In re J.D.

In re J.D.  (95-552); 165 Vt 440; 685 A.2d 1095

[Opinion Filed 6-Sep-1996]



       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. 95-552


In re J.D.                                        Supreme Court

                                                  On Appeal from
                                                  Washington Family Court

                                                  April Term, 1996


Mary Miles Teachout, J.

       Charles S. Martin and Mark Sullivan, Law Clerk, of Martin & Paolini,
  Barre, for appellant mother

       Robert Appel, Defender General, and William A. Nelson, Appellate
  Attorney, Montpelier, for appellee juvenile


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



       JOHNSON, J.   The mother of J.D. appeals from a decision of the
  Washington Family Court awarding custody of the child to his grandmother,
  following a previous ruling that J.D. was a child in need of care and
  supervision (CHINS).  We affirm.

       J.D. is a fourteen-year-old boy who has lived with his paternal
  grandmother in Vermont for various periods of time since birth, and
  continuously since early 1995.  His mother and father have had a chaotic
  relationship, and J.D. moved around frequently.  The father sexually abused
  two of the mother's young children; in 1982 those children were removed
  from the mother's home due to her failure to protect them.  The mother
  divorced the father and married a career serviceman in California.

       In 1994, the mother and J.D. moved to Vermont, where the mother showed
  interest in renewing the relationship with the father, who had been paroled
  and was living in Vermont.  But the relationship between the mother and
  father thereafter was punctuated by angry episodes, accusations of abuse,
  and fierce battles over custody of J.D., culminating in the filing of a

 

  CHINS proceeding in September 1994.  The court described the impact of the
  multifaceted conflict on J.D. as follows:

     As a direct result of [the mother's] actions and decisions, [J.D.]
     has been shuttled back and forth in a confusing manner . . . , has
     undergone a change of name and sense of identity in an
     atmosphere of chaos, has been thrust in the middle of a contentious
     custody battle, has been exposed to the risk of manipulation and
     exploitation from [the father], and has suffered major dislocations
     in otherwise ordinary relationships with his brother, stepfather, and
     grandparents on both sides, not to mention [the mother] herself.

  The mother has experienced mental health problems and was described by the
  court as "an emotional, volatile person who can become angry quickly and
  act impulsively."  The court found that the mother acknowledged that
  reunification with J.D. was not a present possibility.  The court made
  extensive findings about the father's abusive childhood, his risky
  behaviors, and his failure to address or obtain help in managing his
  pedophilia.

       The court's findings addressed in detail the grandmother's sympathetic
  attitude toward her son (J.D.'s father) and negative attitude toward the
  mother, but stressed that "[the grandmother] has done an admirable job of
  overcoming the past abuse in her own life and creating a stable home and
  family life with [her husband]."

       The court's conclusions focused on its dilemma: (1) either custody
  with the grandmother and her husband, with whom J.D. appeared to have a
  positive relationship, but with whom the risk of harm from contacts with
  the father might be more likely and the chance of reunification with the
  mother might be less likely, or, as the Department of Social and
  Rehabilitation Services (SRS) recommended, (2) custody with SRS and a
  "neutral" foster placement (i.e., one not favoring either the mother or the
  father and grandmother), involving yet another disruption in a life that
  has seen constant disruption.

       In its disposition order the court granted custody to the grandmother. 
  The court imposed numerous conditions upon the custody award, aimed at
  protecting J.D. from the father,

 

  discouraging negative comments about the mother, and allowing SRS to
  closely monitor J.D.'s progress in the custodial setting.  The mother's
  appeal followed.

       The family court in a CHINS case must craft a disposition order that
  is "most suited to the protection and physical, mental and moral welfare of
  the child."  33 V.S.A. § 5528(a).  The record strongly supports the
  conclusion that neither parent would be a suitable custodian for J.D. The
  court therefore was left to choose between granting custody to J.D.'s
  grandmother or to SRS, with placement in a foster home.  The court was
  clear about the advantages and disadvantages associated with each option,
  and realistic in recognizing that neither would be risk-free.  The court
  opted for an environment in which J.D. was comfortable and where the foster
  parents loved and supported him, whatever faults might be found in the
  environment as a whole. The court did more than acknowledge risks; it
  framed a comprehensive protective supervision order and included monitoring
  provisions whose efficacy the mother did not seek to challenge.

       The mother first argues that the court violated 33 V.S.A. § 5501(a)
  when it "effectively terminated" her parental rights by granting custody of
  J.D. to his grandmother, because reunification of the family -- a major
  goal of the Juvenile Act -- is not likely to occur under the court's order. 
  The premise of the mother's argument is incorrect.  She assumes that the
  grandmother and the father will attempt to take her son away from her.  But
  the court's findings do not support the mother's assumption, and she does
  not explain why or how the court's findings are erroneous.  See In re J.S.,
  153 Vt. 365, 371, 571 A.2d 658, 661 (1989) ("The juvenile court's decision
  will stand on appellate review unless the record indicates that the court
  exercised its discretion for clearly untenable reasons or to an extent
  clearly unreasonable.").

