In re L.A.

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. 89-044 & 87-039
 
 
In re L.A., III, J.A. & D.A.,                Supreme Court
Juveniles
                                             On Appeal From
                                             District Court of Vermont
                                             Unit No. 1, Windham Circuit
 
                                             January Term, 1990
 
 
Paul F. Hudson, J.
 
Jeffrey L. Amestoy, Attorney General, Montpelier, and Martha Csala,
  Assistant Attorney General, and Paul H. Erlbaum, Special Assistant
  Attorney General, Waterbury, for plaintiff-appellee
 
Michael Rose, St. Albans, for defendant-appellant father
 
Martin & Paolini, Barre, for defendant-appellant mother
 
 
PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.
 
 
     DOOLEY, J.   Appellants, the parents of L.A., III, J.A., and D.A.,
appeal the findings and orders of the juvenile court adjudging their
children to be children in need of care and supervision (CHINS) and
transferring legal custody over them to the Commissioner of Social and
Rehabilitation Services (SRS) with residual parental rights and
responsibilities remaining with the parents.  The court later terminated all
residual parental rights, and the parents appealed that order.  The parents
raise six issues on appeal, the first two of which relate to the initial
merits and disposition orders and the last four of which relate to the
termination of parental rights order.  The parents' claims are:  (1) the
merits adjudication was flawed because there was insufficient evidence
before the juvenile court to establish CHINS with respect to D.A. and J.A.,
and, therefore, all subsequent orders must be vacated; (2) the disposition
hearing order must be vacated because the court failed to consider the least
restrictive alternative for the disposition of the children; (3) it was
reversible error when the court, in the termination proceeding, qualified
the guardian ad litem as an expert witness for reasons not admitted into
evidence; (4) the court erred in terminating the mother's parental rights
because she was not able to resume her parenting duties within a reasonable
period of time since this conclusion was not based on clear and convincing
evidence; (5) the court failed to give adequate consideration to the
father's visitation rights; and (6) the court prematurely terminated the
father's parental rights.  We affirm.
     This case involves the disposition of three children, L.A., III (L.A.),
J.A., and D.A., who were born on December 3, 1979, July 14, 1981, and
December 29, 1982, respectively.  These children first came to the attention
of SRS in July of 1986, after two of the boys informed their mother that
they had been sexually abused by their father.  The mother immediately
notified SRS, and together they took steps to protect the children from
further abuse.  SRS filed a petition in the Windham District Court,
pursuant to 33 V.S.A. { 645, alleging that the children were children in
need of care and supervision (CHINS), as defined under 33 V.S.A. {
632(a)(12).  Additionally, the mother filed a petition for relief from
abuse.
     A merits hearing was held on August 18, 1986, after which the juvenile
court rendered its findings of fact and conclusions of law on the record.
The court, finding that the oldest boy, L.A., had been sexually molested by
his father, concluded that he was an abused child and was without proper
parental care as defined in 33 V.S.A { 632(a)(12)(A) and (B).  The court
also found that "[t]here is a very high risk of permanent damage to each of
[the children] if they are left in an environment where there is not
intervention and control to protect them against further physical violations
such as those which we find have been committed against [L.A.]."  The court
therefore adjudicated all three boys CHINS.
     The children were placed in SRS custody pending the disposition
hearing.  SRS in turn placed D.A. and J.A. with the mother because the
father had moved out of the family house after the disclosures of abuse and
because the mother had acted in a reasonable manner to protect the children.
L.A. remained with his maternal uncle in Massachusetts where he had been
placed by his mother earlier in the summer.  The mother reached an agreement
with SRS that she would not permit any unsupervised contact between the
children and the father; nevertheless, she allowed such contact on three
separate occasions before the disposition hearing.  As a result of these
contacts, SRS placed the two younger boys in a foster home on September 2,
1986.
     The disposition hearing began on October 3, 1986, and the juvenile
court issued its disposition order on December 15, 1986.  Although the
mother sought the return of her children with conditions to assure their
safety and services to help them deal with the abuse, the court rejected her
proposal without specifically addressing it.  Instead, the court concluded
that neither parent was capable of caring for the children at that time.
The court stated that the father was "unfit and demonstrably incapable of
providing an appropriate home and care for his children," and the mother
could not "safely and adequately protect her children from the sexual abuse
which their father has committed and could in the future commit against the
children."   The court transferred legal custody of the children to SRS and
left residual parental rights with the mother and father.  Additionally, the
court approved SRS's plan for services and supervision with the goal of
eventual reunification of the family.  SRS placed the children in a foster
home.  Both parents filed a notice of appeal from the disposition order.
     Initially, SRS directed its efforts towards reunification of the
family.  In March of 1988, however, SRS noted the lack of progress towards
this objective and changed its goal to termination of parental rights.  On
May 10, 1988, while the parents' appeal of the disposition order was still
pending, SRS filed a "Petition to Terminate Residual Rights."  A hearing on
SRS's petition commenced on September 26, 1988, and lasted for five days.
On December 19, 1988, the court issued extensive findings of fact and
conclusions of law stating that neither parent was capable of resuming
parental responsibilities within a reasonable time.  Therefore, the court
terminated the parents' residual rights and transferred custody to SRS
without limitation as to adoption.  Both parents filed notices of appeal
from the termination order.  The appeal from the disposition order has been
consolidated with the appeal from the termination order.
     The parents' first claim is that the juvenile court failed to make
adequate merits findings regarding J.A. and D.A. to support its conclusion
that they were CHINS and that there was insufficient evidence to support the
conclusion.  The parents do not appeal the CHINS adjudication with respect
to L.A. because he testified that he was sexually abused by his father and
the court made specific findings and conclusions to that effect.  They
argue, however, that there is no evidentiary support for the conclusion
that the younger boys were CHINS.  SRS counters that this issue is not
before this Court because the merits order was not properly appealed.  We
need not address this contention, however, because we find that the court's
findings were sufficient to support its CHINS adjudication and were
supported by sufficient evidence.
     Several witnesses testified during the CHINS proceeding.  The court,
however, relied primarily on the testimony of L.A., the only one of the
three boys to testify, in which he stated that his father sexually abused
him.  L.A. also testified that his father touched his sister (FN1) and brothers
in a way that he did not like.  He said he saw his father touch each of his
siblings and described the touching of the sister in some detail.  He
further stated that his uncle told him about his father touching D.A. and
J.A.  Although SRS attempted on several occasions to introduce other
evidence pertaining to D.A., the court ruled that this evidence was
inadmissible hearsay.  Thus, the only evidence that either D.A. or J.A. were
abused comes from the statements of L.A.
     At the conclusion of the hearing, the court determined that all three
boys were CHINS.  The court made specific findings of abuse with regard to
L.A.  These findings were based upon the testimony of both L.A. and his
father.  The court's findings with respect to J.A. and D.A. were as follows:
	   These children, each of them . . . are children in
	need of care and supervision.  There is a very high risk
	of permanent damage to each of them if they are left in
	an environment where there is not intervention and con-
	trol to protect them against further physical violations
	such as those which we find have been committed against
	[L.A.].
 
