so that he could move forward with treatment, including obtaining a Suboxone provider. At that point, father was candid about the family's struggles with drugs and homelessness, and he was open to placing L.M. in daycare and working with DCF. Parents agreed to schedule substance-abuse assessments, and mother agreed to contact someone about obtaining daycare. Father supported the daycare plan.

¶ 6. On May 3, the social worker made an unannounced visit to mother's sister's home based on a report that mother's sister was smoking crack in the basement. Mother's sister was not home when the social worker arrived, but mother showed the social worker the basement. The social worker saw no evidence of crack use. Mother stated that no one smoked crack in the basement, but acknowledged that the adults sometimes smoked marijuana there. The social worker testified, over father's counsel's objection, that mother later told her that she and father had smoked crack in the basement once.

¶ 7. The social worker told parents during this visit that DCF would be opening a case because parents failed to follow through on any of DCF's recommendations. She explained that DCF's recommendations had been designed to mitigate the family's risk factors and, when DCF's risk assessment tool was applied, the family continued to have a high risk score. Father was angry that a case would be opened. The social worker also informed the parents that a family safety planning meeting would be set up to address the concerns that father had already acknowledged existed and had not been addressed. The social worker informed mother of the date and time of this meeting, and, at mother's direction, she left father a voicemail message with this information. Neither parent appeared at the meeting.

¶ 8. The social worker followed up numerous times with parents between March and May. She located a possible Suboxone provider for father, though services were dependent on father obtaining a substance abuse evaluation. Father did not provide the social worker with a substance abuse assessment by the date that the CHINS petition was filed. He did not enroll L.M. in daycare. He did not obtain stable housing.

¶ 9. At the time the CHINS petition was filed, father and mother were not living together. The social worker testified that L.M. was with mother at the time the petition was filed. As the social worker began to elaborate, father's attorney objected on hearsay grounds. The court overruled the objection, finding mother's statements to the social worker to be nonhearsay as admissions of a party-opponent under Vermont Rule of Evidence 801(d)(2). The social worker then testified that two days before the CHINS petition was filed, mother informed her that she and L.M. were homeless. Mother explained that the family had left mother's sister's home after a fight, and that mother and L.M. had nowhere to go. Mother said that father was staying with his relatives, and those relatives had made it very clear that there was no room for mother or L.M. This evidence was later disputed. Father's mother testified that father told her that L.M. was with him during this period.

¶ 10. The grandmother further stated that father had asked her if L.M. could stay with her given the CHINS petition being filed. She testified that L.M. began living with her either the day the petition was filed or the day after. The grandmother explained that until the day the CHINS petition was filed the parents had asked her to take care of L.M. on many occasions and then changed their minds and decided to keep her themselves.

¶ 11. The grandmother acknowledged father's ongoing struggle with drugs and with obtaining housing. She testified that parents had asked to stay with her but she refused. She explained that she had helped parents before, when mother was pregnant with L.M. and again when she was a year old, but parents always fell into the same pattern—parents made promises but never followed through. The grandmother had also helped parents get set up in an apartment but that also fell through and parents lost everything. Given parents' repeated behavior, the grandmother told parents that she would care for L.M. but she would not take them into her home as well. The grandmother testified that it was not until the court became involved that parents said that L.M. could come and stay with her.

¶ 12. The court found on the record that the State met its burden of proof with respect to a CHINS finding against father. It was undisputed that father had a longstanding serious history of abusing street drugs that he could not bring to a favorable resolution. Father also had a chronic problem with homelessness, and, at the point in question, was unable to care properly for L.M., unable to provide a stable home, and unable to follow through on any recommendations or offers of help from DCF. The court recognized that father's mother had stepped up to care for L.M., but concluded this did not change the fact that grandmother had agreed to help as a matter of family emergency in response to the CHINS petition. It similarly did not change the history of the months leading up to the filing when father, who has a serious drug problem, was simply unable to provide appropriately for L.M.'s care. For these reasons, the court entered a finding of CHINS regarding father, adding that mother had already admitted that L.M. was CHINS for similar reasons. Following the issuance of a written order, this appeal followed.

¶ 13. Father argues on appeal that the court's decision lacks evidentiary support and is contrary to the undisputed evidence. According to father, the State's case rested on inadmissible hearsay. Father also asserts that the court could not enter a CHINS finding because L.M. was living with her grandmother on the date that the CHINS petition was filed and her needs were being met. Finally, father argues that there was no evidence to show that his drug addiction, chronic instability, and failure to follow through on DCF's recommendations posed a threat to L.M.'s well-being.

¶ 14. We begin with the hearsay issue. Father argues, and the State appears to concede, that the court erred in allowing the DCF social worker to testify to statements that mother allegedly made to her. These included, among other things, mother's statements concerning her own and father's noncompliance with DCF's recommendations; mother's statements that she and father had smoked crack while staying with mother's sister; and mother's statements to the social worker, shortly before the CHINS petition was filed, that she and L.M. were homeless and that father was staying with relatives who had made it very clear that there was no room for mother or L.M.

¶ 15. The State argued below that these statements were nonhearsay under Rule 801(d)(2) as admissions by a party-opponent. Father's attorney disagreed, arguing that mother was no longer an adverse party given that she had stipulated to CHINS. The court agreed with the State that mother remained an adverse party ...