E.J.R. v. Young

EJR_V_YOUNG.93-104; 162 Vt. 219; 646 A.2d 1284

[Opinion Filed May 20, 1994]

[Motion for Reargument Denied June 17, 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.


                            Nos. 93-061 & 93-104


 E.J.R.                                       Supreme Court

                                              On Appeal from
      v.                                      Chittenden Superior Court

 William B. Young, Commissioner, SRS          March Term, 1993



 In re J.R.                                   On Appeal from
                                              Franklin Family Court

                                              March Term, 1993

 David A. Jenkins, J. (CHINS proceeding)

 Matthew I. Katz, J. (habeas corpus)

 Michael Rose, St. Albans, for appellant mother

 Charles S. Martin of Martin & Paolini, Barre, for appellant father

 Howard W. Stalnaker, Franklin County Deputy State's Attorney, St. Albans,
   Jeffrey L. Amestoy, Attorney General, Montpelier, and Alexandra N. Thayer,
   Assistant Attorney General, Waterbury, for appellees


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


      ALLEN, C.J.   E.J.R., the father, and C.R., the mother, appeal orders
 of the superior and family courts concerning custody of their daughter, J.R.
 First, they challenge the family court orders finding that J.R. is a child
 in need of care or supervision (CHINS) and granting custody to the
 Commissioner of Social and Rehabilitation Services (SRS).  Second, the
 parents contend that the superior court erroneously denied their habeas

 

 corpus petition seeking release of J.R. to their custody.  We affirm the
 habeas corpus and CHINS orders, and remand for further findings on the issue
 of disposition.
      With the exception of two findings, the parents concede the extensive
 recitation of facts contained in the affidavit of an SRS social worker,
 which details a violent and troubled family history.  E.J.R. is the father
 of five children by two women; C.R. is mother to three of them, including
 J.R.  Hearings to terminate parental rights as to the first four children
 were concluded on October 23, 1992.  J.R. was born on November 17, 1992, and
 on the same day the State petitioned to have her adjudged a CHINS.  Parental
 rights were thereafter terminated as to the first four children.
      An emergency detention hearing was held after the filing of the CHINS
 petition, and custody of J.R. was transferred to SRS.  At the detention
 hearing, counsel for the father moved to dismiss, based on the fact that the
 allegations of child abuse contained in the petition related to other
 children of the parties, and not to J.R.  The same argument was raised at
 virtually every stage of the proceedings thereafter, and was rejected by the
 court each time.
      The record shows that since 1987, J.R.'s siblings suffered extensive
 physical and emotional abuse, including a fractured skull, a chipped tooth,
 numerous unexplained bruises, weight loss, and several hospitalizations.  In
 February 1992, the father threw a dinner plate at his two-year-old child in
 a fit of rage, resulting in a deep cut five to eight centimeters long on the
 child's forehead and nose.  The father also abused both mothers physically
 and emotionally.  C.R. contributed to the abuse and neglect of the
 children, and failed to protect them from the father.  From 1987 to the

 

 filing of the petition to terminate parental rights, the family was offered
 extensive services, but participation and cooperation with the service
 providers was sporadic, inconsistent, and almost always terminated by the
 parents.  Neither E.J.R. nor C.R. demonstrated an ability to parent or care
 for the children adequately.  According to a family evaluation performed in
 April 1992, both parents lacked insight into their problems, and neither
 demonstrated any motivation to participate in treatment.
      In December 1992, while awaiting the CHINS merits hearing in family
 court, the father petitioned for a writ of habeas corpus in superior court.
 The mother joined in the petition as an intervenor.  The petition alleged
 that the commissioner of SRS had no authority to exercise custody over J.R.,
 because there was no evidence that the child had been neglected or abused.
 The superior court disagreed and dismissed the petition.  The court found
 that the petition failed to meet the standards for invoking habeas relief in
 a child custody situation, that the parents had failed to allege that
 returning J.R. to them would be in the child's best interest, and that the
 family court had properly exercised exclusive jurisdiction over the CHINS
 case.  See 33 V.S.A. { 5503(a).
      On December 18, 1992, a CHINS merits hearing was held in the family
 court.  The parties stipulated to all but two of the allegations set out in
 the SRS affidavit.  Though executed in the context of the merits hearing,
 the stipulation did not limit use of the facts to the merits portion of the
 CHINS proceedings.  Based on this stipulation and evidence heard at the
 hearing, the court concluded that J.R. was
         without proper parental care necessary for her well-
         being because the parents do not have the necessary
         desire, skills, attitude, traits and other qualities to
         adequately care for and protect the child.

 

              The facts are overwhelming that the parents do not
         now have the ability to care for, supervise and provide
         protection for this child based upon the stipulated
         facts.

