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, Wind. Fam. Division. DOCKET NO. 82-8-14 Wmjv. Trial Judge: Katherine A. Hayes.
Reiber, C.J., Dooley, and Robinson, JJ.
In the above-entitled cause, the Clerk will enter:
Mother appeals from an adjudication by the family division of the superior court that her son, M.S., is a child in need of care or supervision (CHINS). We affirm.
Mother has two children, M.K, born in November 2008, and M.S., born in December 2012. In April 2014, the Department for Children and Families (DCF) filed CHINS petitions alleging that mother had abused M.K. and that M.S. was at risk of similar abuse. 33 V.S.A. § 5102(3)(A) (defining CHINS as meaning, among other things, child who has been abused or abandoned by parent, guardian or custodian). The allegations of abuse were based on mother's conduct captured by a video camera outside of her apartment. The video showed mother forcefully flinging M.K. to the ground and kicking her foot towards his face. On July 31, 2014, following a hearing, the family court adjudicated M.K. CHINS, but denied DCF's petition with respect to M.S., concluding that DCF had not demonstrated that M.S. was at risk of similar abuse. Mother appealed the family court's ruling as to M.K., and we affirmed the court's decision in January 2015. See In re M.K., 2015 VT 8, ___ Vt. ___.
Meanwhile, the day after the family court denied the first CHINS petition with respect to M.S., DCF filed a second CHINS petition alleging this time that M.S. was without proper parental care. See 33 V.S.A. § 5102(3)(B) (defining CHINS as meaning, among other things, child " without proper parental care or subsistence, education, medical, or other care necessary for his or her well-being" ). In response to this second petition, the family court issued an emergency care order regarding M.S., who has remained with his brother in the same foster home since the boys were taken into DCF custody in April 2014. Following a contested merits hearing held over two days in November 2014, the family court issued a decision adjudicating M.S. as CHINS based on the following rationale:
[M.S.] was identified very early as a child with special developmental needs, and, as stated above, the mother made valiant efforts to get all the help she could to assist her in meeting them. However, despite those efforts, [M.S.] did not grow or learn as fast as he should have, and the court concludes that this was in part due to the mother's inability to provide him with care that he needed. This conclusion is based largely on the fact that [M.S.] has grown both developmentally and physically much more quickly since he was taken from his mother's custody. The court concludes that it is likely that the mother's own struggle to meet her own basic needs, despite significant disabilities, and without supports for herself that might have assisted her, interfered with her ability to care for others, including [M.S.], despite her good intentions. Mother's stress and anxiety, her frustration when things did not work out as she had hoped, or when she became overwhelmed, her inability to calm herself, and her occasional outbursts of anger increased [M.S.'s] stress, and were an obstacle to his development. The mother's acts of abuse towards [M.K.] on April 21, 2014 are also a factor here. [M.S.] was a witness to that incident, and that can only have been traumatic and painful for him to see. . . . The mother's other outbursts of anxiety, distress, and anger at the childcare center, and at visits, show that this was not an isolated incident of loss of temper and control.
Mother appeals the family court's CHINS decision, arguing that: (1) the court's conclusion that M.S. was CHINS was based on an impermissible assumption that a person with a disability cannot be a good parent; (2) the court erred in taking judicial notice of the findings in the prior CHINS proceeding; and (3) the evidence does not support the court's findings or its CHINS adjudication.
At the outset, we reject mother's argument that the family court erred by taking judicial notice of the findings in the prior CHINS proceeding. In the merits decision on appeal in the instant CHINS proceeding, the court found that " [t]he parties stipulated in this case that the court could take judicial notice of its findings in [the earlier CHINS] case." Mother does not challenge this statement, which is supported by the record. By expressly agreeing to allow the family court to take judicial notice of the findings in the prior CHINS proceeding, mother has waived this claim of error on appeal. See In re D.C., 2012 VT 108, ¶ 13, 193 Vt. 101, 71 A.3d 1191 (concluding that mother waived right to challenge on appeal procedure that she stipulated to in family court).
Next, we consider mother's argument that the family court's adjudication of CHINS was based on its impermissible assumption that a person with a disability cannot be a good parent. Mother presumes that the court made this assumption based on the court's statement, quoted above, that despite mother's good intentions, her significant disabilities and lack of supports for herself that might have assisted her interfered with her ability to care for M.S. We will not presume from this statement that the court based its decision in this case on its belief that a person with a disability cannot be a good parent. The court's focus was on whether M.S. was without proper parental care to the degree that it affected his well-being. In addressing that question, the court considered mother's conduct, which was impacted by her disability. The fact that the court noted the impact of mother's disability on her conduct towards M.S. and others does not suggest that the court was adjudicating M.S. CHINS because mother had a disability. Rather, the court addressed whether mother's inability to control the symptoms of her disability left M.S. without proper parental care such that it negatively impacted his well-being. In short, the focus was on M.S. and only indirectly on mother's disability.
The real issue in this case -- whether the State's evidence supports the family court's conclusion that M.S. is without proper parental care -- presents a close question. Mother acknowledges that there was plenty of evidence demonstrating that M.S. has significant special needs and that mother has a disability -- a traumatic brain injury from a childhood accident -- that affects her emotions and impulse controls. But she contends that there is virtually no evidence demonstrating that M.S.'s special needs resulted ...