In re C.M.

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. 90-048


In re C.M., Juvenile                         Supreme Court

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

                                             Special December Term, 1990


Edward J. Cashman, J.

Howard E. VanBenthuysen, Franklin County State's Attorney, and Jo-Ann Gross,
  Deputy State's Attorney, St. Albans, for plaintiff-appellee

Daniel Albert, Public Defender, St. Albans, for defendant-appellee

Michael Rose, St. Albans, for defendant-appellant father

Paul R. Clemente and Christopher Jeffrey, Montpelier, for defendant-
  appellant mother


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


     GIBSON, J.   C.M.'s mother and father each appeal from a juvenile
court order that their child was in need of care and supervision (CHINS),
within the meaning of 33 V.S.A. { 632(a)(12).  We affirm.
     On May 11, 1989, the State filed a petition on behalf of the Department
of Social and Rehabilitation Services (SRS), alleging that appellants'
daughter, C.M., was a victim of sexual and physical abuse by her father and
a victim of neglect by her mother.  At a merits hearing conducted on July 6,
1989, C.M., her mother, and an SRS worker testified.  At the close of the
testimony the court made a finding of CHINS based on evidence that C.M.'s
father had sexually abused her.  The court ordered custody of C.M. to be
continued in SRS and requested preparation of a disposition report.  After
the filing of the disposition report, the court ordered a further hearing,
and following that hearing, on January 22, 1990, the court issued
additional findings and an order transferring custody and guardianship of
C.M. to the commissioner of SRS.  The present appeals followed.
     C.M.'s mother argues that the trial court's findings with respect to
her are clearly erroneous, because they are unsupported by the evidence.
The court's critical findings as to the mother were:
            1.  The mother[,] aware of the danger of the child
          being injured by the father[,] continued to permit him
          to care for the child by himself from time to time.

            2.  The mother has not and can not protect the child
          in a family setting with her husband despite her aware-
          ness of his dangerous physical actions towards the
          child.

            3.  The mother claims disbelief of the child's testi-
          mony regarding the sexual abuse of the child by the
          father and does not intend to take any action to protect
          the child from the father.

            . . . .

            5.  The child suffers from a chronic hyperactivity
          problem.  Her mother, over the last year, has failed and
          refused to assist her to monitor a conservative drug
          regimen prescribed for the malady.

            . . . .

            7.  Failure to properly administer the drug doses has
          adversely affected the child's health and schooling.

     As to findings 1 and 2, the social worker assigned to the family
testified at the October 20, 1989 hearing that as "a continuing theme in the
work with the family," she had warned the mother that C.M. and the father
should not be left alone.  Thereafter, the mother told the social worker
that she left C.M. alone with her father after school and that "between
school and [the mother's] coming home, there were often times [C.M.] and
[her father] were together."  The same witness testified that the mother had
admitted that C.M. was also left alone with her father "all during school
vacations."  In addition, the mother herself testified that on at least one
occasion C.M. was left alone with her father and that on another occasion
C.M. and another child were alone with him.
     As to findings 5 and 7, the nurse at C.M.'s school testified that on a
day when C.M. appeared to be disoriented and a question was raised about the
child's medication levels, the mother told her that C.M. had been respon-
sible for her own medication since she was four years old.  That testimony,
viewed in a light most favorable to the State, supports finding 5, but does
not support finding 7, because there was no evidence that C.M.'s general
health problems were linked to her medication regimen or that whatever
problems C.M. might be having at school were attributable to the mother's
failure to supervise C.M.'s medication.  Nor does the evidence support that
part of finding 3 concerning the mother's disbelief of the child's testimony
regarding the father's sexual abuse.
     The mother argues that these findings clearly were based on the
disposition report, not in-court testimony, and that the disposition report
contained inadmissible hearsay.  She is correct that hearsay allegations in
the disposition report cannot serve as the basis for determining parental
unfitness.  In re Y.B., 143 Vt. 344, 347-48, 466 A.2d 1167, 1169 (1983).
Consequently, the question is whether the findings that were supported by
the evidence were sufficient to support the court's decision.  We hold that
they were.
     The most serious allegations supporting the CHINS petition were those
concerning the multiple abuses of C.M. by her father and the failure of the
mother to protect her daughter.  The facts of the father's abuse and the
mother's refusal or inability to keep her daughter from her husband's sole
company are clear on the record and are sufficient, standing alone, to
support the CHINS finding as a matter of law.  See Care and Protection of
Three Minors, 392 Mass. 704, 711, 467 N.E.2d 851, 857 (1984) (ruling that
children were in need of care and protection would stand, despite certain
erroneous findings, where other evidence supported ultimate finding of
unfitness and error did not appear to have unfairly influenced the judge's
conclusions);  In re Slis, 144 Mich. App. 678, 688-89, 375 N.W.2d 788, 793-
94 (1985) (erroneous finding of mother's mental deficiency did not require
reversal because overwhelming evidence of neglect supported termination of
parental rights).
     The father argues that the court erred in allowing C.M. to testify
while seated at counsel's table, between her attorney and her social worker.
His theory is that the "extremely informal manner in which C.M.'s testimony
was taken substantially impaired the truth-seeking function of the merits
hearing and therefore constituted an abuse of discretion by the juvenile
judge."  This was not a criminal proceeding, but even in criminal cases some
accommodation may be made to protect juvenile witnesses from the stress and
fright that may surround their testimony in court.  In State v. Dunbar, 152
Vt. 399, 404, 566 A.2d 970, 973 (1989), we held that allowing a child wit-
ness to sit between two "support persons," even though the defendant and
the witness had a "somewhat obstructed view of one another," did not violate
the defendant's Sixth Amendment right to confront his accuser.
     In the present case there was no jury, and the potential for prejudice
from accommodating the witness was greatly reduced.  In any event, the
father's counsel did not object when the court allowed the child to remain
at the counsel table, but only expressed concern that C.M.'s attorney or
social worker might improperly coach her during her testimony.  When C.M.'s
testimony began, the father's counsel complained that C.M. was looking at
her attorney's notes, but the child's attorney denied that his client was
doing so, and the court concluded that the contacts between child and
attorney were not improper.  A review of the record reveals no prejudice to
the father in the seating arrangements during C.M.'s testimony.  The court
did not abuse its discretion in permitting this arrangement.
     The father's argument that the examination of C.M. consisted of
improperly leading questions is without merit.  Under V.R.E. 611(c) leading
questions are permitted on direct examination of a witness where "necessary
to develop his testimony."  In this case, the court sustained the objections
of the father's attorney to certain leading questions, and the direct exam-
ination ended at that time.  Reading the record as a whole, the questions to
C.M. were appropriate for a child testifying about sensitive or embarrassing
matters.  See Commonwealth v. Baran, 21 Mass. App. 989, 991, 490 N.E.2d 479, 481, review denied, 397 Mass. 1003, 494 N.E.2d 388 (1986) (within judge's
discretion to permit leading question of child witness "whose attention can
be called to the matter required only by [such] question");  People v.
Tyrrell, 101 A.D.2d 946, 946, 475 N.Y.S.2d 937, 938-39 (1984) (latitude
properly given to pose leading questions to develop testimony of child
victim of sex crime who is unwilling to testify freely).
     Affirmed.





                                   FOR THE COURT:


                                   ___________________________________
                                   Associate Justice