      At the subsequent disposition hearing, the SRS disposition report was
 entered into evidence in its entirety, and the parents offered no evidence.
 The court issued an order granting custody of J.R. to the SRS commissioner
 and approving the SRS disposition plan.  The parties did not propose or
 request findings, and the court did not issue any despite its stated
 intention to do so.  The parents appealed the CHINS merits and disposition
 orders, and the dismissal of the habeas petition; the appeals were
 consolidated.
                                     I.
      The CHINS petition was filed the day J.R. was born, and she was removed
 from her parents almost immediately.  The parents contend that the absence
 of allegations or proof that they harmed J.R. herself must prevent the
 family court from declaring the child a CHINS.  First, the parents argue
 that the lack of such proof deprives the court of jurisdiction, but the law
 says otherwise.  Under 33 V.S.A. { 5503(a), the family court has "exclusive
 jurisdiction over all proceedings concerning any child who is or who is
 alleged to be . . . a child in need of care or supervision . . . ."(FN1)
 (Emphasis added.)  The statute clearly empowers the family court to hear the
 CHINS petition, regardless of its merit.  See Howe v. Lisbon Sav. Bank &
 Trust Co., 111 Vt. 201, 207, 14 A.2d 3, 5 (1940) (jurisdiction defined as
 legal power to hear or determine a cause).  Nothing in the record even

 

 remotely suggests a problem or defect in the family court's jurisdiction,
 and therefore the parents' jurisdictional argument fails.
      Essentially, the parents dispute the merits of the petition, which they
 believe cannot succeed absent evidence of actual harm inflicted upon J.R.  A
 CHINS action, however, does not depend on allegations of willful acts by a
 parent.  As we stated in In re Rathburn, 128 Vt. 429, 435, 266 A.2d 423, 426
 (1970), a case involving a mentally ill mother, the central concern in CHINS
 proceedings is the ability of the parents to render appropriate and
 necessary care for the child's well-being.  The record in the present matter
 reflects at least the same degree of likelihood of prospective harm to the
 child as was present in Rathburn.
      Actual and completed harmful acts cannot be, and are not, a
 precondition to a CHINS finding.  As the Colorado Supreme Court said in In
 re D.L.R.:
           [T]he record establishes that the mother's condition
           results in a present inability to care for her child,
           and that such condition will continue indefinitely.  The
           required statutory showing is therefore satisfied.  We
           further note that a neglect or dependency proceeding is
           preventative as well as remedial.  Under the
           circumstances of this case, requiring that a child be
           placed with parents in order to determine whether proper
           care and control will be provided or that harm would be
           done to the child, might prove detrimental to the child.

 638 P.2d 39, 42 (Colo. 1981).  Other states have adopted this approach.
 See, e.g., In re Edward C., 178 Cal. Rptr. 694, 700 (Ct. App. 1981)
 (physical abuse of eight-year-old girl created unacceptable danger for six-
 and nine-year-old brothers because court could reasonably infer that
 sister's removal would result in abuse of boys); In re Phelps, 402 P.2d 593,
 595 (Mont. 1965) (physical mistreatment of eleven-year-old boy warranted
 removal of four-year-old girl from home); In re W.C.O., 370 N.W.2d 151, 153

 

 (Neb. 1985) ("It is not the intent or purpose of the juvenile code to
 require the separate juvenile court to wait until disaster has befallen a
 minor child before the court may acquire jurisdiction."); In re Christina
 Maria C., 453 N.Y.S.2d 33, 34 (App. Div. 1982) (brutal treatment of seven-
 year-old boy warranted finding that one-year-old half-sister was also in
 "imminent danger of . . . excessive corporal punishment"); In re K.D.E., 210 N.W.2d 907, 910 (S.D. 1973) ("[w]here the trial court has determined that
 neglect or abuse exists in regard to one child, it is within its discretion
 to determine the likelihood of abuse of other children in the same family");
 cf. In re D.P., 147 Vt. 26, 31, 510 A.2d 967, 970 (1986) (if one child
 seriously injured through abuse, court not "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").
      In this case, the family court considered the stipulated facts
 contained in an extensive, detailed, and chilling affidavit, and decided
 that no test period within an abusive environment was necessary to
 adjudicate J.R. a child in need of care or supervision.  The allegations
 admitted by the father depict a six-year pattern of violence, abuse and
 neglect.  Despite repeated intervention efforts, the father has not shown
 any signs of developing minimal parenting skills.  The psychological
 assessment indicates that he has longstanding emotional problems, and it is
 extremely unlikely that future intervention efforts will prove successful.
      The mother has long tolerated the violence toward herself and her
 children, and continues to deny the abusive home environment.  She has made
 negligible progress despite years of intervention and services offered to

