In re M.O., Juvenile , 200 Vt. 384 ( 2015 )

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@state.vt.us 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.
2015 VT 120
No. 2015-170
In re M.O., Juvenile Supreme Court
On Appeal from
Superior Court, Bennington Unit,
Family Division
July Term, 2015
William D. Cohen, J.
Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier,
for Appellant Father.
William H. Sorrell, Attorney General, and Bridget C. Asay, Solicitor General, Montpelier, and
Martha E. Csala, Assistant Attorney General, Waterbury, for Appellee.
PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Burgess, J. (Ret.),
Specially Assigned
¶ 1. ROBINSON, J. Father appeals from the trial court’s finding that newborn M.O.
was a child in need of care or supervision (CHINS). He argues that that the court’s findings do
not support its conclusion. We affirm.
¶ 2. M.O. was born on December 14, 2014. Mother was twenty-one years old at the
time; father was thirty-four. On December 17, 2014, the Department for Children and Families
(DCF) filed a petition alleging that M.O. was CHINS. It sought emergency custody of the child.
In the accompanying affidavit, a DCF social worker asserted that DCF had received a report
from hospital staff expressing concern about parents’ ability to adequately care for M.O. The
court issued an emergency care order on December 17, 2014, and transferred temporary custody
to DCF.
¶ 3. Following an April 2015 merits hearing, the court ruled that M.O. had been
CHINS on December 14 through December 17, 2014. The court made findings on the record as
follows. A nurse home visitor with the Nurse Family Partnership worked with mother prior to
M.O.’s birth. This nurse found mother to be engaged in the preparation process for the baby’s
arrival and capable of following directions. The nurse had concerns about clutter in the home,
which would present a hazard for a toddler but not an infant. There were other issues with the
home that needed to be resolved as well. Father was not as engaged in the prepartum-planning
process as mother. The nurse recognized that while mother seemed to be progressing well with
pre-birth preparation, things would be much different once the baby arrived. The nurse testified
that in hindsight, given her greater experience, she would have contacted DCF at a much earlier
date to engage in safety planning so as to minimize any potential risks to the child.
¶ 4. The court found that at the hospital, a social worker personally observed mother’s
lack of parenting ability. The social worker was concerned that mother was easily distracted,
possibly because DCF was getting involved. Mother was unable to follow directions, possibly as
a result of recently giving birth. The social worker had little confidence that mother could care
for M.O. without some clearly defined assistance at all hours of the day. The court found that
this presented a huge risk factor for the child. No one contested that mother wanted to
appropriately parent the child, and father also appeared to want to parent appropriately, although
that was somewhat unclear. Nonetheless, relying largely on the postpartum observations of the
hospital social worker, the court concluded that M.O. was CHINS. In its written order, the court
reiterated that mother was having difficulty performing parenting skills, that there were issues
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with parents’ housing situation as well as anger issues, and that mother needed some assistance. 1
Father appealed from the court’s CHINS determination.
¶ 5. Father argues on appeal that the court’s findings are too vague to support its
conclusion that M.O. was CHINS. He asserts that, at most, the court’s findings reflected
speculation that there was a potential higher risk of harm to M.O. because M.O.’s parents had
unidentified “risk factors.” According to father, there was nothing in the court’s findings about
the prenatal nurse visits or the hospital social worker’s testimony that would establish the basis
for a CHINS finding. Father maintains that a potential risk of harm to M.O. is not enough.
Father also contends that the court failed to make sufficient findings to enable us to review its
decision.
¶ 6. A child is CHINS if 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).
“The focus of a CHINS proceeding is the welfare of the child. The State must prove, and the
court must determine [by a preponderance of the evidence], if the allegations in a CHINS
petition have been established.” In re B.R., 2014 VT 37, ¶ 13, 196 Vt. 304, 97 A.3d 867
(quotation marks and citation omitted). A child need not suffer “actual harm” before he or she
can be adjudicated CHINS. In re L.M., 2014 VT 17, ¶ 29, 195 Vt. 637, 93 A.3d 553.
