Judicial Burn Notice

In Re J.W., 2016 VT 78

By Amy E. Davis

[Author’s note: this post is dripping with more-than-usual sarcasm because it helped me cope with this case.]

The court adjudicated JW as CHINS because Mom could not adequately protect him from Dad if JW went back to Mom. Dad appeals saying the court erred in taking judicial notice of his criminal records and filings from a relief-from-abuse order against him. Dad also says the findings do not support the conclusion that JW was a kid in need of care or supervision.

JW was born in 2012. In May 2015, the Department for Children and Families (DCF) filed a Child In Need of Supervision (CHINS) petition, and JW went into temporary DCF custody. Some allegations included that Mom and JW were homeless, Dad was incarcerated, Dad had history of domestic violence against Mom, Dad had been substantiated for sexual abuse, Dad had been charged and convicted of prohibited acts for groping a juvenile, both parents had substance abuse use issue, etc. etc. There’s just a whole bunch of bad stuff in the petition.

The next step in a juvenile proceeding is the merits stage, where a judge determines if there is any merit to the State’s request. This particular merits hearing lasted three days, which I think is quite a feat. It’s three days of parents hearing about how crappy they are as parents and the lawyers thinking, “Dear God, why do I do this work?” The court found at the end of the three days that the State had not established many of the “serious” allegations, but it had proved that Mom was unwilling to protect JW from Dad, and made a series of findings to support this. Well what on earth did they even talk about for those three days then? Banana bread? I get that it is delicious an all, but I would only need half of a day to swap best recipes.

The court found that Mom had messed up when it came to her meds—you know, having illegal medication, not following treatment—along with a lack of stable housing. However, the court found that none of those things caused harm to JW. But, Dad was a different story. Mom had filed for a relief from abuse (RFA) order in March 2015. In Mom’s filing, she listed a lot of really not-so-nice things about Dad. Dad allegedly said stuff like, “I oughta smash your brains all over that post,” “time for you to die,” and stuff like that. Mom said that this incident was in August 2014, but that wasn’t the worst of it. In 2013, after Dad got out of jail, he waited for Mom to finish nursing JW, and then strangled her. Back in 2011, Dad went out to buy some drugs and threatened to burn the house down if Mom wasn’t home when he got back. In 2014, Dad smashed a car window out when Mom tried to leave with JW. The next day, Dad left JW alone in the car when JW climbed out of the broken window and started wandering around a parking lot.

Then at the merits hearing, Mom said she never actually felt threatened, and that she only filed for the RFA because DCF told her to do. Mom said she worried about being able to protect JW from his dad. She also said some of that stuff never happened, they were only dreams. But the court did not believe that Mom didn’t read the petition she filed, or that she was coerced into filing the petition.

Mom also admitted at merits that Dad has threatened to burn the house down, that the house did burn down, and that Dad smashed the car window when he tried to leave with JW. Mom told the domestic violence counselor, who then wrote out the RFA affidavit that Mom signed. Finally, Mom testified that she did not feel that JW was unsafe with Dad at all.

The court made several findings, including that Mom was rightly concerned about JW’s safety while around his father given his criminal record and the events Mom alleged. But, Mom still allowed JW to be around Dad unsupervised. I don’t know why. Maybe she worried he would bash her brains into a post or burn her house down if she didn’t. The court said Mom was right to obtain an RFA and create a safety plan, but did not give her credit for seeking the RFA because she said she thought she needed it for a housing voucher. Oh weird, a domestic violence victim that didn’t fully understand the system.* Finally, Mom had moved to vacate the RFA order because she wanted to “move on to have a life as a family with our daughter.” I’ve never heard of a domestic violence victim going back to an abuser before. Never.

So the court says that Mom can’t have JW back because she wouldn’t protect JW from Dad if returned to Mom’s custody. Thus, the court finds merit to the state’s petition. The court says that Mom believed Dad was dangerous to JW and she “sought to expose” JW to Dad. If I was Mom’s attorney, I would have been all over this like tie-dye on a hippie, but instead, it was Dad’s attorney who appeals to the SCOV.

Dad appeals on the basis that the court went beyond its authority in reviewing his criminal records which the State had not put into evidence. The SCOV says Dad is mischaracterizing the proceedings. The “clearly frustrated court” found that the State had failed to meet its burden of proof on many of the allegations in the petition. The trial court also noted that the State needed to do its job and put together a sufficient case to support intervention. The trial court focused most of its attention of Dad’s actions in JW’s life and how Mom responded to those actions.

The trial court relied primarily on the RFA file. The SCOV notes that the trial court misspoke when it said it was taking “judicial notice” of the file because, in actuality, it was entered into evidence. The court obtained the file, reviewed it, allowed the parties to copy the file, then JW’s attorney entered it into evidence. Both parents’ attorneys objected for different reasons, which the trial court overruled. I also want to point out that the whole file came to light due to Mom’s attorney’s objection during Mom’s testimony. Mom said something like, “Yeah I signed something, but what was in the affidavit wasn’t true.” Mom’s attorney said something like, “Well, unless you’re going to dig up the affidavit, we won’t know.” So the judge said something like, “BRB I’ll go get it.” (This is the part where my VTDigger critics ask for more professionalism in my satire).

The SCOV finds that the procedure below caused no harm to the parties, and there was no usurping of the prosecutor’s role. Then the SCOV turns its attention to Dad’s next issue—that the trial court took judicial note of Dad’s criminal history (which included RFA violations, lewd and lascivious conduct with a minor, and, oh yeah, arson).

When it comes to judicial notice, the court can take notice that an order exists, but nothing of substance within that order. Dad does not dispute that he’s got a pretty impressive criminal history, but says it’s not clear if the trial court only considered the existence of the convictions, or if it looked further into the convictions and unconvicted allegations.

So again in this opinion, the SCOV notes that the State has to prove its case. The State mentioned in the petition that Dad had convictions. The SCOV notes that it would have been “preferable” for the State to have presented the records of those convictions. Or, if the State couldn’t be bothered to get the records, the State needs to just ask the court to take judicial notice of the criminal history. Honestly, this case is so prosecution-friendly it makes my skin crawl.

It looks like, to the SCOV, that the court went outside of the record by adding specificity to the record about the underlying convictions. So, the SCOV says, let’s assume just for argument’s sake, that this was wrong. According to the SCOV, this outside-the-record finding was harmless. But just wait till you hear why: it was evident from the proceedings that Dad had a criminal history because the DCF social workers testified that dad had been incarcerated at some point, but wasn’t sure if any charges had come from a certain incident and blah blah blah. But “more importantly,” the trial court only used the record to corroborate Mom’s allegations about Dad’s behavior. The SCOV disagrees with Dad’s claim that the trial court used the criminal records as a “primary basis of its decision.” The SCOV concludes that the court could reasonably conclude that Mom’s “non-credible” testimony and her failure to protect JW from someone she believed to be dangerous supported a CHINS finding.

And so the SCOV affirms.

*One of the DCF social workers testified that Mom was staying at a domestic violence shelter when she filed for the RFA. Maybe that’s where the housing confusion came in—you know, “if you file for an RFA we can help you get out of the shelter.” But, what do I know?