### VERMONT SUPREME COURT Case No. 23

- AP

- 191 109 State Street Montpelier VT 05609

- 0801 802

- 828

- 4774 www.vermontjudiciary.org

Note: In the case title, an asterisk (*) i ndicates an appellant and a double asterisk (**) indicates a cross

appellant. Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.



### ENTRY ORDER

OCTOBER TERM
, 2023

In re A.W & J.W., Juveniles (S.W., Mother*) } } APPEALED FROM:

} } Superior Court, Franklin Unit

, Family Division } CASE NO S

. 22

- JV

- 01045 & 22

- JV

- 01046 Trial Judge: Howard E. Van Benthu ysen (Ret. )

In the above

- entitled cause, the Clerk will enter:

Mother appeals the fam i ly cou rt ’ s determination that her fifteen

- year

- old daughter A.W. and ten

- year

- old son J.W. were children in need of care or supervision (CHINS). We affirm.

At the time this proceeding began, A.W. and J.W. lived with mother and father. In May 2022, the S t ate f iled a petition alleging that J.W. was CHINS due to truancy because he had missed approximately ninety days of school that year. The court granted conditional custody to parents in June 2022 in the truancy case

.

In J uly 2022, the State filed petitio n s alleging that both children were CHINS pursuant to 33 V.S.A. § 5102(3)(B) because they had suffered emotional and educational harm from ongoing domestic violence in the home and had been placed at risk of physical harm b y father. The affidavit filed in support of the petition stated that in late June 2022, mother had filed a petition for relief from abuse (RFA) against father and obtained a temporary order pro hibit in g contact. In early July, mother called police and reported that father had been living in the home in violation of the RFA order. She told police that father had been drinking and that they argued. Father got a loaded gun from a drawer and walke d aroun d th e house telling mother she could not leave. Mother ran to a neighbor ’ s house and ca l led police. A.W. and J.W. were present in the home during the incident. A responding officer observed that J.W. appeared to be emotionally shaken and was c ry i ng.
An investigator from the Department for Children and Families (DCF) went to the home the fo l lowing day and interviewed the chi ld ren, both of whom reported that father had previously abused mother but denied that he had ever harmed them. A. W. deni ed s eeing her parents “lay hands on” each other but said that her brother had. Mother had previousl y reported to J.W. ’ s school that J. W. was reluctant to go to school because of his anxiety and fear of leaving her alone with father. Father had bee n convi cted of three domestic assaults against mother since 2008. He was charged with aggravated assault b a sed on the July 2022 incident and wa s still at large when2 the CHINS petition was filed. Just prior to the pe tition being filed, the RFA case was di smissed
at mother ’ s request

. The court granted custody to DCF in a temporary care order. The children were placed in
t he care of their maternal grandmother, who had previo usly been appointed co

- guardian of A.W

. with mother

. Fath er ’ s criminal charges resulted in a three

- to

- six

- year prison sentence , which he was serving at the time of the merits hearing

.

T he co u rt held a combined hearing on the merits of the truancy and neglect petitions in February 2023. T he Stat e pr esented testimony from the police officer who responded to the July 2022 incident, J.W. ’ s school principal, mother, and the DCF worker assign ed to the case. Eight exhibits, including the affidavit mother filed in support of the RFA petition, m othe r ’ s sworn statement to police following the July 2022 incident, and the school ’ s truancy affidavit, were admitted into evi de nce.

The court issued a writte n decision in which it found by clear and convincing ev idence that J.W. was truant at the time of the May 2022 petition. The court also found by a preponderance of the evidence that J.W. and A.W. were witho ut proper parental care when the subsequent petit i ons were filed in July 2022. The court found that th e ch ildren had been chronically exposed to domestic violence and that both had witnessed the gun incident. The court found that J.W. ’ s absences fr om school were due to the violence in the home and were severe enough to impair his ability to advance to the nex t grade level. At disposition, the parties agreed to dismiss the truancy petition. In May 2023, the court issued a disposition orde r and approved a case plan calling for reunification with mother b y October 2023. Mother appea led.

M othe r arg u es on appeal that the court ’ s decision is based on hearsay evidence that was either not admitted or was improperly admit te d at trial, and that without this evidence, the CHINS determination c annot stand. In ad d ition, sh e argue s that witness ing a single incident of domestic violence perpetrated by their father, without evidence of negl ect or risk of harm, does not render the children CHINS.

At the CHINS merits hearing, the State mu st prove by a preponderance o f t he e vidence that the child was in need of care or supervision at the time the petition was filed. In re L.M.
, 2014 VT 17, ¶¶ 19

- 20, 195 Vt. 637. In this case , the specific question bef ore the court was whether the children were “without proper parenta l c are, ” 33 V.S.A. § 5102(3)(B), such that their “well

- being [wa]s threatened.” In re G.C. , 170 Vt. 329, 334 (2000). We review the family
court ’ s findings for clear error and will not disturb its findings unless t hey are unsu pported by any evidence in th e r ecor d. In re M.B. , 162 Vt. 229, 239 (1994) (citation omitted).

