In re B.B.

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-467


In re B.B., Juvenile                         Supreme Court

                                             On Appeal from
                                             District Court of Vermont,
                                             Unit No. 2, Addison Circuit

                                             September Term, 1989


Linda Levitt, J.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Barbara L. Crippen,
  Special Assistant Attorney General, Waterbury, for plaintiff-appellee

Walter M. Morris Jr., Defender General, and Henry Hinton, Appellate
  Defender, Montpelier, and Sessions, Keiner, Dumont & Barnes, Middlebury,
  for defendants-appellants

Charles S. Martin and Catherine Gjessing, Law Clerk (On the Brief), of
  Martin & Paolini, Barre, for defendant-appellee


PRESENT:  Allen, C.J., Peck and Dooley, JJ., and Barney, C.J. (Ret.) and
          Connarn, D.J. (Ret.), Specially Assigned


     DOOLEY, J.   The parents (appellants) appeal the juvenile court's
findings that their daughter B.B. (appellee) was a child in need of care and
supervision (CHINS) and its disposition order transferring legal custody of
B.B. to the Commissioner of Social and Rehabilitation Services (SRS).  We
reverse and remand.
     B.B. was twelve years old when the following series of events occurred.
B.B.'s parents sent her to live with her aunt during the early summer of
1988 because of escalated family tension, primarily between B.B. and her
father.  In July, 1988, B.B. refused to return home to her parents, and SRS
was notified.  SRS filed a petition in the juvenile court alleging that B.B.
was a CHINS because she was "beyond the control of her parents, in that she
has run away from home and refuses to return, contrary to 33 V.S.A. {
632(a)(12)(C)." (FN1) The petition was accompanied by an affidavit of an SRS
worker which detailed the reasons that B.B. refused to return home.  The
main reason was that B.B.'s father had mentally and physically abused her by
calling her names and, on one occasion, by kicking her.  The affidavit
indicated that, as a result of the home environment, B.B. was nervous and
had a stomach ulcer.
     The court granted SRS temporary custody of the child and scheduled a
merits hearing.  The merits hearing was held on July 25, 1988, and both B.B.
and her mother testified.  Based primarily upon the child's testimony, the
court made findings on the record and concluded that she was a CHINS.
Written findings and an order were issued on that date.  The disposition
hearing was held in August 1988, after which the court determined that
although the mother was willing to receive help from SRS, the father was
not. The court concluded that the parents were unfit and unable to provide
for the child's basic needs which, the court stated, included a loving and
warm environment and ordered that legal custody of B.B. be transferred to
SRS.
     The parents filed a timely notice of appeal of both the merits and the
disposition adjudications, and allege four errors on appeal:  (1) the
evidence taken during the merits hearing is insufficient to support the
court's findings of fact, and the findings do not support the conclusion
that B.B. is a CHINS; (2) the court erred during the merits hearing by not
permitting the parents to ask the child where she would want to live if she
could not live with her aunt; (3) the evidence and the findings were
insufficient to support the court's disposition order; and (4) the court
abused its discretion by failing to consider whether to reject B.B.'s
proposed placement by SRS with her aunt.  The child responded to the
parents' arguments, and SRS joined with the child.
     We address first the parents' argument that the results of the merits
hearing were in error.  Because we reverse on this point, we do not reach
the other arguments.
     At the end of the merits hearing, the trial court made the following
oral findings of fact:
            Based on the allegations -- it's claimed that [B.B].
         doesn't want to go home . . . .  [B]ased on the evidence
         that was presented, I'll conclude that [B.B.] is
         presently age 12.  She's the daughter of the parents
         who are present here in court.  She was living at home.
         She has -- there are several younger children in the
         family.  B.B. has said that she doesn't want to go home
         and as far as what her home life is like, her father
         calls her names.  He's called her a slut, he's called
         her a lazy, fucking bitch.  She's afraid of her father.
         He's kicked her.  She's watched her father physically
         abuse a younger brother by picking him up by the neck,
         and she's at this point, afraid to go home.  I'll
         conclude that based on the evidence that was presented,
         that the State has, in fact, proved that at this point,
         she's run away and, in fact, does refuse to return home.

