In re E.L.

In re E.L. (2000-313); 171 Vt. 612; 764 A.2d 1245 

[Filed 21-Nov-2000]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-313

                             NOVEMBER TERM, 2000


In re E.L., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
 	                               }	Bennington Family Court
                                       }	
                                       }
                                       }	DOCKET NO. 75-6-96 Bnjv

                                                Trial Judge: William Cohen  

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


       E.L. appeals from a family court order that denied his motion for a
  protective order sought  under 33 V.S.A. § 5534(2).  E.L. claims that the
  court erred in concluding that it had no authority to  issue a protective
  order to prevent the Department of Social and Rehabilitation Services (SRS)
  from  placing him at a residential facility.  We reverse and remand.

       In November 1999, the family court terminated the parental rights of
  E.L.'s mother and father  and transferred custody of E.L. to the
  Commissioner of SRS without limitation as to adoption.  At  that time, E.L.
  was placed with his paternal aunt and uncle, where the court found that
  E.L. had made  progress in his behavior and in his school work.  Further,
  the court found that "[t]hese improvements  are directly attributable to
  the commitment that the [foster parents] have made to [E.L.] and the 
  psychotherapeutic and other services he has received in foster care." 
  Moreover, the court found that  despite E.L.'s lack of successful peer
  relationships, he had formed meaningful relationships with  numerous
  adults, including his respite worker, his case manager, his psychotherapist
  and his  guardian ad litem.  Finally, the court concluded that E.L. was
  still at risk, as he suffered from reactive  attachment disorder and that
  his primary need was "for permanency in a stable, safe, family  environment
  that can support his emotional well-being."  The court noted that "[s]hould
  he fail to  develop the ability to empathize with others he will be at risk
  for criminal and other antisocial  behavior and an inability to form
  meaningful relationships as he moves through adolescence and into 
  adulthood." 

       In January 2000, E.L. was placed in the foster care home that had
  served as his respite  placement since September 1999, but the following
  month was removed and placed at the  Community House for an evaluation
  concerning residential placement.  In April 2000, the  Community House
  report recommended a residential treatment facility, and in May, SRS
  indicated at  the case plan review meeting that it intended to place E.L.
  at a residential treatment facility in  Brattleboro.  E.L.'s attorney filed
  a motion for a protective order to prevent placement in the  Brattleboro
  residential treatment facility.  The motion was supported by affidavits
  from E.L.'s foster  parent, counselor, psychotherapist and guardian ad
  litem, all claiming that residential placement  would be detrimental to
  E.L.'s health because it would exacerbate his detachment disorder.  The 
  motion was denied.  

 

       E.L. appeals from the family court order, which held, without
  evidentiary hearing, that it did  not have authority to issue a protective
  order to prevent placement at the Brattleboro facility.  On  appeal, E.L.
  contends that the court erred in concluding that it did not have authority
  under 33 V.S.A.  § 5534(2) to issue a protective order concerning any SRS
  placement, and he requests a remand for an  evidentiary hearing.  Section
  5534(2) provides that the court may, upon a party's motion or its own 
  motion, issue an order restraining conduct if "[t]he court finds that such
  conduct [1]is or may be  detrimental or harmful to the child, and [2] will
  tend to defeat the execution of the order of  disposition made."  In
  reaching its decision to deny E.L.'s request for a protective order, the
  court  relied on In re J.S., 153 Vt. 365, 571 A.2d 658 (1989) and In re
  B.F., 157 Vt. 67, 595 A.2d 280  (1991).  E.L. contends that neither case
  supports the court's decision.  We agree.

       In J.S., a juvenile in SRS custody moved - under 33 V.S.A. § 661(2),
  the predecessor to 33  V.S.A. § 5534 - for a protective order to prevent
  his placement at a residential treatment facility in  Burlington.  J.S.
  claimed that there had been a series of incidents of sexual abuse at the
  facility,  which the staff had failed to report properly to SRS. 
  Consequently, J.S. concluded that placement at  the facility put him at
  risk of sexual abuse.  The trial court denied the motion, and this Court
  affirmed  that decision because the record showed that SRS had thoroughly
  investigated the facility, which had  consequently implemented remedial
  controls.  J.S., 153 Vt. at 371, 571 A.2d  at 662.  Accordingly,  the Court
  concluded that the placement would not increase the danger of abuse, and
  that "J.S. failed  to establish that the proposed placement would be to his
  harm or detriment."  Id. 