We agree with mother that t he court ’ s finding that J .W. reported having seen his father hit his mother in the head a few weeks before the July 2022 incident is not supported by the record. T h is f inding appears to be based on the DCF worker ’ s affidavit, which was not admitted into evidence, and is not sup po rted by any evidence that was admitted at trial.

We also agree that the court improperly admit ted the DCF wo rker ’ s testimony about
stat emen t s A.W. made when interviewed shortly after the July 2022 incident

— specifically, that father was “waving a gun ar ou nd” to prevent mother from leaving, and that mother had obtained an RFA order due to “past abuse .” The court overrul ed moth er ’ s objection to th e testimony on the ground that A.W. ’ s statements were nonhearsay admissions by a party opp on ent and3 t here fore admissible under Vermont Rule of Evidence 801(d)(2) . This was error. “Our de cisions are clear that hearsay not admiss ible un der the rules of e vidence cannot be admitted in a juvenile merits hearing.” In re R.M. , 150 Vt. 59, 65 (1988). Rule 801(d)(2) provides that a statement is

n ot hearsay if it is offered against a party and is either the party ’ s own statement or a st atement that has been ad o pted or authorized by the party. A.W. ’ s statements to the DCF worker were not mother ’ s statements, as required by the rule, and they were n ot statements adopted or authorized by mother. We have previously rejected the noti on that out

- of

- court statements by one party in a CHINS case can be admitted against an adverse party pursuant to Rule 801(d)(2). In re L.M.
, 2014 VT 17, ¶ 16, 195 Vt. 6 37 ; see also Care & Prot. of Sophie , 865 N.E.2d 789, 796 (Mass. 2007) (rejecting argum ent in child

- n eglect case that c hildren ’ s out

- of

- court statements were admissible against father as admissions of a party opponent because equivalent Massachusetts eviden ti ary rule “makes clear that its definition of nonhe arsay extends only to the offer of an ext rajudic ial statement ag a i nst the declarant”). Accordingly, the court erred in admitting A.W. ’ s statements as admissions of a party opponent.

However, we conclude that neit her of these errors warrant reversal. “ I n juve ni le proceedings, unsupported findi ngs do not lead to revers a l i f the remainder of the court ’ s findings, which are supported by the record, are sufficient to sustain the decision. ” In re D.D. , 2013 VT 79, ¶ 34, 194 Vt. 508 (quotation omitted). Simi larly, t he erroneous admiss ion o f ev idenc e does not require revers a l un less the “findings independent of the challenged [evidence] do not support a conclusion that the child is without proper parental care

. ” In re M. P. , 133 Vt. 144, 147 (1975)

.

T he court found t hat the children witnessed f ather brandi shing a gun t o pre v e nt mother from exi ting the family ’ s home and tha t the children had been repeatedly exposed to domesti c violence , which had caused them emotional distress and si gni ficantly impacted J.W. ’ s school

a ttendance

. These findings s uppor t the c ourt ’ s conclusion t h at the child ren were wi tho ut proper parental care

, and they are supported by m other ’ s testimony and out

- of

- court statements. Following the July 2022 incident, mother told the DCF worker t hat father had refused to allow her to le ave the home, that he had a gun, and that the children were in the home during the incident. In her testimony, mother described previous instances when father had been convicted of assaulting her. She believed that the ch ildren had seen her inj uries from previous altercations wi t h father. She testified that the children did not like it when she and father fought, that J.W. did not want to leave her alone, and that the children worried about her. S he confirmed tha t the

c hildren were in the home duri ng the July 2022 incident , tha t J.W. had witnessed the altercation

, and th at father had a gun

. In mother ’ s RFA affidavit, which was admitted i nto evidence

, she stated that in June 2022, fathe r had hit her with his e lbow in the eye and the nose and told J .W. to say goodbye to her becau s e she was leaving and not coming back. She also asserted that father had previously broken her nose and jaw. In the sworn statement mother gave to pol ice re garding the July 2 022 incident, al so admitted into evidence, she a cknowledged that the children h a d been placed at risk, stating that she ran to the neighbor ’ s house and called 911 because “some things are not worth saving except my children ’ s safety and w ell

- bei ng.”

The court ’ s findings are also supported by the DCF wor ker ’ s unchallenged testi mony th a t J.W. told her “there was a fight that happened the night prior between his mother and father that involved him crying and being afraid because h is moth er ran next door , because his dad had a gun and was blocking the doorwa y. ” J.W. told the DCF worker t h a t he and mother had been watching a movie when father asked mother to go upstairs. Mother refused, and they began to
argue. J.W. furth er repo rted that he was crying and hiding under a blanket. J.W. tol d the DCF4 worker th at he really liked being at his g randmother ’ s house because there was a lot less yelling and he felt safe there. Although J.W. ’ s statements were he arsay, “ [b] ecause no pa rty objected to the admission of the statements, the cour t was not prohibited from co nsidering them. ” In re M.E. , 2 0 1 9 VT 90, ¶ 14, 211 Vt. 320

.

