In re F.P.

IN_RE_FP.94-309; 164 Vt 117; 665 A.2d 597

[Filed 11-Aug-1995]


       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. 94-309


In re F.P., H.P., S.P., J.P.,                     Supreme Court
D.P. and L.P.
                                                  On Appeal from
                                                  Orange Family Court

                                                  June Term, 1995



Amy M. Davenport, J. (merits)

Mary Miles Teachout, J. (disposition)

David G. Reid, Brattleboro, for appellant father

       Robert DiBartolo, Orange County Deputy State's Attorney, Chelsea, for
  appellee State

       Nancy A. Smith of Cheney, Brock, Saudek & Mullett, P.C., Montpelier,
  for appellee mother


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


       GIBSON, J.    Father appeals the merits and disposition orders of the
  Orange Family Court, which concluded that six of his children were in need
  of care and supervision, placed the children in the care of their mother
  under the protective supervision of the Department of Social and
  Rehabilitation Services, and ordered father to reside away from the family
  home.  We affirm.

       This case arose when twelve-year-old F.P., the oldest of father's
  seven children, ran away from home and told the State Police that her
  father had abused her.  The State subsequently filed petitions alleging
  that F.P. and five of her siblings were in need of care and supervision
  (CHINS) because they had been abused and/or lacked proper parental care
  necessary for their well-being.  See 33 V.S.A. § 5502(a)(12)(A) & (B).  The
  petitions were accompanied by affidavits specifying the allegations, which
  included that mother had failed to protect the

 

  children from abuse and that F.P. had also been sexually abused by
  father.  A hearing on the petitions took place in January and February
  1993.

       The court found that father had been the children's primary caretaker
  until the CHINS petitions were filed, and that mother, a registered nurse,
  has supported the family financially. Father, who suffers from a
  personality disorder, has a structured approach to teaching and
  disciplining the children that frequently involves physical punishment.  He
  has hit all the children, including L.P. who was two years old at the
  merits hearing.  On one occasion father struck three-year-old D.P.,
  six-year-old J.P. and eight-year-old S.P. on their faces for making too
  much noise while he was reading a book.  When D.P. told father he would not
  be quiet, father picked him up, held him against a door and shook him. 
  Father has used his hands or a belt to punish the children, but he has also
  kicked F.P.  In father's words, "under the rarest of circumstances . . . a
  loving hand . . . [is] expressed through the foot."

       Although the court did not find that father had sexually abused F.P.,
  it made findings regarding the incidents that led the State to allege
  sexual abuse.  Two of the incidents involved father touching F.P.'s
  breasts.  In the first, father ordered F.P. to lift her shirt, and after
  she complied, he touched one of her breasts.  Father's reason for touching
  F.P. in this manner was to determine if she was "psychologically
  pubescent."  In a later incident, father made F.P. remove her shirt and lie
  on his bed.  He felt her breasts using his fingertips.  Although father
  claimed he conducted the examination to determine if F.P.'s breasts were
  "histologically correct," the court did not find this explanation credible
  in light of his wife's training as a registered nurse.  The court noted
  that neither F.P. nor father had told mother about either incident.

       The last incident relevant to the sexual abuse allegation occurred a
  few days after the "breast examination."  Father took the children to swim
  at a pond, forbidding them from wearing bathing suits.  In spite of F.P.'s
  protestations about skinny dipping, father ordered her to conform and
  prohibited her from wearing anything while swimming.  At some point, while

 

  F.P. and the other children were on shore, and father was hip-deep in
  the water, father began rubbing his hands on his penis.  Sometime later
  "white stuff" came out of father's penis.  Father claims he did not
  masturbate or ejaculate, but simulated masturbation and used soap to make
  F.P. think he had ejaculated.  The court explained father's purpose for the
  demonstration: 

              He wanted to demonstrate to her what a male organ
         would look like prior to sexual contact.  He believes it
         is important for F.P. to learn this so that she can be
         as prepared as possible to control her life and not to
         become a victim of what he refers to as "heterosexual
         subjugation."  The breast exam incident and the
         masturbation incident were part of an "original lesson
         she would not forget" designed to teach her to know
         herself and know her adversary.

