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In re B.C.N.

Supreme Court of Vermont

September 26, 2014

In re B.C.N. and N.C.N., Juveniles

Editorial Note:

This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter.

Appeal from: Superior Court, Windham Fam. Division. DOCKET NO. 142/143-11-12 Wmjv. Trial Judge: Hayes.

Dooley, Skoglund, Robinson, JJ.

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

Mother and father appeal termination of their parental rights (TPR) to their children, B.C.N. and N.C.N., born in September 2012 and June 2011, respectively. On appeal, parents argue that the court's finding by clear and convincing evidence that B.C.N. was severely abused was not legally or factually supported, and that the Department for Children and Families (DCF) failed to provide them with reasonable accommodations for their cognitive disabilities. We affirm.

The court found the following facts by clear and convincing evidence. B.C.N. was born prematurely; he had a low birth weight and apnea. Two months after his birth, an early education specialist who was working with the parents saw bruising on B.C.N.'s jaw. Father explained that the injuries resulted from attempting to give the infant artificial respiration the night before when B.C.N. stopped breathing. The following day, on November 29, 2012, B.C.N. was referred by his pediatrician to Dartmouth Hitchcock Medical Center (DHMC), where he was admitted. Doctors did an x-ray scan and discovered B.C.N. had six healing rib fractures. At DHMC, mother stated that she was the one to give B.C.N. artificial respiration. The doctor believed that B.C.N.'s injuries were not accidental and could not have been caused in the way described by parents. Based on the injuries and the doctor's statement that the injuries were not consistent with accident or parents' explanation, the court placed B.C.N. and N.C.N. in DCF custody under an emergency care order.

DCF's initial case plan in March 2013 contained concurrent goals of reunification and adoption. The case plan required parents to, among other things, engage in family time coaching, engage in therapy, and cooperate with service providers. The parents' inability to explain B.C.N.'s severe physical injuries was identified as a major risk factor for reunification. In April 2013, the children were placed with their great aunt and uncle, where they have since remained.

There was a contested proceeding on the merits of DCF's petition to find the children in need of care or supervision (CHINS). Among other witnesses, the State presented testimony concerning the injuries to B.C.N. from B.C.N.'s pediatrician and Dr. Hymel, the director of the child advocacy and protection program at DHMC's children's hospital. The CHINS court found on the record at the close of the hearing that both B.C.N. and N.C.N. were CHINS. The court found by a preponderance of the evidence that the parents' story, even if believed, showed that they failed to immediately seek medical attention for B.C.N. and that in itself supported a finding that he was CHINS. Further, based on the unexplained injuries to B.C.N. that happened while exclusively in parents' care and parents' apparent untruthfulness in explaining those injuries, the court found parents were not able to care for and protect both children. The court declined the State's request to make findings by clear and convincing evidence, explaining that " while strong inferences can be made that B.C.N. was the victim of child abuse, those inferences are not sufficient at this point to describe exactly what the precise nature of the child abuse was or exactly who was the perpetrator of the child abuse."

At the initial disposition, DCF recommended that parents' rights be terminated. The court held a contested hearing over three days. A transcript of Dr. Hymel's testimony along with his notes and records were admitted at the termination hearing. This testimony included Dr. Hymel's opinion that the bruising on B.C.N.'s jaw and neck and the six healing rib fractures are injuries consistent only with abuse and not accidental causes. Dr. Hymel described that two weeks before B.C.N.'s was admitted based on the jaw bruising, he had a skeletal x-ray based on bruises on his arms that did not have an explanation. No rib fractures were present on that x-ray and the fractures on the November 29 x-rays showed some healing, so Dr. Hymel stated that the injuries must have occurred at least a week before B.C.N. was admitted. He opined that the fractures could not have come from chest compressions for an attempt at artificial respiration the day before, both because of the timing and because children's ribs at that age are flexible and would not fracture from chest compressions. Dr. Hymel testified that the cause of the injuries would require force beyond normal interaction with a baby, such as an adult falling onto him, smashing fist into him, or someone stomping on him. Although Dr. Hymel did not opine that one of these particular events occurred, he offered them as examples of the severity of force required.

At the termination hearing, there was also evidence concerning the parents' visits and progress with respect to the case plan. From December 2012 to July 2013 parents were fairly consistent in attending visits, but they did not make significant progress and visits did not progress to unsupervised, or community or home-based settings. From June to September 2013, parents attended fourteen of thirty-four visits and between September and the beginning of the final hearing in November 2013, father attended six and mother five of eleven scheduled visits.

A DCF investigative caseworker testified that father has a history of delinquency for sexually abusing a younger child. Father also admitted to inappropriate sexual conduct with female relatives. Father did not complete recommended sex-offender treatment.

Two professional evaluations of the parents were completed, and the evaluators testified at the termination hearing. The first was done at DCF's request by Dr. Gabriel. She determined that both parents have some cognitive disabilities, as well as significant psychiatric disabilities that require treatment. She diagnosed father with post-traumatic stress disorder, possible depression and an avoidant personality disorder. She diagnosed mother with major depression and an avoidant personality disorder. She recommended a year of consistent therapy as a precondition to considering returning the children to parents' care. She particularly recommended sex-offender treatment for father. The second evaluation was completed at parents request by Dr. Brisson. She concluded that both parents have language-based disabilities, but they did not have untreated serious mental illnesses. She believed that mother and father were willing and capable of parenting, but need written instructions and simplified language for instruction. She recommended that the parents engage in therapy and receive home-based support.

Based on the evidence, the court assessed the best interests of the children. The court concluded that there was clear and convincing evidence that B.C.N. was severely injured while in parents' care and that neither parent had taken responsibility for the injury or provided a credible explanation for the injury's cause. The court further concluded that both parents either know how the injury occurred or have been grossly negligent in caring for B.C.N. The court relied primarily on the opinion of Dr. Hymel concerning the severity of force ...


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