R.M., In re

• Citation: 150 Vt. 59,549 A.2d 1050
• Decision Date: 27 May 1988
• Docket Number: No. 85-273,85-273
• Court: Vermont Supreme Court
• Parties: In re R.M., Juvenile.

Page 1050

549 A.2d 1050

150 Vt. 59

In re R.M., Juvenile.

No. 85-273.

Supreme Court of Vermont.

May 27, 1988.

Howard E. VanBenthuysen, Franklin County State's Atty., St. Albans, for plaintiff-appellee.

Martin and Paolini, Barre, for defendant-appellant.

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

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

DOOLEY, Justice.

R.M. is a juvenile who was determined, after a hearing before the Franklin District Court, sitting as a juvenile court, to be a child in need of care and supervision (CHINS) as described in 33 V.S.A. § 632(a)(12)(A) and (B). Following this determination the juvenile court held a disposition hearing, as required by 33 V.S.A. § 656(a), and then ordered custody and guardianship of R.M. transferred to the Commissioner of Social and Rehabilitation Services. R.M.'s mother appeals both the merits determination that R.M. is a child in need of care and supervision and the disposition order. We affirm as to the merits; we vacate and remand as to the disposition.

The instant case was commenced during the Christmas holidays of 1984. On December 30, 1984, R.M.'s mother contacted R.M.'s natural father and left R.M. in his care. R.M.'s parents were neither married nor living together. At that time, R.M. had been living with his mother and her boyfriend. R.M.'s father determined that it was not possible to take the child into the household in which he was living--which was a trailer-home housing himself, his wife, and eight others. After consulting with a social worker from the Department of Social and Rehabilitation Services (SRS), it was determined that R.M.'s father would keep the child that evening and that SRS would assume responsibility for the child on the next day. That evening, while R.M. was being bathed, his father's wife discovered a large--three inch by five inch--bruise on R.M.'s lower back and buttocks. The child attributed the bruise to being struck with a belt buckle by his mother's boyfriend. On December 31, 1984, the state's attorney for Franklin County filed a petition with the juvenile court alleging that R.M. was a child in need of care and supervision.

Attached to the State's petition was an affidavit signed by the district director of the Franklin County SRS office. The affidavit alleged that: R.M. had been abandoned by his mother; R.M.'s father was unable to care for R.M. at the time the child was abandoned; a large bruise had been discovered on R.M.'s buttocks; and R.M. claimed that the source of the bruise was "John"--his mother's boyfriend. On December 31, the court issued a temporary detention order transferring legal custody of R.M. to the Commissioner of SRS.

On January 10, 1985, an amended affidavit by an SRS social worker was filed with the juvenile court. The amended affidavit included allegations of abuse and neglect dating back to 1980. The substance of the amended affidavit was that R.M. had been both abused and neglected essentially since birth. On January 11, a hearing was held at which time R.M.'s mother denied the allegations made in the original petition and in the original and amended affidavits. The merits hearing was held on the 16th and 17th of January and included testimony from social workers familiar with R.M.'s history, as well as testimony from a pediatrician who had treated R.M. over a period of years. The disposition hearing was held on May 29, 1985.

Appellant, R.M.'s mother, assigns as error five points which accrue from the merits hearing and one point related to the disposition proceeding. First, appellant argues that the juvenile court erred by allowing expert testimony to be given at the merits hearing when, according to appellant, the State failed to comply with her discovery requests regarding the expert testimony. Second, appellant contends that reversible error occurred at the merits hearing when the juvenile court permitted hearsay testimony to be admitted into evidence over the objections of appellant's attorney. Third, appellant claims that historical evidence concerning incidents of abuse and neglect of R.M. was improperly admitted at the merits hearing. Fourth, appellant assigns error to the juvenile court's receipt of evidence regarding abuse and neglect of R.M.'s sibling. Fifth, appellant contends that the juvenile petition filed by the State was constitutionally deficient because it did not inform her of the grounds for which the State sought to have R.M. declared in need of care and supervision. Sixth, appellant argues that the disposition order was unsupported by findings of fact, and, for that reason, must be reversed.