	   Therefore, we adjudicate that these children . . .
	are children in need of supervision and we will award
	custody of the children to [SRS] with placement at the
	discretion of [SRS] and until further order of this
	Court.
 
     The juvenile court may conclude that a child is a CHINS if it finds by
a preponderance of the evidence that the child "[h]as been abandoned or
abused by his parents," 33 V.S.A. { 632(12)(A), or that the child "[i]s
without proper parental care or subsistence, education, medical, or other
care necessary for his well-being."  33 V.S.A. { 632(12)(B); In re M.B., 147
Vt. 41, 43, 509 A.2d 1014, 1015-16(1986).
     We have decided a number of recent cases on whether abuse as to one
sibling is probative of abuse of another.  The most important precedent is
in In re D.P., 147 Vt. 26, 30, 510 A.2d 967, 970 (1986), where we said:
"[w]hether treatment of one child is probative of neglect or abuse of a
sibling must be determined on the basis of the facts of each case."  In
D.P., there had been a history of abuse to D.P. and when similar abuse,
escalated in seriousness, was practiced on the sibling, the trial court
found sufficient cause to terminate parental rights as to D.P.  This Court
affirmed, stating:  "Where serious, life-threatening injuries have been
inflicted on one child, the juvenile court will not be required to wait
until further injuries are inflicted upon its sibling, previously also a
victim of abuse, in order to conclude that a substantial change in material
circumstances has occurred as to that sibling."  Id. at 31, 510 A.2d  at 970.
     More recently, this Court considered In re R.M., 150 Vt. 59, 549 A.2d 1050 (1988), where the parent attacked a CHINS adjudication because the
juvenile court considered evidence of parental treatment of a sibling and
used it to conclude that R.M. was a CHINS.  R.M. relied upon D.P. and
concluded that since there was evidence of the abuse of R.M., the additional
evidence of the abuse of R.M.'s sibling was admissible as "indicative of a
broad pattern of abuse and neglect generally pervasive in this household and
clearly relevant to R.M."  Id. at 69, 549 A.2d  at 1056.  This Court held
that the juvenile court could rely on the treatment of the sibling in
concluding that R.M. was a CHINS.
     This case is controlled by R.M.  L.A.'s testimony provided sufficient
evidence of the abuse of D.A. and J.A.  As in R.M., the court found in
essence that there was a pattern of abuse and a general inability of the
mother to protect any of the children.  Although neither the evidence nor
the findings contained the same level of specificity of abuse of D.A. and
J.A. as of L.A., the situation was sufficiently similar to that in D.P. for
the court to conclude that further evidence of abuse to D.A. and J.A. was
unnecessary for the court to act "to protect them against further physical
violations." (FN2)
     We also believe that the findings here were sufficient.  The court
relied on L.A.'s testimony that he had been sexually abused by his father
and stated that it was acting to protect the other children from "further
physical violations."  Thus, it is clear that the court accepted L.A.'s
testimony that his brothers had also been abused.  Although the findings are
brief, they "are adequate in view of the circumstances of the case."  In re
T.D., 149 Vt. 42, 45, 538 A.2d 176, 177 (1987).
     The mother next argues that the juvenile court failed to consider her
proposal for the disposition of the children and therefore contends that the
disposition order is invalid.  She proposed that the court return the
children to her with conditions to assure their safety from their father and
services to help them deal with the father's abuse.
     This same issue was considered in In re K.M., 149 Vt. 109, 111-12, 539 A.2d 549, 550 (1987), where we rejected the claim that a court must consider
less drastic alternatives to a disposition order which would remove a child
from the parents' home.  We concluded that a child may be placed outside the
parents' home at the dispositional stage if the court finds by convincing
proof that the parents are unfit and demonstrably incapable of providing an
appropriate home for the child.  Id.  Once the court makes such a finding,
it is not necessary for the court to state its reasons for rejecting any
less restrictive alternatives.
     In the present case, the court found that neither parent was capable of
caring for the children without exposing them to harm.  The court stated
that although the mother "loves her children very dearly, she is unable to
place their best interests above her love for and consortium with her
husband."  The findings detail how the mother allowed contact between the
father and children after the CHINS adjudication, despite her agreement with
SRS not to allow such contact to occur.  The court found "beyond any
reasonable doubt, that, if the children are returned to the full care and
custody of their mother, they will be subjected and exposed to the threats,
the contacts and the fears of their father."  Thus, the court concluded that
each parent was incapable of providing an appropriate home for the children.
This conclusion is supported by the findings and meets the requirement of
R.M.
     The parents final four allegations of error relate to the termination
proceeding.  Both parents challenge the court's ruling that the children's
guardian ad litem was qualified as an expert witness.  During the
termination proceeding, SRS asked the guardian, over the parents' objection,
to assess the parents' progress in working towards the SRS case plan and to
give her opinion on whether the parents' parental rights should be
terminated.  The court allowed the testimony, noting first that it was
"technically qualified testimony" and later that the guardian ad litem had
