In Re J.H.

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. 89-394


In re J.H., Juvenile                         Supreme Court

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

                                             May Term, 1990


Edward J. Cashman, J.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Alexandra N. Thayer,
   Assistant Attorney General, Waterbury, for plaintiff-appellant,
   Department of Social and Rehabilitation Services

Charon A. True, St. Albans, for defendant-appellant, J.H.

Steve Dunham, Public Defender, St. Albans, for defendant-appellant, J.H.'s
   mother


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.


     PECK, J.  After an eighteen-month review hearing required by 33 V.S.A.
{ 5531 (formerly 33 V.S.A. { 658), the district court ordered that custody
of J.H. be transferred from the Department of Social and Rehabilitation
Services (SRS) to her mother.  This appeal by SRS turns on the following
issue: who bears the burden of proof at an eighteen-month review hearing?
Because we find that the court allocated the burden of proof improperly, we
remand for a new hearing.
     J.H.'s parents have never been married, and they stopped living
together approximately seven months after J.H.'s birth in June of 1980.
J.H. remained in her mother's care until age three.  On October 31, 1983,
the father suspected neglect and obtained a relief from abuse order and
temporary custody of J.H.  On December 9, 1983, the mother stipulated to
custody remaining with the father.  In August of 1987, the mother, who had
moved to Troy, New York, visited her daughter in Vermont.  Upon learning
that the child's stepmother was being considered for custody, the mother
took the child to Troy.  She was charged with custodial interference, and
the child was returned to her father.  In October of 1987, the father
admitted that he had recently abused his daughter, and, based on this
admission, the juvenile court found J.H. to be in need of care or
         supervision (CHINS) and placed her in the temporary custody of SRS.  At the
disposition hearing in January of 1988, SRS indicated that it would explore
reunification of the child with her father but submitted a plan that called
for continued SRS custody.  The mother, through her attorney, stated that
she did not want custody of J.H. because the child did not want to be placed
with her.  SRS was awarded custody.
     At a March 1989 administrative hearing, the mother indicated that she
had changed her mind and wanted custody of J.H..  Thereupon SRS began
consideration of the mother as a custodial parent but did not rule out the
possibility of returning custody of J.H. to her father.  Because the mother
resides in New York, SRS requested, in April of 1989, that the New York
Department of Social Services perform a home study pursuant to the
Interstate Compact on the Placement of Children, 33 V.S.A. {{ 5901-5927
(formerly 33 V.S.A. {{ 3151-3207), to determine the feasibility of placing
J.H. there.
     In July 1989, the court held an eighteen-month review hearing as
required under 33 V.S.A. { 5531.  The home study had not yet been completed.
At the hearing, SRS sought to retain custody of J.H., while it determined
the appropriateness of placing her with either her father or her mother.
J.H. and her father also argued that custody should remain with SRS.  J.H.'s
mother argued that she should be awarded custody of J.H. because Vermont law
favors placement with a child's parent over placement in foster homes and
she was able and willing to take custody of her daughter.  The court awarded
custody to the mother, and this appeal followed.
     The hearing in question was an eighteen-month review hearing "for the
purpose of considering the review of the order of disposition."  33 V.S.A.
{ 5531(c).  At the hearing the court was required to determine whether

          (1) the child or custody thereof shall be returned to his
     [or her] parents or other family members;
          (2) the child shall be continued in the custody of the
     commissioner for a specified period;
          (3) the child, because of exceptional circumstances, shall
     remain in the custody of the commissioner on a long term basis as
     a permanent plan or with a goal of independent living;
          (4) the child should be considered for adoption or legal
     guardianship.

33 V.S.A. { 5531(d).  In making the determination the court was required to
consider the best interests of the child in accordance with the following:

          (1) The interaction and interrelationship of the child with
     his [or her] natural parents, his [or her] foster parents if any,
     his [or her] siblings, and any other person who may significantly
     affect the child's best interests;
          (2) The child's adjustment to his [or her] home, school, and
     community;
          (3) The likelihood that the natural parent will be able to
     resume his [or her] parental duties within a reasonable period of
     time; and
          (4) Whether the natural parent has played and continues to
     play a constructive role, including personal contact and
     demonstrated love and affection, in the child's welfare.