¶ 7. In reviewing the court’s decision, “[w]e must read the evidence in support of the
findings if reasonably possible, when considered as a whole.” Seaway Shopping Ctr. Corp. v.
Grand Union Stores, Inc., 132 Vt. 111, 117, 315 A.2d 483, 487 (1974) (quotation omitted). We
will construe the findings to support the judgment if they may reasonably be so construed. First
Vt. Bank & Trust Co. v. Vill. of Poultney, 134 Vt. 28, 35-36, 349 A.2d 722, 728 (1975). The
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In making oral findings on the record, the court indicated that it was applying a
preponderance standard. In its subsequent written form order, the court checked a box indicating
that its determination that the child was CHINS was made by clear and convincing evidence.
Because a CHINS determination may be based on a preponderance of the evidence, this
discrepancy does not affect our analysis of the issue before us in this appeal.
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court’s findings will stand unless clearly erroneous, and its legal conclusions will stand when
supported by the findings. In re D.D., 2013 VT 79, ¶ 34, 194 Vt. 508, 82 A.3d 1143.
¶ 8. This is a difficult case—both because the evidence is close, and because the trial
court’s findings were less thorough than would be optimal. However, while the court might have
made more extensive or more precise findings, they are sufficient to show what was decided and
why, see Molleur v. Molleur, 2012 VT 16, ¶ 15, 191 Vt. 202, 44 A.3d 763, its decision is
supported by the evidence. The court relied primarily on the social worker’s observations of
mother with the child after the birth. The meaning of the court’s analysis is evident and readily
ascertained from the record of the social worker’s testimony. Based on mother’s demonstrated
deficiencies in caring for the child after he was born, the court credited the hospital social
worker’s lack of confidence that mother could care for M.O. without clearly defined assistance at
all hours of the day.
¶ 9. The court’s findings and conclusions are supported by the record evidence. The
nurse who visited with mother before she gave birth testified that even though mother could put a
diaper on a doll, things would be very different once the baby arrived. The nurse “could project
how things might be,” and she felt parents “were going to need a lot of help.” She was unsure if
parents would be able to care for the child independently and she anticipated that she would need
to “wrap around tons of services and to probably call DCF at some point after the baby arrived.”
Because the baby had not yet been born, the nurse did not think she could “make [mother] guilty
before she proved herself.” As the court found, the nurse testified that in hindsight, she should
have contacted DCF and others before the baby was born.2
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The visiting nurse also testified to concerns about verbal abuse of mother by father in
the home. Mother had screened positive for depression and anxiety and also for inter-partner
violence. The nurse described an incident where she was on the phone with mother while
mother and father were in an argument. The nurse was so concerned about mother’s safety that
she contacted adult protective services and the state police to conduct a wellness check. Verbal
abuse was a frequent subject of discussion between the nurse and mother, and both before and
after the baby was born, the nurse had witnessed father angry and yelling. The trial court did not
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¶ 10. The social worker described that she had received an order from one of the
hospital nurses to assess mother’s ability to provide parenting skills to M.O. She reviewed the
nursing notes with respect to mother, and these notes were admitted into evidence at the hearing.
The notes reflect that mother repeatedly expressed fear of being alone, her own assessment that
she was unable to take care of the baby without assistance, and her repeated requests for help
caring for M.O. Several times, she needed cueing to check M.O’s diaper, help changing the
diaper, and help dressing the infant. At one point M.O. was found crying in the crib and mother
did not wake up; she required repeated verbal stimulation before she heard M.O. crying. Even
with coaching, she was unable to position M.O. properly for bottle feeding, and she was very
hesitant about holding M.O. and quite flustered when he cried. When mother was left alone with
M.O., she would ask the nursing staff to come in and stay with her or she would ask that M.O. be
brought to the nursery because she was afraid to be alone with him.3 The social worker tried to
assess father but was unable to do so as father was not at the hospital during the times she was
present.
