In re E.A.

1

In re E.A., Juvenile* (M.A., Mother*)

No. 22-AP-052

Supreme Court of Vermont

August 12, 2022

In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

Appealed From: Superior Court, Rutland Unit, Family Division CASE NO. 21-JV-00036 Trial Judge: Howard A. Kalfus

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

E.A and mother appeal from the family division's order denying E.A.'s request for a protective order prohibiting the Department for Children and Families (DCF) from placing her at a certain facility. We conclude that the court acted within its discretion and affirm.

E.A was born in 2006 and is nearly sixteen years old. In January 2021, when E.A. was fourteen, the State filed a petition alleging that she was a child in need of care or supervision (CHINS) based on reports of substance abuse by mother unstable housing, E.A.'s truancy, and allegations that E.A. was involved in drug deals and stayed in hotels with adult men and drug dealers. E.A. was placed in DCF custody. She was subsequently adjudicated to be a CHINS based on the parties' stipulation that mother "struggles with substance misuse disorder and is underhoused."

E.A. was initially placed at the Girls Adolescent Program (GAP) in Bennington. After a few weeks, she became suicidal and was admitted to the Brattleboro Retreat. She was then placed at the Southern Peaks Treatment Facility, a residential treatment facility in Colorado. E.A. moved for review of her out-of-state placement, and the court scheduled a hearing for February 25, 2022. Two days prior to the hearing, Southern Peaks notified DCF that it was discharging E.A. due to lack of progress.

At the hearing, E.A.'s case worker testified that Southern Peaks offered treatment for youth suffering emotional, behavioral, psychological, and social problems, including trauma therapy, and provided a highly structured environment. E.A. had initially done well there but had more recently experienced some struggles. The DCF worker testified that the previous weekend, she learned during a treatment team meeting that E.A. had been making plans to "go AWOL" from the facility with some of her peers. She had also been hiding her medications and giving them to others. The DCF worker stated that E.A.'s mood was initially flat during the meeting but then she "started cussing and saying that if, you know, she would come back to Vermont, that she would run away."

E.A. then testified. She agreed that she had planned to leave the facility with some of the other youths but denied that she was the ringleader. She agreed that she knew how to take care of herself and that she had stated that she could "manipulate anybody" and knew what to say to get what she wanted. She then stated, "And I'm letting y'all know this, you-you step foot, have me set foot in VT, I'm going straight to my mom, bro. I'm not even about to cry right now, but I'm-I'm running straight to my mom, bro. I haven't seen my mom since May." The court asked her where she would go if she had the opportunity to travel anywhere. She responded, "Ohio. So I could see my cousins. I promised them when I was younger that when I turned fifteen, I was-I would-I would invite them to my quinceañera, and I never got a chance."

E.A.'s attorney then called a DCF client placement specialist, to the stand. The placement specialist testified that DCF had begun planning for E.A.'s discharge from the Colorado facility since she was admitted. She stated that an equivalent facility in Vermont was the Vermont School for Girls, a residential treatment facility. However, it had an ongoing wait list due to the COVID-19 pandemic and had had to reduce its census from twenty-four to thirteen. Another program that was previously available now only accepted girls younger than E.A. Two other small programs in Washington County had closed. The placement specialist noted that there were some group homes that were less restrictive, but they would probably not accept E.A. because her needs were too high. When asked what she meant, the placement specialist explained that E.A.'s manipulative behavior, threats to run away, and hiding of medication were safety issues that would "scare" less restrictive programs. Further, E.A.'s discharge letter from the Colorado facility, which stated that she was being discharged for "not investing in the program, contributing to high-risk conflicts, and severely disrupting the treatment and safety of others," would negatively impact her ability to get placement in such programs. The placement specialist doubted that DCF would be able to find a foster placement that could safely manage E.A.'s needs. Southern Peaks staff had recommended to her that E.A. be moved to another residential treatment facility or perhaps a psychiatric residential treatment facility if an evaluation supported that placement. The placement specialist indicated that DCF therefore planned to place E.A. back at GAP when she returned to Vermont.

E.A.'s attorney then orally requested a protective order prohibiting DCF from placing E.A. at GAP. He argued that E.A. had undergone a traumatic experience there that had sent her into crisis, which was the reason she had gone to the Brattleboro Retreat. He suggested that E.A. should have a psychiatric evaluation and perhaps be admitted back to the Retreat. DCF's attorney argued that DCF would need more information regarding the placement at GAP. She stated that DCF was working to place E.A. at a different program but that there was a severe shortage of services and programs for adolescents, and the existing ones had long waitlists, including the Retreat. She stated that DCF agreed that E.A. should have an evaluation and would be arranging for one. The court stated that, in light of the testimony regarding the lack of resources for E.A. in Vermont, it would need more information regarding the basis for the motion for a protective order.

E.A. then testified that while she was at GAP, she became upset about something and stood on her bed to look out the window. She refused staff requests to get down, and they restrained her on the ground. She was pregnant at the time, and they were putting pressure on her stomach. She was crying and told staff they were hurting "her." Afterward, she went to the bathroom, and was bleeding. She told staff that she was pregnant, and they took her to the hospital. She was informed that she was going into miscarriage.^[1] She became depressed and tried to kill herself, and she was subsequently sent to the Retreat. She felt like she was at fault for losing the baby. She worried that if she returned to GAP, it would "all replay all over again." She also stated that GAP was open "like a regular house, and I want to be alone," and that she didn't want to make a "permanent decision for a temporary problem."

DCF and the State opposed the protective order, arguing that the paramount concern was E.A.'s safety and that DCF needed to have all placement options available. E.A.'s guardian ad litem stated that she would not want DCF to be limited from using GAP, and felt that E.A. was stronger than she had been the previous year and would be able to handle a temporary placement there. Mother's attorney indicated that mother supported the protective order.

The court denied the protective order on the record. It stated that it was "really struggling" and was moved by E.A.'s testimony. However, it noted that E.A. had stated that she intended to run, and that she wanted to go to Ohio. It stated that "a fifteen-year-old trying to get herself from Vermont to Ohio is going to be at risk, and I've got to balance which is more harmful." It expressed its hope that DCF could find a different placement than GAP, but explained that "if I tie their hands, I fear that I'm placing you at greater risk." In a subsequent written order, the court stated that the evidence showed "a significant risk posed by [E.A.]'s explicit promises to run away as soon as she is returned to Vermont," as well as "a staggering dearth of placement options for adolescent girls." It reiterated that limiting DCF's placement options for E.A. could create a greater risk than that posed by the potential traumatization of a placement at GAP. E.A. and mo...