In re G.C.

In re G.C. (99-416); 170 Vt. 329; 749 A.2d 28

[Filed 28-Jan-2000]


       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. 99-416


In re G.C.	                                    Supreme Court

                                                    On Appeal from
                                                    Washington Family Court

                                                    January Term, 2000



M. Kathleen Manley, J.

Michael Rose, St. Albans, for Appellant.

William H. Sorrell, Attorney General, Montpelier, and Barbara L.
  Crippen and James C. Shea,   Assistant Attorneys General, Waterbury, for
  Appellee.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       JOHNSON, J.   Mother appeals the family court's determination that her
  infant son, G.C.,  is a child in need of care or supervision (CHINS).  We
  affirm.

       Mother suffers from chronic mental illness, described by her doctors
  as including borderline  personality disorder, disassociative
  identification disorder, and major recurrent depression.   Psychiatrists
  agree that mother's illness is the result of extreme physical, sexual, and
  emotional  abuse that she endured as a small child and throughout her
  developmental years at the hands of her  father and other close relatives. 
  Treatment for mother's illness includes psychotherapy and various 
  medications aimed at combating her anxiety, depression, and delusional
  thinking.

 

       In 1988, mother and her daughters, then aged one and four, were living
  with mother's  parents, including her abusive father.  During that period,
  the younger daughter was hospitalized on  a number of occasions because of
  excessive vomiting.  The Department of Social and  Rehabilitation Services
  (SRS) filed a CHINS petition, alleging that mother had induced the 
  vomiting by giving the child a drug called Ipecac, and further had
  disconnected and put pin holes in  the child's feeding tube at the
  hospital.  Mother stipulated to a CHINS adjudication with respect to  G.C.
  and  to a finding that she suffered from Munchausen Syndrome by Proxy
  (MSP), a mental  illness characterized by creating illnesses in one's
  children to gain attention for oneself.  In 1989,  the family court
  terminated mother's parental rights with respect to her daughters.

       Over the ensuing ten years, mother took advantage of significant
  mental health services and  made progress in recognizing and dealing with
  her mental and emotional problems.  Nevertheless,  she continued to suffer
  relapses and was hospitalized periodically throughout that period.  Between 
  1992 and 1999, mother had at least seventy contacts with police, many of
  them concerning threats  or attempts to commit suicide.  Mother's longest
  period of stability without intervention lasted only  a matter of days.  A
  long-term client of Washington County Mental Health (WCMH), mother relied 
  on the center's support in making her living arrangements over the years.

       Sometime in 1998, after discovering that she was pregnant with G.C.,
  mother began  lobbying the staff at WCMH to help her find a foster home
  that would provide twenty-four-hour-a-day support for her and her new
  baby.  After advertising through the newspaper and interviewing  potential
  candidates, mother and WCMH's support team set up a foster-care arrangement
  with a  couple who had been licensed foster parents for the previous five
  years.  The couple had five  children of their own ranging in age from five
  to twenty-five.  Under the arrangement set up by  WCMH, mother 

 

  would move in with the couple a month or so before the baby was born, and
  the couple would  provide support for her and the baby after the birth. 
  Mother began spending nights with her new  foster family in late January
  1999 and moved in with them on February 1 of that year.

       Early on in her pregnancy, mother insisted, and the doctors agreed,
  that she be taken off her  antipsychotic medication so as not to harm the
  unborn child.  As a result, mother's delusional  behavior worsened, and she
  was hospitalized for periods of time.  At times, she informed support 
  staff of her delusion that she was carrying a rat rather than a baby, and
  late in her pregnancy she  threatened to abort the fetus.  Shortly before
  she gave birth, she was hospitalized because of her  deteriorating mental
  condition.

       G.C. was born on February 17, 1999 and, as planned, lived with mother
  at the home of the  foster family.  At first, things appeared to be going
  fine for mother and baby, but mother became  depressed, and on March 7,
  1999 she attempted suicide and was hospitalized.  Mother indicated to  an
  SRS employee who visited her at the hospital that she was depressed in part
  because she felt that  no one trusted her to care for her baby.

       On March 9, 1999, SRS filed a CHINS petition, and the family court
  entered an emergency  order removing G.C. from the foster family's home. 
  Following the merits hearing, which was held  over three days in April and
  May of 1999, the family court granted SRS's petition to adjudicate the 
  child CHINS.  Citing mother's history of profound mental illness, including
  the abuse of her  daughter eleven years earlier, the court concluded that
  G.C. was in need of care or supervision  because mother remained the
  child's legal guardian, and the foster family had not been made aware  of
  the nature and significance of mother's mental disorders.  On appeal,
  mother argues that (1)  G.C.'s best interest required the family court to
  allow her to relitigate the issue of whether she  continued to suffer from, 

 

  or ever suffered from, MSP, and (2) the family court erred in adjudicating
  the child CHINS because  he had proper "parental care" under the
  arrangement set up by her and the staff at WCMH.