¶ 11. The social worker met with mother several times and discussed, among other
things, mother’s cognitive limitations and her ability to parent and care for M.O. The social
worker testified that on several occasions she would try to explain something to mother and after
explaining it three or four different ways, mother still did not understand. This included
instructions on how to feed the baby. The social worker also witnessed mother trying to feed the
baby, which did not go well. Mother was not focused on the baby, who was having difficulty
swallowing. Mother did not recognize that this was happening and even when it was pointed out
make any oral findings suggesting that this concern about violence underlay its CHINS
determination, but in its written order the court did identify “the housing situation and anger
issues” as among the bases for its findings of fact.
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The trial court stated that it did not place significant weight on the nursing notes in
reaching its conclusion. However, the hospital social worker, on whose opinion the trial court
placed great weight, did consider these nursing notes in forming her opinion.
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to her, she continued to feed the baby improperly. The hospital nurses had observed this same
problem. The social worker contacted DCF and reported that although mother was trying to
parent, she was unable to retain the information necessary to enable her to do so. The social
worker spoke with mother about going to the Lund Center, where she could get around-the-clock
help, but mother was not interested. The social worker testified that mother was not able to care
for M.O. independently while at the hospital.
¶ 12. The court’s findings are supported by this evidence. As reflected above, the
visiting nurse’s general pre-birth concern that parents would not be able to parent the child
without significant help was validated by the social worker’s actual observations once the baby
was born. Mother’s inability to feed a baby, or perform other necessary tasks, without around-
the-clock assistance from others is sufficient to show that M.O. was at a risk of harm. The
court’s conclusion is adequately supported by its findings and by the record.
¶ 13. We reject father’s argument that the evidence merely shows a “potential” risk of
harm rather than an actual risk of harm. The court did not base its determination on inchoate
concerns about mother’s ability to parent M.O. safely that rested on broad generalizations about
mother’s “risk factors,” divorced from her actual observed parenting conduct. Rather, the court
made its determination on the basis of eyewitness testimony describing mother’s demonstrated
limitations in safely parenting this child. The risk to M.O. that drove the court’s decision was
neither speculative nor hypothetical; it was based on evidence of mother’s actual parenting after
the child’s birth.
¶ 14. We emphasize that, contrary to father’s characterization of the facts, the evidence
here suggests something far more serious than garden-variety new-parent jitters. Even after
many months of prenatal coaching, mother was not attuned to M.O.’s cues, and could not
perform basic parenting tasks such as holding the baby, feeding the baby, and checking and
changing the baby’s diaper. And the evidence before the court was that simple coaching of
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mother by professionals in the hospital would not be enough to ensure M.O.’s safety. The social
worker testified that even after she explained to mother several different ways how to feed M.O.,
mother could not do it.
¶ 15. We need not decide whether and to what extent the existence of other supports for
the new parents can avert a CHINS finding where a parent is unable to parent independently. In
this case, the evidence was that at the time of the child’s birth, the wrap-around services that the
visiting nurse thought were necessary were not in place. And the social workers’ testimony, on
which the court relied, is that mother required round-the-clock support to parent M.O. safely.
¶ 16. We similarly reject father’s suggestion that the court based its decision on a
presumption that parents with disabilities cannot parent. The trial court did not base its
determination on any presumptions arising from mother’s self-described learning disability, or
her observed cognitive limitations. It based its determination on her observed parenting ability.
Finally, father did not argue below that M.O. was not CHINS because DCF failed to
accommodate any disabilities that he or mother may have, and so we do not address this
argument. See Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000)
(“Contentions not raised or fairly presented to the trial court are not preserved for appeal.”). We
have considered all of father’s arguments and find them without merit.
Affirmed.