The written findings are more sparse.  They state:  "juvenile, is a
runaway."                                    
     The parents make a series of related attacks on the merits decision.
First they argue that one of the findings is unsupported by the evidence.
Second, they argue that the remaining findings are insufficient to support
the court's conclusion that B.B. is a CHINS.  We will affirm the court's
findings unless they are clearly erroneous.  See In re M.C.P., __ Vt. __,
___, 571 A.2d 627, 638 (1989).  Where a finding is attacked on appeal, our
role on appeal is limited to determining whether the finding of fact is
supported by the evidence.  Id.  We leave it to the sound discretion of the
juvenile court to weigh the evidence.  Id.
     The finding attacked by appellants is that B.B. ran away from home.  We
agree that this fact is not supported by the evidence.  All the parties
agreed and all the evidence indicated that B.B. went to live with her aunt
with her parents' permission.  Even the child concedes in her brief that
there was no evidence that she had previously run away from home although
she had threatened to do so.  Hence, this finding cannot stand and cannot be
used to support the court's conclusion.
     We also conclude that the remaining findings are insufficient to
support the court's conclusion that B.B. is in need of care and supervision.
We have consistently held that a merits determination in a juvenile case
must be supported by adequate findings to show that the "facts support the
judgment in the particulars alleged in the petition."  In re R.H., Jr., 138
Vt. 425, 427, 415 A.2d 1318, 1320 (1980).  We do not require numerous
findings; relatively brief findings will suffice if "they 'are adequate in
view of the circumstances of the case.'"  See In re L.A., III, ___ Vt. ___,
___, 574 A.2d 782, 786 (1990) (quoting In re T.D., 149 Vt. 42, 45, 538 A.2d 176, 177 (1987)).
     The court may conclude that a child is in need of care or supervision
if it finds that the child:
           (A)  Has been abandoned or abused by his parents,
         guardian or other custodian; or

           (B)  Is without proper parental care or subsistence,
         education, medical, or other care necessary for his
         well-being; or

           (C)  Is without or beyond the control of his parents,
         guardian or other custodian . . . .

33 V.S.A { 5502(a)(12).  Although the state might have alleged alternative
grounds on which B.B. could be found a CHINS, see In re R.M., 150 Vt. 59,
70, 71, 549 A.2d 1050, 1057 (1988), it proceeded only under (C).  While the
affidavit detailed allegations of abuse, it was only to explain why the
child was a runaway.  Further, although the court never specified which of
these three statutory bases it relied upon to conclude that the child was a
CHINS, the written findings referred only to B.B.'s status as a runaway,
indicating that B.B. was a CHINS under { 5502(a)(12)(C).  In the absence of
the finding that B.B. was a runaway, we do not believe the findings support
a conclusion that B.B. was without or beyond the control of her parents. The
only remaining finding relevant to this conclusion is that B.B. refuses to
return home.  The fact that a child refuses to return home after staying
with a relative for a short period of time with the parents' permission
cannot support the conclusion that the child is without or beyond the
control of the parents.
     The child claims, however, that the CHINS adjudication was actually
based on specific instances of abuse and these incidents are more than
sufficient to support a conclusion that she was a CHINS under {
5502(a)(12)(A).  We are unwilling to reconstruct the state's case on a
theory not relied upon in the petition and not accepted by the juvenile
court.  The court's written findings clearly show that it was relying on the
runaway status of B.B.  We will not speculate whether the trial court would
have concluded that its findings of abuse were sufficient to warrant a
determination that B.B. was a CHINS because of parental abuse under {
5502(a)(12)(A).  We are also concerned that the parents had inadequate
notice of the new theory on which appellees would rely.  See In re R.M.,
150 Vt. at 70, 549 A.2d  at 1057 (alternative theory could be used because
the petition and affidavits show "unmistakably" the intent of the state to
rely on alternative theories).  We do not, however, preclude the state from
amending its petition and adding an alternative ground for a CHINS
adjudication.  The statute provides ample authority for the court on remand
to retain B.B. in SRS custody pending a new CHINS hearing if the best
interests and welfare of B.B. so require.  See 33 V.S.A. { 5515(d).
     Because we reverse the merits adjudication, the disposition order must
also be vacated.  See In re M.C.P., __ Vt. at __, 571 A.2d  at 637
(disposition of a child can be decided only after a valid CHINS
determination).  Therefore, we need not reach the parents' remaining
arguments.
     Reversed and remanded.

                                        FOR THE COURT:




                                        Associate Justice



FN1.    The Juvenile Proceedings provisions of Title 33, 33 V.S.A. { 631, et
seq., were recodified in 1990 as 33 V.S.A. { 5501, et seq.  Since 33 V.S.A.
{ 632(a)(12) was not revised substantively, we refer hereinafter to the
recodified version, 33 V.S.A. { 5502(a)(12).