In re M.K.

Citation114 A.3d 107,2015 VT 8
Decision Date09 January 2015
Docket NumberNo. 14–288.,14–288.
PartiesIn re M.K., Juvenile.
CourtUnited States State Supreme Court of Vermont

Matthew F. Valerio, Defender General, and Sara Puls, Appellate Defender, Montpelier, for Appellant Mother.

William H. Sorrell, Attorney General, and Bridget C. Asay, Assistant Attorney General, Montpelier, for Appellee State.

Michael Rose, St. Albans, for Appellee Juvenile.




¶ 1. Mother appeals an order of the superior court, family division, finding that her five-year-old son, M.K., is a child in need of care or supervision (CHINS) based on a single incident of abuse. She argues that the CHINS determination must be reversed because the evidence was insufficient to prove the allegation of abuse. We affirm.

¶ 2. The incident in question occurred on Easter Sunday, April 20, 2014, at an apartment complex that mother had just moved into with her two sons. On that morning, a tenant at the complex observed the incident and reported it to the property manager, who looked at a surveillance video from a camera located near where the incident occurred. After watching the video, the property manager contacted a social worker who was working with mother. The social worker and her supervisor came to the apartment complex and watched the video, after which they reported the incident to the Department for Children and Families (DCF). The property manager later turned over a copy of the video to police.

¶ 3. Based on the incident captured by the surveillance video, DCF requested an emergency care order and filed a CHINS petition. Following a hearing on April 23, 2014, the court issued an emergency order placing M.K. in DCF custody.

¶ 4. The surveillance video was admitted and played at a contested CHINS merits hearing held on July 31, 2014. At the hearing, the property manager, the social worker working with mother, and the investigating police officer testified for the State, while mother and the father, who had been at the apartment complex on the morning of the incident, testified on mother's

behalf. Mother described her actions as attempting to protect M.K. from potential danger. At the conclusion of the hearing, the court noted that the digital images of what occurred were “pretty clear in a couple of regards,” and then determined, based on the video, that mother had abused M.K.

¶ 5. At the time of the incident, mother was walking along a gravel driveway behind the apartment complex while M.K. was ahead at the bottom of a grassy area that sloped several yards downward from the driveway to the apartment building. As mother walked along the driveway toward M.K. while holding her fourteen-month-old son's hand, M.K. walked up the grassy area toward the driveway but stopped short of the driveway and dropped the stuffed toy he was carrying, which caused it to roll back down the grassy area and up against the building. At that point, as the trial court found from viewing the video, it was “very evident” that mother “lost it.” The court described mother grabbing M.K. and tossing him like a “ragdoll” toward the gravel driveway and then retrieving the toy and throwing it in his direction “as hard as she could have thrown it.” The court found that mother moved her foot in M.K.'s direction, but declined to find that she actually kicked him, noting that there was no evidence of bruising on the child. Concluding that mother's actions amounted to abuse of M.K., the court adjudicated him CHINS.

¶ 6. The court declined to adjudicate the younger son CHINS, however. Finding that mother's abusive actions toward M.K. stemmed from her frustration at not being able to control a rowdy five-year old, the court opined that, at this stage of his life, the younger child was not at immediate risk of being subjected to the same kind of conduct.

¶ 7. On appeal, mother argues that the court's CHINS adjudication must be reversed because the evidence is insufficient to support a finding of abuse. According to mother, the video is insufficient evidence to make such a finding because it is short, grainy, without an audio component, and difficult to interpret. She points out that the court found her to be a credible witness, and that there is no evidence that M.K. sustained any injuries from her actions or was even upset with what occurred. She describes the incident as M.K. falling backwards and landing on the ground, at which point she put her foot in front of him to protect him, and then later “tossed” a plush toy toward him to let him know that he needed to carry it. She further argues that, even if the video

does demonstrate that she “tossed” her son, that conduct would be insufficient to find she abused him under any definition of abuse, including the one contained in 33 V.S.A. § 4912 dealing with reporting child abuse. For their part, both the State and M.K. ask this Court to affirm the family court's CHINS adjudication.

