In re B.R. , 196 Vt. 304 ( 2014 )

Dooley, J.

¶ 1. Father appeals from the trial court’s order adjudicating B.R. a child in need of care or supervision (CHINS). He argues that the court’s decision is not supported by the evidence. We affirm.

¶ 2. B.R. was born in November 2012. On Monday, March 4, 2013, the Department for Children and Families (DCF) filed a petition alleging that B.R. was CHINS, and it obtained an emergency care order.¹ DCF’s supporting affidavit included, among other things, mother’s alleged acknowledgement of a long history of significant drug use including intravenous opiate use and cocaine use. The affidavit also recounted events that allegedly occurred shortly before the CHINS petition was filed, including the circumstances surrounding mother’s Friday, March 1, 2013, arrest for driving under the influence of drugs with her two older children in the car; mother’s statements to the arresting officers about being stopped the day before for possessing a methadone pill and crystal methamphetamine, drugs that she stated belonged to father; mother’s admission to the arresting officers that she had cooked methamphetamine with father at the family’s home the night before her DUI arrest; mother’s concern at that time about B.R.’s welfare in father’s care, and her fears that father had taken the three-month-old child to a “meth house” in New York; and mother’s subsequent statements to police on Saturday, March 2, that she had retrieved B.R. from a “meth house” in New York where father had taken him.

¶ 3. Following a March 6, 2013 temporary care hearing, the court transferred temporary custody of B.R. to DCF based on the parties’ stipulation and the affidavit referenced above. The court found that mother was addicted to drugs and unable to care for B.R., and that father might also be addicted and unable to care for B.R. B.R. was placed with his maternal great-grandmother. Father agreed to this plan.

¶ 4. At the September 2013 merits hearing, mother stipulated that she “was unable to adequately care for [B.R.] due to long-term substance abuse and her failure to access and engage in services” to address her drug use and its impact on B.R. The allegations in DCF’s affidavit were reserved for the disposition hearing. Father did not stipulate that B.R. was CHINS, and the merits hearing went forward.

¶ 5. The State first sought to introduce testimony from the state trooper who had stopped mother for DUI, including statements that mother allegedly made to him about father’s involvement in making methamphetamine at the family’s home, and father taking B.R. to a meth house in New York where mother later retrieved him. The court excluded the trooper’s testimony as inadmissible hearsay.

¶ 6. Following a brief recess, the State indicated that it lacked the evidence to go forward. The court queried whether any additional evidence was necessary. It explained that mother, who was at least one and possibly the only custodial parent, had admitted that B.R. was CHINS, which would result in a disposition hearing no matter what. The court found nothing in the statute that required a finding against both parents individually before taking a child into custody and moving to disposition. It found that the allegations in the CHINS petition had clearly been established based on mother’s admission, and given that B.R. had been living with mother.

¶ 7. A question then arose as to B.R.’s whereabouts on the day the CHINS petition was filed. After a discussion between the court and counsel, the court granted the State’s request to reopen the evidence. The State then presented evidence from a DCF social worker who had been working with the family since July 2012. She testified that mother and father had been sharing an apartment in Swanton, Vermont, and that B.R. was living there as well.

¶ 8. The social worker went on to describe the creation of a safety plan in which B.R. was to live with mother’s parents. She testified that the plan was put in place around the time that mother had retrieved B.R. from the alleged meth house in New York. The court overruled father’s counsel’s hearsay objection to this testimony, explaining that it was trying to determine when the safety plan was created. The witness then stated that mother had retrieved B.R. from father’s care in New York, and, subsequent to that, the baby resided with mother’s father and stepmother.

¶ 9. The social worker then provided additional testimony about parents’ living situation. She explained that she met with parents shortly after the CHINS petition was filed and, at that point, they both stated to her that they were still residing together in the Swanton apartment. During that meeting, the social worker discussed parents’ drug use, and parents admitted to prior and current substance-abuse issues. Father stated that he had been in inpatient substance-abuse-treatment twice, that he had plans to go to the Brattleboro Retreat that week, and that he was currently using opiates and Suboxone off the street to prevent sickness.