Appellant's first argument relates to the use of an expert witness whose identity was not disclosed by the State in response to discovery requests. On January 7, 1985, appellant filed a "Request to Produce and Interrogatories" in which, among other things, she requested "[a] list of expert witnesses that may be called at any hearing together with their addresses, their area of expertise, a copy of any written reports, a summary of their expected testimony and a description of their qualifications." She also filed a motion to shorten the time for answering the discovery requests. In response to the discovery request, R.M.'s attorney provided a list of potential witnesses on January 10. This list included the following: "Experts Dr. Yates, Dr. Holmes, pediatricians." Following the names of these experts the attorney noted: "Their records should be available to [R.M.'s mother] upon presentation of a release. I don't have them at this time. The supplemental affidavit should be helpful." The supplemental affidavit, also filed on January 10, included references to previous injuries to R.M. and to medical treatment R.M. had received. It detailed an examination of R.M. that Dr. Holmes conducted on December 31, 1984 in which Dr. Holmes found the large bruise. According to the affidavit, R.M. stated to Dr. Holmes that appellant's boyfriend hit him with a belt buckle and Dr. Holmes found that the bruise was consistent with R.M.'s explanation, also referenced in the affidavit.

On January 11 a hearing was held on appellant's motion to shorten the time for discovery responses. R.M.'s attorney and the attorney for the State indicated that they were making efforts to comply with appellant's discovery requests. Appellant made no specific complaint that the responses to the requests about expert witnesses were unsatisfactory. In fact, beyond the statement by R.M.'s attorney that he had responded the best he could--which was not challenged by the mother's attorney--the discussion about interrogatories was limited to the availability of R.M.'s SRS file, the provision of addresses for witnesses to be called, and the names of any additional witnesses that might be found. Following that hearing, the court ordered SRS to provide appellant with copies of all records pertaining to R.M. that were in its possession; the court also ordered all parties to respond to appellant's interrogatories by January 15. No further information regarding expert testimony was provided to appellant before the merits hearing which commenced on January 16. At the merits hearing, appellant's attorney strenuously objected to testimony by Dr. Holmes because of insufficient discovery responses. The court, however, permitted the testimony. The testimony covered the history of Dr. Holmes' contacts with R.M., including treatment for bruises almost a year earlier. The appellant challenges the failure of the trial court to exclude the testimony.

CHINS proceedings are governed by the Vermont Rules of Civil Procedure. In re J.R., 147 Vt. 7, 10, 508 A.2d 719, 721 (1986). V.R.C.P. 26(b)(4)(A)(i) authorizes the discovery of information about expert witnesses sought in this case. However, V.R.C.P. 37 sets forth a procedure that a party seeking discovery must follow where responses to interrogatories and requests to produce are incomplete. In such an instance, Rule 37(a) requires a motion for an order compelling discovery. See 8 C. Wright & A. Miller, Federal Practice and Procedure § 2285, at 773 (1970). Only if there had been a failure to comply with a specific discovery order would sanctions such as witness preclusion be appropriate in this case. See V.R.C.P. 37(b)(2).

In this case, there was a discovery order but it was actually an order shortening the time allowed by the rules to respond to the interrogatories and request to produce. See V.R.C.P. 33(a), 34(b). Appellant never challenged the adequacy of the responses that had been filed and never sought an order to compel discovery under Rule 37(a). Thus, we construe the discovery order as relating solely to areas for which no responses had been provided. Appellant was not entitled to further sanctions based on this order.

Even if appellant had established the prerequisites to the availability of sanctions, we stress that the award of sanctions for failure to comply with discovery requests is vested in the sound discretion of the trial judge. John v. Medical Center Hospital of Vermont, Inc., 136 Vt. 517, 519, 394 A.2d 1134, 1135 (1978). And, as we have frequently observed, matters of discretion in the trial court will be overturned on review only when it is shown that there has been an abuse of discretion or that discretion has been withheld. Id. at 519, 394 A.2d at 1135.

We find no abuse of discretion here. Appellant has not demonstrated any prejudice resulting from the juvenile court's decision not to impose sanctions. Specifically, appellant has not shown an inability to prepare adequately her case because of insufficient discovery responses. In fact, the subject matter of the testimony elicited from Dr. Holmes was available to R.M.'s mother through the SRS file, to which she had access prior to the merits hearing. Absent a showing of prejudice as a result of the juvenile court's refusal to...