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In re A.M.

Supreme Court of Vermont

August 28, 2015

In re A.M., Juvenile

On Appeal from Superior Court, Chittenden Unit, Family Division. Thomas J. Devine, J.

Matthew F. Valerio, Defender General, and Sara Puls, Appellate Defender, Montpelier, for Appellant Mother.

William H. Sorrell, Attorney General, and Martha E. Csala, Assistant Attorney General, Montpelier, for Appellee State.

Michael Rose, St. Albans, for Appellee Juvenile.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


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Eaton, J.

[¶1] Mother appeals from the trial court's disposition order continuing legal custody of the minor child A.M. with the Department for Children and Families (DCF). She argues that the court erred by failing to take evidence on whether the disposition plan should be amended to include reunification with A.M.'s maternal grandmother as a third concurrent goal. Mother maintains that the court should not have taken judicial notice of a prior ruling concerning grandmother's unsuitability to provide even temporary care for A.M. Based on these assertions, mother contends that the court's order is unsupported by any findings. We affirm.

[¶2] A.M. was born in October 2011 to parents who struggle with substance abuse. A.M. was taken into emergency DCF custody in June 2013. In its petition alleging that A.M. was a child in need of care or supervision (CHINS), DCF indicated that A.M. had been found in a motel room with parents in the presence of heroin and drug paraphernalia. The court issued a temporary-care order on June 4, 2013 transferring temporary legal custody of the child to DCF, and A.M. was placed with his maternal grandmother.

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[¶3] A.M. was adjudicated as CHINS in November 2013 based on parents' stipulation. Both parents admitted to a history of drug use. They acknowledged that A.M.'s maternal grandmother had cared for A.M. between August 2012 and January 2013 because parents were incapable of doing so due to their drug use. During this time, mother, by agreement, was not allowed to have any unsupervised contact with A.M. Mother was still abusing heroin in January 2013. Between February 2013 and May 2013, with a minor exception, mother was incarcerated. Mother did not engage in any substance-abuse treatment while incarcerated. Given these facts, as well as mother's housing instability following her release from jail, mother admitted that she was not in a position to parent A.M. at the time the CHINS petition was filed on June 3, 2013.

[¶4] Father had been A.M.'s primary caretaker since February 1, 2013. He admitted that he had relapsed on heroin and had been struggling with relapses for approximately one month before the CHINS petition was filed. He, too, agreed that A.M. was CHINS.

[¶5] A question arose during the CHINS merits hearing about grandmother's suitability as A.M.'s caretaker. DCF would not license grandmother as a foster parent and, as a result, DCF sought to transfer A.M. to a new foster home. Mother moved to transfer temporary custody to grandmother. In an entry order, the court indicated that it would maintain the status quo pending an evidentiary hearing on mother's motion, given A.M.'s age and his relationship with grandmother. The court thus issued a temporary conditional custody order to grandmother.

[¶6] Between January 2014 and early May 2014, the court held three days of evidentiary hearings on mother's motion. In late May 2014, DCF moved to reopen the evidence based on new allegations that grandmother was facilitating mother's drug use and that mother had been ordered, due to recent criminal charges, to reside with grandmother in the same residence where A.M. lived. Following an emergency hearing, the court transferred custody of A.M. to DCF. The court held a final hearing on mother's motion on July 1, 2014.

[¶7] In late July 2014, the court issued a lengthy order concluding that grandmother was not a suitable placement for A.M. The court found, among other things, that: grandmother had been substantiated for child abuse in 1998; two of grandmother's children, including mother, had been removed from her care and placed in DCF custody; grandmother was the subject of fifteen relief-from-abuse orders obtained by various family members; reports had been made to DCF about bruises found on A.M.; grandmother had alcohol issues in the past and was inconsistent about her current alcohol use; grandmother admitted to smoking marijuana once or twice a day; a marijuana pipe was found in A.M.'s bag at daycare; and grandmother often appeared at daycare with bloodshot eyes and variable behavior, and at times, seemed incapable of understanding what the daycare worker was saying.

