In re N.M., Juvenile ( 2021 )

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.
2021 VT 54No. 2021-102
In re N.M., Juvenile Supreme Court
On Appeal from
Superior Court, Chittenden Unit,
Family Division
July Term, 2021
Megan J. Shafritz, J.
Adele V. Pastor, Barnard, for Appellant.
Andrew M. Gilbertson, Chittenden County Deputy State’s Attorney, Burlington, for Appellee
State.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. EATON, J. In these delinquency proceedings, juvenile appeals the family
division’s order granting the request of the Department for Children and Families (DCF) to place
him in an out-of-state secure facility. Juvenile argues that he is entitled to an independent, second
evidentiary hearing, pursuant to 33 V.S.A. § 5291(d), on the question of whether he should be
placed in the secure facility. We conclude that § 5291(d) is inapplicable in the post-disposition
phase of this case, and therefore deny the request. Insofar as juvenile makes no other arguments
in support of his appeal, the appeal is dismissed.1
1
We dismiss the appeal rather than affirm the family division’s May 7, 2021 order because
juvenile has not filed a brief challenging the merits of the May 7, 2021 order; rather, he asks only
that we grant him a second evidentiary hearing under an inapplicable statutory provision.
¶ 2. The facts and procedural history of this case can be briefly summarized as follows.
Juvenile is the subject of at least four separate delinquency proceedings initiated between June
2019 and September 2020, all of which reached post-disposition stage in mid-to-late 2020, many
months before the family division’s May 7, 2021 order under review here. The charges underlying
the delinquency petitions ranged from retail theft to simple assault to assault and robbery, with
multiple counts of probation violations. Since juvenile was placed in DCF custody, juvenile has
had multiple placements, including at home with his mother and in several treatment facilities,
both in-state and out-of-state.2
¶ 3. On May 3, 2021, shortly after juvenile was charged in the criminal division with
aggravated assault with a deadly weapon and reckless endangerment, the State filed a motion with
the family division in connection with the delinquency proceedings for an emergency hearing
seeking juvenile’s placement, pursuant to the Interstate Compact on Juveniles, in a Manchester,
New Hampshire secure detention/treatment facility for juveniles.3 See 33 V.S.A. § 5906
(providing that adjudicated delinquent may be placed in out-of-state institution following hearing
if court finds that: “(1) equivalent facilities for the child are not available in the sending agency’s
jurisdiction; and (2) institutional care in the other jurisdiction is in the best interest of the child and
will not produce undue hardship”). On May 6-7, 2021, the family division held an evidentiary
hearing on the State’s motion. Witnesses for the State testified, among other things, that: (1) in
less restrictive placements, juvenile had refused to engage in programming, had been aggressive
toward other residents, or had left the facilities without permission; (2) juvenile posed a threat to
2
At one point, juvenile was also placed in a Vermont secure facility, Woodside. Woodside
is no longer in operation, and there is no other secure juvenile facility operating in Vermont,
prompting DCF to seek juvenile’s placement at the New Hampshire secure juvenile facility.
3
At the time of the hearing on the State’s motion, a request for youthful offender status
regarding the charges was pending.
2
himself and others outside the confines of a secure facility; and (3) since the closure of Woodside,
there is no secure facility for juveniles in Vermont.
¶ 4. At the hearing, there was some discussion on whether, given DCF’s request to place
juvenile in an out-of-state secure facility, the hearing concerned not only § 5906 of the Compact,
but also 33 V.S.A. § 5291 concerning the process for placing at a secure facility juveniles charged
with delinquency. Following the close of evidence, the court concluded that, under either § 5906
or § 5291, the State had met its burden for the court to approve juvenile’s placement at the New
Hampshire facility. The court cited evidence of juvenile’s leaving non-secure facilities without
permission on multiple occasions and of the absence of a secure facility for juveniles in Vermont.
Regarding § 5906, the court found that equivalent facilities to address juvenile’s needs were
unavailable in Vermont and that placement in the New Hampshire facility was in juvenile’s best
interest, in terms of keeping him safe, and would not create an undue hardship for him. The court
then went on to find that “if” § 5291 is applicable, “there is no other suitable placement available
to [juvenile] and that he does present a risk of injury to himself and others.”
¶ 5. At the conclusion of the second day of the hearing, the family division filed an
order citing only § 5906 and finding, as required by that statute, that equivalent facilities for
juvenile under the circumstances were not available and that placement in the requested out-of-
state facility was in juvenile’s best interest and would not produce undue hardship. Three days
later, juvenile filed a notice of appeal of that order “pursuant to 33 V.S.A. § 5291(d).” In his
docketing statement, juvenile identified the issue on appeal as whether a hearing under § 5906 is
sufficient to place a juvenile in a secure facility under § 5291(d).
¶ 6. After we established a briefing schedule for review of the appeal, juvenile filed, in
lieu of a brief, a motion for an independent, second evidentiary hearing under § 5291(d). The State
filed a response opposing the motion. As explained below, we conclude that § 5291(d) is not
applicable in the post-disposition phase of these delinquency proceedings.
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¶ 7. Section 5291 deals with the detention or treatment in secure facilities of juveniles
charged as delinquents. Under § 5291(a), “[p]rior to disposition, the court shall have the sole
authority to place a child” in DCF custody in a secure facility for the detention or treatment of
delinquent children, pending DCF’s determination that a suitable placement is available upon
“finding that no other suitable placement is available and the child presents a risk of injury to
himself or herself, to others, or to property.” (Emphasis added.) Subsections 5291(b) and (c) deal
primarily with the time frames for holding merits and disposition hearings, respectively, before
further review is required following the court’s approval of a placement in a secure facility under
§ 5291(a). Subsection 5291(d) provides, in part, that a juvenile placed in a secure facility under
subsections (a), (b), or (c) “shall be entitled to an independent, second evidentiary hearing, which
shall be a hearing de novo by a single justice of the Vermont Supreme Court.” Significantly,
§ 5291(e) provides that “[f]ollowing disposition, the [DCF] Commissioner shall have the sole
authority to place a child who is in the custody of the Department in a secure facility for the
detention or treatment of delinquent children pursuant to the Department’s administrative policies
on admission.” (Emphasis added.)
¶ 8. Subsection 5291(d) does not apply to § 5291(e), which gives the DCF
Commissioner sole authority to place a child in a secure facility in a post-disposition setting. We
have little doubt that the criteria in § 5291(a) would have to be satisfied, and that a second
evidentiary hearing under § 5291(d) would have to be made available, in the context of a
delinquency proceeding in a pre-disposition phase where there is a request for placement in an out-
of-state secure facility. But we need not consider that question here under the circumstances of
this case, which involves a post-disposition placement decision. Juvenile was not placed in a
secure detention facility pursuant to § 5291(a), (b) or (c), and thus the second evidentiary review
provision of § 5291(d) is inapplicable. In these circumstances, under the plain language of § 5291,
no independent, second evidentiary hearing is available. See In re M.C., 2018 VT 139, ¶ 9, 209
4
Vt. 219, 204 A.3d 1123 (“Where the Legislature’s intent can be ascertained from the plain meaning
of the statute, we interpret the statute according to the words the Legislature used.” (quotation
omitted)). Insofar as juvenile’s request for a second evidentiary hearing under § 5291(d) is the
only issue raised in this appeal, we dismiss the appeal.
Appeal dismissed.
FOR THE COURT:
Associate Justice
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