Sunday, July 20, 2014

Combination Conundrum

In re B.A., 2014 VT 76

By Andrew Delaney

B.A. was referred to a special school when she was 13 or so. There were concerns from the get-go about hygiene and self-injury. There was also an incident in which B.A.’s brother was allegedly sexually assaulted by B.A.’s friend, while B.A. was present and mom was in another room at their house. Then B.A. showed up to school drunk. The Department of Children and Families (DCF) got more involved, and a child-in-need-of-care-or-supervision (CHINS) proceeding as well as a juvenile delinquency proceeding were started.

The trial court essentially combined the two proceedings, and mom waived her right to counsel. B.A. admitted the delinquency, but mom opposed the disposition on the delinquency (which recommended continued DCF custody), and the merits on the CHINS allegation. There was a two-day hearing, and evidence was introduced about the living conditions at mom’s house, B.A.’s behavioral issues, and the alleged sexual assault. 
 
The trial court found that B.A. was in need of supervision, though mom testified that B.A. wasn’t drunk when she left the house. The trial court also found that the living conditions at mom’s house weren’t good. On the delinquency disposition, the trial court ordered continued DCF custody.

Mom appeals, leaving the evidentiary findings alone, but arguing that “juvenile-protection proceedings mandate a particular statutory procedure and the court’s failure in this case to precisely adhere to that procedure caused reversible error.” The SCOV is not convinced.

The SCOV notes at the outset that the “statutory procedures for both juvenile-delinquency and child-neglect proceedings follow a similar path.” Both paths separate disposition from merits—merits hearings are subject to the rules of evidence, whereas hearsay is admissible in the disposition phase of the proceeding.

Mom argues “that here the court lacked statutory authority to simultaneously take evidence on both the merits of the CHINS petition and the delinquency disposition plan.” The SCOV reasons that even if mom’s right—which the SCOV is not exactly saying—mom “failed to preserve the issue and combining the hearings did not cause prejudice.” Mom didn’t object to combining the two hearings at a pretrial status conference. The trial court apparently instructed the State that it “would have to go forward in the joint hearing without resort to the relaxed rules of evidence, which otherwise it would be entitled to . . . in the disposition hearing.’” The State agreed, and mom didn’t object.

The SCOV notes, “Generally, in juvenile proceedings, as for other civil cases, unpreserved issues that are not raised at trial are waived on appeal.” However, the SCOV will consider unpreserved errors in “exceptional cases” when the error is “so obvious, grave, and serious as to warrant reversal.”

That sounds nice, but it doesn’t get mom very far. The SCOV reasons that mom’s unpreserved claim of error here is not the kind of “fundamental miscarriage of justice” that warrants reversal. Mom argues that the merits determination was tainted by otherwise inadmissible evidence, but the SCOV reasons that the only such testimony introduced was testimony that mom brought in about her theory as to why B.A. had gotten drunk on the bus to school.

Despite a claim that the State introduced impermissible evidence of B.A.’s substance-abuse evaluation, the SCOV concludes that mom fails to tie it together—in other words, mom doesn’t make the connection between the improperly admitted evidence and prejudice. The SCOV reasons that the findings the trial court made to support its decision are independent of any of the allegedly improper evidence.

The disposition decision is discretionary. And here, the SCOV points to testimony and other evidence that amply supports the trial court’s exercise of discretion in this case. And so, the SCOV affirms.

Juvenile cases, as one of our contributors points out, are the kind of cases that some attorneys “would rather poke themselves in the eyes with screwdrivers” than handle. Juvenile cases happen behind closed doors and there’s so much about these cases that we can’t know. It’s certainly not easy to Monday-morning quarterback when kids’ safety is involved.

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