In re L.H.

In re L.H.  (95-132); 165 Vt 591; 682 A.2d 969

[Opinion Filed 19-Jul-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-132

                              APRIL TERM, 1996


In re L.H., Juvenile                 }     APPEALED FROM:
                                     }
                                     }
                                     }     Windham Family Court
                                     }
                                     }
                                     }     DOCKET NO. 54-3-94WmJv


       In the above-entitled cause, the Clerk will enter:

       Father appeals from an order of the Windham Family Court declaring
  that his daughter is a child in need of care and supervision (CHINS) and
  transfering custody to SRS.  We remand.

       In March 1994, at the request of an SRS social worker, the Windham
  State's Attorney's Office filed a CHINS petition requesting the court to
  find defendant's 15-year-old daughter to be a child in need of care and
  supervision on grounds that the father had punched her in the mouth with a
  closed fist.

                                     I.

       Father moved to dismiss the petition on the ground that although no
  actual prejudice existed, the petition had not been initiated upon the
  request of any person authorized by 33 V.S.A. § 5517(a).  The statute
  states: "Upon the request of the commissioner of social and rehabilitation
  services, . . . the state's attorney . . . shall . . . file a petition
  alleging that a child is in need of care or supervision."  The motion was
  denied.  The court opined that the SRS social worker's power to initiate
  emergency procedures to remove a child from the home necessarily implied
  the power to request the State's Attorney to initiate related CHINS
  proceedings.

       Father argues that the CHINS petition was not properly before the
  court, because only the commissioner had the authority to bring it under 33
  V.S.A. § 5517 and he did not effect a proper delegation of authority under
  33 V.S.A. § 5502(b), which states: "The commissioner of social and
  rehabilitation services . . . may delegate any authority conferred on him
  by statute to any designee named by him in writing."

       Father concedes, however, that the job description for a social worker
  included the statement that a social worker may "initiate emergency
  procedures to remove [a] child from the current living arrangement." 
  Nevertheless, he contends that the word "initiate" should be construed to
  mean, not "to cause or facilitate the beginning of," Webster's Ninth New
  Collegiate Dictionary at 622 (1987), but rather to "inform[] her
  supervisor."

       Defendant's construction is a strained reading of the plain language
  of the statute, and is particularly inapposite in the context of the
  working reality of a sizeable administrative agency.  "Initiate" in the
  context of § 5502(b) reasonably describes the function of asking an
  enforcement agency to act.  See, e.g., Brooks v. Pool-Leffler, 636 S.W.2d 113, 117 (Mo. Ct.

 

  App. 1982) ("initiate" in statute governing powers of Commission on Human
  Rights authorizes Commission to initiate complaint by requesting Attorney
  General to file discrimination complaint).

       The father also contends that a job description cannot be a delegation
  of authority, because it does not name individuals in writing.  3 V.S.A. §
  214, however, creates broader powers than 33 V.S.A. § 5502(b), by providing
  that "[a] commissioner . . . may delegate any authority, power or duty
  other than a specific statutory authority of the office to a designee."
  Reading the two provisions harmoniously in light of the practical needs of
  SRS under the CHINS statute, we conclude the court's jurisdictional ruling
  was correct.

                                     II.

       On the merits, we hold that the court did not abuse its discretion in
  ruling that L.H. was a child in need of care and supervision.  The
  daughter's recantation did not bind the court, and that testimony was
  counterbalanced by the testimony of other witnesses and L.H.'s original
  testimony.  The testimony of the nurse who treated L.H. was consistent with
  L.H.'s original testimony that she had been punched in the face by her
  father the night before.

                                    III.

       The court also was correct in denying the father's motion for a new
  trial, based upon information purportedly obtained after conclusion of the
  merits hearing.  The issue in question -- L.H.'s credibility -- was
  thoroughly presented to the court, and the father has not demonstrated that
  the court abused its discretion in denying his motion.

                                    IV.

       Finally, father claims that this case must be reversed for want of
  written findings.  We agree that written findings are necessary.  As we
  held in In re M.B., 147 Vt. 41, 44-45, 509 A.2d 1014, 1017 (1986), a
  disposition order removing a child from the parental home must be
  accompanied by findings of fact.  Removal cannot occur absent "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." 
  E.J.R. v. Young, 162 Vt. 219, 225, 646 A.2d 1284, 1288 (1994).  The
  rationale for findings is stated in E.J.R.:

    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.

  Id.  It is also based on the statutory requirement of findings.  Because
  the court failed to make written findings on this matter, we must remand. 
  Almost two years have passed since the disposition order was issued in this
  case.  If, despite the passage of time, the family court judge is capable
  of making findings on the original record, that remedy may be sufficient. 
  See id. at 226, 646 A.2d  at 1288.  If not, a new disposition hearing may be
  required.  See M.B., 147 Vt. at 45, 509 A.2d  at 1017.

       The order of the Windham Family Court adjudicating L.H. CHINS is
  affirmed and the matter is remanded for proceedings consistent with this
  opinion.

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                                 Dissenting


       MORSE, J., dissenting.    Because I believe the absence of written
  findings does not justify remanding this case, I respectfully dissent.  The
  court adopted the disposition report and

 

  plan, which laid out in detail the justification for removing L.H. from the
  home.  There is no doubt about the basis of the court's decision.  Cf. In
  re T.D., 149 Vt. 42, 44, 538 A.2d 176, 177 (1987) (written findings
  necessary to enable court to determine what was decided and how decision
  reached).  The court explicitly explained its rationale during the course
  of the disposition hearing, finding that transferring custody to SRS was
  necessary, at least temporarily, for L.H.'s safety and welfare.  It is a
  waste of judicial resources to remand this case.




     BY THE COURT:


Dissenting:                        _______________________________________
                                   Frederic W. Allen, Chief Justice
___________________________________
James L. Morse, Associate Justice  _______________________________________
                                   Ernest W. Gibson III, Associate Justice

                                   _______________________________________
                                   John A. Dooley, Associate Justice

                                   _______________________________________
                                   Denise R. Johnson, Associate Justice