In re J.L., SUPREME COURT DOCKET NO. 2019-195

In re J.L., Juvenile (H.L., Mother*)

SUPREME COURT DOCKET NO. 2019-195

Supreme Court of Vermont

OCTOBER TERM, 2019

October 4, 2019

Note: 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.

ENTRY ORDER

APPEALED FROM:

Superior Court, Windsor Unit, Family Division

DOCKET NO. 22-2-19 Wrjv

Trial Judge: Elizabeth D. Mann

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

Mother appeals the family court's determination that her son J.L., who is six years old, was a child in need of care or supervision (CHINS), and she appeals the disposition order award of custody to DCF. We affirm.

In February 2019, J.L. appeared at his kindergarten with a black eye. When asked by another kindergartener what happened, he stated, "My dad." School staff reported the incident to the Department for Children and Families (DCF). DCF was already involved with mother and her family due to issues with mother's older son.

A DCF worker observed the black eye and contacted mother. Mother told the DCF worker that she heard the incident but did not see it. She told the DCF worker that she was in one room and her boyfriend was with J.L. in another room. She heard a bang, then a slapping sound. She said she heard the chair flip, and she heard what she thought was J.L. being hit. The DCF worker asked mother why she didn't contact her social worker or the police. She stated she didn't feel that would accomplish anything. Mother expressed concerns about J.L.'s behaviors, which included smearing his feces, throwing furniture and objects, and some sexualized behaviors such as putting a toilet-bowl plunger between his buttocks. The DCF worker stated that there were also concerns about J.L.'s attendance and behaviors at school.

J.L. reported to the DCF worker that his dad hit him and identified his "dad" as mother's boyfriend. While saying this, he made a motion with his fist going toward his eye.

DCF filed a petition alleging J.L. was CHINS due to abuse and lack of proper parental care. Custody was transferred to DCF pursuant to an emergency care order and J.L. was placed in a foster home. Following a hearing at which mother appeared, but her attorney did not, the court issued a temporary care order continuing DCF custody and finding that no services would have been appropriate to keep J.L. at home due to emergency circumstances.

Mother's attorney requested a contested merits hearing regarding J.L. and a hearing to contest the revocation of a conditional custody order for mother's older son. The hearings were held on the same day in April 2019, but the parties agreed that evidence would be taken separately and evidence from the older son's hearing would not be admitted as to J.L.

At the merits hearing, mother denied telling the DCF worker that she heard J.L. being hit. She stated that she did not notice the injury until later in the evening and J.L. said he hurt himself. She stated that she did not report the injury because there was "nothing to report." She testified that at the time of the incident, she was living with J.L., her older son, and her boyfriend at the boyfriend's parents' home. The boyfriend had since moved out, but she continued to reside with his parents because she had nowhere else to go.

The court found by a preponderance of the evidence that J.L. was injured by mother's boyfriend and mother failed to intervene or take steps to prevent J.L. from further injury. The court stated that these findings alone supported a determination that J.L. was CHINS due to neglect. The court also noted that mother's failure to engage in services to protect J.L. was consistent with her failure to follow through with services for his older brother, and further found that there were concerns about J.L.'s absences from school.

DCF filed a disposition case plan that called for continued DCF custody with a goal of reunification with mother. The court held a disposition hearing on June 3 at which mother's attorney stated that mother did not object to the goal but had some objections regarding the action steps. She requested ten days to file her objections in writing. However, she did not file anything until more than a month later, and then only objected generally to continuing DCF custody. In July 2019, the court issued a disposition order continuing custody of J.L. with DCF. Mother appealed.^*

When reviewing a CHINS merits decision, we will uphold the court's factual findings unless they are clearly erroneous and its legal conclusions if supported by the findings. In re M.K., 2015 VT 8, ¶ 8, 198 Vt. 233. "Only those findings that are bereft of evidentiary support are clearly erroneous." Id.

On appeal, mother first argues that the State did not meet its burden of showing that J.L. was at risk of harm in his home because the court dismissed the claim that J.L. was CHINS due to abuse, there was no evidence that the boyfriend had been substantiated or charged by police, mother testified that she did not see the incident and did not believe there was anything to report, and mother did take steps to protect her son. Mother argues that the court improperly treated her as if she were a mandated reporter under 33 V.S.A. § 4913 by faulting her for her failure to report.

The court's finding that J.L. was injured by mother's boyfriend and mother failed to intervene or take steps to prevent J.L. from further injury was supported by evidence in the record. J.L. stated at school and reported to the DCF worker that mother's boyfriend hit him. Mother initially reported to DCF that she did not see the incident but that her boyfriend and J.L. were in the other room and she thought she heard J.L. being hit. Despite this, mother did not intervene, seek medical attention, or report the injury to anyone, and instead sent J.L. to school with the black eye. Although mother later claimed that there was nothing to report, and that J.L. told her that he had injured herself, the court plainly did not find her testimony to be credible on this point. "Weleave it to the sound discretion of the family court to determine the credibility of the witnesses and to weigh the evidence." In re M.L., 2010 VT 5, ¶ 8, 187 Vt. 291 (quotation omitted).

Contrary to mother's argument, the family court did not treat mother as a mandated reporter or transfer custody solely because she had not made a report to DCF. The court's finding that J.L. was CHINS was based on the injury caused by mother's boyfriend and mother's failure to either prevent that injury or take steps to protect J.L. after it occurred. This finding was adequate to support the court's determination that J.L. was CHINS due to neglect. See In re J.W., 2016 VT 78, ¶ 24, 202 Vt. 424 ("Mother's failure to protect [child] from an individual she believed to be dangerous supports a conclusion that [child] was without proper parental care or subsistence, education, medical, or other care necessary for her well-being." (quotation and alteration omitted)).

Mother's subsequent cooperation with DCF, and statements at the temporary care hearing that she wanted her boyfriend to move out and never let her children out of her sight, do not affect the validity of the court's CHINS determination. "The issue before the family court at the merits stage of a CHINS proceeding is a determination of whether, at the time of the filing of the petition, the juvenile is a child in need of care and supervision." In re D.T., 170 Vt. 148, 156 (1999) (emphasis added). The evidence showed that at the time of the petition, mother's boyfriend was still living in the home. Moreover, mother stated that when the boyfriend struck J.L., she was in another room.

Mother argues—and we agree—that the court's findings about educational neglect were unsupported by any evidence from J.L.'s hearing. Mother also argues that the court improperly relied on testimony from the...