In re J.M., Juvenile

In re J.M., Juvenile (2004-555); 178 Vt. 591; 878 A.2d 293

2005 VT 62

[Filed 09-Jun-2005]

                                 ENTRY ORDER

                                 2005 VT 62

                      SUPREME COURT DOCKET NO. 2004-555

                               MAY TERM, 2005

  In re J.M., Juvenile	               }	APPEALED FROM:
                                       }
                                       }
                                       }	Franklin Family Court
                                       }	
                        	       }
                                       }	DOCKET NO. 198-10-02/200-11-02 
                                       }	   	   Frjv

                                                Trial Judge: James R. Crucitti

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

       ¶  1.  J.M., now seventeen years old, appeals from an order of the
  Franklin Family Court  modifying J.M.'s case plan and disposition.  The new
  plan requires J.M. to complete rehabilitation treatment at the Woodside
  Residential Program, commonly called the Woodside "R-wing."  J.M. argues
  that the family court did not make the findings required by statute to
  modify disposition.  J.M. also argues that the court erred because the new
  plan does not put J.M. in the least restrictive and most family-like
  setting possible as federal and state policy require.  We affirm.

       ¶  2.  In October and November 2002, the State charged J.M. with
  delinquency in two separate cases.  The State subsequently dropped the
  delinquency charges and replaced them with two petitions alleging that he
  was in need of care and supervision (CHINS).  In March 2003, the Franklin
  Family Court adjudicated J.M. CHINS because his behavior was beyond his
  parents' control.  33 V.S.A. § 5502(a)(12)(C).  The family court
  transferred legal custody and guardianship of J.M. to the Commissioner of
  the Department for Children and Families (DCF), and it approved a case plan
  whose goal was to reunify J.M. with his father and stepmother after J.M.
  received needed treatment.  
   
       ¶  3.  J.M.'s behavioral problems are serious.  He suffers from
  attention deficit hyperactivity disorder and oppositional defiant disorder,
  and has shown symptoms of post-traumatic stress disorder. J.M. can be
  violent and aggressive towards other people.  On one occasion, J.M.
  assaulted his older sister.  That incident led to a separate delinquency
  charge in Lamoille County.  In May 2003, the Lamoille Family Court
  adjudicated J.M. to be delinquent and ordered him to remain in DCF custody
  while on probation.  The delinquency case was transferred to the Franklin
  Family Court in early 2004 by agreement of all the parties.  Since that
  time, DCF has prepared a unified case plan for J.M. in the CHINS and
  delinquency dockets, although the Franklin Family Court never ordered the
  cases consolidated. (FN1)

       ¶  4.  To address J.M.'s issues, DCF recommended that the child
  receive a number of services, including therapy and medication.  The agency
  placed J.M. in a number of different foster homes and programs to treat his
  problems, all without success.  As a result, J.M. has bounced from one
  placement to another since entering DCF custody in 2003.  When a suitable
  placement was either not ready to accept him or was not available, DCF
  placed J.M. in the detention wing at Woodside.  The detention wing offers
  no counseling or other rehabilitation treatment.  Woodside's R-wing is,
  however, dedicated to rehabilitating children adjudicated delinquent by the
  family court.  Ultimately, DCF determined that J.M. would benefit from the
  services and structure offered by Woodside's R-wing residential program. 
  Accordingly, in July 2004, the State moved to modify disposition to require
  J.M. to complete Woodside's residential program before reunifying with his
  father and stepmother.  
   
       ¶  5.  J.M. and his family opposed DCF's plan.  They wanted DCF to
  allow J.M. to live in the community with his aunt and uncle, an arrangement
  that had failed in the past.  The family proposed a plan to ensure that
  J.M. would not be left alone and that he would receive the individual
  counseling and substance abuse treatment he needs.  After taking evidence
  from the parties, the court granted DCF's motion to modify.  The court was
  "impressed with the family's commitment and willingness to undertake this
  plan and commitment to [J.M.]."  The court believed that J.M. "does need an
  intensive program to deal with anger management issues, substance abuse
  issues and oppositional tendencies."  The court further explained that J.M.
  faces much future misery and potential criminal sanctions if he is unable
  to "quickly master anger management and substance abuse avoidance tools"
  given his age-J.M. will turn eighteen in April 2006.   The court concluded
  that J.M.'s best chance for a stable and happy life in the future rested
  with residential treatment at Woodside.  J.M. appealed the decision to this
  Court. 

       ¶  6.  J.M. first argues that the court's decision lacks findings
  that a substantial and material change of circumstances occurred and that
  it is in his best interests to be confined at Woodside.  He argues that the
  change at issue here is simply a change of placement, which alone does not
  amount to the change of circumstances the statute contemplates.  See 33
  V.S.A. § 5532(a) (allowing the family court to modify disposition upon a
  finding that changed circumstances so require in the best interests of the
  child).  DCF counters that its decision to place J.M. at Woodside did not
  require prior family court approval because DCF is J.M.'s lawful custodian
  and as such, it has plenary authority over where J.M. resides.  

