Thursday, October 8, 2015

Among Other Things, A Signal

In re: M.O, Juvenile
2015 VT 120

By Elizabeth Kruska

M.O. was Mom’s first child, born when Mom was twenty-one. The opinion makes clear that Mom has some cognitive delays, and maybe also has a learning disorder. Before M.O. was born, she got services from a visiting nurse to help prepare for the baby. The nurse found that Mom was engaged in the preparation (Dad less so). The nurse, in hindsight, thought that maybe she should have called DCF before the baby was born so they could help with safety planning.

In any case, M.O. was born, and while Mom and the baby were in the hospital, the hospital social workers and nurses observed that Mom was having some difficulty with pretty basic things. Feeding, waking up when the baby cried, that sort of thing. The hospital workers, as mandated reporters, called DCF because they were concerned that there was a risk of harm to M.O. if there wasn’t some intervention. DCF stepped in and took M.O. into custody.

A Child in Need of Supervision (CHINS) petition was filed and ultimately, the court found merits. Dad appeals the merits finding, saying that the court’s findings and conclusions were too vague to support the finding. SCOV affirms, and says that the court’s conclusions were supported by the evidence in the record. SCOV suggests the court’s findings could have been more extensive or precise, but that the evidence in the record backed up what findings there were.

SCOV points out that a child doesn’t actually have to suffer harm for there to be a CHINS finding – it can be based on the risk that harm could happen. What kind of horrible world would we be living in if little kids actually had to be hurt or harmed before someone could help? Nobody wants that. This is part of what makes some CHINS cases so hard; the court has to be able to look at the information and sometimes determine that there is a risk that harm will occur. This can’t be speculative. It’s got to be based on what was going on at the time the petition was filed.

Here, SCOV recognized that Mom reached out for help and really wanted to be able to become a good parent. But she’s got some limitations, and that those limitations were impeding her ability to do some pretty fundamental parenting stuff. SCOV found that the record showed this was more than “new parent jitters” and her inability to do those parenting functions was potentially harmful to M.O. By the by, if DCF and the court starts taking kids into custody because parents are nervous about the new child in their lives, I am quitting this practice and running away to join the circus. I suggest everyone else who regularly practices in juvenile court join me.

SCOV rejects Dad’s argument that the evidence was insufficient, and affirms.

Very interestingly, Justice Robinson, writing for the majority, throws in an additional sentence, which I read as a little bit of a warning. She noted that Dad never argued that M.O. was not CHINS because DCF didn’t accommodate the parents’ disabilities. Since he never raised it, the court wouldn’t consider it. However, there are probably lots of other arguments Dad didn’t raise that the court also didn’t consider. I see this as a flag, perhaps warning DCF that this is bound to be an argument at some point, and so if accommodations need to be made for disabled parents, then those accommodations need to be made. Or maybe it’s a flag to juvenile court lawyers who represent disabled parents that we need to make sure appropriate accommodations are being made. Or that we make the argument early. Anyway, this is a big red flag waving around at the very end of the opinion, and I think it's worth taking note.

Justice Dooley concurs and brings with the concurrence some common sense. He seems to agree that this was the right result here, and that the record supported the trial court’s findings.

However, he also warns that right now the pendulum in child protection has swung so far that out of an abundance of caution, lots of kids are being taken into custody. DCF is overworked and understaffed. There’s got to be a way for DCF to figure out how to help families get a good start and begin to succeed without the state stepping in and taking a child away from its family – in this case only 3 days after birth. He isn’t saying that DCF should ignore serious issues. But removing children requires court intervention. That generates more work for courts, and although judges are doing the best they can, they aren’t child protection experts. That causes judges to have to be the ones to make decisions about whether kids stay with families or not, when maybe something else could have been done first.

Justice Dooley also pointed out that in this case, Mom was open to receiving help and assistance to prepare for the baby. Creating a custody case here meant that there had to be trial court hearings and ultimately, there was also a trip to the Supreme Court. That takes time and resources, and quite honestly, that time and energy could have been spent on cases that were more urgent if some earlier work had been done.

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