FOR THE COURT:
Associate Justice
¶ 17. DOOLEY, J., concurring. I concur in the decision of the majority. Under the
statute, a child is in need of care or supervision (CHINS) if the child “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 is a very broad definition. Many more children meet that definition
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than the number who have been declared CHINS and are in the custody of the Department for
Children and Families (DCF). In fact, I think it is very likely that the number of children who fit
within that standard is a multiple of those committed. That is particularly true in low-income
families where the best parenting in the world cannot overcome the lack of money for food,
shelter, and clothing.
¶ 18. A result of the broad standard is to give DCF tremendous discretion in
determining when and how to intervene to protect a child. The most serious intervention is to
take custody of a child, a step that requires court approval. There are many possible less-serious
interventions, including the extension of services particularly to a willing parent.
¶ 19. The available choices have become increasingly more restricted because of the
vast increase in the need for child protection where one or more parents are engaged in drug
abuse. Caseloads have risen dramatically in the last couple of years, and DCF staffing has not
kept apace. The competition for DCF resources is more fierce than at any time in the past.
¶ 20. This case does not fit the current paradigm for DCF intervention to take custody
of a child. This is mother’s first child. The social worker for DCF described the situation
prompting the CHINS petition as follows:
DCF received a report from Southwestern Vermont Medical
Center (SVMC) staff expressing concern regarding [mother’s] and
[father’s] ability to care for [M.O.] due to their cognitive
disabilities. It was reported that both parents are cognitively
impaired and receive disability for learning impairments. [Mother]
was reported to read at a 2nd or 3rd grade level. [Mother]
reportedly worked with a nurse from the Family Partnership . . . for
14 weeks prior to [M.O.’s] birth to prepare her for labor and basic
newborn care. Since [M.O.’s] birth [mother] has been very
anxious if someone isn’t in the room with her and at times does not
know what to do for [M.O.]. It was reported that if something
happens that [mother] hasn’t already done several times, she needs
prompting on what to do and SVMC staff has been providing her
with extra support.
¶ 21. The affidavit is dated three days after M.O. was born and apparently when M.O.
and mother were still in the hospital. It reports instances where mother said she could not care
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for M.O. and herself. It also reports that mother became consumed and stressed over DCF
involvement and stated she would kill herself if DCF took M.O. away from her.
¶ 22. As far as I know, no judge, either on this Court or the trial courts, is a professional
in child protection. I think we all recognize that DCF workers are highly committed, dedicated,
and expert professionals required to make difficult decisions on how to proceed best to protect
children and support families. Nevertheless, as child protection cases become a larger and larger
share of judicial caseloads, judges are thrust into the role of making judgments as to the validity
of the state’s child-protection actions, as well as acting to protect children and the rights of
parents. That somewhat uneasy role prompts this concurrence.
¶ 23. I think DCF and the Legislature need to take a hard look at cases like this one to
determine whether there is a way to protect a child in circumstances like this that involve an
alternative to DCF custody, particularly DCF custody that is requested three days after the
child’s birth. In saying this, I am not suggesting that DCF ever abandon its mission to protect
children against neglect and abuse. Nor am I suggesting that DCF ignore the needs of the child
in this case or that protection of this child will not be intensive and expensive.
¶ 24. The protection and nurturing of this child will consume extensive resources
whether DCF takes custody or not. But taking custody imposes costs on all parts of the system
and causes delay and uncertainty while all procedures are exhausted, including an appeal to this
Court. It is likely to make reunification difficult. There is a substantial chance that mother, who
is relatively young, will again become pregnant, and this scenario, if left in its current state, is
likely to be played out again. Significantly, mother seems to seek and welcome assistance and
services within her capacity to do so.
¶ 25. Beyond this individual case, if we are going to develop complete, timely, and
successful responses to the urgent child-protection cases we are seeing as a result of opiate
addiction, it is critical to develop less costly interventions for less urgent cases with a lower risk
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potential. I realize that grading child protection cases is an uncertain endeavor, but I think it is
very important to Vermont children and families that we try.
Associate Justice
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