              . . . In [father's] opinion it will not be
         necessary for him to repeat these "intimate lessons"
         with the other children because [F.P.] can pass the
         information on to them as the oldest sibling.
  
       The court found no evidence that father intended to gratify his or
  F.P.'s sexual desires and thus could not find that father sexually abused
  F.P.  The court concluded, however, that these incidents left F.P. without
  proper parental care necessary for her well-being because they put her
  healthy psychological growth and development at a substantial risk of harm.

       The court also concluded that F.P. was an abused child.  Citing this
  conclusion, its findings that father used corporal punishment unreasonably
  and the risk that father would repeat the masturbation and breast-touching
  lessons to train F.P.'s sisters, the court concluded that H.P., S.P., J.P.,
  D.P. and L.P. were CHINS because they too were without proper parental care
  necessary for their well-being.  The court dismissed the petition against
  mother because the State did not establish that she had failed to protect
  the children.  Father filed a notice of appeal in this Court following the
  order on disposition.

                                I.

       Father first claims that the court was without jurisdiction once it
  determined that the State had failed to prove the allegations against
  mother.  In other words, father contends that 33 V.S.A. § 5526 requires the
  juvenile court to find the children CHINS with regard to both

 

  parents before it may proceed to disposition.  We disagree.

       Section 5526 requires the court to retain jurisdiction to consider
  disposition if it finds that the allegations contained in the CHINS
  petition are established.  See id. § 5526(b).  Conversely, if the
  allegations are not established, the court must dismiss the petition.  Id.
  § 5526(a).  In this case, the court determined that the allegations against
  father had been established but the allegations against mother had not.  It
  dismissed the petition as to mother but retained jurisdiction to consider
  disposition in light of the court's conclusion that the children were CHINS
  due to father's abuse of F.P. and his failure to provide F.P. and her
  siblings with proper parental care necessary for their well-being.  See id.
  § 5502(a)(12)(A) & (B).   The essence of father's argument is that if the
  allegations against one of the parents are not established, but the
  allegations against the other are, then § 5526(a) trumps § 5526(b) and the
  court must dismiss the case.

       In In re B.L., 145 Vt. 586, 494 A.2d 145 (1985), this Court considered
  an issue related to the one claimed by father here.  In B.L., which was
  decided under the predecessor to § 5526, we held that a CHINS petition that
  did not allege wrongdoing by one of the child's parents was not
  constitutionally defective.  Id. at 592-93, 494 A.2d  at 148-49.  We noted
  that the "only . . . issue to be resolved at the merits hearing . . . [is]
  whether the children were in need of care and supervision" and that
  parental fitness was an issue for the disposition stage.  See id. at 592,
  494 A.2d  at 149.  Thus, the children could be CHINS even though the
  petitions did not contain any allegations regarding the noncustodial
  parent.  In re B.L. is instructive in this case because the court
  determined that the children were CHINS based on the abusive and deficient
  parenting of one parent only, just as in B.L.  Underlying our decision in
  B.L. is § 5526's authorization for finding a child CHINS when only one
  parent might be responsible for the children's lack of care or abuse.

       Also relevant to father's claim here are the purposes served by a
  CHINS proceeding. One stated purpose of chapter 55 of Title 33 is "to
  provide for the care, protection and

 

  wholesome moral, mental and physical development of children."  33
  V.S.A. § 5501(a)(1).  We have stated that CHINS proceedings are
  protective not penal, In re R.S., 143 Vt. 565, 571, 469 A.2d 751, 755
  (1983), and that the child's welfare is the paramount concern.  See In re
  M.B., 158 Vt. 63, 67, 605 A.2d 515, 517 (1992).  Under father's
  construction of § 5526, the court would be required to dismiss the case and
  return the child to an abusive home merely because the State failed to
  establish the allegations against one of the parents.  That construction is
  directly contrary to the protective nature of CHINS proceedings and would
  serve only to further endanger the child.  Because the focus of a CHINS
  proceeding is on the child's welfare, we conclude that the purpose of
  chapter 55 is furthered where the court retains jurisdiction under § 5526
  if the allegations in the petition are established as to one parent and the
  court concludes the children are either abused or lack proper parental care
  necessary for their well-being.

