N. H., In re

• Decision Date: 05 April 1977
• Docket Number: No. 97-76,97-76
• Citation: 373 A.2d 851,135 Vt. 230
• Court: Vermont Supreme Court
• Parties: In re N. H. (juvenile).

Page 851

373 A.2d 851

135 Vt. 230

In re N. H. (juvenile).

No. 97-76.

Supreme Court of Vermont.

April 5, 1977.

Michael J. Sheehan, Windsor County State's Atty., and William J. Donahue, Deputy State's Atty., White River Junction, for plaintiff.

Divoll & Doores, Bellows Falls, for the father.

James L. Morse, Defender Gen., and Robert M. Paolini, Deputy Defender Gen., Montpelier, for the juvenile.

Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

HILL, Justice.

The present appeal has been brought by the father of the infant N.H. from a disposition order entered by the District Court of Vermont, Windsor Circuit. In its order, the court, sitting as a juvenile court under the Vermont Juvenile Procedure Act, directed that custody and guardianship of N.H. be transferred to the Department of Social and Rehabilitation Services with residual parental rights to remain in the child's natural parents.

The child N.H. was born in March of 1974, the offspring of what can only be termed an unstable and turbulent marriage. The married life of N.H.'s parents has been marred by a series of separations, reconciliations, and re-separations. At the present, the parents are living apart, as they have been since November of 1974, and divorce proceedings have been initiated by the father.

The facts giving rise to the juvenile court's jurisdiction over this matter are tragic indeed. On the evening of November 5, 1975, N.H. was brought to the hospital in Springfield, Vermont, by her mother. At the time of her admission, N.H. was vomiting, had a red throat, and appeared dehydrated. Subsequent examination by Dr. Frederic Guilmette, a practicing pediatrician, revealed extensive bruises on the child's leg, arm, abdomen, and back. Suspecting that N.H. was the victim of physical abuse, Dr. Guilmette directed that the area office of the Department of Social and Rehabilitation Services be notified. When questioned as to the cause of N.H.'s injuries, the mother was vague and nonresponsive. Though she refused to directly state it, the mother strongly implied that N.H. had suffered the alleged abuse at the hands of her boyfriend, with whom she was living and in whose charge the child had been left.

On November 7, 1975, a petition was filed in the District Court of Vermont by the Windsor County Deputy State's Attorney, asking that proceedings under 33 V.S.A. Chapter 12 be initiated for the purpose of determining whether N.H. was a child in need of care or supervision. On that date, an emergency detention hearing was held in White River Junction at the district court. On the basis of the abuse report filed by Dr. Guilmette, the custody of N.H. was placed in the Department of Social and Rehabilitation Services pending a hearing on the merits.

Here we think it appropriate to note that this was not the first occasion on which such proceedings had been commenced in regard to N.H. In April of 1975, in Windham County, under circumstances distressingly similar to those here, the child N.H. was admitted to Rockingham Memorial Hospital, suffering from an assortment of injuries, including a fractured skull. As was the case here, because of a suspicion of abuse, a petition was filed by the State's Attorney pursuant to 33 V.S.A. § 645. Additionally, it was during this period of time that the father initiated divorce proceedings in Windham Superior Court, and, in connection therewith, sought custody of N.H. The superior court, however, ruled that in light of the juvenile proceedings then pending in the district court, it had no jurisdiction to render any order as to the custody of the subject child. Subsequently the petition in juvenile court was withdrawn, and in some inexplicable manner, the child was returned to her mother, into the same unfortunate environment.

In accordance with the provisions of the Vermont Juvenile Procedure Act, 33 V.S.A. Chapter 12, hearings were held for the purpose of determining whether N.H. was, as alleged in the State's petition, a child in need of care or supervision. At these hearings, the court received testimony from the physicians who had treated N.H. on the two occasions when she had been hospitalized; from both parents, who were represented by counsel; and from the paternal grandparents of N.H. On the basis of this testimony, and other pertinent evidence, the court found that the father had not participated in the abuse and had been separated from the mother when the abuse occurred. The court went on to find that N.H. was an abused child without parental care and control as contemplated by the language employed in 33 V.S.A. § 632(a)(12).

In compliance with the bifurcated procedure established by the Act, a disposition hearing was scheduled. At this proceeding, the father requested that the court return N.H. to him. In connection with his request, the father testified that he was residing with his parents and that both he and they were ready, willing, and able to supply N.H. with a loving, stable and secure family environment. The grandparents also testified that they and their son could provide a home well suited to meet the physical and emotional needs of the child.

On the other hand, the disposition reports submitted by the Department of Social and Rehabilitation Services pursuant to 33 V.S.A. § 655 recommended that custody and guardianship of N.H. be given to that Department. In support of its recommendation, the Department noted the history of alcohol and psychological problems exhibited by the father plus the fact that he was unemployed and suffering from Hodgkins Disease. Furthermore, the Department stressed that both grandparents were in their sixties, that the grandfather suffered from angina, and that as a result they might not be able to adequately minister to the considerable needs of a young child.

The child's mother freely admitted her own demonstrated inability to care for her child, and acquiesced in the Department's recommendation.

On the basis of the foregoing, the court concluded that the grandparents did not constitute the sort of family environment contemplated by the Act, and that it was necessary for the welfare of the child that she be separated from both her parents so as to ensure the 'physical and psychological support necessary for her normal maturation'. Therefore, the court ordered that custody be transferred to the Department. The father now appeals this determination. We also note that the Office of the Defender General, appointed counsel for the child, has concurred in the position taken by the father in his appeal to this Court.

The parties have framed two questions for our resolution: (1) Whether under the facts of the present case it was proper for the juvenile court to make a finding that N.H. was a child in need of care and supervision within the meaning of 33 V.S.A. § 632(a)(12)? (2) If the answer to the first inquiry is in the affirmative, whether the court's order of disposition was erroneous. For reasons to be developed in the body of this opinion, we answer both of the above questions in the affirmative and direct that the order of disposition be vacated.

I.

The appellant father's argument in regard to the first issue posed by his appeal is founded on his contention that throughout the course of these proceedings he has steadfastly maintained that he is the child's natural father, that none of the cause of the abuse could be attributed to him, and that he is ready, willing and able to take custody of the child. By virtue of these facts, the appellant urges us to find that the juvenile court's conclusion that N.H. is a child in need of care and supervision is not supported by the evidence and is in error.

In support of the above position, the appellant offers for our consideration his construction of the following language employed in 33 V.S.A. § 632(a)(12):

(12) 'Child in need of care or supervision' means a child who:

(A) Has been abandoned or abused by his parents, guardian or other custodian; or

(B) Is without proper parental care or subsistence, education, medical, or other care necessary for his well-being; or

(C) Is without or beyond the control of his parents, guardian or other custodian.

Emphasizing the use of the plural 'parents' in this section, the appellant asserts that a child can be found in need of care or supervision only when it is affirmatively shown that both parents were involved in the circumstances giving rise to the juvenile court's jurisdiction. In this case, the appellant states that such a conclusion cannot logically be reached since he and his wife were living apart and the evidence clearly demonstrates that each instance of abuse occurred when N.H. was in the exclusive custody of her mother.

It appears that the argument made by the appellant involves a question of statutory interpretation. In this connection, we note and re-state our prior position that a statute providing the basis for determining who are neglected children should be liberally construed so as to aid the purpose of its enactment. In re Rathburn, 128 Vt. 429, 434, 266 A.2d 423 (1970). The State,...