In re C.A.

IN_RE_CA.90-476; 160 Vt. 503; 630 A.2d 1292


 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 90-476


 In re C.A., J.A., & A.M.                     Supreme Court

                                              On Appeal from
                                              Chittenden Family Court

                                              February Term, 1993


 George T. Costes, J.

 Charles Martin of Martin & Paolini, Barre, for defendant-appellant



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


      ALLEN, C.J.   The mother of male minor C.A. and female minors J.A.,
 and A.M. appeals from an order of the family court transferring custody and
 guardianship of one child to the child's father and of two others to their
 grandmother.  We reverse and remand.
      The present proceedings were initiated after the mother married E.L. in
 1989.  E.L. was a convicted sex offender whose conditions of probation
 required that he "not initiate conduct with any minor female."  The mother
 was receiving public assistance at the time of the marriage and did not
 advise the Department of Social Welfare (DSW) that she had married.  DSW
 terminated her benefits, and, according to the mother, she was then
 "required to live in her vehicle and various motels."  Thereafter, the
 Department of Social and Rehabilitative Services (SRS) filed the present
                             
                               

 petition, based solely on the potential danger to the children from E.L.
 The family court found that the children were in need of care and
 supervision, concluding that:
              1. [E.L.] is a threat to this family.

              2. [The mother] still believes her husband is
         innocent of L & L.

              3. [E.L.] believes he doesn't have a problem and
         believes he needs no further treatment.

              4. [The mother] in this environment at this time is
         not in a position to protect her three very young
         children.

              5. [E.L.] at this time is extremely likely to re-
         offend, thus creating a danger to the female children.

      At the disposition hearing, the court transferred custody of A.M. to
 the child's father and of C.A. and J.A. to their maternal grandmother.  The
 present appeal followed.
      The mother contends that the trial court's disposition order was not
 supported by the findings and evidence, and that the court improperly
 transferred custody of A.M. to her natural father and C.A. and J.A. to
 their grandparents, because there was no finding of parental unfitness.
 Both points have merit.
      The findings in the disposition order reveal numerous shortcomings of
 the mother, including leaving her first infant unsupervised, failing to
 bond with and refusing to feed her second child, failing to maintain an
 appropriate home, and failing to acknowledge the dangers her new husband
 might pose to her children.  The court's conclusions, however, rely
 exclusively on the danger posed by the husband and omit any discussion of
 the mother's problems.  Moreover, the court does not state that the mother
 is unfit, and absent such a finding, it may not remove a child from the
                
                                

 parent's custody at the dispositional stage of a juvenile proceeding.  In re
 M.B., 147 Vt. 41, 45, 509 A.2d 1014, 1017 (1986).
      Although this Court requires a finding of unfitness, we have held that
 the failure to use the word "unfit" does not necessarily preclude a finding
 of unfitness in fact, where the balance of the court's decision leaves no
 room for doubt.  In In re E.B., __ Vt. __, __, 603 A.2d 373 (1992), the
 parents argued that the court improperly terminated their rights without
 first making a specific finding, supported by clear and convincing evidence,
 that the parents were unfit and incapable of caring for their children.  The
 trial court in that case did not use the word "unfit," stating simply that
 "[b]ecause of the parents' complete failure to maintain regular contact with
 the boys and their highly unstable and unpredictable lifestyle, it is not
 likely that they will be able to resume their parental duties toward these
 children within a reasonable period of time, if ever."  Id. at __, 603 A.2d 
 at 377.  We held that such language sufficed, even without the "magic
 words."
      In the present case, the court not only fails to state that the mother
 is unfit, but its conclusions do not allow the inference of unfitness.
 First, the court's findings concerning the husband, E.L., are sparse.  The
 court recites that E.L. was convicted for a sex offense, that he was
 subsequently charged with violations of his sex offender treatment program
 and with violating probation restrictions by contacting children, and that
 "[t]here is conflicting testimony about when [E.L.] resides with [the
 mother] and the children."  The court noted that a hearing was to be set in
 the future.  On that factual predicate, the court concludes that "[E.L.] is
 likely, without acknowledging his problem and successful treatment, to re-

