Monday, June 9, 2014

And I Am the Water Boy . . .

In re L.M., 2014 VT 17

By Merrill Bent

This case involves a now nearly-four-year-old child known as L.M. In 2013, when the child was about to turn three, DCF filed a petition alleging that L.M. was a child in need of supervision (CHINS).

Soon after the petition was filed, the trial court assigned temporary custody to L.M.’s paternal grandmother. The mother agreed that, because of her own drug use and homelessness, the child was CHINS. The father disagreed.

A merits hearing was held a few months later, at which the trial court heard testimony from the DCF social worker assigned to L.M.’s case and from the paternal grandmother. Neither parent appeared at that hearing.

In her testimony, the social worker recounted a history of the DCF investigation that followed the initial report about the family. Her testimony detailed the parents’ pattern of homelessness, drug use, transience, and instability. According to the social worker, the parents had acknowledged these issues early in the investigation and, as a result, she had recommended that L.M. attend daycare and that the father obtain a substance abuse evaluation. The parents agreed to follow these recommendations.

A short time passed before the social worker visited the family’s residence unannounced based on a report that a relative was smoking crack in the basement of the house in which the family was staying. The social worker saw no evidence of crack use, and the mother initially denied any crack use, but admitted that adults sometimes used marijuana in the basement. The mother then told the social worker that she and the father smoked crack in the basement once.

During that visit, the social worker told the parents that DCF would open a case on account of their failure to follow through on earlier recommendations. She then scheduled a safety-planning meeting, which neither parent attended in spite of receiving advance notice.

In spite of numerous attempts by the social worker to follow up with the parents, by the time a CHINS petition was filed, neither one had taken steps to follow the social worker’s recommendations. The social worker testified that, at the time the petition was filed, the father and mother were no longer living together, and L.M. was living with the mother. The mother also told the social worker just before the petition was filed that she and L.M. were homeless, and that the father’s relatives—with whom he was staying—would not put either one of them up.

The father objected to the social worker’s testimony as to the mother’s statements on hearsay grounds. The trial court overruled the objection, concluding that the statements qualified as party admissions, and therefore fell into an exception to the rule barring hearsay evidence.

The child’s paternal grandmother testified that the father had told her that L.M. had been staying with him, but then arranged for L.M. to stay with her soon after the petition was filed. The grandmother explained that, although she had done so in the past, she did not offer to take in either of the parents having reached the end of her patience with their cycle of unacceptable behavioral.

Based on the testimony heard at the merits hearing, the trial court found that the State had satisfied its burden with respect to the father and entered an order reflecting that the child was CHINS as to the father.

The father appealed, arguing that the State’s case was based on inadmissible hearsay evidence, that the child’s needs were being met as she was residing with the grandmother, and lastly, because there was no evidence that his drug problems and instability posed a threat to L.M.’s well being.

The SCOV agrees with the father that the mother’s statements to which the social worker had testified were hearsay and did not fall within the party-opponent exception. In order to fall within the scope of the party-opponent exception, the hearsay statement must be the party’s own statement, or the statement must have been adopted by the party or made by a person authorized by the party to speak for him. The statements at issue were not attributable to the father and, as the mother had already stipulated to a CHINS finding as against her, she was no longer an adverse party and the statements were not offered against her.

Unfortunately for the father, the SCOV concludes that although the trial court was wrong to allow the mother’s statements into evidence, the error was “harmless” because the admissible evidence was still enough to support the CHINS finding against the father by a preponderance of evidence.

Next the SCOV rejects the father’s claim that the child could not be CHINS because she was living with the grandmother when the petition was filed. The SCOV explains that the question of whether a child is without the proper care necessary for his or her well being is a question of fact, and that the trial court’s findings of fact supported the conclusion that the child was CHINS.

The father’s evidentiary challenges were rejected, with the SCOV pointing to the (admissible) evidence elicited from the social worker and the grandmother regarding the father’s history of drug problems, chronic homelessness, and failure to follow through on DCF recommendations. The SCOV concluded that these facts were sufficient to support the CHINS finding, that the State was not required to prove actual harm, and that the court could rely on common sense to reach the conclusion that the father’s drug habit could pose a risk to the child. The father’s instability and inability to follow recommendations enhanced that risk.

Two Justices—Robinson and Skoglund—dissented in this case, writing that the evidence had not established that L.M. was actually at risk or without adequate care as a result of the father’s shortcomings. The dissent asserts the State failed to establish that the father was unable to meet the child’s day-to-day needs, that the child had ever been placed in an unsafe or unhealthy position as a result of the father’s drug and housing problems, or that the child had ever not been cared for during the day due to the parents’ failure to place her in daycare as recommended by DCF. Given the important nature of the parent-child relationship, the dissent concludes that individualized evidence must be required for the State to interfere.

That the dissent was quick to point out that it is “not suggesting that a child is not CHINS until the child has actually suffered harm” highlights the difficulty faced by the courts and by the agencies charged with investigating families like L.M.’s. The courts are in the unenviable position of navigating the area between protecting potentially vulnerable children and taking care to protect our citizens’ fundamental rights from unconstitutional infringement. In determining and explaining the law, the courts provide guidance for state agencies to follow. The agencies must then apply that law to new situations with dissimilar facts and in unexpected circumstances. Any such determination, at any level, may well elicit intense criticism and even vitriol from the public at large, and a wrong decision may have devastating consequences.

The debate surrounding this topic has recently grown to a fever pitch in Vermont in the wake of multiple tragedies involving children in different corners of the State. While not everyone sees eye to eye on how we should approach these issues, there can be little doubt that these are incredibly difficult situations, and are very rarely black and white. We can only hope that our courts strive to develop sound jurisprudence to balance the extraordinarily important competing interests at issue.

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