In re R. S.

469 A.2d 751, 143 Vt. 565, 1983 Vt. LEXIS 577
CourtSupreme Court of Vermont
DecidedNovember 1, 1983
DocketNo. 82-256
StatusPublished
Cited by25 cases

This text of 469 A.2d 751 (In re R. S.) 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 R. S., 469 A.2d 751, 143 Vt. 565, 1983 Vt. LEXIS 577 (Vt. 1983).

Opinion

Gibson, J.

This is an appeal from an order of the District Court of Vermont, Unit No. 2, Chittenden Circuit, sitting as a juvenile court. Under the Juvenile Procedure Act, 33 V.S.A. §§ 631-667, R. S., L. S., and B. S. were found to be children in need of care or supervision (CHINS). Id. § 654. The natural father desires custody of these children and appeals the order of disposition transferring custody to the Commissioner of Social and Rehabilitation Services (SRS). Id. § 656. We affirm the order of the juvenile court.

Appellant presents three arguments. First, he contends the CHINS petitions should be dismissed because the hearing mandated by § 647 (a) was not held within fifteen days of the filing of the petition. Second, he claims the court erred in accepting his judicial admission that the children were in need of care or supervision without first inquiring whether he understood the rights he relinquished and the consequences thereof, Finally, he believes the evidence fails to support the findings that he is incapable of providing an adequate home for the children.

The children’s mother attempted suicide on March 14,1982. Appellant was incarcerated at the time. The children were im[568]*568mediately placed in the temporary custody of SRS, id. § 642. Petitions were filed on March 16, 1982, alleging the children were in need of care or supervision, id. § 645, and temporary custody was continued pending a hearing on the merits of the petitions.

On March 31, 1982, the parties, including appellant and his counsel, appeared pursuant to § 647. The court found it had jurisdiction based upon the age and residence of each child and noted appellant’s denial of the CHINS allegations. The hearing was then continued for one week.

On April 8, 1982, the hearing on the merits of the petitions reconvened. The parties, including appellant and his attorney, were again present. On this day, counsel for the father indicated they would not contest the allegations and entered an admission that the children were, indeed, in need of care or supervision. The admission was made in open court and in the presence of appellant.

Following the bifurcated procedure of the Act, another two-day hearing was held “for the purpose of then considering the disposition to be made in the proceedings.” Id. § 654(b). The disposition of the children was contested. The mother desired that custody be awarded to SRS in light of her inability to care for the children. Appellant wished to be given custody.

The evidence presented to the court disclosed the following-pertinent facts. The father and mother, although never married, lived together from 1974 until 1979. During this time the three children were born. SRS intervened continually in an effort to help the parents develop basic parenting skills. As small babies, two of the children were admitted to the hospital with nutritional problems and for “failure to thrive,” even though visiting nursing services were being provided. The children were improperly clothed and constantly hungry for food and affection. They all exhibited severe socialization and learning problems. The family’s living conditions were deplorable. “The interior of the trailer and surrounding grounds were covered with animal feces, garbage and filth.” The family moved frequently and, at one time, lived in a tent.

During this same time, appellant was incarcerated five times. He had been convicted of crimes twenty-two times in all — many involved alcohol. There is ample evidence that appellant’s drinking problem was stress-related. He was often [569]*569absent from the household without notice for days at a time and provided little, if any, financial or emotional support for the children.

In December of 1979 he married his present wife who has indicated a willingness to care for R. S., L. S., and B. S. in the two-bedroom trailer she shares with appellant and her own two children. In addition, appellant presented evidence that he has recently been involved in job training, tutoring services and alcohol rehabilitation. There is evidence that he has pursued alcohol counseling with some vigor and will seek employment upon his release from prison. He contends that he is determined to be “a capable person and parent.”

I.

Appellant first argues the detention hearing was not held within the fifteen-day period mandated by 33 V.S.A. § 647(a).

At the time of the filing of the petition, . . . the court shall fix a time for a hearing thereon, which, if the child is in detention or shelter care, shall not be later than fifteen days after the filing thereof....

Id. This Court has previously stated that the time scheme of the Act must be complied with. In re F. E. B., 133 Vt. 463, 464, 346 A.2d 191, 192 (1975). A dominant concern on the part of the legislature in promulgating juvenile statutes is to provide for speedy resolution of disputes. In re B. M. L., 137 Vt. 396, 399, 406 A.2d 383, 385 (1979). In cases of juvenile detention it is important to place the children quickly in the safest and most suitable environment and to minimize the possible intrusion upon the parents’ constitutional right to family integrity. In re N. H., 135 Vt. 230, 236, 373 A.2d 851, 856 (1977). The fifteen-day rule is a measure intended to protect all of the interests involved, In re F. E. B., supra, 133 Vt. at 464, 346 A.2d at 192, and to summon the participation of all parties forthwith.

The rule was complied with in this case. A hearing was “fixed” by the court within fifteen days of the filing of the petition. The hearing was convened within the mandated time on March 31, 1982, and all parties were present. Thé court [570]*570continued the hearing only after ascertaining that the State was not prepared to go forward with its evidence. Furthermore, it was noted that the father was eligible for an extended furlough from prison in the near future. His attorney implicitly agreed to the continuance. Counsel stated, “[f] rankly, my concern is that I think' it would be an advantage to everybody if [appellant’s] position with the Department of Corrections has been resolved a little bit before the Court makes a finding.”

The granting of a continuance by the trial court is a matter of discretion. Granai v. Witters, 123 Vt. 468, 470, 194 A.2d 391, 392 (1963). We cannot say, in light of the State’s lack of preparation and appellant’s acquiescence, that the court abused its discretion. See, e.g., Land Finance Corp. v. St. Johnsbury Wiring Co., 100 Vt. 328, 332-33, 137 A. 324, 326 (1927) (refusal to continue was properly objected to and an abuse of discretion was found).

It is not argued here that appellant was precluded by the continuance from presenting a defense or was unable to meet evidence presented against him. See, e.g., Phelps v. Utley, 92 Vt. 40, 43, 101 A. 1011, 1012 (1917) (new evidence could not be rebutted) ; State v. Pierce, 88 Vt. 277, 280, 92 A. 218, 219-20 (1914) (witness was unable to appear) ; Massucco v. Tomassi, 78 Vt. 188, 195-96, 62 A. 57, 59-60 (1905) (party was unable to present defense).

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Bluebook (online)
469 A.2d 751, 143 Vt. 565, 1983 Vt. LEXIS 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-r-s-vt-1983.