In re C.A.

630 A.2d 1292, 160 Vt. 503, 1993 Vt. LEXIS 73
CourtSupreme Court of Vermont
DecidedJuly 30, 1993
DocketNo. 90-476
StatusPublished
Cited by6 cases

This text of 630 A.2d 1292 (In re C.A.) 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 C.A., 630 A.2d 1292, 160 Vt. 503, 1993 Vt. LEXIS 73 (Vt. 1993).

Opinion

Allen, C.J.

The mother of male minor C.A. and female minors J.A. and A.M. appeals from an order of the family court transferring custody and guardianship of one child to the child’s father and of two others to their grandmother. We reverse and remand.

The present proceedings were initiated after the mother married E.L. in 1989. E.L. was a convicted sex offender whose conditions of probation required that he “not initiate conduct with any minor female.” The mother was receiving public assistance at the time of the marriage and did not advise the Department of Social Welfare (DSW) that she had married. DSW [505]*505terminated her benefits, and, according to the mother, she was then “required to live in her vehicle and various motels.” Thereafter, the Department of Social and Rehabilitation Services (SRS) filed the present petition, based solely on the potential danger to the children from E.L. The family court found that the children were in need of care and supervision, concluding that:

1. [E.L.] is a threat to this family.

2. [The mother] still believes her husband is innocent of L & L.

3. [E.L.] believes he doesn’t have a problem and believes he needs no further treatment.

4. [The mother] in this environment at this time is not in a position to protect her three very young children.

5. [E.L.] at this time is extremely likely to reoffend, thus creating a danger to the female children.

At the disposition hearing, the court transferred custody of A.M. to the child’s father and of C.A. and J.A. to their maternal grandmother. The present appeal followed.

The mother contends that the trial court’s disposition order was not supported by the findings and evidence, and that the court improperly transferred custody of A.M. to her natural father and C.A. and J.A. to their grandparents, because there was no finding of parental unfitness. Both points have merit.

The findings in the disposition order reveal numerous shortcomings of the mother, including leaving her first infant unsupervised, failing to bond with and refusing to feed her second child, failing to maintain an appropriate home, and failing to acknowledge the dangers her new husband might pose to her children. The court’s conclusions, however, rely exclusively on the danger posed by the husband and omit any discussion of the mother’s problems. Moreover, the court does not state that the mother is unfit, and absent such a finding, it may not remove a child from the parent’s custody at the dispositional stage of a juvenile proceeding. In re M.B., 147 Vt. 41, 45, 509 A.2d 1014, 1017 (1986).

Although this Court requires a finding of unfitness, we have held that the failure to use the word “unfit” does not necessarily preclude a finding of unfitness in fact, where the balance of the [506]*506court’s decision leaves no room for doubt. In In re E.B., 158 Vt. 8, 603 A.2d 373 (1992), the parents argued that the court improperly terminated their rights without first making a specific finding, supported by clear and convincing evidence, that the parents were unfit and incapable of caring for their children. The trial court in that case did not use the word “unfit,” stating simply that “[b]ecause of the parents’ complete failure to maintain regular contact with the boys and their highly unstable and unpredictable lifestyle, it is not likely that they will be able to resume their parental duties toward these children within a reasonable period of time, if ever.” Id. at 14, 603 A.2d at 377. We held that such language sufficed, even without the “magic words.”

In the present case, the court not only fails to state that the mother is unfit, but its conclusions do not allow the inference of unfitness. First, the court’s findings concerning the husband, E.L., are sparse. The court recites that E.L. was convicted for a sex offense, that he was subsequently charged with violations of his sex offender treatment program and with violating probation restrictions by contacting children, and that “[t]here is conflicting testimony about when [E.L.] resides with [the mother] and the children.” The court noted that a hearing was to be set in the future. On that factual predicate, the court concludes that “[E.L.] is likely, without acknowledging his problem and successful treatment, to reoffend. [Having t]he children in the home with him will place them at extreme risk of sexual abuse in the future.” The findings do not adequately support this conclusion.

Second, even if the court had made findings adequate to support its conclusions about the danger E.L. poses, it did not state that other options to protect the children were unavailable — in short, that relinquishment of custody was necessarily dictated by the mother’s marriage to a known sex offender. There is no question that the consistent failure to protect children is an indicator of parental unfitness. See In re C.M., 157 Vt. 100, 103, 595 A.2d 293, 294-95 (1991) (failure of mother to protect daughter from abuse by father supports CHINS finding as a matter of law). But making findings as to when failure to protect becomes unfitness is a vital function of the trial court [507]*507and one that it did not perform in this case. Where the trial court does not make an explicit finding of unfitness, and the record does not remove all doubt that the court’s findings effectively amount to a determination of unfitness, the order cannot stand. In re M.B., 147 Vt. at 45, 509 A.2d at 1017; see also In re R.M., 150 Vt. 59, 71-72, 549 A.2d 1050, 1058 (1988) (no dispositional findings on the record).

Although the court’s findings are inadequate to support a conclusion of parental unfitness, we do not agree with the mother that the remedy for the court’s inadequate findings is necessarily a different disposition. The findings that the court did make about the mother’s conduct and habits, together with what we know about E.L., suggest the usefulness of an additional review proceeding by the family court prior to determining custody. Such additional proceeding will be particularly useful, given the unusually long period that has elapsed since the disposition order was entered and the fact that the protective supervision of SRS apparently terminated in May 1991.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re D.C., Juvenile
2012 VT 108 (Supreme Court of Vermont, 2012)
In re D.B., C.B., N.B. and T.B., Juveniles
Supreme Court of Vermont, 2012
In Re TR
730 A.2d 621 (Supreme Court of Vermont, 1999)
In re J.D.
685 A.2d 1095 (Supreme Court of Vermont, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
630 A.2d 1292, 160 Vt. 503, 1993 Vt. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ca-vt-1993.