In re B.F.

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.


                           Nos. 88-544 & 89-010


In re B.F., Juvenile                         Supreme Court

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

In re S.A., Juvenile                         September Term, 1989


George T. Costes, J. (88-544)
Michael S. Kupersmith, J. (89-010)

Jeffrey L. Amestoy, Attorney General, Montpelier, and Alexandra N. Thayer,
  Assistant Attorney General, Waterbury, for plaintiff-appellant

Walter M. Morris, Jr., Defender General, and Robert Sheil, Juvenile
  Defender, Montpelier, for defendants-appellees


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


     ALLEN, C.J.   The Department of Social and Rehabilitation Services
(SRS) appeals from two juvenile court orders restraining it from trans-
porting juveniles in restraints.  SRS claims that the juvenile courts
exceeded their authority in promulgating the orders.  We agree and vacate
the orders.
     Based on a finding of delinquency, legal custody of S.A. was
transferred to SRS in 1986.  S.A. came before the juvenile court in June
1988 for review of the disposition order.  During the course of this review
action, which was continued several times, S.A. was placed at the Woodside
Juvenile Rehabilitation Facility.  A youth placed at Woodside is trans-
ported to and from court appearances in restraints.  The juvenile court,
upon resuming its dispositional review on November 2, 1988, provided in its
review order that SRS not transport S.A. with either leg-irons or hand-
cuffs.  SRS appeals from this order.
     B.F., originally in SRS custody as a child in need of care or
supervision, was found to be delinquent and was continued in SRS custody
pending disposition.  During the course of the disposition hearings, B.F.
was placed at Woodside and was transported to and from the courthouse in
restraints.  The juvenile court heard argument and took testimony regarding
the appropriateness and necessity of this manner of transport.  It subse-
quently issued a protective order pursuant to 33 V.S.A. { 5534 (FN1) prohibiting
SRS from using "leg irons, shackles or similar restraining devices when
transporting B.F. to and from court."  The court, conducting the inquiry
required by { 5534(2), found that the practice of using restraints was "most
harmful to the child's self-esteem.  The child himself testified that he
was humiliated by walking on the street and through the corridors of the
public court building in chains."  Further, the court found that "[g]iven
B.F.'s unfortunate history, and his apparently low self-esteem, the
Department of Social and Rehabilitation Services' continuing use of chains
and restraints on this child is not only very harmful but will also tend to
defeat the execution of any therapeutic disposition to be made."  SRS
appeals from this protective order.
     Addressing the dispositional review order concerning S.A. first,
dictating the manner in which SRS was to transport S.A. was clearly beyond
the juvenile court's authority.  The juvenile court is a court of "special
and very limited statutory powers."  In re M.C.P., 153 Vt. 275, 302, 571 A.2d 627, 642 (1989); In re K.H., ___ Vt. ___, ___, 580 A.2d 48, 49 (1990).
In establishing juvenile procedures, the Legislature sought to achieve a
balance between the authority of the juvenile court and the authority of the
legal custodian.  In re G.F., 142 Vt. 273, 280, 455 A.2d 805, 809 (1982);
see also In re J.S., 153 Vt. 365, 371, 571 A.2d 658, 662 (1989) (statute
governing juvenile procedures "allocates power between the legal custodian
and the juvenile court").  This balance dictated our conclusion in G.F. that
SRS, as legal custodian of a child, has the authority to determine where
that child shall live.  142 Vt. at 281, 455 A.2d  at 809.  While the juvenile
court retains the limited authority to accept or reject a placement recom-
mendation of the legal custodian, it cannot include in its disposition order
a specific placement.  "[T]he juvenile court has no authority to dictate
where and with whom a juvenile should live . . . ."  Id.; see 33 V.S.A. {
5502 (a)(10) (giving person with legal custody extensive authority over the
minor).  It is likewise within SRS's authority, as legal custodian of a
child, to determine the most appropriate manner of transporting that child.
Nothing in the statutory scheme or our case law persuades us that in the
balance struck between the juvenile court and the legal custodian, the
determination on how to transport a child lies within the authority of the