       Apparently, at some point during the merits hearing, mother requested
  that the family court  allow her to relitigate the 1988 stipulated finding
  that she suffers from MSP.  Each of the mental  health professionals who
  testified at the hearing, including psychiatrists and other staff from 
  WCMH, a psychologist from the Vermont State Hospital, and another
  psychologist with expertise  in diagnosing MSP, indicated that mother most
  probably did not suffer from MSP, and that, in any  case, the diagnosis had
  been based on insufficient information.  The experts agreed that mother's 
  explanation for why she harmed her daughter eleven years earlier -- to
  force the State to remove her  children from her father's abusive household
  -- was more probable than the MSP diagnosis.  Mother  claims that she was
  misdiagnosed, asserting that she agreed to the MSP diagnosis without 
  comprehending the future implications of doing so.  She believes that
  because MSP poses a  significant risk to the children of those who suffer
  from the illness, and is widely recognized as  difficult to cure, the
  faulty diagnosis has colored both the State's and the family court's view
  of her  ability to provide a safe environment for her son.  In her view,
  any interest in protecting the finality  of the 1988 finding by estopping
  her from challenging the earlier diagnosis must yield to the  overriding
  importance of determining G.C.'s best interest.

       The problem with mother's argument is that the family court did not
  rely on the MSP  diagnosis in making its CHINS determination.  While
  expressly acknowledging that the validity of  the diagnosis might become
  relevant at later disposition hearings, the court declined to set aside the 
  challenged finding "[a]t this juncture."  The court concluded that,
  regardless of whether the MSP  diagnosis was correct, G.C. was in need of
  care or supervision because of mother's unstable 

 

  psychiatric history and her inability to maintain herself in the community
  without significant  support, coupled with the fact that she, rather than
  the foster family, retained legal guardianship  over the child.  Because
  the family court did not rely on the MSP diagnosis in making its CHINS 
  determination, and the record supports that determination, we need not
  address mother's argument  that she should be allowed to challenge the 1988
  finding that she suffers from MSP.(FN1)  In fact,  the family court
  allowed mother to present evidence challenging the finding, but concluded
  that,  given the other evidence demonstrating that G.C. was in need of care
  or supervision, it need not  determine at that point whether the finding
  should be stricken from the record.

       Irrespective of the earlier MSP diagnosis, mother contends that the
  family court erred in  finding that G.C. was "without proper parental care
  . . . necessary for his well-being."  See 33  V.S.A. § 5502(12)(B). 
  According to mother, she and the staff at WCMH had made arrangements  to
  assure that G.C. would be provided with proper parental care during the
  anticipated periods when  she lapsed into depression or was otherwise
  unable to cope with caring for the child.  She asserts  that the
  arrangements worked just as planned, and that G.C. has never been without
  proper parental  care because her foster family took over care of the child
  following her suicide attempt and  hospitalization.

       We agree with mother that the use of the term "parental care" in §
  5502(12)(B) does not  compel a CHINS adjudication whenever incapacitated
  parents leave their children with relatives or 

 

  others to provide "parental" care during the period of incapacitation.  See
  In re Ayres, 513 S.W.2d 731, 735 (Mo. Ct. App. 1974) (dangerous precedent
  would be set by charging parents with neglect  whenever they placed
  physical custody of their children with surrogate parent or member of 
  extended family; because in-laws had been providing proper parental care at
  all times, court erred in  finding child to be neglected and placing her
  with state agency); In re Murphy, 346 P.2d 367, 370  (Or. 1959)
  ("legislature did not intend that children without parents or guardians
  should be declared  dependent for that reason alone"; children are not
  dependent solely because they are receiving  "parental care" from persons
  other than parents or guardians); Hendricks v. Curry, 401 S.W.2d 796,  801
  (Tex. 1966) (statutory term "parental care" is purely descriptive and
  refers to kind and quality  of care ordinarily provided by parents;
  "parental care" as defined in statute may be provided by  persons who
  assume parental role in child's life).

       Our decision in In re S.A.M., 140 Vt. 194, 436 A.2d 736 (1981) does
  not suggest otherwise.  In that case, a mentally ill mother took her
  daughter out of state, notwithstanding the grandmother's  plea that the
  mother leave the girl "where she could be cared for."  Id. at 196, 436 A.2d 
  at 737.   When the child was returned to Vermont by an out-of-state
  protective services agency, the  grandparents took her into their care,
  "but their situation [was] complicated by the fact that they  both [were]
  employed."  Id.  The child was eventually adjudicated CHINS.  In response
  to the  mother's argument that the CHINS petition should have been denied
  because there was no evidence  that the grandparents had failed to provide
  the necessary care for the child, this Court stated that the  grandparents
  were merely caring for the girl until the CHINS proceeding was commenced,
  and that  the mother was still the child's guardian under the law.  See id.
  at 198, 436 A.2d  at 738.  Thus,  S.A.M. does not stand for the proposition
  that a CHINS adjudication is required every time a child 

 

  is being cared for by persons other than a parent or legal guardian.