       Father also argues that the court violated a host of state and federal
  constitutional provisions by retaining jurisdiction to consider disposition
  when it was required to dismiss the case.  Because we conclude that the
  court was required to retain jurisdiction in this case, we do not address
  these claimed violations.

                                II.

       Father also claims he was denied proper notice of the allegations
  against him because the court concluded that the children were CHINS based
  on a different subsection of the statute than the State had alleged in the
  petitions.  We disagree.

       Notice to parents in CHINS cases is sufficient if the supporting
  affidavits recite the substance of the allegations plainly and with
  particularity so that the parties are afforded an adequate opportunity to
  respond.  In re M.B., 158 Vt. at 67, 605 A.2d  at 517; In re R.M., 150 Vt.
  59, 70-71, 549 A.2d 1050, 1057 (1988); see also In re A.O., 161 Vt. 302,
  306, 640 A.2d 537, 539 (1994) (notice sufficient if affidavits supporting
  CHINS petition plainly recite substance of allegations).  The State is not
  required to choose between the statutory subsections (A) (abuse) and (B)
  (lack of proper parental care), and where it alleges both grounds, the
  court may

 

  conclude a child is CHINS on either or both grounds.  See In re R.M.,
  150 Vt. at 70-71, 549 A.2d  at 1057.

       Father misconstrues the petitions, which indeed gave the parties
  adequate notice of the allegations the State sought to prove at the merits
  hearing.  The State filed amended petitions regarding each of the six
  children subject to the proceedings.  Each petition noted that the subject
  child was in need of care and supervision, that the "conduct, condition or
  surroundings of the child are endangering the child's health and welfare"
  and that 33 V.S.A. § 5502(a)(12)(A) & (B) were applicable.  The State
  alleged that the younger children were physically abused by father, F.P.
  was physically and sexually abused by father, and mother failed to protect
  all six children.  Included with the six petitions were affidavits
  describing the specific instances of alleged sexual and physical abuse of
  the children by father.  Those allegations were the subject of the merits
  hearing.

       Father complains that he was denied adequate notice because the court
  entered a conclusion of CHINS regarding the youngest children based on §
  5502(a)(12)(B) (lack of proper parental care) instead of subsection
  (a)(12)(A) (abuse) and that the allegations of sexual abuse were proven
  only to the extent that the court concluded F.P. was CHINS under subsection
  (B) but not (A).  The court is not bound to draw the legal conclusions
  urged by the State or by defense counsel.  Here, the petitions clearly
  noted that the State was proceeding under § 5502(a)(12)(A) and (B) with
  specific allegations appearing in the affidavits.  The court was free to
  conclude that the evidence bearing on those allegations demonstrated that
  the children were CHINS under either subsection of the statute.  Further,
  we find nothing defective in the court's conclusion that the children were
  without proper parental care necessary for their well-being based on
  father's excessive and unreasonable use of corporal punishment, the
  masturbation incident, father's physical abuse of F.P. and his touching of
  F.P.'s breasts.  In sum, father had more than adequate notice to defend
  against the State's allegations.

 

                               III.

       Father next challenges the court's conclusion that he abused F.P. 
  Father asserts he has a constitutional right to hit his children, and
  without any finding that F.P.'s general health was threatened by his blows
  or that those blows resulted in medical attention, the family court could
  not conclude that father's use of corporal punishment was unreasonable and
  abusive.(FN1)  Our review of the record leads us to conclude that the court's
  findings are not clearly erroneous and amply support its conclusion that
  what father calls reasonable corporal punishment was physical abuse of F.P. 
  See In re M.M., 159 Vt. 517, 522, 621 A.2d 1276, 1279 (1993) (Supreme Court
  will uphold family court's order if findings are not clearly erroneous and
  conclusions are supported by findings).

