J.S., In re, 88-449

• Decision Date: 22 December 1989
• Docket Number: No. 88-449,88-449
• Citation: 571 A.2d 658,153 Vt. 365
• Parties: In re J.S.
• Court: Vermont Supreme Court

Page 658

571 A.2d 658

153 Vt. 365

In re J.S.

No. 88-449.

Supreme Court of Vermont.

Dec. 22, 1989.

Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Alexandra N. Thayer, Asst. Atty. Gen., Waterbury, for plaintiff-appellant.

Steve Dunham, Public Defender, St. Albans, for defendant-appellee.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

ALLEN, Chief Justice.

Both the Department of Social and Rehabilitation Services (SRS) and J.S. appeal from the decisions of the juvenile court regarding SRS's attempt to place the juvenile in the Baird Center, a staff-secure residential group home. We affirm the denial of a protective order and reverse the juvenile court's order requiring SRS to move for modification of the juvenile's disposition.

J.S., presently nine years old, began receiving services from SRS in June of 1985. At that time, J.S.'s father and the father's girlfriend with whom J.S. resided requested that SRS assist them in controlling the child. J.S. exhibited many behavioral problems including firesetting, destructive tantrums, and physical violence toward animals and others. J.S.'s father used a variety of in-home services in an effort to resolve his son's problems. When these attempts proved unsuccessful, J.S.'s father voluntarily placed J.S. in the custody of SRS in March of 1987. After an emergency stay at the Baird Center, J.S. was placed in the first of a succession of foster homes, where he continued to engage in problematic behavior. He returned to his family in the summer of 1987, but his stay proved brief. In September of that year, J.S.'s father and his girlfriend concluded J.S. was beyond their control and in need of intense specialized treatment that they could not provide.

A juvenile petition alleging that J.S. was a child in need of care and supervision was filed in October, 1987. The juvenile court held an uncontested merits hearing on November 6, 1987. SRS prepared a disposition report that recommended J.S. remain in the foster care of the Wilson family with whom he had been placed since August of that year. ¹ The report also recommended that SRS take custody of the child. No party contested SRS's proposals. ² On December 9, 1987, the juvenile court ordered the legal custody of J.S. transferred to the Commissioner of SRS. The order contained no restrictions or conditions and made no reference to the case plan.

J.S.'s problems continued in foster care. In February 1988, he set a fire at the Wilson home. In March, SRS again placed him in the Baird Center on an emergency basis. After two weeks, he was placed in the Project Attention group home. Placements at two other foster homes followed quickly as his problems persisted.

SRS conducted a twelve-month review on August 8, 1988 and held a plan review meeting on August 9. SRS concluded that J.S.'s continuing pattern of self-abusive and destructive behavior warranted extended placement at Baird on a nonemergency basis.

The Baird Center is a staff-secure residential treatment center located in Burlington. The Center serves up to ten children of ages six to fourteen in its residential unit and can accommodate two children on an emergency basis. Baird combines a day school with individually tailored on-site programs in a setting integrated into the surrounding residential community. The Center also features preventative and intensive follow-up out-patient services. In its plan review, SRS estimated that J.S. would need the structure and resources of Baird for one year and recommended that J.S.'s father continue to attend parenting classes.

J.S. sought to prevent his placement at Baird and filed a motion for a protective order pursuant to 33 V.S.A. § 661 on August 11, 1988. On September 1, 1988, the juvenile court ruled that J.S. had declined to exhaust the available administrative remedies and failed to establish that placement at Baird would harm J.S. or would tend to defeat the original disposition order of the court. J.S. appealed the denial of his motion.

When space became available in November, 1988, SRS placed J.S. at the Baird Center. J.S. filed a motion in juvenile court requesting a temporary stay of the placement at Baird pending the appeal of the court's protective order denial. The juvenile court held hearings on this motion on December 13, 14 and 29, 1988. Rather than issue a temporary stay order pending appeal, the juvenile court elected to treat the motion as a request to enforce the original disposition order. The juvenile court ordered SRS to return J.S. to foster care unless it filed and obtained court approval of a motion to modify the disposition order.

