In re M.L. & Z.L.

2010 VT 5, 993 A.2d 400, 187 Vt. 291, 2010 Vt. LEXIS 4
CourtSupreme Court of Vermont
DecidedJanuary 29, 2010
Docket2009-089
StatusPublished
Cited by27 cases

This text of 2010 VT 5 (In re M.L. & Z.L.) 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 M.L. & Z.L., 2010 VT 5, 993 A.2d 400, 187 Vt. 291, 2010 Vt. LEXIS 4 (Vt. 2010).

Opinions

Burgess, J.

¶ 1. The State of Vermont appeals from the family court’s dismissal of its petition to declare juveniles M.L. and Z.L. as children in need of care or supervision (CHINS). Children join the State’s appeal. The State asserts that the family court applied an improperly high standard of proof and relied on irrelevant evidence in reaching its conclusion. We affirm.

¶ 2. Parents have two children, a daughter M.L., born in June 2002, and a son Z.L., born in November 2007. In March 2008, three-month-old Z.L. was rushed to the hospital with life-threatening head injuries. In treating Z.L., doctors observed what they believed were signs of prior and current physical abuse. A CT scan revealed that Z.L. had a nondepressed left temporoparietal fracture extending to the right parietal — in other words, a skull fracture that originated on the left side and essentially went from ear to ear over the crown of his head. He also had a linear fracture in the back part of the right side of the skull. Additionally, Z.L. had a new acute subdural hematoma on the left side, and a chronic subdural hematoma on the right side of his brain that appeared to be between two-to-four weeks old.1 Parents told doctors that Z.L. was injured when M.L. dropped Z.L. and fell on top of him. Z.L.’s treating physicians found this [294]*294explanation completely inconsistent with the nature of Z.L.’s extensive injuries. Following a police investigation, the State filed petitions to have the children declared CHINS, and the children were ordered into the emergency custody of the Department for Children and Families (DCF).

¶ 3. Prior to the merits hearing, mother moved to return M.L. to her custody. She asserted that there was no pattern of abuse or neglect that would allow the court to impute risk of harm to M.L. from the severe injuries suffered by Z.L. Following a two-day hearing, the family court, Judge Howard Van Benthuysen presiding, denied mother’s motion. The court found that the evidence clearly and convincingly established that Z.L.’s acute head injuries were caused when he was struck in the head by enormous force, such as the force generated when an infant is swung by his feet and its head is struck against an object. Even if M.L. had dropped Z.L., the court reasoned, that act did not cause any of his injuries.

¶ 4. The court recounted that Z.L. had suffered not one but two life-threatening skull fractures and grossly traumatic brain injuries within a two-to-four-week period. The latter incident nearly caused his death, and it required two extensive brain surgeries. The injuries caused the clinical death of nearly half of his brain. This latter incident alone, the court concluded, was sufficient for the court to be concerned about M.L.’s safety. It was so horrific, so traumatic, and required so much force, and it could only have been inflicted by an adult. It was therefore reasonable to conclude that M.L. could be in danger if returned to parents’ custody. See E.J.R. v. Young, 162 Vt. 219, 224, 646 A.2d 1284, 1287 (1994) (“The family court may rely on evidence of the treatment of a sibling in concluding that a child is a CHINS.”).

¶ 5. The family court, Judge Mark Keller presiding, subsequently held a nine-day hearing on the merits of the State’s CHINS petition. The parties also agreed that the court could consider the evidence presented at the hearing before Judge Van Benthuysen. In February 2009, the court issued a written decision dismissing the CHINS petition. It found the State’s medical evidence compelling, but reasoned that this evidence must be viewed in the totality of the circumstances. The court found that the nonmedical evidence established that parents were good parents, and that there was no nonmedical evidence to support the [295]*295allegation that parents abused Z.L. It thus concluded that the State failed to prove by a preponderance of the evidence that Z.L. was abused or that M.L. was in need of care or supervision.

¶ 6. Before recounting the court’s specific findings, we briefly review general principles applicable to this case. The family court’s primary concern in proceedings such as this one “must be with the welfare of the child.” In re R.B., 152 Vt. 415, 420, 566 A.2d 1310, 1313 (1989). As relevant here, a child is CHINS when he or she has been abused by his or her parents or is without proper parental care or subsistence, or other care necessary for his or her well-being. 33 V.S.A. § 5502(a)(12)(A)-(B).2 The State must prove that a child is CHINS by a preponderance of the evidence. In re A.D., 143 Vt. 432, 435, 467 A.2d 121, 123 (1983).

¶ 7. We expressly adopted the preponderance standard for CHINS cases rather than the more stringent “clear and convincing” standard applicable in termination of parental rights cases. Id. In doing so, we recognized that both parents and the State have substantial, legitimate, and compelling interests at stake in CHINS proceedings — the State in ensuring the “safety and welfare of the child” and the parents in “maintaining family integrity.” Id. at 435-36, 467 A.2d at 124. We concluded that the preponderance standard properly balanced these interests, particularly given that parents’ rights are at most temporarily curtailed in a CHINS proceeding. See id. at 436, 467 A.2d at 124 (“[T]he State’s interest in protecting a child from the risk of serious and potentially irrevocable harm counterbalances the parents’ interest in avoiding an erroneous curtailment of their rights.”) (quotations omitted).

¶ 8. On review of the court’s CHINS decision, we will uphold the court’s findings of fact unless they are clearly erroneous; we will uphold the court’s legal conclusions where supported by its findings. In re A.F., 160 Vt. 175, 178, 624 A.2d 867, 869 (1993). “We leave it to the sound discretion of the family court to determine the credibility of the witnesses and to weigh the evidence.” Id.

¶ 9. With these standards in mind, we turn to the court’s decision. As reflected above, the State alleged that Z.L. was [296]*296CHINS because he was abused by parents and that M.L. was CHINS because she was without proper parental care or other care necessary for her well-being. Parents asserted that M.L. accidentally caused Z.L.’s injuries, and they theorized that Z.L.’s older hematoma may have been caused by various medical conditions.

¶ 10. Parents testified to the following version of events. On the day Z.L. was hospitalized, mother was home with the children. Father returned home from work about 4 p.m. Following an early dinner, parents went upstairs and left M.L. and Z.L. alone in the living room. M.L. was sitting on a child-sized papasan chair, and Z.L. was adjacent to her in a “boppy,” or horseshoe-shaped pillow, on the floor. When parents returned downstairs approximately five minutes later, mother saw Z.L. lying face up on the living room floor and M.L. getting up off the floor. Mother testified that M.L. told her that she fell with Z.L. At mother’s request, father fetched their neighbor, who was a nurse-in-training. Mother called 9-1-1, and the neighbor advised the dispatcher, relying on mother’s representations, that M.L. had been holding Z.L. and that Z.L. fell and hit his head on the floor.

¶ 11.

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Bluebook (online)
2010 VT 5, 993 A.2d 400, 187 Vt. 291, 2010 Vt. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ml-zl-vt-2010.