In re S.G.

571 A.2d 677, 153 Vt. 466, 1990 Vt. LEXIS 4
CourtSupreme Court of Vermont
DecidedJanuary 12, 1990
DocketNo. 88-171
StatusPublished
Cited by15 cases

This text of 571 A.2d 677 (In re S.G.) 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 S.G., 571 A.2d 677, 153 Vt. 466, 1990 Vt. LEXIS 4 (Vt. 1990).

Opinion

Dooley, J.

Appellant mother appeals the findings of the juvenile court which adjudged her infant child, S.G., to be a child in need of care and supervision (CHINS) and transferred legal custody of S.G. to the Commissioner of Social and Rehabilitation Services (SRS). The mother raises two errors on appeal: (1) the juvenile court concluded that the mother abused S.G. based on evidence that the mother had abused another child almost four years earlier than the current incident; and (2) the court erred by admitting and relying on hearsay evidence in its disposition findings. We affirm.

S.G. was born on July 15, 1987. When S.G. was two months old, appellant contacted a pediatrician because the child was acting unusually fussy. At first the doctor believed that the child was suffering from a virus and instructed appellant how to care for S.G. and to call again if she did not improve. The next day, after calling the doctor to say that the child was still very fussy, appellant, accompanied by her own mother, brought S.G. to the doctor for a physical exam. The doctor’s initial examination failed to disclose any reason for the baby’s fussiness or slightly elevated temperature. The baby was then brought to the hospital for further tests. During these tests, the doctor observed that S.G. “wasn’t moving her right leg as well as everything else.” An x-ray of the leg was taken which revealed a clear cut fracture of the baby’s right tibia.

After the discovery of the break, appellant offered the doctor a possible explanation. She told the doctor that she had straightened out the baby’s legs several days earlier when the baby was sleeping with her knees tucked under her chest. Later, appellant told others that the leg may have broken when the baby went limp in her arms and, as the baby was falling, she caught her by the leg.

[468]*468The doctor suspected child abuse and notified SRS. SRS brought a CHINS petition after obtaining temporary custody of S.G. The juvenile court issued a temporary detention order giving custody to SRS pending the outcome of the merits hearing. A merits hearing was held on two days during October 1987, after which the court adjudged S.G. to be a CHINS. The written order stated as findings that: “[TJhere is reasonable grounds to believe that the child is in immediate danger from her surroundings based on an injury which a physician felt was due to abuse by the mother.” SRS then filed a disposition report which recommended that the custody and guardianship of S.G. be transferred to SRS but that she remain in the daily care of her father. The report also anticipated visitation between the mother and S.G. along with special counseling for the mother. A disposition hearing was held on January 20, 1988, at which appellant did not contest the recommendations and the court accepted them. She did, however, challenge several of the findings contained within the SRS disposition report. Nevertheless, the court accepted the findings stated in the report.

The mother’s first claim of error on appeal is that during the merits hearing the juvenile court improperly admitted and relied upon a former social worker’s testimony that appellant had abused her other child four years earlier. Appellant argues that this evidence of a prior bad act is barred under V.R.E 404(b), or, in the alternative, that its prejudicial effect outweighs its probative value so that it is inadmissible under V.R.E. 403. Appellant further argues that the court erred by failing to support its Rule 403 ruling by findings or a statement of reasons.

Although appellant never testified at the merits hearing, her alternative explanations for the child’s injury — that the injury was caused by accident — were attested to by others, including the child’s father. Following the father’s testimony, the State attempted to call a former SRS social worker who had been involved with the mother and the mother’s oldest child, A.F., several years earlier. Both the State and S.G.’s attorney argued that the social worker’s testimony was relevant and probative because a similar incident had occurred between the mother and A.F. and, therefore, the testimony would establish an ab[469]*469sence of an accident. The court, however, determined that until the doctors testified, the social worker’s testimony was not relevant and was prejudicial.

The examining physician testified at length concerning the baby’s injury. In addition, the doctor testified that it is very unusual for a parent of an infant child to not know the cause of a traumatic physical injury because infants are generally supervised very closely. The doctor concluded her testimony by stating that the reason that she felt that this was a case of child abuse was because “the explanation that was offered wasn’t very consistent with what the findings were.” The orthopedic surgeon who applied the cast on the baby’s leg also testified. He stated that it is unusual for children S.G.’s age to have fractures unless they’ve had a major fall because babies’ bones are “very plastic, meaning that they can bend easily without breaking.” The surgeon also stated that while it was plausible for the break to occur if the mother grabbed the child by the leg to prevent a fall, he would still be suspicious that it was more than just an accident.

Following the doctors’ testimony, the court, over the mother’s objection, allowed the State to introduce the former social worker’s testimony. The social worker stated that she first became involved with the mother four years earlier when the mother’s other daughter, A.F., suffered a fracture to her right arm. A.F. was also two months old at the time of her injury. The social worker testified that at first the mother gave no explanation for the injury, and then about a month later the mother admitted that she had severely twisted the baby’s arm. The social worker also stated that A.F. suffered other injuries, including an injury to the leg, a bruise on the cheek, a black eye and an injury on her lip.

At the close of arguments, the court orally presented its findings of fact on the record. One of the court’s findings was that: “Four years earlier the mother had another child, [A.F.]. [The child] suffered a broken arm. Although the type of break was somewhat different, it was still similar as far as a broken bone was found in this particular case with this child.” The written findings issued three days later do not refer to the social [470]*470worker’s testimony. Based on its findings, the court concluded that the mother caused the injury to S.G., that the child suffered from abuse, and that S.G. was a child in need of care and supervision.

As with all evidentiary questions, two issues must be resolved before the evidence can be admitted. First, the evidence offered must be relevant, and second, if it is relevant, the probative value of the evidence must not be substantially outweighed by its prejudicial effect. Turning first to the relevancy issue, Vermont Rule of Evidence 404(b) provides guidelines for determining when evidence of prior bad acts is relevant. It is well established under both common law and the rules of evidence that “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” V.R.E. 404(b).

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Bluebook (online)
571 A.2d 677, 153 Vt. 466, 1990 Vt. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sg-vt-1990.