"the most experience of any guardian ad litem in Windham District Court."
The parents argue that the court's comments show that it qualified the
guardian ad litem as an expert witness without a proper foundation and for
reasons which were not presented as evidence or subject to cross-
examination.
     In a disposition, review or modification hearing, the court may
consider "all evidence helpful in determining the questions presented,
including oral and written reports, . . . to the extent of its probative
value, even though not competent in a hearing on a petition."  33 V.S.A. {{
655(d), 658(c) & 659(b).  Pursuant to these statutes, we have authorized
the admission of hearsay evidence in termination of parental rights
proceedings, even though such evidence is not admissible in a merits
determination.  See In re R.B., ___ Vt. ___, ___, 566 A.2d 1310, 1314
(1989).
     Except for limited circumstances where a lay opinion "rationally based
on the perception of the witness" can be given, our rules of evidence
require that opinion testimony be given by an "expert" qualified by
"knowledge, skill, experience, training, or education."  V.R.E. 701, 702.
An expert's qualifications are generally determined during a preliminary
examination and cross-examination at which time his or her specific
capabilities are demonstrated and tested.  See Reporter's Notes, V.R.E. 702.
Although we agree with the parents that such an examination would have been
preferable in this case, we do not believe that the absence of an
examination requires reversal.
     The guardian ad litem in this case was appointed pursuant to 33 V.S.A.
{ 653(a) to protect the "interests of the child[ren]."  The guardian ad
litem is an officer of the court appointed "to represent the interests of an
infant in the litigation."  Whitcomb v. Dancer, 140 Vt. 580, 587, 443 A.2d 458, 461 (1982).  See also Richelson v. Richelson, 130 N.H. 137, 143, 536 A.2d 176, 180 (1987) ("The role of the guardian ad litem is primarily to be
an advocate for the best interests of the child, and to assist the court and
the parties in reaching a prompt and fair determination, while minimizing
the bitterness in this process.").  As part of her duties assigned by the
court, the guardian ad litem was required to come to the precise opinions
asked of her in this case.  Presumably, the court considered her qualifica-
tion in appointing her.  It was redundant to ask the same court to review
its own determination when the guardian came to testify.
     In reaching the conclusion that there was no reversible error in
accepting the guardian ad litem's opinion, we reiterate that the court is
required in a termination hearing to consider all helpful evidence to the
extent of its probative value even if it were not admissible in a merits
hearing.  It would be anomalous to hold that a court could consider that a
person has the skill, experience and judgment to determine the best interest
of a child and to represent that interest before the court and then to hold
that the person's opinion on the needs of the child is per se not "helpful"
to the court.  Cf. Sanfilippo v. Sanfilippo, 637 S.W.2d 77, 79 (Mo. App.
1982) (guardian ad litem may "even . . . take the stand and testify").  We
are also influenced by the fact that the parents had a full opportunity to
cross-examine the guardian ad litem on her qualifications to render an
opinion and failed to do so.  Their interests are better protected by the
procedure adopted by the court than if the guardian ad litem were allowed to
state an oral or written opinion without being under oath and without being
subject to cross-examination.
    We also agree with SRS that the parents have failed to show sufficient
prejudice from any error to warrant reversal.  Once we determine that the
trial court committed error in the admission of evidence, we will not
reverse the decision unless there is a showing that prejudice flowed from
the error.  See In re R.M., 150 Vt. at 65, 549 A.2d  at 1054.  We cannot find
any prejudice to the parents in this case.  The parents conducted an
extensive cross-examination of the guardian ad litem and were able to
explore fully the bases for her opinions.  Moreover, the guardian's opinion
testimony was merely cumulative.  See Sanfilippo v. Sanfilippo, 637 S.W.2d 
at 79 (where guardian's report is cumulative, error in relying on it does
not warrant reversal).  Finally, the fact-finder was a judge who could give
the testimony such weight as it deserved and is less likely to give the
witness "greater credence than his qualifications would otherwise allow."
Cappiallo v. Northrup, 150 Vt. 317, 319, 552 A.2d 415, 417 (1988).
     The mother next claims that the juvenile court's conclusion that she
would not be able to resume her parental duties within a reasonable time
was not supported by clear and convincing evidence.  The juvenile court may
terminate all parental rights and responsibilities only if it is in the best
interests of the child, as defined in 33 V.S.A. { 667.  In re H.A., No. 88-
199, slip op. at 12 (Vt. Jan. 26, 1990).  The most important of the four
factors which must be evaluated in determining the child's best interests is
"whether the parent 'will be able to resume his [or her] parental duties
within a reasonable period of time.'"  Id. (quoting In re J.R., Nos. 86-595
& 88-277, slip op. at 12 (Vt. Nov. 3, 1989)).
     Our review of the juvenile court's decision is limited, as was stated
in In re H.A.:
	[T]he juvenile court's findings of fact in disposition
	proceedings must be supported by clear and convincing
	evidence.  In reaching its findings, the court must
	weigh the credibility of the witnesses and resolve
	conflicts in the evidence.  The court's findings will
	withstand Supreme Court review unless they are clearly
	erroneous.  The court's conclusions will also be
	affirmed if they are supported by the findings.
 