       The court made numerous findings with respect to father's abuse of
  F.P. and his use of physical punishment to discipline F.P. and her
  siblings.  Father used physical punishment frequently, hitting the
  children, including F.P., above and below the waist with his hand or a
  belt.  He expected the blows to be painful and that the pain would be a
  "hardship to be endured," although pain was not the punishment's objective. 
  On occasion, father would punish the children as a group, lining them up by
  age and striking them with a belt.

       The court found that father struck F.P. with a belt on an average of
  once every other week.  Father also hit her twice on the back with a shovel
  for not using the proper tool to dislodge a rock buried in a road father
  and some of the children were clearing for the summer. Father has also
  kicked F.P. with steel-toed boots on more than one occasion to train her
  for "brutally difficult work-related situations that might occur in the
  future" in addition to discipline. These kicks were painful for F.P. and
  resulted in bruises on her shins and buttocks.  The court found that F.P.
  is afraid of her father, and that the second time she ran away from home
  she left

 

  a note stating that she "just can't take it any more."

       These findings unquestionably support a conclusion that F.P. is an
  abused child. Although father claims he is entitled as F.P.'s parent to
  strike her, the pain and bruising that father's blows have inflicted on her
  were sufficient to justify a conclusion that father did not reasonably
  discipline F.P. but unreasonably abused her.  This conclusion is justified
  further by father's admission that he has kicked F.P. on more than one
  occasion to teach her "[u]niversal survival skills."  Teaching children
  "universal survival skills" by kicking them with steel-toed boots hard
  enough to cause pain and bruising is not reasonable corporal punishment as
  father asserts.  Cf. In re W.G., 349 N.W.2d 487, 489-91 (Iowa 1984)
  (father's claim that he used corporal punishment as means of correcting
  children's behavior was sham where children were kicked, struck with belts
  and boards, spanked and slapped for reasons related more to father's
  passions than to children's upbringing).  Moreover, the juvenile court need
  not wait for a child to need medical attention due to a parent's hit or
  kick before such conduct is considered abuse for the purposes of a CHINS
  proceeding.  Cf. In re D.P., 147 Vt. 26, 31, 510 A.2d 967, 970 (1986)
  (where one child suffered serious physical abuse, juvenile court not
  required to wait for additional injuries to be inflicted upon sibling to
  conclude that material circumstances have changed with respect to sibling).

       Father nevertheless asserts that a hit or kick sufficient to bruise a
  child is not necessarily abuse, relying on In re Ethan H., 609 A.2d 1222
  (N.H. 1992).  Ethan H. does not apply to the circumstances in this case. 
  In that case, the State did not establish the statutory requirement that
  the child be injured or harmed because it offered nothing to rebut the
  overwhelming evidence that the child bruised easily and was unharmed by the
  mother's spankings.  See id. at 1225.  The New Hampshire Court recognized,
  however, that "a child's bruises may be of such a nature as to establish
  prima facie evidence" of harm or a threat of harm.  Id. at 1226.  We cannot
  say as a matter of law that F.P.'s bruises were not indicative of abuse
  based on the record before us. See Gerety v. Gerety, 131 Vt. 396, 401, 306 A.2d 693, 695 (1973) (court's finding that children

 

  were subjected to excessive corporal punishment must stand if evidence
  fairly and reasonably supports it).

                               IV.

       Finally, father argues that the court erred by ordering him to
  participate in sex offender treatment because the court did not find that
  he had sexually abused F.P.  The State concedes as much, and suggests that
  the order requiring such treatment be stricken.  We agree that the order
  requiring father to participate in a treatment program for sex offenders
  must be stricken under these circumstances.

       The merits order of March 11, 1993 is affirmed.  The October 5, 1993
  disposition order requirement that father participate in sex offender
  treatment is stricken.  The disposition order is affirmed in all other
  respects.

                                   FOR THE COURT:


                                   _____________________________________
                                   Associate Justice


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                                 Footnotes


       FN1.  Father also claims that the evidence was insufficient to prove
  that he abused H.P., S.P., J.P., D.P. and L.P.  Inasmuch as the trial court
  agreed, and we have concluded that the court properly determined that
  F.P.'s siblings were CHINS based on 33 V.S.A. § 5502(a)(12)(B), we do not
  address this claim.