Tuesday, May 13, 2014

Keep Your Eye on the Ball

In re B.R., 2014 VT 37

By Elizabeth Kruska

I know some attorneys who would rather poke themselves in the eyes with screwdrivers than appear in juvenile court.

That, my friends, is too bad.

Juvenile court is incredibly important. As a society, we recognize that little kids can’t fend for themselves, and that if something is going wrong, that somebody needs to step in and help. We want kids to be safe and okay and to grow into awesome, successful adults. 

That’s why we have juvenile court. If a child is in need of care and supervision (CHINS) for whatever reason, the juvenile court is charged with the duty of acting in the best interests of that child. The goal, of course, is to get the child—and often times the whole family—on track to be successful. CHINS is pretty liberally construed in an effort to be protective of kids. The burden on the State is low—it’s a preponderance standard. Parents and children can agree the child was CHINS, or can demand a hearing, and require that the court take evidence and make findings.

The potential ramifications of juvenile court are pretty huge. A parent may lose his or her child to the State, and depending on the arc of the case, may never get the child back. Because of this, the court needs to make sure the facts that fit the situation are enough to establish the CHINS, that there’s actually a causal link between the facts and the child’s need of supervision, and that if it’s not done by agreement, that the evidence sought to be used by the State is presented to the court and is and admissible.

The burden on the State isn’t much. They need to trot out a witness or two to say what he or she actually knows or has seen firsthand, and it has to be linked to care of the child. If the State can’t do that, chances are the CHINS is tenuous anyway, and needs to be dismissed.

And that brings us to B.R. It’s a fact pattern juvenile-court practitioners see, unfortunately, too often. Parents had some drug issues that exposed B.R. to the effects of drug use, and to people involved in drug use. B.R. was 2 months old and didn’t have a choice about whether to go to the drug house or stay home. A CHINS petition was filed, and both parents agreed B.R. could be placed with a relative while the case sorted itself out.

Several months later, mother stipulated to “the merits” of the CHINS petition, saying that she “was unable to care adequately for B.R. due to long-term substance abuse and her failure to access and engage in services.” Father did not similarly stipulate, and the case was set for a hearing.

Keeping its eye on the ball—the best interest of B.R.—the juvenile court held a hearing and ultimately found that mother’s admission plus some (dubiously admissible) other evidence was sufficient to find a CHINS, and moved to the disposition phase of the case. Father appealed under a number of different arguments, including that there was not enough evidence to make a CHINS finding relative to him.

The SCOV majority rightly points out (as does the dissent) that it isn’t which parent is the cause of the CHINS, it is whether the CHILD is in need of supervision. This can be based on action (or inaction) by either or both parent. But the point isn’t about which parent it is, the point is about the situation relative to the child.

SCOV affirms because the juvenile court found that the parents lived together at the time B.R. was CHINS. Because they lived together, and mother admitted the problem, it would produce an absurd result to return the child to father, and potentially right back into the same living situation that caused the CHINS proceeding in the first place. Since the case had not moved to disposition yet, the fitness of the parents to raise B.R. going forward had not been examined, and would be further examined in additional proceedings. The point is that all hope for reunification is not lost just because of a CHINS finding.

Justice Dooley concurs, but suggests that the legislature has the power to fix this mess.

Justice Robinson dissents. She gets it that juvenile court is important, and that if the State is going to get into people’s business and take their kids, then it had better back up their reasons for doing so. As I mentioned above, the rules are liberal to provide for the most possible protection of kids. The burden of proof is a preponderance, which is pretty low.

I appreciate that the dissent politely screams at the top of its lungs for juvenile courts to take evidence, to make good findings, and to link the evidence to the situation. CHINS findings should not be taken lightly. Every individual case needs to be examined, and the court needs to keep its eye on the child. One parent might have problems but the other doesn’t—that doesn’t necessarily mean that the child is in need of supervision. It might support such a finding, but it doesn’t automatically make it so.

The dissent goes on to take some issue with mother’s stipulation to “the merits” and the court’s findings based on that. First of all, just because mother had some drug problems, doesn’t automatically mean that B.R. was without proper care. There’s got to be some causation to link the drug use to the need for care. In this case, there might’ve been, but there wasn’t a lot of actual evidence about it. Secondly, mother’s admission about herself can’t be used against father. That’s like saying because my husband likes broccoli that as a couple, we are “people who like broccoli.” We are not. (Broccoli is an evil and vile vegetable, in my humble opinion.)

So, what to do if there is an incapable custodial parent who then moves in with a capable noncustodial parent? Does that automatically render the child in need of supervision? Justice Robinson says no. The court has got to get more information about the situation in general and make some specific findings. The only way that juvenile court legitimately works in the best interest of kids, is to demand that it is done in the right way.

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