In re M.E.

• Decision Date: 27 December 2019
• Docket Number: No. 19-285,19-285
• Court: Vermont Supreme Court
• Parties: IN RE M.E., Juvenile

225 A.3d 633

IN RE M.E., Juvenile

No. 19-285

Supreme Court of Vermont.

November Term, 2019

December 27, 2019

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

David Tartter, Deputy State's Attorney, Montpelier, for Appellant State.

Michael Rose, St. Albans, for Appellee Mother, and Allison N. Fulcher, Barre, for Appellee Father.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Grearson, Supr. J., Specially Assigned

CARROLL, J.

¶ 1. Juvenile M.E. appeals the family division's dismissal of the State's petition to declare her a child in need of care or supervision (CHINS). The State joins in the appeal. We affirm.

¶ 2. In May 2019, the Department for Children and Families (DCF) filed a petition alleging that M.E. was without proper parental care as provided in 33 V.S.A. § 5102(3)(B). The CHINS petition was based on mother's admitted use of heroin on one occasion and allegations that M.E. had been exposed to drug use and paraphernalia while in the care of her parents. The court issued an emergency care order transferring custody to DCF. After a temporary care hearing, custody was continued with DCF. A merits hearing was held on August 7, 2019. In a written order issued on August 12, the court concluded that the State had failed to establish the merits and dismissed the petition.

¶ 3. The court made the following findings in its order. At the time the CHINS petition was filed, M.E. was almost five years old. She lived with mother and father in an upstairs bedroom of the home of father's grandmother. Father worked long hours and mother stayed home with M.E. In early 2019, mother began working approximately twenty hours per week, during which time M.E. was cared for by father's mother or grandmother.

¶ 4. In May 2019, family members filed reports with DCF expressing concern that mother, father, and M.E. did not spend much time with the family, appearing only for meals. They observed that both parents seemed to have lost weight, had swollen hands, and seemed less involved with M.E. M.E. appeared dirty and unbathed. Her hair was snarled and she wore the same clothes for two to three days at a time. Mother and father have had addiction issues in the past.

¶ 5. On May 21, 2019, a DCF case worker visited the home. When he arrived, mother and M.E. were stepping outside to play. He observed that mother's pupils were small and she seemed shaky. He acknowledged that the sun was shining at the time. He did not observe M.E. to be dirty, unbathed, or unkempt.

¶ 6. Mother told the case worker that she had used heroin once within the past week to address tooth pain. She agreed to sign up for substance-abuse case management. The case worker also spoke to M.E., who stated that there were "little baggies with white stuff in them in the bedroom." During this conversation, mother went into the house "to take care of something."

¶ 7. When mother returned, the case worker asked to see the bedroom where M.E. lived with mother and father. The room was dark and filled with mattress-height clutter that blocked access to the windows. On the desk in the room, accessible to M.E., were vape cartridges containing a small amount of oil. There was also a dusty shelf with a square void. M.E. reported the space was where "Daddy's box," in which he kept the baggies with white stuff, had been earlier in the day. Mother said the space was where father kept a box containing his work knives. Father is a cook in a restaurant.

¶ 8. Mother agreed to a safety plan under which M.E. would stay with cousins and mother would stay with a friend. The case worker testified that this plan was created because mother said she was afraid of repercussions from father when he heard about DCF's visit. At the hearing, mother denied that she was ever afraid of father. She returned to stay with father on the following Friday. The same day, she reengaged in substance-abuse treatment with her provider at Connecticut Valley Recovery Center. DCF decided to seek an emergency-care order after it learned that mother had returned to the home.

¶ 9. The court found that father had "displayed some physically aggressive behaviors" after his grandfather died when father was in his early twenties. The court found that father was now thirty-eight years old and there was no evidence that he had continued to be physically aggressive. Father voluntarily completed an anger-management program after undergoing intensive outpatient treatment several years ago while he was under supervision of the Department of Corrections. The DCF case worker stated that when he was able to speak with father about M.E., father was "standoffish" and terminated the conversation before a safety plan could be discussed. The court found this account to be credible. However, it noted that the case worker did not describe father as being loud, aggressive, or threatening. Father testified that he was now sober except that he smoked approximately three marijuana joints per day.

¶ 10. The court found that mother and father had been attentive to M.E. and had taken her to the doctor for required medical attention. Mother would engage in play and craft projects with M.E. and read to her. The court expressed concern that M.E. did not yet know the alphabet or numbers and could not spell her name even though she was five years old. It noted that there was conflicting evidence regarding M.E.'s cleanliness and appearance. M.E. had a yeast infection

when she was taken into custody and there were concerns about her continued use of a potty chair in the bedroom she shared with her parents. The court noted that there was only one bathroom in the house and mother emptied the potty chair frequently.

¶ 11. The court also was concerned that father was essentially under the influence of marijuana for most of the day. However, it found that father was not M.E.'s primary care provider and only interacted with her when mother was present. The court stated that it was "of great concern" that mother chose to use heroin to address tooth pain, but found no other evidence of drug use by mother and found it significant that she engaged in substance-abuse treatment before the CHINS petition was filed. The court concluded that the State had not established that M.E. was CHINS by a preponderance of the evidence and dismissed the petition. This appeal followed.

¶ 12. As relevant here, a child is CHINS if the child "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). The State has the burden of proving that a child is CHINS by a preponderance of the evidence. Id. § 5315(a). In reviewing the family division's decision dismissing the CHINS petition, we will uphold the court's findings of fact unless they are clearly erroneous and will affirm its legal conclusions if supported by the findings. In re M.L., 2010 VT 5, ¶ 8, 187 Vt. 291, 993 A.2d 400. "We leave it to the sound discretion of the family court to determine the credibility of the witnesses and to weigh the evidence." In re A.F., 160 Vt. 175, 178, 624 A.2d 867, 869 (1993).

¶ 13. On appeal, M.E. claims the court erred in finding that there was no evidence of other recent drug use by mother besides the single instance of heroin use for tooth pain. She argues that the DCF case worker testified that M.E. reported having seen mother and father smoke the white stuff in the baggies with fire, and there was circumstantial evidence of recent drug use by mother in the form of statements by M.E., family members' observations of mother's physical appearance, and mother's testimony that she quit working at the restaurant where father was employed because there was drug use in the workplace. M.E. argues that the court abused its discretion by ignoring relevant undisputed evidence that parents were using drugs while she was in their care, which placed her at risk of harm.

¶ 14. The family division's findings were not clearly erroneous. First, M.E.'s out-of-court statements to the case worker about the baggies and what parents allegedly did with them were hearsay. Because no party objected to the admission of the statements, the court was not prohibited from considering them. See In re M.P., 133 Vt. 144, 146, 333 A.2d 116, 118 (1975) (explaining that hearsay is inadmissible at merits stage of CHINS proceeding because parties have right to cross-examine witnesses against them, but "even uncorroborated hearsay evidence may support a factual finding if admitted without objection"). However, as factfinder the court also had discretion to give the statements minimal weight.¹ In re A.F., 160 Vt. at 178, 624 A.2d at 869 ; see also City of Montpelier v. Town of Calais, 114 Vt. 5, 11, 39 A.2d 350, 354 (1944) (explaining that although finding can be based on hearsay evidence admitted without objection, weight to be given such evidence is for trier of fact to decide).

¶ 15. Even if it did not consist of hearsay, the DCF case worker's testimony was not as clear-cut as M.E. claims on appeal. He testified that M.E. "described that her Mommy and Daddy smoke something. I couldn't really gather—I couldn't really clarify what they were smoking." After refreshing his recollection by looking at his report, he stated that M.E. said "They smoke it with fire." He agreed on cross-examination that M.E. could be referring to tobacco. Later, when asked by M.E.'s attorney whether M.E. had stated that the bags were small and contained white stuff and that father smoked them with fire, he said yes. The latter testimony conflicted with the case worker's affidavit, in which he stated that M.E. reported the bags were small and white and it was unclear what father and mother smoked. Notably, at no point in his testimony did the case worker indicate when this alleged drug use occurred. The testimony was vague and inconclusive and the court was free not to give it any weight. See In re M.C.P., 153...