33 V.S.A. { 5540 (formerly 33 V.S.A. { 667).
     This scheme does not clarify which party bears the burden of proof at
eighteen-month review hearings, and we have not had the opportunity to
address the question squarely.  33 V.S.A. { 5531(a) states that disposition
orders "shall be for an indeterminate period" but shall be reviewed every
one and one-half years.  It does not address the allocation of the burden of
proof to the parties at review hearings.  33 V.S.A. { 5532 addresses
modification of orders.  It provides that before a disposition order can be
modified, it must be shown "that changed circumstances so require in the
best interests of the child." { 5532(a).  Although { 5532 has been applied
only when parties seek modification of orders during the interim period
between reviews of the disposition order, the two provisions can and should
be read together as setting forth a scheme whereby, pursuant to { 5531,
disposition orders are reviewed periodically but, pursuant to { 5532, the
orders will be modified only if the proponent of modification can show that
it is warranted by changed circumstances.  This approach ensures that a
child is not subjected to continuous custody shifts and allows long-term
plans to be made for him or her. (FN1)
     The court in this case properly considered the options laid out in 33
V.S.A. { 5531 (FN2) and made findings regarding each of the factors laid out in
33 V.S.A. { 5540 to determine the child's best interests. (FN3) It erred,
however, in allocating to SRS the burden of demonstrating by "'convincing
proof and findings that the parents are unfit and demonstrably incapable of
providing an appropriate home, and that separation is necessary for the
child's welfare or in the interest of public safety'" (quoting In Re M.B.,
147 Vt. 41, 45, 509 A.2d 1014, 1017 (1986)).
     The court concluded that SRS should have the burden of proving the
parents unfit because { 5531(c) states that a hearing under that provision
"shall be held in all respects as a hearing on a petition under this
chapter."  The court reasoned that this language allocates the burden of
proof to SRS because it bears the burden of proof at a merits hearing on a
petition.  We do not believe, however, that the quoted language in { 5531(c)
refers to substantive findings and burdens.  Rather, the language in {
5531(c) is most sensibly interpreted as referring solely to the manner in
which review hearings should be conducted.  Our interpretation is supported
by the remainder of the sentence in { 5531(c) relied on by the court, which
refers to admissible evidence. (FN4) 
     In allocating the burden of proof, the court also accepted the
argument of J.H.'s mother that because she was not adjudged unfit at the
original disposition hearing, in order to retain custody SRS was required
to show that she was unfit at the review hearing.  This reasoning is flawed.
The parental unfitness test must be met before SRS can initially be awarded
custody of a child.  Where, as here, SRS has custody, a parent must show
changed circumstances before custody can be transferred again.  The mother
was a party to the initial disposition hearing and stipulated to SRS
custody.  She may not now complain that no finding of unfitness was made
regarding her.  See In re R.F., 135 Vt. 275, 277-78, 376 A.2d 38, 41
(1977)(father who failed to appeal a disposition order granting custody to
SRS and who sought modification of the order was not entitled to custody as
a matter of law even though he was not shown to be an unfit parent; rather
he was required to meet the standard for modification).
     On remand the court must examine the alternatives set forth in {
5531(d) and determine which is in the best interest of the child, keeping in
mind that the statute favors placement of children with their parents if
possible.  See 33 V.S.A. { 5501(a)(3).  Before the court may order a
modification of the existing disposition order, however, it must find that
there has been a substantial change in material circumstances warranting
such a modification.  The mother's current willingness to take custody of
J.H. is a factor that the court may consider in determining whether a
substantial change has taken place, but a substantial change entails more
than an asserted change of heart.  The mother must demonstrate that she is
now willing and able to give her daughter the care and attention she
requires. (FN5)
     Remanded for a new hearing to be conducted in conformity with the
principles laid out in this opinion.

                                        FOR THE COURT:



                                        _____________________________
                                        Associate Justice





FN1.      In the case In re A.C., 134 Vt. 284, 357 A.2d 536 (1976), we
implied that the State bears the burden of proof at eighteen-month review
hearings, whereas the moving party bears the burden of proof at hearings on
the modification of a disposition order.  Id. at 286, 357 A.2d  at 537.  Even
in that case, however, we noted that confusion of an eighteen-month review
hearing with a hearing on the modification of an order was unimportant
because "the pertinent statutory provisions applicable to each type of
hearing are essentially the same."  Id. at 285, 357 A.2d  at 537.

FN2.      SRS argues that the court did not consider all the options laid
out in 33 V.S.A. { 5531, alleging that the court dismissed the possibilities
of long-term foster care and adoption merely because the SRS plan for the
child did not include these options.  The court did consider long-term
foster care but concluded that it was "not warranted under the facts
presented at [the] hearing."  The court dismissed the adoption option
summarily, but neither SRS nor any of the parties argued that adoption was
proper at the time of the hearing.  The court was not required to engage in
a long discussion of an option that was clearly inappropriate.

FN3.      SRS expressed dissatisfaction with some of the court's findings
that amounted to a conclusion that it had insufficient evidence to evaluate
the factor.  We note that the parties, not the court, had the responsibility
of presenting relevant evidence.  Nonetheless, we are disturbed by the
limited evidence presented at the hearing.  The paucity of evidence made it
impossible for the court to adequately evaluate several of the factors laid
out in { 5540 and thus to determine the best interests of the child.  "These
cases are far too important to be disposed of in a hasty and incomplete
fashion."  In re M.C.P., ___ Vt. ___, ___, 571 A.2d 627, 638 (1989).
Although the court does not have a responsibility to develop evidence, it
"has a strong interest in protecting the best interests of the child under
its jurisdiction," id. at __, 571 A.2d  at 640, and there are steps that it
can take to safeguard those interests when faced with a deficient record.
Under 33 V.S.A. { 5525, a guardian ad litem can be appointed.  The guardian
would be responsible for ensuring that the relevant information is
presented to the court to allow it to make an adequate determination of the
best interests of child.  The court can continue the hearing "for a
reasonable period to receive reports and other information bearing on the
disposition or need for treatment . . . ."  33 V.S.A. { 5527(e).  Thus, a
newly appointed guardian ad litem can be given time to investigate the case.

FN4.      Section 5531(c) states in relevant part "[the] hearing shall be
held in all respects as a hearing on a petition under this chapter, except
that in such a hearing, all evidence helpful in determining the questions
presented, including oral and written reports, may be admitted and relied
upon to the extent of its probative value . . . ."

FN5.      Because we are remanding for a new hearing, we do not address the
additional claims of SRS.