¶ 10. On cross-examination, the social worker acknowledged that she had not visited the Swanton apartment between February 20 and March 4. She explained that, during that time, she had spoken with father and was focused on having him complete a substance-abuse assessment. The social worker also indicated that she had not made the safety plan, and that another DCF social worker told her where B.R. was during the weekend prior to the filing of the CHINS petition. Father’s attorney then moved to strike the social worker’s testimony concerning B.R.’s whereabouts between February 20 and March 4 on hearsay grounds. The court overruled the objection, noting that the testimony had come in previously without objection. The court went on to explain that the critical issue for the court was whether the social worker knew from her own visits that father and mother were living together. The social worker reiterated that that was the case.

¶ 11. At the close of the hearing, the court concluded that DCF had established the allegations in the CHINS petition. It explained that the issue before it was not whether mother was a CHINS mother or father was a CHINS father, but rather, whether B.R. was a child in need of care or supervision at the time of the hearing. It found that B.R. had been living with parents prior to the filing of the CHINS petition. One parent had admitted that the child was CHINS, and admitted specifically that she was unable to adequately care for B.R. due to long-term substance abuse and her failure to access and engage in services to address her drug use and its impact on B.R. While father had admitted to at least a history of drug problems and some sort of self-treatment, the court found it unnecessary to make a separate CHINS finding as to father. These types of. issues, the court explained, needed to be addressed at disposition. As to B.R., however, the court was very satisfied that he was at risk of being harmed in his living situation with parents. Father appealed from the court’s order.

¶ 12. Father argues that there was insufficient evidence to establish that B.R. was CHINS. He maintains that the presence of one admitted drug-addicted parent in a household does not suffice, and that there was no other evidence to show that B.R. was without proper parental care necessary for his well-being or that his welfare was at risk. According to father, the court relied on a presumption in reaching its conclusion, and its decision is therefore constitutionally infirm.

¶ 13. We reject these arguments. As the trial court recognized, the “focus of a CHINS proceeding is the welfare of the child.” In re C.P., 2012 VT 100, ¶ 28, 193 Vt. 29, 71 A.3d 1142. The State must prove, and the court must determine, if the allegations in a CHINS petition have been established. 33 V.S.A. § 5315(a), (f), (g). The State’s burden of proof is a preponderance of the evidence. Id. § 5315(a). This standard of proof balances the State’s interest in “ensuring the safety and welfare of the child” with the parents’ interest “in maintaining family integrity.” In re M.L., 2010 VT 5, ¶ 7, 187 Vt. 291, 993 A.2d 400 (quotation omitted). It is particularly appropriate because “parents’ rights are at most temporarily curtailed in a CHINS proceeding.” Id.

¶ 14. If the trial court finds that the allegations in the CHINS petition have been established, it must order DCF to prepare a disposition case plan and set the matter for a disposition hearing. Id. § 5315(g). It is at the disposition hearing where “the determination of parental unfitness, which triggers the transfer of custody away from the parents, must be made.” In re R.L., 148 Vt. 223, 227, 531 A.2d 909, 911 (1987). If the court determines that the allegations in a CHINS petition have not been established, it must dismiss the CHINS petition and vacate any temporary orders made in connection with the CHINS proceeding. 33 V.S.A. § 5315(f). As discussed below, the trial court here properly focused on B.R.’s welfare, rather than on the respective unfitness of each parent, and it did not err in adjudicating B.R. as CHINS.