De s pite mother ’ s argument that witness ing domestic violence does not itself render a ch ild CHI NS, t he evidence also supports the court ’ s findings that the violence in the home threatened the chil dren ’ s well

- b eing . It was undi s p uted that J.W. had been absent from scho ol ninety days from September 2021 to January 2022. Mother herself at tribu ted thi s to J.W. ’ s fear and anxiety about the violence

. J.W. ’ s poor attendance had caused significan t gaps in his learning and impaired hi s ab il ity to progress to the next grade level. The principal observed J.W. to be isolated from p eers an d to have difficulty with social interactions. The officer who responded to the July 2022 incident te stified that J.W. w as visibly upset, cryin g and hu g g ing his mother. This evidence supported the court ’ s conclusion that J.W. ’ s well

- being was threatened by the violence in the home. While most of the testimony focused on the impact on J.W., the family court could reasonabl y infer from this evidence that A .W. was also at risk of harm. See E.J.R. v. Young , 162 Vt. 219, 224 (1994 ) (“The family court may rely on evidence of the treatment of a sibling in concluding that a child is a CHINS.”).

Moth er argues that a risk of emotio nal har m is insufficient to sup p o rt a CHINS finding, citing the definition of harm in 33 V.S.A. § 4912 (6 ) . As we have repeatedly explained, the terms defined in § 4912 are “are for use in that particular subchapter, which de als with the reporting of child abuse for p otential placement o n the child protection registry,” and which has completely different pro cedures and goals than the CHINS statute. In re M.K. , 2015 VT 8, ¶ 11, 198 Vt. 233. We have accordingly declined to ado pt the definitions contained in § 4912 for use in C HINS procee d i ngs. Instead, because “ ‘ the focus of a CHINS proceeding is the welfar e of th e child, ’ ” and “ ‘ parents ’ rights are at most temporarily curtailed ’

. . . we must liberally construe the relevan t t erms to carry out the centra l purpose of negle ct and depend e n cy proceedings

— the protection of children.” Id . ¶ 12 (quoting In re B. R. , 201 4 VT 37, ¶ 13, 196 Vt. 304). Here, the State showed that the repeated exposure to violence had a serious negative im pact on J.W. ’ s mental health and school atten da nce , threate n i ng his well

- being and likely the well

- being of his sister

. This was s u fficien t to demonstrate that J.W. was without proper parental care under 33 V.S.A. § 5102(3 )(B).

Mo reover, we are not p ers uaded that there was no risk o f physical harm to the children i n this case . Father used a gun to prevent mother from leaving the ho me duri ng a heated argument. A g un is a deadly weapon. If fired

— whether purposefully or accidentally

— the gun could have

ea sily caused injury to the chil dren. See E.J.R. , 162 Vt. at 2 2 3 (“Actual and completed harmful acts cannot be, and are not, a precon dition to a CHINS finding.”). Thi s further supports the CHINS finding.

M ot her argues that there was no evidence to supp ort the court ’ s statement that her love for father “is harder to u n derstand unless one accepts the Cycle of Violence theory of domestic violen ce, which often places victims in a loyalty bind to their abusive p ar tner. They love the partner but endure the v iole nce as the price to be paid fo r the relationship.” Viewed in c ontext, it is clear that this was not a finding, but the cou rt ’ s at tempt to explain mother ’ s behavior based on its own experience. Eve n if it was erro n eous, t he court ’ s other findi ngs and the evidence are sufficient to sup port its conclusion that the ch i l dren were CHINS.5 Finally, mother claims that she was deprive d of du e process because ten months passed between July 2022, when the cour t issued its temporary care order placing the chil dren in DCF custody, and May 2023, whe n the court issued its disposit i o n order. “[J]uvenile proceedings should be resolved as quic kly as is reasonably possible, but the time limits established by the
gover ni ng statutes

. . . are directory and not juri sdic tional.” In re M.B. , 158 Vt. 63, 67 ( 1992) (quotation and citations o m itted). The record shows that the delays prior to merits we re due to a combination of factors, including father ’ s initial absence from t he proceedings, the parties ’ unfruitful disc ussi ons about stipulating to merits, and t he replacement of children ’ s co u n sel in January 2023. The court began a d isposit ion hearing in April 2023, but continued the hearing so that chi ld ren ’ s counsel could discuss a proposal to extend the reunification goal with them. Mother attended each of t he numerous status conferences a n d pretrial hearings in the case, as did h er atto rney, yet neither objected to the delay. * Under these circumsta nc es, we see no due

process violation. See id . (c oncl uding that delay of over one year between temporary care order and merits determination d i d not violate mother ’ s right to due proce ss).

Affirmed

.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

Nancy J. Waples, Associate Justice

* M other ’ s attorney’s statement at the November 2 022 pretrial conference that “I don’t

see w hy we’d wait until February” to hold a me r its hea ring was not sufficiently specific to indicate that she was rais in g a due

- process claim . See State v. Ben

- Mont Co rp. , 163 Vt. 53, 61 (1994) (holding that defendant’s mention of notice of fair notice in pre tri a l motion lacked sufficient specificity and cla rity to preserve due

- process claim for appellate review).