In re A.S. and K.S., Juveniles

2016 VT 76, 150 A.3d 197, 202 Vt. 415, 2016 Vt. LEXIS 74
CourtSupreme Court of Vermont
DecidedJuly 8, 2016
Docket2016-062
StatusPublished
Cited by11 cases

This text of 2016 VT 76 (In re A.S. and K.S., Juveniles) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.S. and K.S., Juveniles, 2016 VT 76, 150 A.3d 197, 202 Vt. 415, 2016 Vt. LEXIS 74 (Vt. 2016).

Opinion

Per Curiam.

¶ 1. Mother appeals the family court’s order adjudicating her children A.S. and K.S., born in September 2009 and October 2014, as children in need of care or supervision (CHINS). On appeal, mother argues that the court erred in looking exclusively at the facts that existed at the time the CHINS petition was filed and ignoring evidence of the changed circumstances at the time of the evidentiary hearing. We affirm.

¶ 2. The Department for Children and Families (DCF) was involved with the family for several years based on a history of substance abuse and mother’s relationship with the father of K.S., who has a history of assaultive and abusive behavior.

¶ 3. The petition was filed in December 2014, alleging concerns about mother’s inability to stay away from K.S.’s father, which presented a risk of harm to her and the children. The petition alleged, among other things, that in November 2014, K.S.’s father physically and sexually assaulted mother. Father was charged for the physical assault, but at his arraignment mother recanted her statement to police. The merits hearing was held in January 2016. The hearing focused on the merits of the petition and the facts at the time the petition was filed. The court found by a preponderance of the evidence that A.S. and K.S. were CHINS because the evidence of the events that occurred up until the time the petition was filed indicated that mother was unable to protect herself and provide proper care for her children.

¶ 4. On appeal, mother argues that the trial court erred in focusing on the facts as of the date the CHINS petition was filed and not also considering post-petition facts. Mother contends that the CHINS determination should be based on present circumstances.

¶ 5. We do not address mother’s argument because it was not raised before the family court. To raise an objection a party must present the issue to the trial court in the first instance to allow that court “a fair opportunity to rule on it.” In re D.C., 157 Vt. 659, 660, 613 A.2d 191, 191 (1991) (mem.). Arguments not raised *418 below will not be addressed for the first time on appeal. In re C.H., 170 Vt. 603, 604, 749 A.2d 20, 22 (2000) (mem.). Here, not only did mother fail to argue below that the court should admit post-petition evidence, she joined father’s objection to the State’s attempt to admit evidence concerning events that occurred after the petition was filed.

¶ 6. Although this resolves the issues raised by mother in her appeal, we write additionally to highlight the long delay in this case because it is unfortunately not an aberration, but an example of what is occurring frequently in juvenile cases. To fully appreciate the delay a complete recitation of the facts is necessary. The petition alleging A.S. and K.S. were CHINS was filed on December 4, 2014. The State did not initially request an emergency care order. On December 17, 2014, the court held a preliminary hearing and granted conditional custody to mother. On January 18, 2015, the State filed for an emergency care order, which the court granted, and custody was transferred to DCF. In an order the following day, the court indicated the need for a 1.5-hour hearing, presumably for a temporary care hearing. A hearing was set for February 5, 2015. K.S.’s father’s counsel moved to continue the hearing for medical reasons. Mother opposed the continuance, arguing that the temporary care hearing was overdue and should have been scheduled within seventy-two hours of the January 18, 2015 removal. The hearing was continued and reset for March 11, 2015 because, as the docket entry on February 8, 2015 indicates, that was “the first date that all parties and court are available.” Although a hearing took place on March 11, the resulting order indicated that the court was unable to take evidence that day because of a delayed start following other overlapping juvenile hearings. The court indicated it was reluctant to change placement without taking evidence and maintained the status quo of custody in DCF. A merits hearing was set for May 11, 2015. The matter did not proceed on that day, however, because the attorney for K.S.’s father did not appear, and three hours of hearing time was lost. The attorney was apparently at a hearing in the family division in another county. The parties, including father, agreed to continuing custody with DCF, but further agreed that the children could be placed with mother under certain conditions.

¶ 7. The matter was then scheduled for August 19, 2015. It is unclear from the record why the matter did not proceed on that *419 date, but the transcript indicates that there was some question about whether K.S.’s father’s attorney had a conflict of interest and would need to withdraw. In any event, the merits hearing did not take place, and the court issued a scheduling order the following day indicating a full day of hearing was required. Before this could be scheduled, mother filed motions to change the juvenile’s school placement and to grant her conditional custody. A hearing on the motions was held, and on November 3, 2015, the court denied the motions. In its order, the court indicated that the merits hearing was set for January 8, 2016, but requested that the clerk determine whether an earlier hearing date was available. Apparently, no such rescheduling was possible because nothing further occurred until the merits hearing was held January 8. The court promptly issued its decision on January 11, 2016, over a year after the petition was filed.

¶ 8. These facts indicate two major delays. The first was a failure to hold a timely temporary care hearing. Per statute, this should have occurred within seventy-two hours of the emergency care order. No evidentiary hearing was ever held, but the parties did reach a stipulation in May, five months after the children were removed from mother’s custody in January 2015. The second delay was in holding the merits hearing, which is supposed to occur sixty days after the temporary care order is issued. It did not happen until January 2016, eight months after the agreement on temporary care and a full year from when the children were initially removed from mother’s custody. These delays are delineated not because they warrant a reversal of the order on appeal. This Court has recognized that the statute’s aim is to protect children and that the time limits in the statute “are directory and not jurisdictional.” In re M.B., 158 Vt. 63, 67, 605 A.2d 515, 517 (1992) (quotation omitted). Rather, the delay in this case highlights the issue and the systemic problems that have caused it.

¶ 9. The statute outlines the process and timelines to be followed when a petition is filed alleging a child is CHINS. The CHINS petition may be filed in tandem with a request to immediately transfer custody to DCF if continued residence in the home is “contrary to the child’s welfare.” 33 V.S.A. § 5305(a) (emergency care order); id. § 5308(a) (temporary care order). An emergency petition may be granted ex parte, but a temporary care hearing must then be held within seventy-two hours. Id. *420 § 5307(a).

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Bluebook (online)
2016 VT 76, 150 A.3d 197, 202 Vt. 415, 2016 Vt. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-as-and-ks-juveniles-vt-2016.