Id., slip op. at 13 (citations omitted).
     In the present case, the juvenile court made one hundred and twenty-
nine findings which it stated were based upon credible testimony and were
supported by clear and convincing evidence.  Although there was some
conflicting testimony, including conflicting expert testimony, the findings
demonstrate that the court clearly considered all the material evidence and
resolved any conflicts presented.  Further, based upon its findings, the
court itemized three pages of conclusions bearing on whether the mother
could resume parental duties within a reasonable period of time.  The court
concluded that the mother failed to protect her children from the father's
sexual abuse and refused to believe their reports, putting her desire to
maintain her relationship with the father before their interests.  It
further concluded that contact between the children and the father would
again occur if the mother had custody, and that the children had lost all
trust in her to protect their interests.  Additionally, the court found that
the mother rejected almost every opportunity to gain parenting skills, to
receive individual counseling, and to assist her husband so that "under no
conceivable circumstances will she accept in good faith needed remediation
to maintain these children under her roof."  The court summarized its
conclusions as follows:
	In sum, the evidence is clear and convincing that if
	reunification were to occur between [the mother] and her
	boys, the likelihood of failure is so predictable that
	the sons will again feel betrayed by their mother and
	the adult world, they will view the world as a place
	where horrible and purposeless consequences befall the
	innocent, and where trust is impossible.
 