       Rather, the issue is whether, given all of the circumstances, the
  child is without proper  "parental" care, such that the child's well-being
  is threatened.  Whether a "child is without proper  parental care or
  control necessary for his well-being within the meaning of the statute is a
  question  of fact, . . . and each case must be determined on its own
  facts."  In re Rathburn, 128 Vt. 429, 434,  266 A.2d 423, 426 (1970)
  (citation omitted).  Here, in contrast to the situation in S.A.M., G.C. was 
  not foisted upon the foster family without their agreement to the
  arrangement.  To the contrary, the  arrangement with the foster family was
  carefully planned by mother and her support staff at  WCMH.  According to
  witnesses at the merits hearing, the arrangement was made with the 
  understanding, given mother's past psychiatric history, that mother might
  be hospitalized or  otherwise incapacitated at times, and that during such
  periods the foster family would assume full-time care of G.C.  Thus,
  although the court emphasized the witnesses' testimony that the focus of 
  the arrangement was on mother's needs rather than the potential risks to
  her baby, the evidence  indicated that the foster family was made aware
  that a primary part of its role was to provide  support for mother in her
  parenting of G.C.  Indeed, the documentation of the arrangement with the 
  foster couple refers to them as "co-parent[s]" and "assigned substitute
  parents."  Further, as the  court acknowledged, the same witnesses who
  stated that their main focus was on addressing  mother's problems also
  stated that they found any potential risk to the child to be minimal.

       Nevertheless, we conclude that the record supports the family court's
  CHINS adjudication  in this case.  The psychiatric history relied upon by
  the family court revealed that (1)  notwithstanding mother's claim that the
  harm she inflicted upon her one-year-old daughter eleven  years earlier
  resulted from her desire to protect her children from the abusive
  environment in which  they were 

 

  living, mother had a history of child abuse; (2) in the decade since her
  first two children had been  taken from her, mother had been periodically
  hospitalized for threatening or attempting suicide; (3)  during that
  period, mother had had over seventy contacts with police, and her longest
  period of  stability without outside intervention could be measured in
  days; (4) mother and her doctors  conceded that she was incapable of caring
  for herself, let alone a child, without substantial support;  (5) problems
  stemming from mother's mental illness resulted in her being hospitalized
  only days  before G.C.'s birth; (6) mother attempted suicide approximately
  two weeks after G.C.'s birth; (7)  although the foster couple knew that
  they would be responsible for providing G.C. care in the event  mother was
  unable to do so, they had not been informed of the depth or details of
  mother's mental  problems; (8) the foster couple did not have legal
  guardianship over G.C. and thus could not stop  mother from leaving the
  foster home with the child if she chose to do so; and (9) mother stated
  after  her latest suicide attempt that she was depressed in part because
  the current twenty-four-hour-a-day  foster care arrangement made her feel
  like she was not trusted to care for her child.

       Notwithstanding the mitigating circumstances cited by mother, these
  facts support the  family court's order finding G.C. to be in need of care
  or supervision.  See In re M.B., 158 Vt. 63,  70, 605 A.2d 515, 519 (1992)
  (State has burden of proving CHINS by preponderance of evidence;  family
  court's findings in juvenile proceeding will stand on review unless they
  are unsupported by  any credible evidence).  While there was no evidence
  that the foster-care arrangement had failed to  provide G.C. support at the
  time the infant was removed from the foster family's home, the court 
  correctly focused on "the likelihood of prospective harm to the child." 
  E.J.R. v. Young, 162 Vt.  219, 223, 646 A.2d 1284, 1286 (1994) (dependency
  proceedings are preventative as well as  remedial in nature).  Considering
  mother's psychiatric history, the danger of harm to G.C. was  substantial
  enough

 

  for the State to intervene and examine the situation while protecting G.C.
  from any potential harm.  Indeed, even mother's own psychiatrist conceded
  that the foster-care arrangement he had helped set  up posed some risk to
  G.C.

       While we conclude that the State met its burden of proving by a
  preponderance of the  evidence (FN2) that G.C. was in need of care and
  supervision, the fact that mother's mental illness  prevents her from
  assuming parental duties without support does not necessarily, in and of
  itself,  satisfy the State's burden in the disposition phase of the
  dependency proceedings in this case.  Cf. In  re N.H., 135 Vt. 230, 237,
  373 A.2d 851, 856-57 (1977) (notwithstanding existence of questions 
  concerning father's ability to assume active, responsible parental role,
  trial court should have placed  child with father because it was undisputed
  that "he, with the support of his parents, stands willing  and able to
  provide N.H. with a family environment").

       Affirmed.

                                FOR THE COURT:
                               

                                ________________________________________
                                Associate Justice

----------------------------------------------------------------------------------
                                  Footnotes

FN1.  We recognize, however, that the circumstances of this case, including
  the undisputed expert testimony challenging the earlier  MSP diagnosis,
  bring into question the fairness of relying on that diagnosis eleven years
  later in dependency proceedings  involving other children.  See Trepanier
  v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990)
  (stating criteria  for applying issue preclusion, including requirements
  that earlier proceeding provided full and fair opportunity to litigate
  issue,  and that applying preclusion in later proceeding is fair).

FN2.  Although the family court noted that the State requested the court to
  make its findings by clear and convincing evidence, the  court did not
  indicate that its findings were made under the higher standard.