¶ 15. A child is CHINS when he or she “is without proper parental care or subsistence, education, medical, or other care necessary for his or her well-being.” 33 V.S.A. § 5102(3)(B). This language must be liberally construed. See In re N.H., 135 Vt. 230, 234, 373 A.2d 851, 855 (1977) (“[A] statute providing the basis for determining who are neglected children should be liberally construed so as to aid the purpose of its enactment.”). We have expressly recognized that because a child’s well-being is the central concern in a CHINS proceeding, “a court may adjudicate the child as CHINS even if the allegations are established as to one parent but not the other.” In re C.P., 2012 VT 100, ¶ 28.

¶ 16. In In re N.H., for example, we upheld a CHINS finding where only one parent was culpable and the other was blameless. In that case, N.H. was abused while in her mother’s care. The child’s father was not living with the mother at the time, played no role in the abuse, and the State did not show that the father was otherwise culpably disinterested in the child’s welfare. We agreed with the trial court that the child was CHINS, despite the father’s professed willingness and ability to parent her, and found that any other conclusion would frustrate the express statutory purpose of providing for the child’s welfare. In re N.H., 135 Vt. at 235, 373 A.2d at 855-56.

¶ 17. The father in In re N.H. raised an argument similar to that presented here. Focusing on the word “parents” in the juvenile' statutes, he maintained that N.H. could not be CHINS unless it was affirmatively shown that both parents were involved in the circumstances giving rise to the trial court’s jurisdiction. In addressing this argument, we emphasized that the trial court had no power to proceed to disposition unless it first concluded that a child was CHINS. Id. at 235, 373 A.2d at 855. Absent such finding and the assumption of jurisdiction, there was “a strong possibility” that the child would “be returned to the same situation from which it has been taken.” Id. Additionally, without a CHINS finding, there was “no assurance that the parent who ha[d] not participated in the abuse, and ha[d] avowed his desire to assume custody, [would] in fact receive custody.” Id. We found nothing in the statutory language that would compel such an outcome. We thus concluded that the trial court was justified in assuming jurisdiction and upheld its determination that N.H. was an abused child without proper parental care and control.

¶ 18. In In re F.P., 164 Vt. 117, 665 A.2d 597 (1995), we again upheld a CHINS adjudication where only one parent was the abuser and the other parent played no role in the abuse. In that case, the trial court dismissed the CHINS petition as to the children’s mother, rejecting the State’s contention that the mother had failed to protect the children. The court nonetheless retained jurisdiction to consider disposition given its conclusion that the children were CHINS due to the father’s abuse and his failure to provide the children with proper parental care necessary for their well-being. Although the parents lived together, we agreed with the trial court that the children were without parental care necessary for their well-being.

¶ 19. As in the instant case, the father in In re F.P. argued that the trial court was obligated to dismiss the CHINS petition once the State failed to prove its allegations against the mother. In other words, he asserted that the statute required the court to find the children CHINS with regard to both parents before it could proceed to disposition. As previously noted, the juvenile statutes, both then and now, require the court to retain jurisdiction to consider disposition if it finds that the allegations in a CHINS petition are established, and conversely, to dismiss the petition if the allegations are not established. See id. at 120-21, 665 A.2d at 600; see also 33 V.S.A. § 5315(f), (g) (current statutory provisions so providing). Thus, the father essentially argued that if the allegations against one parent were not established, but the allegations against the other were, then the statutory language requiring dismissal trumped the provision requiring the court to proceed to disposition.

¶ 20. We rejected this argument. In doing so, we considereour prior case law and looked to the purposes served by a CHINS proceeding. We explained that the father’s construction of the law would require the trial court to dismiss a case and return a child to an abusive home merely because the State failed to establish the allegations against one of the parents. This construction, we concluded, was directly contrary to the protective nature of CHINS proceedings and it would serve only to further endanger a child. “Because the focus of a CHINS proceeding is on the child’s welfare,” we concluded, “the purpose of [the juvenile-protection law] is furthered where the court retains jurisdiction ... if the allegations in the petition are established as to one parent and the court concludes the children are either abused or lack proper parental care necessary for their well-being.” In re F.P., 164 Vt. at 122, 665 A.2d at 601. Given our conclusion, we found it unnecessary to address the father’s argument that the court violated a host of state and federal constitutional provisions by retaining jurisdiction to consider disposition when it was required to dismiss the case.

¶ 21. The dissent distinguishes In re N.H. because the parents in that case were living apart and the custodial parent was responsible for abuse of the child. Post, ¶ 31. Father distinguishes In re F.P. because, although father and mother resided together, the father in that case abused the child so dismissal of the petition would place the child right back in the home with the father. Here, father argues that although mother stipulated that she is unable to provide proper care to the child, there is no evidence, and therefore no finding, that father is unable to provide proper care.

¶ 22. Particularly with respect to In re F.P., we conclude that the distinction does not represent a meaningful difference. Six children were involved in In re F.P. The trial court found that the father had abused one child and, as a result of the father’s actions only, five children were without proper parental care necessary for their well-being. The trial court rejected the State’s contention that the children were CHINS because mother failed to protect them. We held that the governing statute, 33 V.S.A. § 5526, authorized a finding of CHINS “when only one parent might be responsible for the children’s lack of care” and concluded that the court has “jurisdiction under § 5526 if the allegations in the petition are established as to one parent and the court concludes the children are either abused or lack proper parental care necessary for their well-being.” In re F.P., 164 Vt. at 121-22, 665 A.2d at 600-01. Father here reads the holding to mean that the State must prove that the children “lack care necessary for their well-being” from either parent, but that conclusion is possible only if CHINS were found with respect to each parent, exactly what the trial court did not find in In re F.P. Moreover, that construction of In re F.P. would allow the children to be returned to the household and situation from which they were taken, a clearly unacceptable result.²

¶ 23. In this case, the evidence shows that B.R. was living with mother and father. Mother has admitted that she cannot adequately care for B.R. due to long-term substance abuse and her failure to access and engage in services to address her use and that her substance abuse had an impact on the children. Mother’s admission establishes that B.R. was without proper parental care necessary for his well-being, as required by 33 V.S.A. § 5102(3)(B).³ That admission is entirely inconsistent with father’s position that mother’s substance abuse had no adverse impact on the child because father can provide the necessary parental care. Moreover, father’s legal argument would lead to the same result rejected by our prior decisions. It would allow a child to be returned to an unsafe home and possibly returned to the custody of the parent who has admitted his or her inability to care for that child. The law does not require such a result. Father’s legitimate interests can be protected at disposition.

¶24. In reaching this conclusion, we do not rule, as father has argued, that “presence of one parent with a substance abuse problem in a two-parent household necessarily places children in the household at risk.” Father might have an argument that our cases use a de facto presumption if mother’s admission contained no specification of what she was admitting. Here, the admission goes further and concedes that mother’s substance abuse had an impact on the child. The admission was made in the context of stipulating to “the merits,” that is, it was a concession by mother that her behavior, as recited, rendered the child without proper parental care necessary for his well-being. Because we do not accept that the court’s decision rests on a presumption, we decline to reach father’s constitutional arguments that such a presumption would be invalid. Cf. Stanley v. Illinois, 405 U.S. 645, 649 (1972) (holding that unwed father was entitled to hearing on his fitness as a parent before his children could be taken from him, and rejecting as “constitutionally repugnant” a state law that presumed unwed fathers to be unfit parents).

¶ 25. Father next argues that there was no admissible evidence to establish where B.R. was living during the time leading to the CHINS petition. We disagree. The social worker testified that she had been working with the family since July 2012. She stated that she knew from her conversations with parents, and from conducting home visits, that the family, including B.R., was living together in an apartment in Swanton. When she visited parents shortly after the CHINS petition was filed, parents stated to her that they were “still” residing in the Swanton apartment. All of this testimony was admissible.