       Moreover, the court did not ignore the antagonistic relationship
  between the mother, on the one hand, and J.D.'s father and grandmother, on
  the other.  The court was aware of the potential dangers posed to J.D. by
  the father, as well as the grandmother's tendency to side with her son
  against the mother.  In light of these factors, the court ordered that the
  grandmother and others in her household refrain from making negative
  comments about the mother or from

 

  discussing the court case with J.D., and directed the grandmother and her
  husband to support J.D.'s communication with and visits to his mother.  The
  court ordered that the father have no contact with J.D. unless he actively
  participates in sex offender treatment and permits SRS to monitor his
  progress in the program.  The court ordered that the grandmother and others
  in her household meet with SRS to review compliance with the court's order. 
  It also authorized SRS to conduct random home visits to verify compliance.

       Regarding potential violations of the court's order, it explicitly
  recited what would have been clear without enunciation: "Any party may seek
  modification of this Disposition Order on the grounds that the conditions
  of protective supervision are not being met."  Thus, the court's order
  warns the grandmother and her family, including J.D.'s father, that literal
  compliance with the order is essential and reassures the mother that she
  has redress if the order is violated.

       The mother next argues that the court erred in ruling that the
  grandmother was qualified to receive and care for J.D.  Under 33 V.S.A. §
  5528(a)(3)(B), the court may award custody to any individual, including
  grandparents, if the court finds that the individual is "qualified to
  receive and care for the child."   The findings may not be perfunctory.  In
  re C.A., 160 Vt. 503, 508-09, 630 A.2d 1292, 1296 (1993).  In that case we
  faulted the court's conclusory statement that the grandmother's home had
  been examined and was appropriate for placement. Id. at 509, 630 A.2d  at
  1296.  The court in the present case supplied the detail missing in C.A. It
  found that the grandmother had created a stable home and family life,
  maintaining a full-time job but also spending time and effort to care for
  others in her family.  The court also found that the grandmother's husband
  was an important presence in the household, helping to enforce household
  rules and create stability.  Based on these and other findings, the court
  concluded:

     [The grandmother] has shown throughout [J.D.'s] life that she has
     always been ready to care for him, and this kind of abiding
     commitment is important.  She has overcome great misfortune in
     her own life, and after a difficult past is now the center, together
     with her husband . . . , of a strong family group that has a lot of
     love and commitment to its members, and that engages for the
     most part in constructive family activities and interactions.  [J.D.]



     benefits from her grandmotherly love and nurturing, and from the
     grandfatherly relationship he has established with [grandmother's
     husband], who is respected by all members of the family and who
     is primarily responsible for enforcement of household rules.


       The findings were amply supported by the testimony of witnesses
  familiar with the household.  Evidence supported the finding that J.D.
  appears to be thriving at school, in part because of the grandmother's and
  her husband's support of J.D.'s special education program. His special
  education teacher testified positively about J.D.'s relationship with his
  grandmother. The SRS worker who prepared the disposition report stated that
  the grandmother and her husband "love and care" for J.D. and share
  activities with him, and noted that living with them has "many, many
  benefits" for J.D.  In his testimony, J.D. expressed love for both his
  grandmother and her husband.

       The mother also argues that the court failed to find that the
  grandmother was qualified, because it found that she would be qualified
  only if she adhered to the court's numerous conditions to her continued
  custody.  The court did not, however, conclude that the grandmother lacked
  the present qualifications to obtain custody of J.D.  As the quoted
  findings and conclusions indicate, the court made a positive determination
  that the grandmother is in fact qualified.  At the same time it recognized
  that placement with the grandmother involves risks, but the court's candor
  about those risks is not a disqualification of the grandmother.

       The mother next argues that the court erred in rejecting the SRS
  disposition recommendation and formulating a plan of its own.  In
  determining initial custody, the court was not obligated to accept the
  recommendation contained in the disposition report.  See 33 V.S.A. § 5528
  (outlining court's options at disposition).  Indeed, there is little
  purpose in conducting a disposition hearing if the result is predetermined
  by SRS.  We have never held that the family court may not reject an SRS
  recommendation; rather, we have held that a court may not direct SRS to
  place a child in a foster home, when SRS is the child's legal custodian. 
  In re G.F., 142

 

  Vt. 273, 279, 455 A.2d 805, 808 (1982).  In the present case, the court
  chose not to award legal custody to SRS.

       The SRS case plan does deserve great respect, and the court was
  cognizant of its duty to explain in detail why it was not following the SRS
  recommendation.  Evidence that J.D. will benefit from the security and
  continuity offered in his present custodial setting was abundant, as was
  evidence that his grandmother and her husband were devoted caregivers.

       The mother has not demonstrated that the court's decision was an abuse
  of its discretion. Juvenile proceedings often involve difficult predictions
  about the future.  Best judgment, rather than perfection, is our standard. 
  The court in the present matter has thoroughly and thoughtfully explained
  its decision, and has warned that failure to comply with the court's
  numerous conditions will trigger a prompt reconsideration of this
  placement, upon motion of J.D., SRS, or the mother.

       Finally, the mother also has failed to show that the court abused its
  discretion by denying her motion to amend the judgment, or in the
  alternative, grant a new trial.  She filed the motion approximately one
  month after the disposition order issued, and alleged several violations of
  the disposition order.  The court noted that "[a]djustments to conform to
  the requirements [were] not unexpected," and concluded that the problems
  did not justify a change in disposition.  The court emphasized, however,
  that it expected "strict compliance" with the disposition order, and stated
  once again that "any party may seek modification in the future on the
  grounds that the conditions are not being met."

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice