In re T.L.

In re T.L. and N.L.  (98-402); 169 Vt. 550; 726 A.2d 496

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-402

                             NOVEMBER TERM, 1998


In re T.L. and N.L.	              }	APPEALED FROM:
                                      }
                                      }
                                      }	Franklin Family Court
                                      }	
                                      }
                                      }	DOCKET NO. 198/199-12-97 Frjv	


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

       Mother appeals from a disposition order transferring legal custody of
  mother's children to  the Commissioner of the Department of Social and
  Rehabilitation Services (SRS).  She argues that  (1) the court had no
  authority to enter a provision for another disposition review to be done
  after  three months, (2) the findings were not supported by the evidence,
  and (3) the findings are  inadequate to support the conclusion.  We vacate
  the order.


       The case involves two children.  T.L.'s father appeared in the
  proceedings, but N.L.'s  father is unknown.  Following a detention hearing
  in December 1997, the court ordered custody  transferred to SRS.  In March
  1998, the parties stipulated to a finding of CHINS, and in July  1998, the
  court held a disposition hearing.  The record indicates that at the time of
  the hearing,  T.L. was in foster care, and N.L. was living with mother and
  her boyfriend, although the child  had been in foster care for some time
  during the winter.  


       The court made minimal findings, and some of these findings are
  clearly erroneous.  The  following findings were supported by the evidence. 
  T.L.'s father was not capable of caring for  T.L. at the time of the
  hearing because he did not have a place to live; he was residing with his 
  parents but wanted to get an apartment so T.L. could eventually live with
  him.  Mother has lived  with her boyfriend for several years; he has
  physically and mentally abused the children by using  excessive means to
  discipline them.  Although the boyfriend left mother's home briefly, he 
  returned, and the children's behavior deteriorated in consequence.  The
  boyfriend has refused to  submit to drug screening. The court found that it
  was necessary to continue custody with SRS in  order to monitor mother's
  home to prevent abuse of N.L. and to help mother improve N.L.'s  behavior
  and mental health.  Further, the court found that T.L. cannot live with
  mother, that T.L.  was getting along with his father, and that he wanted to
  live with father.  The court concluded that  a three-month review was
  warranted in this case.  Mother appeals.



       Mother first argues that the court had no authority to order review of
  the disposition in  three months because the statute provides for review
  only at specifically enumerated times or upon  motion on the ground of
  changed circumstances.  See 33 V.S.A. §§ 5531, 5532.  We agree that  the
  three-month-review provision is contrary to the statute.  See In re A.A.,
  134 Vt. 41, 43, 349 A.2d 230, 232 (1975) (juvenile statute does not give
  court authority to enter disposition order with  provision for review in
  six months; statute provides procedures for review, which court cannot 
  alter).  We need not strike the three-month-review provision because we
  vacate the


 

 entire decision on other grounds.(FN1)


       Next, mother argues that several of the findings were unsupported by
  any evidence.  "We  will uphold factual findings if supported by credible
  evidence, and the conclusions will stand if  the factual findings support
  them."  In re B.M., 165 Vt. 194, 201, 679 A.2d 891, 896 (1996). 
  Specifically, mother contests finding # 7, which states:


  The mother and her boyfriend physically attacked [T.L.'s] father in the 
  presence of the children.  The attack was angry and unprovoked.  The 
  children were greatly upset when it occurred in their presence.

  Upon review of the transcript, we find no support for the finding, except
  for the statement that  mother and her boyfriend attacked T.L.'s father. 
  There was no evidence to indicate that the  children were present.  


       Next, mother maintains that finding # 8 is unsupported.  Finding # 8
  states:

  Mother has discussed the fact that T.L.'s father is not [N.L.'s] father in 
  front of [N.L.] in spite of the fact that [N.L.] believed him to be his 
  father.


  We agree that the finding is not supported by the evidence.  

       Finally, mother contests finding # 9, which states:


  [T.L.] and his father are now getting along well.  [T.L.] is doing better 
  out of his mother's home.  His school performance is improving.  His 
  outbursts are less frequent.

  Similarly, this finding is unsupported, except for the statement that T.L.
  and his father are now  getting along well, which could be inferred from
  their mutual desire to have T.L. live with his  father. 


       In addition to these three erroneous findings, the remaining findings
  focus on mother's past  rather than her present ability to parent.  In
  particular, the finding that mother has a long record  of criminal offenses
  is of little or no probative value because there was no evidence of any 
  convictions since 1987, and the children were born in 1988 and 1990.  On
  the other hand, the  convictions of T.L.'s father during the 1990s are
  highly probative, but the court made no findings  concerning his criminal
  record, which included a conviction for violation of an abuse prevention 
  order involving another woman as late as 1996.  Similarly, the court failed
  to make findings on  mother's completion of numerous programs recommended
  by SRS to improve her parenting, while  it applauded father for taking T.L.
  to a single dentist appointment.  Finally, the court found that  mother had
  abused alcohol and drugs, although there was no evidence of any alcohol or
  drug  abuse during the past six years.  In sum, we agree with mother that
  the decision unfairly  characterizes her based on her distant past, rather
  than fairly considering her current  circumstances.


 


       "Even if one or more findings is erroneous, this does not necessarily
  mean we will reverse  the court's determination."  In re B.M., 165 Vt. at
  205, 679 A.2d  at 898.  Rather, the issue is  whether the findings that are
  supported by evidence are sufficient to support the court's decision.  See
  id.  We must affirm if the remaining findings, supported by the record, are
  sufficient to  sustain the decision.  See id.   To order a child removed
  from the parents' home, the court must  find that the parents are unfit,
  that they cannot provide an appropriate home, and that separation  is in
  the child's best interest.  See E.J.R. v. Young, 162 Vt. 219, 225, 646 A.2d 1284, 1288  (1994).


       The critical findings were not made here.  The court never found
  either parent unfit.   Although T.L.'s father was unable to provide a home
  for T.L., mother was providing a home for  N.L., albeit with SRS
  supervision.  Further, no findings were made concerning the best interests 
  of the children.  Because the court failed to make the required findings,
  we cannot uphold a  transfer of custody.


       The disposition order is vacated, and the cause is remanded.


BY THE COURT:



__________________________________________
Jeffrey L. Amestoy, Chief Justice

__________________________________________
John A. Dooley, Associate Justice

__________________________________________
James L. Morse, Associate Justice

__________________________________________
Marilyn S. Skoglund, Associate Justice

__________________________________________
Ernest W. Gibson, Associate Justice (Ret.)
Specially Assigned

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                                  Footnotes

FN1.  SRS filed a letter indicating that it joins father's brief,
  claiming that the issue of the three-month-review provision is probably
  moot, and including allegations concerning trial court  proceedings
  subsequent to the appeal.  Mother responded by a motion to strike the
  matters in the  letter that are not part of the record, and denying that
  the issue is moot.  In view of our holding,  mother's motion to strike the
  matters not of record is moot.