In Re CW

739 A.2d 1236
CourtSupreme Court of Vermont
DecidedAugust 27, 1999
Docket98-557
StatusPublished

This text of 739 A.2d 1236 (In Re CW) 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 CW, 739 A.2d 1236 (Vt. 1999).

Opinion

739 A.2d 1236 (1999)

In re C.W.

No. 98-557.

Supreme Court of Vermont.

August 27, 1999.

*1237 Marvin Wolf, White River Junction, for Appellant.

Mary Ann Neal, Special Assistant Attorney General, Rutland, for Appellee.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

M.C., mother of the juvenile C.W., appeals from a protective order of the Rutland Family Court. She contends the court: (1) abused its discretion and violated her constitutional right to travel by excluding her from the Town of Poultney; and (2) exceeded its authority in providing for enforcement of the balance of the order by criminal contempt. We amend the protective order and, as amended, affirm it.

The minor, C.W., was seven years old at the time of these proceedings and had been in the custody of the Department of Social and Rehabilitation Services (SRS) since November 1996. In March 1997, C.W. was adjudicated a child in need of supervision. Following a disposition hearing in October 1997, the court found on the basis of expert testimony that mother, M.C., suffered from significant psychopathology characterized by destructive and bizarre behaviors, including a compulsion to "rescue" perceived victims, most significantly C.W., and punish transgressors. The court found that M.C.'s untreated mental health problems rendered her unfit to parent the minor in a safe environment. Accordingly, the court approved a case plan in which C.W. remained in SRS custody and reunification would be attempted pursuant to a step-by-step plan. Under the case plan, SRS workers were to act as intermediaries for communication between M.C. and the minor. M.C. was to direct all communications and gifts to SRS, which would review and forward them, if appropriate, to the child.

In July 1998, SRS moved for a protective order to prohibit M.C. from possessing firearms or "contacting or attempting to contact" the minor or the minor's foster parents. See 33 V.S.A. § 5534 (court may make order restraining or otherwise controlling conduct of person if disposition order has been previously entered and court finds that such conduct is detrimental to child and will tend to defeat execution of disposition order). The foster parents and SRS simultaneously filed a complaint for relief from abuse, pursuant to 15 V.S.A. § 1103. Both the motion and the complaint alleged that M.C. had attempted to contact the minor through a variety of surreptitious methods, including gifts containing hidden messages referring to "rescues" or "Resurrection Ranch," and had attempted to regain possession of firearms previously removed from her premises. The court issued a temporary relief-from-abuse order prohibiting M.C. from contacting the minor or coming within 1000 feet of the minor's residence, and referred the motion for hearing.

Following an evidentiary hearing on the motion in September 1998, the court found that mother had engaged in a sustained pattern of communications or attempted *1238 communications with the minor in violation of the SRS case plan. These included messages hidden in books and stamped on various toys, a letter in the form of a paper airplane found on the lawn of the foster parents' home which referred to a "special rescue," and another letter delivered to the foster parents and addressed to the child that stated in part, "good people in Government will rescue us." The court found that these efforts had caused the minor anxiety and nightmares, were detrimental to the child's welfare, and contrary to the disposition order. Accordingly, the court granted the motion, and entered a protective order enjoining M.C. as follows:

1. [M.C.] is restrained and enjoined from having any contact with C.W. at home, on the street, or elsewhere, by phone, mail or through third parties. [M.C.] must stay 1000 feet away from C.W. at all times and places and may not be within the Town of Poultney, Vermont.
2. [M.C.] is prohibited from hiding messages in or on toys, books or gifts. All hand written messages must be visible from the outside and may not include the Resurrection Ranch logo.
3. Violation of this order will result in criminal contempt charges and arrest pursuant to V.R.Cr.P. 42, and Title 13 Section 7554. [M.C.] shall be subject to arrest without a warrant if she places herself within the Town of Poultney, Vermont.

The court subsequently denied M.C.'s motion to vacate the order, amended certain findings, and reaffirmed the order. This appeal followed.

First, M.C. contends the provision of the order prohibiting her from being in the Town of Poultney was an abuse of discretion and a violation of her constitutional right to travel. Although the court undoubtedly enjoys broad discretion in crafting a protective order, see In re J.S., 153 Vt. 365, 370, 571 A.2d 658, 661 (1989), this discretion is not without limitation. As we have observed, the court's power is "limited to prohibiting such conduct that tends to defeat execution of the court's disposition order." In re B.F., 157 Vt. 67, 71, 595 A.2d 280, 282 (1991); see 33 V.S.A. § 5534 (court may issue protective order when it finds that "conduct is or may be detrimental or harmful to the child, and will tend to defeat the execution of the order of disposition"). The court here explained that the purpose of the case plan adopted in the disposition order was to insulate the minor from the stress and fear induced by contact with M.C., and to permit the development of a healthy new relationship through gradual contact. Based upon the record evidence and findings, it is clear that M.C. engaged in a sustained pattern of conduct subversive of these purposes.

The question remains, however, whether it was necessary to prohibit M.C. from placing herself anywhere within the Town of Poultney in order to effectuate the goals of the disposition order. Except for the paper airplane incident, none of M.C.'s conduct necessarily involved her presence within the Town of Poultney. Moreover, all of her efforts to communicate with the minor through nonapproved channels were specifically addressed by other provisions of the protective order enjoining M.C. from contacting the minor "at home, on the street, or elsewhere, by phone, mail or through third parties," from placing herself within 1000 feet of the minor, and from hiding messages in or on toys, books, or gifts. These provisions were consistent with the limited relief sought by the State in its motion, which requested only a noncontact order, and at the hearing itself, where the State asked merely that M.C. be prohibited from contacting the minor child or the foster parents at the home, on the street, or elsewhere, by telephone or through third parties. Although the townwide ban might, as the court stated, provide the child an additional sense of security, the record evidence does not support a finding that such broad relief was necessary *1239 to effectuate the purposes of the case plan. Accordingly, we are compelled to conclude that the court abused its discretion in excluding M.C. entirely from the Town of Poultney.

In view of our conclusion that the court exceeded its statutory authority in excluding M.C. from the Town of Poultney, we need not consider the additional claim that the provision violated M.C.'s constitutional right to travel. Nor need we address the validity of that portion of the protective order which provided that M.C.

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Bluebook (online)
739 A.2d 1236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cw-vt-1999.