In re A.O.

IN_RE_AO.92-301; 161 Vt. 302; 640 A.2d 537

[Filed 28-Jan-1994]

 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. 92-301


 In re A.O., Juvenile                         Supreme Court

                                              On Appeal from
                                              Franklin Family Court

                                              October Term, 1993



 Edward J. Cashman, J.

 E. M. Allen, Defender General, and Henry Hinton, Appellate Defender,
    Montpelier, for appellant father

 James A. Hughes, Franklin County Deputy State's Attorney, St. Albans, for
    appellee State of Vermont

 Charles S. Martin of Martin & Paolini, Barre, for appellee juvenile



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



      GIBSON, J.   A.O.'s father, J.O., appeals from a family court order
 adjudging A.O. to be a child in need of care and supervision (CHINS) and
 placing her in the custody of the Department of Social and Rehabilitation
 Services (SRS).  J.O. argues that (1) the evidence before the court was
 insufficient to establish that the child was CHINS at the time SRS filed its
 petition, (2) his due process right to notice was violated by the court's
 finding that A.O. was CHINS on a theory not included in the petition, (3)
 the court erred in stating that it lacked power to set a fixed limit to the
 time A.O. would remain in SRS custody, and (4) the court made inadequate
 findings in support of its disposition order.  We affirm.
                                     I.
      A.O. was born on December 25, 1991.  On February 7, 1992, her mother
 took her to the doctor because the child was spitting up and had a per-
 sistent cold.  The doctor found that A.O. had lost weight and decided to
 hospitalize her for a "failure to thrive."  The doctor was also concerned
 about a premature closing of A.O.'s fontanel, or "soft spot" in the skull,
 but this did not turn out to be a serious problem.  On February 10, 1992,
 the State filed a CHINS petition with an affidavit by a social worker
 stating the following:  A.O. was hospitalized for failure to thrive; A.O.'s
 mother, S.P., was being evicted from her apartment and had not received food
 stamps for February; a violent incident between the parents in January had
 caused minor injury to the child and brought on a seizure in the mother;
 J.O. was incarcerated as a result of the incident; and S.P. was only vaguely
 aware of how to care for the infant.  The family court issued a detention
 order transferring custody of A.O. to SRS.  Following a merits hearing, the
 court concluded that A.O. was in need of care and supervision, basing its
 conclusion on evidence of the violent incident in January 1992 and on the
 mother's inability to care properly for A.O., which had led to the child's
 weight loss and hospitalization.
                                     II.
      J.O. contends that the evidence presented at the merits hearing was
 insufficient to adjudge A.O. a CHINS.  See In re M.B., 158 Vt. 63, 70, 605 A.2d 515, 519 (1992) (State must establish that child is CHINS by preponder-
 ance of evidence).  If the court's findings in a CHINS case are supported by
 credible evidence, we will leave them undisturbed.  Id.
      J.O. argues that A.O.'s mother took the child to the hospital, followed
 the doctor's advice, and showed a willingness to accept services and
 training to improve her ability to care for A.O.  Despite these positive
 indications, however, two nurses and a doctor testified that the mother
 lacked necessary skills for feeding, clothing and caring for A.O.  There was
 evidence that physical abuse of the mother by J.O. when he was drinking
 adversely affected the mother's ability to care for the child.  The court
 found that A.O.'s failure to thrive was serious and nurturing by her mother
 inadequate.  The court's observations that the mother was being responsible
 and doing all within her power to cooperate and care for the child do not
 undercut the court's CHINS determination, as J.O. asserts, for the court may
 take note of contradictory evidence.  See Highgate Assocs. v. Merryfield,
 157 Vt. 313, 315, 597 A.2d. 1280, 1281 (1991) ("A finding will not be
 disturbed merely because it is contradicted by substantial evidence; rather,
 an appellant must show there is no credible evidence to support the
 finding.").  Credible evidence supported the court's determination that A.O.
 was a CHINS.
      J.O. also argues that evidence of the domestic violence on January 22,
 1992 was irrelevant to a determination that A.O. was CHINS as of February
 10, the date of the petition.  On January 22, S.P. called the police and
 told them J.O. had choked her and locked himself in the family's apartment
 with A.O.  The police arrived and asked J.O. to open the door.  When he
 refused to do so and threatened to harm the child if they forced the door
 open, the police told him to stand back and knocked the door down.  There
 was a struggle for the baby and the police finally took her from J.O.  When
 the father objected to the police officer's testimony on grounds of rele-
 vance, the court ruled that the testimony would be allowed.  At the end of
 the merits hearing, the court found that "the episode of violence was
 threatening to the child's life" and that J.O.'s alcohol abuse and physical
 abuse had a negative impact on both mother and child.  The evidence was
 clearly relevant to whether A.O. was CHINS and was properly admitted by the
 court.
                                    III.
      J.O. next contends that his due process right to notice was violated
 because the court found A.O. a CHINS as to him under 33 V.S.A. {
 5502(a)(12)(A) (abuse or abandonment), whereas the affidavit accompanying
 the CHINS petition alleged only that the child was CHINS under {
 5502(a)(12)(B) (lack of proper parental care).
      The due process rights of the parents in a juvenile proceeding "must be
 stringently observed."  In re R.M., 150 Vt. 59, 70, 549 A.2d 1050, 1057
 (1988).  Sufficient notice is provided to parents where the affidavits in
 support of the petition "plainly recite the substance of the allegations."
 Id.
      In support of his argument, J.O. cites In re B.B., 155 Vt. 365, 584 A.2d 1126 (1990), in which the State alleged that a twelve-year-old girl was
 CHINS because she had run away and was therefore "without or beyond the
 control of [her] parents."  33 V.S.A. { 5502(a)(12)(C).  We reversed the
 juvenile court's determination that the girl was a CHINS under subsection
 (12)(C) because the evidence did not support the finding that she had run
