In re S.L., Juvenile ( 2014 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2013-412
JANUARY TERM, 2014
In re S.L., Juvenile } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
} Family Division
}
} DOCKET NO. 116-4-13 Cnjv
Trial Judge: Alison Arms
In the above-entitled cause, the Clerk will enter:
Father appeals from the trial court’s order finding his son S.L. to be a child in need of
care or supervision (CHINS). He argues that the court applied the wrong legal standard in
evaluating whether S.L. was at risk of harm. We affirm.
S.L. was born in August 2010, just after a CHINS petition was filed with respect to his
sister and step-siblings. In April 2013, the Department for Children and Families (DCF) filed a
petition alleging that S.L. was CHINS. The parties stipulated to the following facts. In 1994,
father was convicted of lewd and lascivious conduct on his minor sister, and he received a three-
to-five year incarcerative sentence. Father did not engage in sex offender treatment. During the
CHINS proceedings involving S.L.’s sister and half-siblings, father denied he was guilty of lewd
and lascivious conduct. In that CHINS case, the court found that father had sexually abused his
sister when she was a child and that there was ongoing abuse over a span of years. Based on a
2011 psychosexual evaluation of father, the court determined that father needed to engage in sex
offender treatment before he could have unsupervised contact with S.L.’s sister and step-siblings.
That order is still in effect. At the time that the instant CHINS petition was filed, father
continued to deny that he had sexually abused his sister, and he still had not participated in sex
offender treatment. S.L.’s mother had been allowing father to have unsupervised contact with
S.L.
In addition to these stipulated facts, the court credited the testimony of Dr. John Holt, an
expert in the preparation of psychological evaluations and risk assessments for sex offenders.
Dr. Holt had prepared the 2011 psychological evaluation of father. In this report, he concluded
that while father was at a low risk level to reoffend, father should participate in sex offender
treatment based on antisocial aspects of his personality. Because of these antisocial tendencies,
Dr. Holt found that father fit the typology of an opportunistic offender, despite the passage of
more than eighteen years since the original offense. Dr. Holt opined that it would be prudent to
limit father’s contact with children until a sex offender treatment provider approved of such
contact.
Dr. Holt testified at the merits hearing in the instant case that his recommendation
remained the same despite the passage of time. Assuming that he had no additional information
in the two and a half years that had elapsed since the evaluation, and assuming that father had not
participated in sex offender counseling in the interim, Dr. Holt believed that father still should
obtain sex offender counseling and have supervised visitation with his children, and, further, that
he should undergo another psychosexual evaluation.
Based on these findings, the court concluded that S.L. was CHINS. In reaching its
conclusion, the court considered the factual findings of the orders involving S.L.’s sister and
step-siblings, finding that those facts remained relevant to the instant CHINS petition. The court
reasoned that mother and father were on notice, after lengthy and contested hearings and judicial
findings, that father should be supervised around his children. While S.L. was not specifically
named in the earlier CHINS order, he was nonetheless similarly situated to father’s other
children. No evidence was presented that father had addressed the need for sex offender
treatment and follow-up evaluation. Nor was any evidence presented that mother was aware that
father had met these requirements. Accordingly, the court found that mother was on notice of
father’s past and the potential risk he presented to his children, not merely to those children who
were the specific subjects of prior CHINS cases. The court concluded that based on mother’s
knowledge of an outstanding order that father should not be allowed unsupervised contact with
children and given father’s unaddressed need for sex offender treatment, S.L. was without proper
parental care necessary for his well-being. This appeal followed.*
Father argues on appeal that DCF failed to prove that S.L. was at a sufficient risk of harm
to warrant the court’s CHINS finding. He complains that the court did not quantify the risk that
he posed to S.L., and he suggests that the court improperly accepted any risk of harm as
sufficient. According to father, he poses a very low risk of harm to S.L. He points to the fact
that he has not reoffended since his 1994 conviction. Father also suggests that antisocial
personality traits are not limited to sexual offenders, and thus, these personality traits did not
prove that he was at a risk to reoffend.
We reject father’s arguments. The trial court applied the appropriate legal standard here,
and its decision is supported by the evidence. As relevant here, a child is “in need of care or
supervision” 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). Certainly, the
likelihood that a child may be harmed is relevant in this determination, but we do not require the
court to make findings concerning a precise “risk of harm.” The court similarly is not required to
apply the definition of “risk of harm” applicable to the child protection registry. See In re M.E.,
2010 VT 105, ¶ 13, 189 Vt. 114 (“[W]e have expressly recognized that the statutes governing the
registry process, found in chapter 49 of Title 33, have legislative goals, functions, and procedures
completely different from those governing juvenile proceedings in family court.” (quotation
omitted)). As we have explained, “the central concern in CHINS proceedings is the ability of the
*
The trial court docket entries indicate that the trial court stayed the disposition hearing
in this case pending the outcome of this CHINS appeal. This approach is inconsistent with our
recent decision in In re D.D., 2013 VT 79, ¶¶ 30-31. We indicated in D.D. that disposition
hearings should proceed during the pendency of a CHINS appeal. Id. We explained that a party
could ask this Court to stay a CHINS appeal pending disposition, but regardless of whether such
request was made, an appeal of the merits would not “delay or stay proceedings in the family
division, including the disposition hearing.” Id. ¶ 31. We found that this approach—allowing
disposition to proceed while the CHINS merits decision is on appeal—best serves “the
Legislature’s goal of resolving neglect and dependency cases in a timely way so that children can
achieve permanency.” Id. It thus appears that the disposition hearing in this case should not
have been stayed pending appeal.
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parents to render appropriate and necessary care for the child’s well-being.” E.J.R. v. Young,
162 Vt. 219, 222-23 (1994). The State has the burden of establishing by a preponderance of the
evidence that a child is CHINS. 33 V.S.A. § 5315(a). On review, we “will uphold the court’s
factual findings unless clearly erroneous and the court’s legal conclusions when supported by
these findings.” In re D.D., 2013 VT 79, ¶ 34.
The record here supports the court’s determination that mother’s decision to allow father
unsupervised contact with S.L. rendered S.L. without proper parental care necessary for his well-
being. Dr. Holt explained in detail why he believed that father’s antisocial personality traits
were significant enough to require him to participate in sex offender treatment, notwithstanding
his generally low risk to reoffend sexually. As set forth above, Dr. Holt opined that, given
father’s anti-social orientation, it was possible that father fit the typology of sex offender that is
opportunistic and indiscriminate in victim selection. Dr. Holt reiterated his conclusions at the
instant merits hearing, and the trial court found his testimony credible. While father disagrees
with Dr. Holt’s assessment, it is for the trial court, not this Court, to “determine the credibility of
witnesses and to weigh the evidence.” In re A.F., 160 Vt. 175, 178 (1993). The possibility that
father could sexually abuse S.L. poses a sufficient risk of harm to S.L. to support the court’s
CHINS determination and to require that any father-child contact be supervised.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Geoffrey W. Crawford, Associate Justice
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