Sunday, August 24, 2014

Discretion and Disposition

In re C.L. & S.L.2014 VT 87 (mem.)

By Andrew Delaney

Parents and kids generally have a hard time of it once they’re in the court system and there are allegations of neglect. It’s a bit of a murky system.

Mom has a history with the Department for Children and Families (DCF). Her elder son was placed in another home under a guardianship due to medical neglect. Last year, “DCF filed a CHINS petition alleging parental neglect of” two younger children—who were ten and three at the time of the petition.

There was a preliminary hearing and though DCF requested custody and the court expressed “serious concern about the children’s developmental delays,” in the end the court ordered conditional custody to mom with “stringent conditions”—meaning that the parents had to jump through a lot of putatively therapeutic hoops and make sure the kids did the same. 
The parents stipulated to a CHINS finding based on absences from school and daycare, the parents’ living situation, and their failure to adequately use “special education services for the children.” DCF’s disposition plan “recommended that custody be transferred to DCF with concurrent goals of reunification or adoption.” Mom and dad objected and a hearing was held over several days and months, with the court eventually issuing a written decision.

The court found that both parents struggled to provide adequate care for the kids and received numerous services. Mom had cognitive difficulties and depression, leading to inadequate care for the kids. Allegedly, they showed up at school dirty and smelly, weren’t properly toilet-trained, missed school a lot, missed healthcare appointments, and so on. A caseworker who’d worked with mom for several years testified that mom was attentive but had trouble following recommendations and her motivation waned over time.

The kids also had significant developmental delays. There was evidence that both children were significantly behind their peers. The ten-year old has a very low IQ, and the four-year old isn’t toilet trained. He communicates with grunts and gestures. The parents allegedly weren’t meeting the kids’ needs.

The court noted “that overall the parents were able to comply with” the conditional-custody order, but that the parents weren’t able to provide proper care on any kind of a consistent basis. In part because the kids hadn’t made sufficient progress, the court ordered custody to DCF. Because the case plan was five months old at that point, “the court ordered DCF to submit an updated plan of services within thirty days that might help the parents to make progress toward reunification.” Mom appeals.

The SCOV notes that its review is limited to whether the trial court abused its discretion. Mom doesn’t challenge any of the findings, but argues that “in accepting the concurrent goals of reunification or adoption while simultaneously ‘reject[ing]’ the plan of services and ordering an updated plan, the court somehow ‘lacked critical information to make a responsible, rational custody decision’ and acted contrary to the statutory scheme.”

The analysis begins with: “The claims lack merit.” That’s not a good sign. The SCOV reasons that the court didn’t reject the services plan, but ordered it updated. The SCOV reasons that the previous plan didn’t address interim developments with the kids and the trial court was justified in ordering an updated plan. The SCOV reasons that the trial court’s order doesn’t undermine its continued-conditional-custody-was-not-in-the-best-interests-of-the-children conclusion. Here, the SCOV concludes that the evidence of continued neglect was sufficient to support the court’s decision to transfer custody to DCF and finds no abuse of discretion.

Mom’s statutory-based argument fares about the same. The statute requires the court to adopt a permanency goal and a case plan directed toward supporting that goal. Because the statute gives the court discretion to adopt or reject the plan and order a new one—and custody is not tied to that decision—the SCOV finds no abuse of discretion in the trial court’s order to submit a new plan.

And so that’s it. This isn’t the final round—this appeal is on the disposition order and there’ll have to be a termination-of-parental-rights proceeding before it’s final, but DCF has custody of the kids for now.

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