juvenile court.  Accordingly, that portion of the dispositional review order
dictating the manner of transport is vacated.
     The order concerning B.F. was not part of a dispositional review order,
rather it was a protective order issued pursuant to { 5534.  Yet the balance
struck between the juvenile court and the legal custodian is not meant to be
upset by this protective order provision.  It is plain from our decisions
that the juvenile court, lacking authority to order specific placement of a
child, cannot achieve the same end under the guise of a protective order.
In In re B.L., 149 Vt. 375, 543 A.2d 265 (1988), a child filed a petition
for a protective order to block SRS's intended placement of him.  The
juvenile court granted the protective order on an interim basis and required
SRS to seek modification of the original disposition order, which it sub-
sequently granted.  On the child's appeal, this Court upheld SRS's placement
yet vacated the juvenile court's protective order and its requirement that
SRS seek modification.  SRS's placement was upheld because SRS, as legal
custodian, had the authority to make this placement without judicial
approval.  Id. at 376, 543 A.2d  at 266.  The juvenile court's orders
concomitantly were vacated because it lacked authority to issue them.  Id.
at 376, 377, 543 A.2d  at 266.  This holding was reaffirmed in J.S., 153 Vt.
at 371, 571 A.2d  at 662 ("juvenile court lacked the authority to require SRS
to obtain court approval for the modification of a disposition order to
effectuate a change in the placement of a child within its custody"); see
also In re A.K., 153 Vt. 462, 463, 571 A.2d 75, 76 (1990) (juvenile court
appropriately denied parents' protective order petition "on the grounds that
it had no authority to interfere with SRS's lawful placement of a child in
its custody").
     In line with these authorities, the order in B.F. is invalid if viewed
as an attempted exercise of authority, through the guise of a protective
order, over the manner in which SRS transports juveniles.  Further, if the
order is viewed as an attempt to prohibit conduct that is "detrimental or
harmful to the child, and will tend to defeat the execution of the order of
disposition made or to be made," { 5534(2), it is unreasonable.  As is clear
from the text of this provision, a finding that conduct is detrimental or
harmful to a child is not enough to warrant a protective order.  The
juvenile court has not been granted the power to intrude into SRS's custody
whenever it perceives harmful or detrimental conduct.  Rather, its power is
limited to prohibiting such conduct that tends to defeat execution of the
court's disposition order.  SRS's manner of transport cannot reasonably be
found to tend to defeat the execution of a disposition order.  Accordingly,
the protective order is vacated as an abuse of discretion.  J.S., 153 Vt. at
371, 571 A.2d  at 661.
     We recognize that the juvenile court is invested with the same
authority over courthouse premises that other courts possess.  "[T]he
courtroom and courthouse premises are subject to the control of the court."
Sheppard v. Maxwell, 384 U.S. 333, 358 (1966); see State v. Robillard, 146
Vt. 623, 630, 508 A.2d 709, 714 (1986) (trial court has power, within
constitutional limits, to close courtroom to the public); State v. Ahearn,
137 Vt. 253, 269-70, 403 A.2d 696, 706-07 (1979) (trial court has power to
restrain defendant).  The juvenile court has the authority to proscribe the
use of restraints on the juveniles while they are on courthouse premises.
We vacate the current orders because they reach beyond this.
     Vacated.

                                        FOR THE COURT:




                                        Chief Justice






FN1.    33 V.S.A. { 5534 provides:
       On petition of a party or on the court's own motion,
     the court may make an order restraining or otherwise
     controlling the conduct of a person if:
       (1)  An order of disposition of a delinquent child or
     a child in need of care or supervision has been or is
     about to be made in a proceeding under this chapter; and
       (2)  The court finds that such conduct is or may be
     detrimental or harmful to the child, and will tend to
     defeat the execution of the order of disposition made or
     to be made; and
       (3)  Notice of the petition or motion and the grounds
     therefor and an opportunity to be heard thereon have
     been given to the person against whom the order is
     directed.