The court's decision to terminate the mother's parental rights is fully
supported by its findings and conclusions.
     The father's final two arguments on appeal also concern the termination
proceeding.  We note at the outset, however, that he does not challenge the
court's conclusion that he was unable to resume his parental
responsibilities within a reasonable time.  Rather, he takes issue with the
procedure followed by the court in reaching this decision.   He argues first
that the juvenile court failed to give adequate consideration to his right
of visitation when it terminated his residual parental rights.  He contends
that since the freedom of parent and child to relate to one another is a
basic liberty, the degree of separation of parent and child should be
limited to that necessary for the child's welfare, and, in this case, the
court should have explored the issue of visitation.  We disagree.
     When the juvenile court transfers legal custody of a child adjudicated
a CHINS to SRS pursuant to 33 V.S.A. { 656(a)(3), but leaves the residual
parental rights and responsibilities with the parents, the parents are
entitled to visitation rights.  See 33 V.S.A. { 632(a)(16).  Under these
circumstances, it is error if the court fails to consider parental
visitation rights consistent with the best interests of the child.  See In
re J.R., 147 Vt. 7, 11, 508 A.2d 719, 721 (1986).  Since visitation is a
residual parental right, the termination of such rights necessarily
eliminates the parent's right to visit the child.  Indeed, we cannot see how
a child can start a new life with a new family if the former parents retain
visitation rights.  Since the termination order is fully supported by the
findings and conclusions in this case, there is no further right of parental
visitation.
     The father also argues that the court prematurely terminated his
parental rights because no alternative permanent placement for the child
existed at the time of the termination hearing.  Again, the father's
argument is misplaced.  As we stated earlier, the juvenile court may
terminate all parental rights and responsibilities if it is in the best
interests of the child as determined by weighing four factors enumerated in
33 V.S.A. { 667.  None of these factors precludes the court from terminating
the parental rights until a permanent placement is available.  In fact, the
one reference to an alternative placement in the statute uses the phrase "if
any."  33 V.S.A. { 667(1).  The absence of a requirement for an alternative
placement is reasonable since the termination of parental rights may be
necessary to allow the children to bond to a new family.  Indeed, until the
court authorizes termination of parental rights, SRS is acting under a case
plan that seeks reunification of parent and child.  It can change its goal
to termination of parental rights, but it must be mindful that the court may
not accept a change of goal and may require reunification.  In the face of
this uncertainty, development of an alternative permanent placement prior to
the hearing may be impossible.
     Affirmed.
 
                                        FOR THE COURT:
 
 
 
 
                                        Associate Justice

FOOTNOTES:

FN1.  The sister was also placed in State custody and was the subject of
separate proceedings.  She is not directly involved in this case.

FN2.  As in the earlier cases, the parents argue that this case is
controlled by In re J.M., 131 Vt. 604, 313 A.2d 30 (1973).  J.M. stands for
the proposition that a CHINS adjudication with respect to a child is
improper where all of the significant evidence and findings relate solely to
siblings.  See In re R.M., 150 Vt. at 68, 549 A.2d  at 1056.  In this case,
there is significant evidence and general findings and conclusions with
respect to D.A. and J.A.  The holding of J.M. does not apply.