In re J.W.

2016 VT 78

In re J.W., Juvenile

No. 2016-018

Supreme Court of Vermont

May Term, 2016

July 8, 2016

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Franklin Unit, Family Division

Alison S. Arms, J.

Matthew Valerio, Defender General, and Katina Francis Ready, Appellate Defender, Montpelier, for Appellant Father.

James A. Hughes, Franklin County State's Attorney, St. Albans, for Appellee.

PRESENT: Skoglund, Robinson and Eaton, JJ., and Grearson and Hoar, Supr. JJ., Specially Assigned

¶ 1. SKOGLUND, J. In this case, the trial court concluded by a preponderance of the evidence that J.W. was a child in need of care or supervision (CHINS) because mother would not adequately protect J.W. from father if the child was returned to mother's care. Mother has not appealed. Instead, father appeals, arguing that the court "usurped the executive role of investigation and prosecution" by taking judicial notice of his criminal record and filings related to a relief-from-abuse (RFA) order that mother obtained against him. He further contends that the court's findings do not support its conclusion. We affirm.

¶ 2. J.W. was born in June 2012. In May 2015, the Department for Children and Families (DCF) filed a CHINS petition and J.W. was taken into temporary DCF custody. The affidavit accompanying the CHINS petition alleged, among other things, that: mother and J.W. were homeless; father was incarcerated; father had a history of domestic violence against mother; father had been substantiated for sexual abuse and had been charged with and convicted of prohibited acts for groping a juvenile; both parents had a history of substance use; father drove while intoxicated with J.W. in the car; and, in the presence of the affiant, father arrived intoxicated at a home where mother and J.W. were staying, and threatened to kill himself and others, resulting in father's arrested, and subsequent guilty plea to unlawful mischief, providing false information to a law enforcement officer, and two counts of violating conditions of release. The affidavit also alleged that mother had obtained an RFA order against father on behalf of herself and J.W.; mother was reportedly using substances not prescribed to her and misusing her prescription medication; mother's medication and other dangerous items were accessible to J.W.; and mother failed to follow through on a substance abuse assessment.

¶ 3. Following a three-day merits hearing, the court concluded that although many of the serious allegations in the CHINS petition had not been established, the State had proved by a preponderance of the evidence that J.W. was CHINS because mother was unwilling to protect J.W. from father who mother believed to be dangerous to J.W. The court made numerous findings in support of its conclusions, including those set forth below.

¶ 4. As to the allegations about mother's prescription drug use and other matters, the court found that mother illegally possessed prescription medication while J.W. was in her care; mother did not seek out or follow through with a substance abuse assessment or appropriate treatment; and mother struggled to provide stable housing for J.W. The court determined, however, that the State failed to show that any of these circumstances caused harm to J.W. The court similarly found that the State failed to show that mother failed to adequately supervise J.W. while staying at a domestic-violence shelter.

¶ 5. The court reached a different conclusion with respect to father's involvement in J.W.'s life. The court found that mother had made numerous alarming allegations about father in an RFA petition that she had filed in late March 2015, shortly before the CHINS petition was filed. A final RFA order had issued in April 2015 without findings based upon the parties' stipulation. Mother stated in her petition that father was a danger to her and J.W. and that she was fearful of father's release from jail. In her affidavit in support of her complaint, mother described an incident where father was drunk and belligerent and told her it was "time for you to die," that he "oughta smash your brains all over that post," and that "I'll put your daughter in a wheelchair and make you suffer the rest of your life." She reported that the incident occurred in August of 2014. When prompted by the complaint form to describe the most serious incident that caused her to apply for an order, she related an incident that occurred in 2013. She stated that just after father was released from jail, he strangled her until she passed out; this occurred right after she finished nursing J.W. In another incident, mother alleged that in 2011, after an argument about father going to buy drugs, father threatened to burn down their home if mother was not there upon his return. The home was burned down shortly thereafter after father had removed his belongings from the home. Additionally, mother alleged that in September 2014, father smashed a car window when mother tried to leave with J.W. Finally, mother recounted that in September 2014, father allegedly left J.W. in a car unsupervised. J.W. got out of her car seat and climbed out the window that had been smashed the day before. A woman saw J.W. wandering alone in the parking lot and called 911.

¶ 6. At the CHINS merits hearing, mother testified that she did not actually feel threatened by father. She stated that she sought the RFA because DCF told her it was part of her safety plan and that she understood she needed it to obtain a housing voucher. Mother testified several times that DCF was concerned that she would not protect J.W. from father. Mother professed not to have read the affidavit that she filed or to remember what she had included inthe RFA petition. Mother also testified that some of the allegations were just dreams that she had, and she stated that she did not recall many of the other allegations. The court rejected as not credible mother's statement that she did not remember reading or filing the petition, her suggestion that she had been coerced into filing the RFA petition, and her disavowal of the allegations in the RFA petition.

¶ 7. Mother did admit at the CHINS merits hearing that father had threatened to burn all of her belongings, and in fact, her house had been burned down. She also testified that father had smashed the car window when she had tried to leave with J.W. Mother admitted telling the domestic-violence counselor, who wrote out the affidavit that mother signed, about the car incident with father and J.W. She testified that she believed it to be true. Mother denied stating that she was fearful of father's release from jail, however, and testified that she did not feel that J.W. was unsafe with father at all.

¶ 8. The court credited mother's assertion in the RFA affidavit that in late 2014, she allowed J.W. to be alone in a car driven by father despite all of the concerning events that she had recounted in the RFA affidavit. It found credible mother's description of father smashing the car window. The court explained that in the RFA petition mother claimed she "was concerned about J.W.'s safety around father"—rightly so, the court found, given his criminal record and the events mother alleged—yet she still allowed J.W. to be in father's presence unsupervised.

¶ 9. The court found that in the months after the car incident, mother appropriately obtained an RFA order and agreed to a safety plan wherein father was not allowed to have unsupervised contact with J.W. The court could not credit mother for seeking the RFA, however, because she claimed at trial that she sought the RFA order only to be eligible for a housing voucher. And, prior to the hearing on the CHINS petition, mother had moved to vacate the RFA order, stating that she wanted to "move on to have a life as a family with our daughter."

¶ 10. Based on these and other findings, the court did not believe that mother would adequately protect J.W. if custody were to be returned to her. It concluded that the State had shown by a preponderance of the evidence that: (1) mother believed father to be dangerous to J.W. based on specific, factual circumstances she allegedly observed and (2) mother still sought to expose J.W. to father. The court thus concluded that J.W. was CHINS. This appeal by father followed.

¶ 11. Father argues that the court exceeded its authority by "gathering information outside the record evidence to supplement the State's case." According to father, the court "determined that the State failed to meet its burden of proof on the claims in the petition." Instead of denying the petition, father argues, the court assumed the role of a prosecutor and reviewed court records that had not been placed into evidence in an effort to prove the State's case. As to his criminal history, father asserts that "there is no telling from this record when the court obtained the records it speaks of or to what extent it relied on them to form its opinion."

¶ 12. To begin, father's characterization of the proceedings below is flawed. A clearly frustrated court found that the State failed to prove many allegations in its CHINS petition. The court noted that it was vital that the State do the work of putting together a sufficient case to support its intervention into the parent-child relationship and, "for most of the allegations in the petition, the State failed to do so." The court found that while mother illegally possessed prescription medication for a brief time while J.W. was in her care and while she had struggled to provide stable housing for J.W., the State ...