¶ 26. The fact that the social worker did not visit the home between February 20 and March 4 does not render her testimony inadmissible, as father suggests. Certainly, it was reasonable under these circumstances both for the social worker, and the court, to conclude that B.R. was living, and continued to live, with parents in the same household until around the time that the CHINS petition was filed. See In re L.M., 2014 VT 17, ¶ 30, 195 Vt. 637, 93 A.3d 553 (recognizing that in conducting its analysis, trial court may “draw upon its own common sense and experience” (quotation omitted)); see also State v. Kerr, 143 Vt. 597, 603, 470 A.2d 670, 673 (1983) (“[P]roof of facts includes reasonable inferences properly drawn therefrom.”). B.R.’s precise location just prior to the CHINS filing is of no moment. See In re L.M., 2014 VT 17, ¶ 20 (explaining that court is not limited to considering child’s well-being on precise day CHINS petition is filed, and that, “[o]bviously, the circumstances leading up to the filing of the CHINS petition are relevant”).

¶ 27. Finally, father argues that if this Court upholds the CHINS adjudication without requiring a showing that B.R. was “without proper parental care,” then the trial court must issue a disposition order discharging custody of B.R. to father. In support of this argument, father relies on language in In re N.H. that concerns the trial court’s disposition order, not its CHINS finding. We reject the premise of father’s argument, and note that the procedure advanced by father is wholly at odds with the statutory scheme created by the Legislature. The trial court here properly determined, based on the evidence, that B.R. was CHINS, and thus, by statute, it was obligated to proceed to disposition. The focus of the CHINS proceeding was on B.R.’s welfare; the question of father’s fitness to parent B.R. will be addressed at disposition.⁴ We find no grounds to disturb the trial court’s decision.

Affirmed.

1 Mother has two other children by different fathers; these children were also subject to the emergency care order.

2 The dissent, like father, does not persuasively distinguish In re F.P. from the instant case. The father in F.P. raised the same argument that the dissent embraces here. As set forth above, he asserted that the State must make its case against both parents before a child may be found to be CHINS. We rejected this argument in In re F.P. and do the same here. There was no showing in In re F.P. that the mother was incapable of providing the children with proper parental care necessary for their well-being, and we did not require the State to prove this point. So too in In re N.H. we concluded that the child was an abused child “without parental care and control” even though the child’s father was available to parent the child. 135 Vt. at 232, 373 A.2d at 854. As in our prior cases, there was sufficient evidence here to show that B.R. was without proper parental care necessary for his well-being absent an inquiry into whether father had “assumed the full responsibilities of parenthood.” Post, ¶ 46.

3 The question of the admissibility of mother’s stipulation did not come up below, in large part because the court did not consider it to be evidence and father did not challenge the court’s use of the stipulation. The dissent argues that the stipulation is inadmissible evidence that cannot be used against father, a position that appears to be inconsistent with its argument that there is no such thing as a CHINS as to father or as to mother. In any event, the dissent raises this issue sua sponte, without the benefit of briefing or a trial court ruling on this issue. See post, ¶¶ 40-41. We do not reach this issue because it is not properly before us. See, e.g., State v. Taylor, 145 Vt. 437, 439, 491 A.2d 1034, 1035 (1985) (“It is only in the rare and extraordinary case that this Court will consider, sua sponte, issues not properly raised on appeal before us.”); State v. Settle, 141 Vt. 58, 61, 442 A.2d 1314, 1315 (1982) (“We have held, and we reiterate here that, in all but a few exceptional instances, matters which are not briefed will not be considered on appeal.”).

4 In fact, the case has moved to disposition with the State seeking termination of father’s parental rights and father seeking greater time with the child. Mother stipulated to termination of her parental rights. The court denied termination of father’s parental rights as premature finding that father was making slow progress in his ability to parent the child. See In re B.R., No. 52-3-13 Frjv (Vt. Super. Ct. Apr. 7, 2014).