       In B.F., SRS appealed from a juvenile court protective order
  restraining SRS from transporting  B.F. to court in restraints.  After
  "conducting the inquiry required by § 5534(2)," the trial court  concluded
  that the use of chains and restraints was harmful to the child's
  self-esteem and would tend  to defeat the execution of any therapeutic
  disposition to be made.  B.F., 157 Vt. at 69, 595 A.2d  at  281.  This Court
  vacated the order because B.F. had not shown that the manner of transport
  tended to  defeat the execution of the disposition order.  Id. at 71, 595 A.2d  at 282.  Accordingly, he had not  satisfied the second prong of §
  5534(2) as required for a protective order.  

       Neither J.S., nor B.F., holds that the court is without authority to
  issue a protective order   concerning an SRS placement.  On the contrary,
  in both cases, the trial court held a hearing, made  findings, and
  determined whether the juvenile satisfied the two-prong test under §
  5534(2).  In J.S.,  the juvenile failed to establish the first prong - that
  the proposed placement would be to his harm or  detriment, and in B.F., the
  juvenile failed to establish the second prong - that use of the restraints 
  tended to defeat execution of the disposition order.

       It is true that the court lacks authority to order SRS to make a
  specific placement of a child;  SRS, as the legal custodian, has the
  authority to place the child without judicial authority.  In re B.L.,  149
  Vt. 375, 376-77, 543 A.2d 265, 266 (1988).   Nonetheless, under 33 V.S.A. §
  5534(2), the court  may restrain conduct that is harmful to the child and
  will tend to defeat the disposition, even if that  conduct is a placement
  by SRS.   Thus, the court may prohibit an SRS placement when the moving 
  party satisfies the two statutory criteria.  Here, the court failed to hold
  an evidentiary hearing or make  findings on the two § 5534(2) criteria. 
  Moreover, having determined that it had no authority to issue  a protective
  order concerning an SRS placement, the court did not exercise its
  discretion in  determining whether it was appropriate under § 5534(2) to
  issue a protective order.  See J.S., 153 Vt.  at 370, 571 A.2d  at 661 
  (question of whether to issue protective order is committed to sound 
  discretion of trial court).  

 

       SRS contends that the court did not abuse its discretion by failing to
  conduct a full evidentiary  hearing because, at best, the court would have
  heard conflicting expert opinions on the decision to  place E.L. in a
  residential facility.  Under such circumstances, SRS maintains that no
  hearing is  necessary because SRS, as the legal custodian, may determine
  the appropriate placement.  We agree  that generally, under § 5534(2), no
  hearing is necessary where the parties' memoranda show that  SRS, as legal
  guardian, has followed the advice of appropriate experts, even if other
  experts disagree  on the placement.  In this case, however, the juvenile
  has met a higher threshold showing that  requires the court to hold a
  hearing.  

       Here, the juvenile has presented affidavits from his foster parent,
  his counselor, his  psychotherapist and his guardian ad litem all
  contesting residential placement because it would be  detrimental to his
  health by exacerbating his detachment disorder.  Indeed, the order for
  residential  treatment appears to sever the only meaningful relationships
  that E.L. has formed, as found by the  court in the termination order, the
  relationships with the people filing the affidavits.  In addition, the 
  juvenile has shown that residential treatment is directly contrary to
  findings and conclusions upon  which the court ordered termination of
  parental rights.  That order concluded that E.L.'s primary  need, due to
  his reactive detachment disorder, was for a stable, safe, family
  environment in which he  could develop meaningful relationships.  

       In view of this showing, we cannot conclude that a hearing would
  merely reveal conflicting  expert opinions, from which SRS is free to
  choose.  Here, E.L.'s affidavits claim that SRS adopted a  placement
  opinion diametrically opposed to (1) the SRS opinion presented six months
  previously at  the termination hearing and (2) to all of the individuals
  that the termination order found most  important to E.L.'s well-being. 
  Accordingly, in this case, we conclude that it is necessary to reverse  and
  remand for an evidentiary hearing to determine whether the conduct E.L.
  seeks to restrain "may  be detrimental or harmful to the child, and will
  tend to defeat the execution of the order of  disposition made."  33 V.S.A.
  § 5534(2).

       Reversed and remanded. 



                                       BY THE COURT:

                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice
	
                                       _______________________________________
                                       John A. Dooley, Associate Justice
	
                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice