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| Can you hear me now? |
By Elizabeth Kruska
This is an appeal of a CHINS case, but the issue is really about evidence. So, although the name of the case is B.C., the appeal isn’t exactly about B.C. Sort of like how “Alice’s Restaurant” was not the name of the restaurant, it was always just the name of the song.
The child involved in this case is B.C., who was born December 31, 2016. At that point, Mom had 2 other children and was already working with DCF relative to those kids. DCF’s work with Mom centered around issues of domestic violence and substance abuse.
I could get bogged way down in the facts of this case, and honestly, in my first draft of this post I did. The truly relevant facts are these. There was an existing CHINS case involving Mom, Dad, and B.C., which was filed shortly after his birth. The child was taken into DCF custody and lived apart from his parents. Initially the goal was to get B.C. home with both parents, but the parents split up, and Mom wanted to try to get to parent B.C. on her own. A merits hearing was held in early spring 2017 and taken under advisement. While that decision was under advisement, DCF started to worry about Mom, due to a relapse and the fact she missed a visit and a counseling appointment.
A series of incidents occurred between Mom and Dad over the course of the day on May 5, 2017. At this point Mom and Dad had split up and didn’t live together. Dad came over to Mom’s apartment to pick up some belongings. Mom tried to get Dad to leave, but didn’t succeed. She called the police, who didn’t think they could make him leave. Then there was an argument, where Dad may have thrown a table at Mom. Mom called her own dad, who came over to help and called the police. Again, the police said they couldn’t help. Mom tried to get a restraining order, and for reasons that are unclear, that didn’t work either.
B.C. was not present in the home during this series of events. He was supposed to come over for a visit the next day around 9:00 a.m. The person who was bringing him over was also scheduled to supervise the visit between B.C. and Mom. When they arrived, Dad was there. The supervisor told Dad he couldn’t be present during Mom’s visit. The supervisor left briefly, and returned with B.C. just as Dad was leaving. The visit happened at Mom’s apartment.
Around 10:30 a.m., police went to a report of a stabbing. They found Dad in a grocery store parking lot not far from Mom’s apartment. Dad had a stab wound, and said Mom did it. Police went over to Mom’s apartment and found her still visiting with B.C. They arrested her for the stabbing and took her to jail. She got out 2 days later.
Sidenote: if the visit with B.C. was still going on when the police arrived at Mom’s, and the visit was supervised, it seems like the person supervising the visit might be able to say, “Hey, police, Mom never left the apartment to go stab Dad in the grocery store parking lot during the time of the visit.” But, what do I know?
All this goes on while the court still had the initial merits hearing from the earlier CHINS petition under advisement. About two weeks later, on May 17, the State filed a new CHINS petition alleging that B.C.—who was still in DCF custody at the time—was again in need of care and supervision because of Dad’s pending charges, the parents’ relationship struggles, Mom’s suspected impairment, Mom’s missed visit and missed appointment, and the stabbing allegation along with the events leading up to it.
On May 19, the court held a hearing and denied the May 17 petition, stating the State couldn’t prove that at the time of filing B.C. was at substantial risk of harm. The court did maintain B.C. in DCF custody under the original petition. Then B.C. was placed into Mom’s custody in September 2017, so that she and the baby could participate in a program at the Lund Center together. Later in the fall of 2017, the State amended the May 17 CHINS petition to May 19, because that’s the day the court denied the May 17 CHINS petition. (This makes my head hurt.)
They finally get to have the merits hearing on the May petition on December 11. On January 30, 2018 the court granted the CHINS petition concluding that B.C. was again in need of care and supervision when the second petition was filed. The facts the court relied on were Mom’s relapse, Mom’s struggles with engagement with DCF in the time leading up to the petition; Mom’s missing appointments and visits, and Mom’s being in an altercation in “close temporal proximity to a visit with B.C. at the location of the visit.” The court also included in its findings the fact that Mom had previously exposed one of her older kids to an abusive former partner, which was reflected in a CHINS finding relative to that child in the past.
Mom appealed on several bases, and SCOV reverses on the basis that the trial court improperly admitted some statements made by Dad. The statement in question, I believe, is the statement Dad made accusing Mom of stabbing him. Without that statement, the remainder of the evidence admitted could not support the CHINS finding.