¶ 8. “When reviewing a CHINS decision, we uphold the court's factual findings unless clearly erroneous and the court's legal conclusions when supported by those findings.” In re D.D., 2013 VT 79, ¶ 34, 194 Vt. 508, 82 A.3d 1143. Only those findings that are bereft of evidentiary support are clearly erroneous. Id.; see In re D.B., 2003 VT 81, ¶ 4, 175 Vt. 618, 833 A.2d 1246 (mem.) (“When findings are attacked on appeal, our role is limited to determining whether they are supported by credible evidence.”) (quotation omitted).

¶ 9. The court made its CHINS determination pursuant to 33 V.S.A. § 5102(3)(A), which defines CHINS as “a child who has been abandoned or abused by the child's parent, guardian, or custodian.” The terms “abuse” or “abused” are not defined in the general definitions section applicable to all juvenile judicial proceedings addressed in chapters 51–59 of Title 33, see id. § 5102 ; nor are these terms defined specifically in chapter 53 of Title 33 regarding CHINS proceedings.

There is, however, a definition of “abuse” set forth in subchapter 2 on Reporting Abuse of Children within chapter 49 of Title 33 dealing with Child Welfare Services. See 33 V.S.A. § 4912(1) (defining “abused or neglected child,” in relevant part, as “child whose physical health, psychological growth and development, or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent”); id. § 4912(6) (defining “harm,” in relevant part, as “physical injury or emotional maltreatment”). In her closing argument at the merits hearing, the attorney for the State relied upon this definition in arguing that mother had abused M.K.

¶ 10. Mother suggests that this Court should adopt, for CHINS purposes, the definition of abuse set forth in § 4912(1), as well as DCF's written policy on determining when a report of abuse is valid. In the event we elect not to adopt that definition, mother further suggests that we consider the common meaning of the word, particularly the definition of abuse contained in Black's Law Dictionary: “1. A departure from legal or reasonable use; misuse. 2. Cruel or violent treatment of someone; specif., physical or

mental maltreatment, often resulting in mental, emotional, sexual, or physical injury.” Black's Law Dictionary 12 (10th ed.2014).

¶ 11. Section 4912 expressly states that the terms defined therein are for use in that particular subchapter, which deals with the reporting of child abuse for potential placement on the child protection registry. This Court has “expressly recognized that the statutes governing the registry process, found in chapter 49 of Title 33, have legislative goals, functions, and procedures completely different from those governing juvenile proceedings in family court ... now reorganized in chapter 51.” In re M.E., 2010 VT 105, ¶ 13, 189 Vt. 114, 15 A.3d 112 (quotation omitted); see also In re L.M., 2014 VT 17, ¶ 29 n. 3, 195 Vt. 637, 93 A.3d 553 (affirming CHINS finding and refusing to rely on statutory definitions in 33 V.S.A. § 4912 or administrative rules concerning child protection registry process because registry and juvenile proceedings have different goals). Thus, we decline to adopt, for purposes of juvenile proceedings, the definition of abuse set forth in § 4912(1). Cf. People v. D.A.K., 198 Colo. 11, 596 P.2d 747, 750 n. 1 (1979) (en banc) (noting that definition of abuse set forth in child abuse reporting statute does not apply in dependency proceedings concerning whether child has been mistreated or abused).

¶ 12. Nevertheless, the statutory definition in § 4912(1) can provide some guidance in determining what conduct amounts to abuse sufficient to find a child in need of care or supervision. Definitions of abuse—including those contained in § 4912(1), (6) and Black's Law Dictionary—generally refer to acts that cause—or create a real risk of causing—physical, emotional, mental, or sexual injury. Although the Legislature has not provided a definition of the term “abuse” in the juvenile proceedings chapters of Title 33, the “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). In such proceedings, the “parents' rights are at most temporarily curtailed.” Id. (quotation omitted). The central concern is not to punish the parent for conduct involving the child but rather to protect the child from risk of future harm. See D.A.K., 596 P.2d at 751 (recognizing substantial parental interest, but noting that neglect and dependency proceedings are “not intended to punish the parent for conduct involving the child”). Thus, we must liberally construe the relevant terms to carry out the central purpose of neglect and dependency proceedings—the

protection of children. Cf. id. at 750 (noting that general assembly did not provide definition of term “abuse,” but concluding that term “must be liberally construed to carry out the declared purpose of neglect and dependency proceedings”—to secure children's “care and guidance”).

¶ 13. “The...

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