 

 her.  Like the father, the mother suffers from longstanding emotional
 problems and evidences no insight into her own pathology.  It is most
 unlikely that she would respond to any form of future intervention.
      Parents cite In re J.M., 131 Vt. 604, 313 A.2d 30 (1973), for the
 proposition that a CHINS finding may not be based on a pattern of lack of
 care with respect to a juvenile's siblings absent evidence that the pattern
 also applies to the juvenile.  In J.M., the State presented five neglect
 petitions relating to the same family, and argued that the pattern of
 neglect of the four older children sufficed to make the case as to J.M.  We
 held that evidence of lack of care as to the older children did not
 establish that J.M. had been neglected, because the trial court's findings
 concerning the cleanliness of the children related to the four older
 children while attending school, and there was no evidence that those
 findings applied to J.M.  Id. at 609, 313 A.2d  at 33.  But this does not
 mean that findings as to a particular child cannot ever relate to other
 children.  "Whether 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
 re D.P., 147 Vt. at 30, 510 A.2d  at 970.  The family court may rely on
 evidence of the treatment of a sibling in concluding that a child is a
 CHINS.  In re L.A., 154 Vt. 147, 154, 574 A.2d 782, 786 (1990) (citing In re
 R.M., 150 Vt. 59, 69, 549 A.2d 1050, 1056 (1988)).  L.A. and R.M. dealt with
 situations involving a pattern of abuse and neglect, and a general inability
 of the mother to protect any of her children.  L.A., 154 Vt. at 154, 574 A.2d  at 786; R.M., 150 Vt. at 69, 574 A.2d  at 1056.  By contrast, as noted
 in R.M., the evidence in J.M. related exclusively to J.M's four siblings,
 the overcrowded and untidy home environment, and the inability of the

 

 parents to provide adequately for all the children.  R.M., 150 Vt. at 68,
 549 A.2d  at 1056.
      The present case is like L.A. and R.M. and unlike J.M.  The court found
 that both parents exhibited a pattern of conduct toward children entrusted
 to their care "substantially departing from the norm."  In re M.B., 147 Vt.
 41, 43, 509 A.2d 1014, 1016 (1986).  In sum, there was more than sufficient
 evidence strongly linking the treatment of J.R.'s siblings to her own
 likely future treatment, justifying the order that she is a CHINS.
                                     II.
      The family court never entered written findings as part of its
 disposition order removing J.R. from the parental home.  Removal must be
 based on convincing proof and findings that the parents are unfit and cannot
 provide an appropriate home, and that separation is in the child's best
 interest.  In re M.B,, 147 Vt. at 45, 509 A.2d  at 1017.  In this context,
 "[i]t is crucial that findings indicate to the parties and to this Court, if
 an appeal is taken, what was decided and how the decision was reached."  Id.
 Written findings also clearly indicate how the court selected among the
 several disposition options available for protection of the child's
 "'physical, mental and moral welfare.'"  In re L.S., 147 Vt. 36, 38, 509 A.2d 1017, 1019 (1986) (quoting 33 V.S.A. { 656(a), recodified at 33 V.S.A.
 { 5528(a)).  Our holding in M.B. on the issue of written disposition
 findings goes beyond what the parties choose to raise in requests for
 findings, and goes to the solemn responsibility the justice system owes to
 Vermont citizens when a child is to be removed from the parental home.  We
 cannot agree with the State that the parties' stipulation substituted for
 their consent to the court's disposition order.  The record is clear that

 

 the parents opposed commitment of their child to SRS throughout the
 proceedings.
      The matter must be remanded to the trial court for adequate
 dispositional findings, after which the parties may appeal those findings to
 this Court as to any issues not adjudicated herein.  The order of the trial
 court is not vacated, but shall remain in full force and effect subject
 only to any subsequent appeal.
                                    III.
      The final issue on appeal concerns the dismissal of the parents' habeas
 petition.  "Habeas corpus is not available as a means of collateral attack
 based on any error in a juvenile proceeding. . . .  [T]he procedural defect
 in the juvenile proceeding must be 'jurisdictional' such that any order is
 void."  In re A.S., 152 Vt. 487, 492, 567 A.2d 1139, 1142 (1989), cert.
 denied, 493 U.S. 1087 (1990).  As we indicated in our merits discussion,
 there was never any question of the jurisdiction of the family court.  The
 allegations in the SRS petition were not only sufficient to raise the CHINS
 issue, but if proved, they were overwhelming on the merits.  As there was no
 jurisdictional defect, the habeas corpus petition was properly dismissed.
      The orders of the Chittenden Superior Court dismissing the habeas
 corpus petition and of the Franklin Family Court adjudicating J.R. a CHINS
 are affirmed.  The matter is remanded to the Franklin Family Court for
 findings with respect to its disposition order, in accordance with this
 opinion.
                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice



------------------------------------------------------------------------------
                                Footnotes

FN1.    Section 5503 refers to the "juvenile court," but 4 V.S.A. { 454(8)
 provides that the family court shall have exclusive jurisdiction over "all
 juvenile proceedings filed pursuant to chapter 55 of Title 33."