       ¶  7.  Determining the extent of DCF's authority to place J.M. at
  Woodside without court approval is unnecessary here.   The fact is that DCF
  sought court approval of the modified case plan and it delayed placing J.M.
  in the R-wing pending the court's approval.  The question for us, then, is
  whether the record supports the court's findings of changed circumstances. 
  We conclude that it does.  J.M. has been in and out of a variety of foster
  homes and residential programs since entering DCF custody.  J.M.'s
  psychological issues were treated only intermittently because he could not
  achieve stability in any of his prior placements.  In sum, DCF's plan was
  not working for J.M., and something had to be done to ensure that he
  receives the services he needs.  J.M.'s lack of progress in meeting the
  case plan's goals supports the court's findings that the statutorily
  required change of circumstances had occurred since the original
  disposition order. 

       ¶  8.  J.M. next argues that the court failed to analyze his best
  interests according to the statutory factors set forth in 33 V.S.A. §
  5540(1)-(4):  (1) the child's relationship with his parents and family
  members; (2) the child's adjustment to his community, home, and school; (3)
  the likelihood that the child's parents can, within a reasonable period of
  time, resume parenting; and (4) whether the child's parents play a
  constructive and loving role in the child's life.  Although the court in
  this case did not cite each factor explicitly, its decision reflects that
  it considered those factors in light of the evidence admitted during the
  modification hearing.  The court's order notes the family's commitment to
  J.M.'s rehabilitation; J.M.'s inability to adjust to prior placements;
  J.M.'s need for further treatment before his release from DCF custody; and
  the ability of the Woodside program to meet J.M.'s important and pressing
  needs.  The court concluded that "the best opportunity for [J.M.] to lead a
  life that he will control and enjoy in the future is to complete the
  residential program at Woodside."  The family court's findings support its
  conclusion that J.M.'s best interests will be met by undergoing
  rehabilitation at Woodside's residential program.  
        
       ¶  9.  J.M. claims that his needs could be met by living in his aunt
  and uncle's home with the support and assistance of other family members. 
  He argues that state and federal policies require that children in state
  custody be placed in the most family-like and least restrictive setting as
  possible.  We do not disagree with J.M.'s characterization of state and
  federal juvenile justice policies.  See 33 V.S.A. § 5501(a)(3) (providing
  that Title 33 proceedings are intended to separate a child from his or her
  parents only when necessary and, whenever possible, to keep the child in a
  family environment during separation); 42 U.S.C. § 675(5)(A) (2000)
  (requiring states accepting federal foster care funding to establish a case
  plan for a child that is designed to achieve placement in the least
  restrictive and most family-like setting possible).  We disagree, however,
  that the family court committed reversible error in rejecting the family's
  plan in favor of DCF's.  The disposition most suited to meet the child's
  needs is a discretionary decision the family court must make after
  considering the options the parties present.  Here, the court  explained
  that J.M. had already tried living with his aunt and uncle.  J.M. was
  forced to leave their home because of his oppositional and aggressive
  behavior.  J.M.'s social worker told the court that no other less
  restrictive program exists that could meet J.M.'s particular needs.  The
  court found that, to resolve his anger management and substance abuse
  issues, J.M. requires an intensive program in a more structured environment
  than his relatives can offer.  The family court's decision granting DCF's
  request to place J.M. in Woodside's rehabilitation program was within its
  discretion and is supported by the record.  

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

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


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                                  Footnotes


FN1.  The lack of an order consolidating the CHINS and delinquency dockets
  led to some confusion about this appeal.  The family court docket numbers
  cited on virtually all of the documents in the record before us, including
  J.M.'s notice of appeal, reflect the docket numbers assigned to J.M.'s
  CHINS cases, but not the delinquency case.  The docket number assigned to
  the delinquency case appears on the case plan giving rise to J.M.'s appeal,
  but it does not appear on J.M.'s notice of appeal or the court's order
  granting DCF's motion to modify.  Consequently, we ordered supplemental
  briefing on whether the family court had authority to place J.M. at
  Woodside considering that the record suggested that he was in custody on a
  CHINS finding only.  See 33 V.S.A. § 5801(a) (limiting Woodside to the
  treatment of children adjudicated delinquent).  The additional briefing
  made clear that, although the Franklin Family Court never ordered the CHINS
  and delinquency proceedings consolidated, DCF and the parties have treated
  the proceedings as if they had been consolidated.  That treatment makes
  sense because there is only one child; it would be illogical, and wasteful
  of scarce resources, for DCF to prepare, and for the court to approve,
  multiple case plans with competing goals and treatment options simply
  because the child is the subject of more than one Title 33 proceeding.  We
  observe that the record would have been much less confusing, and the
  additional briefing would have been unnecessary, had the family court
  ordered the cases consolidated.  In any event, the record is now clear that
  pursuant to the Lamoille Family Court's order of May 22, 2003, J.M. is in
  DCF custody as a delinquent child in addition to his CHINS status. 
  Placement at Woodside is not, therefore, prohibited by statute.