                                
 offend.  [Having t]he children in the home with him will place them at
 extreme risk of sexual abuse in the future."  The findings do not adequately
 support this conclusion.
      Second, even if the court had made findings adequate to support its
 conclusions about the danger E.L. poses, it did not state that other
 options to protect the children were unavailable -- in short, that
 relinquishment of custody was necessarily dictated by the mother's marriage
 to a known sex offender.  There is no question that the consistent failure
 to protect children is an indicator of parental unfitness.  See In re C.M.,
 157 Vt. 100, 103, 595 A.2d 293, 294-95 (1991) (failure of mother to protect
 daughter from abuse by father supports CHINS finding as a matter of law).
 But making findings as to when failure to protect becomes unfitness is a
 vital function of the trial court and one that it did not perform in this
 case.  Where the trial court does not make an explicit finding of
 unfitness, and the record does not remove all doubt that the court's
 findings effectively amount to a determination of unfitness, the order
 cannot stand.  In re M.B., 147 Vt. at 45, 509 A.2d  at 1017; see also In re
 R.M., 150 Vt. 59, 71-72, 549 A.2d 1050, 1058 (1988) (no dispositional
 findings on the record).
      Although the court's findings are inadequate to support a conclusion of
 parental unfitness, we do not agree with the mother that the remedy for the
 court's inadequate findings is necessarily a different disposition.  The
 findings that the court did make about the mother's conduct and habits,
 together with what we know about E.L., suggest the usefulness of an
 additional review proceeding by the family court prior to determining
 custody.  Such additional proceeding will be particularly useful, given the

                                 

 unusually long period that has elapsed since the disposition order was
 entered and the fact that the protective supervision of SRS apparently
 terminated in May 1991.(FN1) It also appears from the record that no eighteen-
 month review has ever been conducted, despite the requirement for such
 review in 33 V.S.A. { 5531.  Had such a review been conducted, it might
 have afforded all parties an opportunity to be heard on the question of the
 mother's potential readiness to resume custody, and, more broadly, would
 have allowed the court to examine the issues mandated for periodic review
 under { 5531.  We therefore remand this matter to the trial court for
 further proceedings in accordance with this opinion and for determination of
 the issues enumerated in 33 V.S.A. { 5531 (d).
      In the interest of judicial economy, we address the mother's next
 argument, which will be germane if the court on remand finds her unfit and
 issues an order maintaining the present custodial status with the father of
 A.M. and the grandmother of C.A. and J.A.  See In re Taft Corners
 Associates, Inc., No. 92-215 (Vt. Apr. 30, 1993) (in interest of judicial
 economy, Court may reach issues likely to reoccur on remand).  The mother
 argues that the court was barred from transferring custody of the children
 from her to another parent or to a grandparent because the governing statute
 does not allow for transfer of custody to another relative.  See 33 V.S.A. {
 5528(a).  As to A.M., whose custody was transferred to her natural father,
 it might first appear, upon finding the child a CHINS, the court could have
 simply "[p]ermit[ted] the child to remain with his parents . . . ," 33

                                 

 V.S.A. { 5528(a)(1), i.e., the father.  The purpose of { 5528(a)(1),
 however, is to maintain the status quo.  Because the father was not the
 custodian before the CHINS proceeding, the father did not qualify under the
 statute, even though he was a "parent."
      The court did have authority under 33 V.S.A. { 5528(a)(3)(B), upon
 finding a child to be a CHINS, to:
         (3) Transfer legal custody, or guardianship over the
         person . . . to any of the following:

         . . . .

              (B) Any individual operating a foster or group home
         licensed as required by law to receive such child, or
         any other individual found by the court to be qualified
         to receive and care for the child . . . . (Emphasis
         supplied.)

 The statute does not exclude parents or grandparents from the class of
 individuals "found by the court to be qualified to receive and care for the
 child," and the father and grandmother were not necessarily ineligible
 custodians.
      The court, however, could act under this provision only after finding
 the "other individual" to be qualified under the statute.  Such findings
 are essential.  It is especially vital for a court whose order will
 drastically affect family rights and responsibilities to speak clearly, to
 explain its reasoning, and, more fundamentally, to justify its decision.
      The court did not make adequate findings.  The court's findings about
 the father of A.M. and his parents, who were central to the placement, were
 that the father "resides with his parents in a neat and tidy home and child
 services, if needed, would be provided to assist [the father] and his
 parents to provide a good, nurturing and happy home."

                                

      As to J.A. and C.A., the court states that "[t]he natural grandmother .
 . . has volunteered to provide a secure protective and nurturing environment
 for her grandchildren until such time as their father may be prepared to
 provide a home for them.  [The grandmother's home] has been examined and
 [is] appropriate for the placement."  The court's statement that the home
 "has been examined" falls short of the statute's requirement that the court,
 in its own words, find the person taking custody to be qualified.
      Again, we do not hold that the custodial placements were improper as a
 matter of law, but simply that the court did not make findings and con-
 clusions adequate to assure this Court that the new custodians will meet
 the statutory standards.  If, on remand, the court concludes that the mother
 is unfit, any order as to custody shall conform to the requirements of this
 opinion.
      Reversed and remanded for further proceedings in accordance with this
 opinion.

                                         FOR THE COURT:




                                         Chief Justice


FN1.     The Chittenden family court so determined in a May 27, 1993 order,
 following a limited remand ordered by this Court for the purpose of
 clarifying the intent of the disposition order.