SRS appealed the juvenile court's ruling. By agreement of the parties, this appeal was consolidated with J.S.'s earlier appeal of the denial of the protective order.

I.

J.S. argues that since a majority of those present at the twelve-month case plan review meeting of August 9, 1988 rejected the newly proposed case plan, SRS could not implement a change of placement from foster care to the Baird Center. Specifically, J.S. contends that Vermont adopted a case review system to comply with the requirements of the Federal Adoption Assistance Act of 1980, 42 U.S.C. §§ 670-679, that the twelve-month review constitutes the administrative review outlined in 42 U.S.C. § 675(6) ³ and that those who attend the review represent a decision-making body. As a prerequisite to the implementation of a case plan change, J.S. argues that SRS must obtain the approval of this "administrative review body." He concludes that because three out of the four persons present at the review voted against the proposed change, SRS could not place him at Baird.

SRS responds that 42 U.S.C. § 675(6) does not create a private right of action in the participants, and that even if it does, the statute does not contemplate that those attending the review will function as a voting body to pass on case plan changes. ⁴ The administrative review is intended, rather, to facilitate communication among interested parties.

J.S.'s father, a representative of the Office of the Public Defender, J.S.'s SRS caseworker, and an impartial consultant attended the twelve-month review. After discussion of the altered case plan, those present signed a form noting that they understood the plan review and knew a signed statement outlining any doubts about the review plan could be attached. Next to their signatures, the participants could check a box to indicate whether or not they agreed with the plan. Only the caseworker agreed with the change in placement. The others all noted their disagreement, but no one attached a signed statement.

We need not decide whether the administrative review conducted by SRS satisfies the requirements of the Adoption Assistance Act. The juvenile court exercises special and very limited statutory powers. In re M.C.P., 153 Vt. 275, ---, 571 A.2d 627, 642 (1989). Generally, unless statutory authority exists for a particular procedure, the juvenile court lacks the authority to employ it. Id. In the context of a protective order hearing, J.S. requested that the juvenile court force SRS to comply with § 675 of the Adoption Assistance Act regarding periodic administrative reviews. The Adoption Assistance Act, however, creates no private right of action in the juvenile. ⁵ Therefore, the juvenile court had no jurisdiction in the protective order hearing to consider this issue.

J.S. also claims that the juvenile court abused its discretion by denying the motion for a protective order preventing placement of J.S. at the Baird Center. J.S. noted that in 1985 and 1986 a series of incidents of sexual abuse occurred at Baird in which older juveniles preyed on younger children. The staff failed to properly report these incidents to SRS, and the individual responsible for the failure to report still served on the Baird staff. J.S. concludes that placement at Baird puts him at risk because Baird does not protect its residents from sexual abuse. Therefore, J.S. argues that the juvenile court improperly denied his protective order motion.

The court may issue a protective order when it finds conduct that "may be detrimental or harmful to the child, and will tend to defeat the execution of the order of disposition." 33 V.S.A. § 661(2). The question of whether to issue a protective order is committed to the sound discretion of the trial court. The juvenile court's decision will stand on appellate review unless the record indicates that the court exercised its discretion for clearly untenable reasons or to an extent clearly unreasonable. In re R.F., 135 Vt. 275, 276, 376 A.2d 38, 40 (1977) (petition for modification of disposition order).

The record supports the juvenile court's ruling. The court found that SRS thoroughly investigated the Baird Center and implemented a series of remedial controls. The Baird Center became a licensed group home, and the individual who failed to report past abuses is now directly supervised by a clinical psychiatrist. Older children no longer room with younger children, and only one child at a time is placed in the "time-out" room without supervision. The subsequent annual reviews required of licensed group homes have shown no violations of the controls. The court determined that the Baird Center had corrected the situation that gave rise to the sexual abuse incidents. The court concluded that there existed no reason to expect that placement at Baird would increase the danger of physical, mental or sexual abuse of J.S. Therefore, J.S. failed to establish that the proposed placement would be to his harm or detriment. The juvenile court's denial of the motion for a protective order does not constitute an abuse of discretion.

II.

SRS argues that the juvenile court lacked the authority to require SRS to obtain court approval for the modification of a disposition order to effectuate a change in the placement of a child within its...