Monday, December 2, 2013

Juvenile Justice Juxtaposition


In re D.D., 2013 VT 79

Children-in-need-of-supervision (CHINS) proceedings are complicated.  The stakes are high; the standards of proof and admissibility of evidence vary from hearing to hearing; and the legislature overhauled the applicable statutes within the last five years, making a great deal of so-called “juvenile law” widely open to interpretation. 

That’s just my personal opinion, of course. 

In this case, the trial court found D.D. to be CHINS because he was without proper necessary medical care.   D.D. was born with a serious medical condition, which required significant regular medical treatment.  Based on concerns about the parents’ ability to properly care for D.D., the Department for Children and Families (DCF) petitioned for a CHINS finding as to D.D.  Based on affidavit from a DCF worker, the trial court granted an emergency transfer to DCF custody, held a temporary-care hearing the next day, and continued DCF custody based on a finding that returning D.D. to his parents could result in substantial danger to D.D.’s health. 


At the merits hearing, D.D.’s primary-care physician testified that D.D.’s condition was generally “great” apart from his chronic kidney disorder, which required close, routine monitoring.  There was mixed testimony about the family’s attendance at scheduled appointments, and it appears that the family missed at least an appointment or two.  A report compiled by an unnamed hospital staff member was read into evidence over parents’ objection.  D.D. apparently missed his weekly shots at least twice while in his parents’ custody and at least once while in DCF’s custody.  The family moved a lot and the “residences did not always have water.”  There was testimony about mother’s substance-abuse issues, and testimony about difficulties with transportation and maintaining regular income. 

The trial court made several factual findings on the record based on the testimony, ultimately concluding that D.D. was without proper parental care for medical treatment, and again continuing custody with DCF.  The court ordered a case plan, which DCF submitted a month later, and the trial judge wrote “so found” on it.  There were proposed findings in the case plan that did not comport with the on-the-record findings.     

At a disposition hearing, parents agreed to DCF’s continued custody subject to a transitional sixty-days-to-reunification plan.  The court held a disposition hearing and entered a disposition order two days later.  Father appealed the trial court’s merits determination approximately 27 days later.

On appeal, father’s arguments are:  (1) the “so found” findings are not supported by the record; (2) that the unnamed hospital staff member’s “attendance report” was inadmissible hearsay; and (3) that the findings (oral or written) did not support the trial court’s CHINS determination. 

DCF concedes that some of the written findings are inadequate, but maintains that the CHINS finding was adequately support and also challenges the timeliness of father’s appeal.

The SCOV first considers the timeliness issue.  It begins with a thorough discussion of the public policy reasons why a CHINS merits determination should be appealed immediately—the potential development of relationship with foster parents, the separation from parents and so forth—and a discussion of why this determination is a final order due to the bifurcated nature of CHINS proceedings. 

Ultimately, the SCOV holds that a CHINS merits determination is a “final order” which must be appealed within thirty days of the order.  The SCOV also notes a recent decision, which it concludes resolved the matter once and for all.   

Nevertheless, the SCOV admits, “We recognize that our jurisprudence regarding the appropriate time to appeal CHINS determinations has not been consistent.”  It also notes that the case that it considers controlling on this issue was not decided until after father filed his notice of appeal.  For those reasons, the SCOV reaches the merits of this case, but you can bet your bippy that this is a one-time-only offer.  The SCOV has handed down the rule and the rule is that the appeal lies within thirty days from a CHINS merit hearing.  So, you’d better file that notice of appeal sooner rather than later.     

From here, the SCOV looks into the merits of father’s appeal, and here is where the SCOV divides.  From this point forward, the decision becomes a 3-2 split. 

Though the majority agrees with father that many of the trial court’s written findings were insufficiently supported, if supported at all, the majority ultimately concludes that the remaining findings, which are supported by the record, are sufficient to support the trial court’s ultimate conclusion.

The majority notes that a number of the trial court’s adopted-without-scrutiny written findings are clearly erroneous.  Nonetheless, the majority concludes “that the remainder of the court’s written findings support the court’s conclusion that child was a CHINS due to medical neglect.”  The SCOV’s basis for this conclusion rests largely on D.D.’s need for constant and consistent monitoring of his kidney function.  Because the parents missed some appointments, and missed some scheduled shots, the majority concludes that the trial court’s finding of medical neglect is adequately supported, and affirms the trial court’s merits decision. 

Justice Robinson, joined by Justice Skoglund, dissents and notes the right to raise one’s children is a fundamental right and that state intrusion into this area of private life must be sufficiently supported by compelling state interest.  

The dissent notes that the “findings” in many instances are wholly unsupported or completely false.  The dissent states: “These various clear errors hopelessly compromise the trial court’s written findings in this case, undermining the level of confidence in the trial court’s assessment of the situation that we require in order to uphold a State intervention of this gravity.”

The dissent notes that this is not an abuse case.  Indeed, there was no indication that there was anything wrong with the parent-child relationship other than the alleged medical neglect. 

And the medical-neglect piece is not a given.  While the dissent acknowledges that the facts might allow a trial court to make a CHINS finding, the facts do not compel the same. 

The dissent also takes issue with the State’s draconian approach in this case.  Instead of taking less-intrusive and statutorily suggested measures, the State immediately went for DCF custody.     

On a personal level, I lean toward the dissent’s reasoning.  State interference in private affairs must be supported by adequate cause, and appropriate scrutiny must be applied to State actions in such cases.  The majority’s reasoning is too deferential given the interests at stake, and frankly, seems to tacitly open the door to the State’s micromanagement of the parents’ traditional role.  But as a recent New Yorker article indicated, this seems to be part and parcel of the current direction that CHINS and parental termination are taking nationwide.


What do you think?

2 comments:

  1. Do you happen to have a link to, or know the issue date of, the New Yorker article referenced? I must have missed it...

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  2. It is hyperlinked in the text above, but let me re-post it again below. Unfortunately, the bulk of the article is behind the New Yorker's paywall. The article is titled "Where is Your Mother?" It was in the December 2, 2013 issue, which I believe is still on the newsstands. It details a termination of parental rights case in Orange County, California, but several of the issues resonate with what the SCOV has been discussing this fall in this and other termination cases, and it is a fascinating read : http://www.newyorker.com/reporting/2013/12/02/131202fa_fact_aviv

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