Hearsay is an out-of-court statement used to prove the truth of the matter asserted in that statement. Hearsay is not admissible except for when it is. Hearsay is confusing.
The Vermont Rules of Evidence exclude certain out-of-court statements from the definition of hearsay. If a party’s own statement is offered against himself or herself, then that statement is not hearsay. SCOV finds that Dad’s statements were not properly offered against him in the proceeding—they were offered against Mom, which wasn’t proper.
I honestly can’t tell which party proffered these statements, and I can’t tell who the witness was that the statements were admitted through. If Dad were there, he could have testified, “I was in the parking lot and Mom stabbed me.” That wouldn’t be hearsay, because it would be a description of an event about which Dad has firsthand knowledge. This leads me to assume it was some other witness who said, “Dad told me Mom stabbed him,” which would be hearsay. It would appear that the proponent of this evidence argued that since Dad is a party to the CHINS proceeding, and it’s Dad’s statement, that it’s covered by the rule that says a statement by a party-opponent is not hearsay.
This is confusing; I’ll try to explain. Suppose Mom had said to the police, “I stabbed him” and a party sought to use that statement against Mom to prove that she stabbed Dad. That would be fine, because by definition it is the use of Mom’s own statement against her. But here, the proponent of Dad’s statement, “Mom stabbed me” was meant to be used against Mom to prove the truth of the matter asserted in the statement—that she stabbed him. It’s self-serving for Dad, and the statement is not Dad speaking against his own interest. That’s why it’s hearsay, and that’s why it should be excluded.
Furthermore, if Dad isn’t there, and someone else is saying it, the other parties lack the ability to cross-examine Dad on this out of court statement to test the credibility of the statement. Suppose it was a police officer who said “Dad said Mom stabbed him.” Okay, that’s fine—we can believe the officer that those words came out of Dad’s mouth; what we aren’t so readily able to believe is whether what Dad said is actually true. And the other parties can’t cross examine on the truth because the officer doesn’t know what’s true—he just knows what he’s been told.
Here, because Dad was noncustodial, and because the CHINS allegations were all basically pointed at Mom (Mom’s drug use, Mom’s missing appointments, etc.), the State could have proceeded on its petition without Dad’s participation at all. His participation (or not) would not have had any bearing on the outcome of the case. He didn’t participate, and because he didn’t participate, his out of court statements could not be properly offered against him. There was nothing to offer them against.
If Dad’s statement that Mom stabbed him was taken out, there wasn’t anything else that the trial court could have relied on in making its findings relative to the ongoing altercation and any impact on B.C. The only admissible evidence before the court at that point would be that on the morning of the visit, Dad was briefly present and left before the visit took place. The court also credited Mom’s description of the events from the night before, including the altercation, the two attempts at police assistance, and the attempt at getting a restraining order. The court found that Mom and Dad had an altercation close in time to the visit. SCOV determines that without Dad’s statements about the stabbing, what’s really borne out is that Mom tried her best to address some domestic violence concerns, and was repeatedly turned away by police the day before the alleged stabbing happened.
SCOV also examines the sufficiency of the other evidence.
First is the concern Mom had relapsed. There was evidence that Mom used benzodiazepines once on May 5. There was no evidence that she had ongoing drug use issues. At this point B.C. was in DCF custody and not in Mom’s care. That doesn’t seem especially probative to a CHINS petition filed 2 weeks later. It also does not appear there was any evidence offered that during the May 6 visit that Mom was impaired due to her May 5 use.
There was some testimony that during a meeting and a visit in the spring of 2017, Mom showed some signs of impairment. The witness testified that Mom had told her she had taken too much of her prescribed medication on the particular day in question. The witness also testified that Mom wasn’t as attuned to B.C. as she normally was. Although the trial court credited this, SCOV finds it too thin that Mom’s attunement was off during one visit. This wouldn’t be enough to support a CHINS determination.
The trial court also admitted findings from some prior CHINS petitions involving Mom and her other kids. The bases of those petitions had to do with Mom exposing those children to domestic abuse. The court didn’t make findings with respect to this piece of evidence, so SCOV says this doesn’t demonstrate that B.C. was in need of care and supervision at the time of the filing.
This is reversed. SCOV notes in a footnote, though, that there were some subsequent trial-level proceedings in this case, and before the opinion was issued, B.C. was sent home with Mom and the trial court case closed.
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