 away, and the remaining findings did not support the court's conclusion.  In
 re B.B., 155 Vt. at 369, 584 A.2d  at 1128.  On appeal, the girl claimed that
 an alternative ground for upholding the juvenile court was that she had been
 abused and was therefore CHINS under subsection (12)(A).  We held, however,
 that this ground could not be sustained because it had not been alleged, and
 we were "unwilling to reconstruct the State's case on a theory not relied
 upon in the petition and not accepted by the juvenile court."  Id. at 370,
 584 A.2d  at 1128-29.  We were also concerned with the parents' right to
 adequate notice of a "new theory."  Id. at 370, 584 A.2d  at 1129.
      In re B.B. is inapposite to the situation here.  In this case, it is
 clear that J.O. was not seeking custody of the child himself at the merits
 hearing.  He could not claim custody because he was in jail at the time.
 Further, his position, stated on several occasions by his attorney, was that
 he strongly felt the child should be returned to the custody of the mother.
 The family court found that that would not be in the child's best interests
 because the mother was unable to care properly for the child.  There was
 ample evidence to justify the court's determination that A.O. was a child
 without proper parental care under subsection (12)(B) as to the mother, and
 there was no evidence that the father was ready, willing, or able to
 undertake custody of the child himself.  Any error in the court's ruling
 under subsection (12)(A) at the merits hearing was harmless.
                                     IV.
      At the disposition hearing in May 1992, J.O. requested the court to
 order SRS custody for a definite term of six months, with protective
 services and parental custody thereafter unless the order was modified in
 the meantime.  The court responded that it was unsure whether it had the
 authority to make such an order.  J.O. contends that 33 V.S.A. { 5531(a)
 gives the court this authority, and the failure of the court to act on his
 request was an abuse of discretion.  See State v. Lertola, 140 Vt. 623, 624,
 442 A.2d 1296, 1297 (1982) (failure to exercise discretion in circumstances
 that call for it is an abuse of discretion).  Section 5531(a) provides that
 any transfer of custody to SRS will be for an indefinite period of time
 "[u]nless otherwise specified" in the order.  The State argues that any
 error was harmless because the parents have the right to request a
 dispositional review every six months.  See 33 V.S.A. { 5531(a) (at request
 of party or on court's own motion, judicial review shall be held every six
 months for children up to age of three).
      We need not examine these arguments because the issue is moot.  An
 eighteen-month disposition hearing was already upon the parties at the time
 of oral argument before this Court, and any holding regarding the court's
 original assessment of its powers to fix a six-month term to the transfer of
 legal custody would be meaningless in the context of this case.  See In re
 Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991) (issue moot when
 reviewing court can no longer grant effective relief).
                                     V.
      Finally, J.O. contends that there were inadequate findings to support
 the court's disposition order giving legal custody of A.O. to SRS.  Both
 merits and disposition orders must be accompanied by findings of fact
 sufficient to support the court's conclusions, and to provide a record for
 this Court to review.  In re M.C.P., 153 Vt. 275, 291, 571 A.2d 627, 636
 (1989).  Specifically with regard to disposition orders removing custody
 from the parents, "there must be convincing proof and findings that the
 parents are unfit and demonstrably incapable of providing an appropriate
 home," and that it is in the child's best interest to be separated from the
 parents.  In re M.B., 147 Vt. 41, 45, 509 A.2d 1014, 1017 (1986).
      Following disposition hearings in March and May of 1992, the court
 issued a form disposition order granting SRS legal custody of A.O.  There
 were no written findings accompanying this order.  Despite this shortcoming,
 we conclude that the order in this case is supported by the agreements and
 understandings of the parties.
      At the March hearing, the parties went over the SRS disposition report
 regarding visitations between the parents and A.O., support and training
 services for the parents, and a goal of reunification.  At the end of that
 hearing, J.O.'s attorney stated that the parties had agreed to continue A.O.
 in SRS custody and with the case plan for thirty days.  Thereafter, at the
 May hearing, the court noted continuing strong concerns from the child's
 guardian ad litem and from SRS "as to whether [S.P.] would be able to
 develop the skills necessary to care for this child."  The State requested
 the court to accept the SRS disposition report and plan.  A.O.'s attorney
 stated that the report and plan were "satisfactory and in the best interest
 of the child," and the guardian agreed.  The father's attorney expressly
 referred to the court's findings and stated that "[w]e have no problem with
 the plan of SRS custody with the transition plan."  Later, the attorney
 further stipulated the father's assent to the SRS plan:  "I think that we
 need to go over some disagreements and challenges as to the factual basis,
 but I think in general we can go with SRS custody under the plan for the
 immediate future . . . ."
      The court also referred to its earlier findings that were on the
 record:  "I think the concerns that I would have . . . would be whether or
 not there is a clear understanding as to what the facts were that brought
 this child into State custody . . . .  I put those all on the record at the
 time of the [merits] hearing.  And I don't think I am going to go beyond
 that."  The above stipulations are sufficient for us to conclude there was
 no error in the failure to issue written findings with the disposition
 order.  Cf. In re P.F., 133 Vt. 64, 66, 329 A.2d 632, 634 (1974) (where
 parties stipulated to finding of neglect and "conclusion of law is based
 thereon in conformity with statutory purpose and procedure, the necessity
 for multiple findings, to bring out the circumstances upon which a finding
 is based, is obviated").
      Affirmed.



                                    FOR THE COURT:



                                    _________________________________
                                    Associate Justice