[¶8] The court also recounted an incident in mid-May 2014 where mother and father had been observed apparently using drugs in grandmother's car. Grandmother was seen entering the driver's side of the car shortly thereafter and putting a bag in the glove compartment. It was not clear if grandmother had been in the car at the same time as mother and father. Mother and father went to a nearby park where grandmother met them. In a search connected with this incident, the police found a marijuana pipe, with residue, in grandmother's purse. Heroin packets were discovered

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on father, and two empty, open heroin packets were discovered in grandmother's car. While the court found the circumstances surrounding grandmother's participation in this incident to be suspicious, it did not conclude that she facilitated any drug use or possessed heroin.

[¶9] Based on these and other findings, the court considered grandmother's suitability as a temporary legal custodian. In determining suitability, the court considered the relationship between A.M. and grandmother, as well as grandmother's ability to: provide a safe, secure, and stable environment; exercise proper and effective care and control of A.M.; protect A.M. from the custodial parent to the degree the court deemed such protection necessary; support reunification efforts, if any, with the custodial parent; and consider providing legal permanence if reunification failed. 33 V.S.A. § 5308(b)(3).

[¶10] In finding grandmother to be an unsuitable placement option, the court cited her previous substantiation for abuse, multiple relief-from-abuse orders, concerns about her previous alcohol use and her minimization of her current alcohol use, her use of marijuana, and evidence that she did not remember conversations with A.M.'s daycare provider. The court found that, while recent suspicions regarding abuse of A.M. had not been substantiated, grandmother's history, coupled with more recent concerns, made grandmother an unpredictable and potentially dangerous caregiver for A.M., particularly because there was no indication that grandmother had engaged in any services that might mitigate concerns about her past violent behavior.

[¶11] For these and other reasons, the court concluded that grandmother could not assure a safe, secure, and stable environment for A.M. Under the circumstances, she could not support reunification efforts. The court noted that grandmother had also expressed concerns about her own ability to facilitate A.M.'s care. Grandmother admitted to feeling overwhelmed at times. While this alone was not enough to doubt her ability, it raised doubts about her resolve to provide legal permanence if reunification with parents failed. Thus, based on the statutory factors, the court concluded that grandmother was not a suitable placement for A.M. pending disposition, and it denied mother's motion to transfer temporary custody to grandmother.

[¶12] In reaching its decision, the court noted that this case had not yet reached disposition due to the parties' successive continuances and intervening motions. While the court had held substantial evidentiary hearings on the issue of custody, a disposition plan had just been filed on June 30, 2014. The court recognized the need to make predisposition custody orders based on reliable evidence, but found it incumbent on the parties to work toward disposition so that A.M. could achieve permanency.

[¶13] DCF's proposed disposition plan had concurrent goals of reunification with one or both parents or adoption. Several days prior to the disposition hearing, mother filed an objection to the case plan, asking that grandmother be included as a custodial option and given a plan of services.

[¶14] In late September 2014, the court, with a different presiding judge, held a disposition hearing. The hearing occurred two months after the court's ruling on grandmother's unsuitability and fifteen months after the CHINS petition had been filed. The court again emphasized the long delay that had occurred in this case. It acknowledged the prior litigation over grandmother's suitability and indicated that it had read the prior decision on

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mother's motion to transfer custody. The court found that a critical amount of time had been lost due to that motion, and for A.M.'s sake, it could not afford any more delay.

[¶15] During the hearing, the court discussed the proposed disposition plan with each parent, with A.M.'s attorney, and with the guardian ad litem, inquiring whether they had any objections to it. It asked parents about the progress that they were making in addressing their substance-abuse problems and other issues. The court suggested that additional visitation might be warranted to achieve the goal of reunification, and it encouraged parents to demonstrate their commitment to achieving this goal. Aside from a minor factual correction, father indicated that he had no objections to the plan. Aside from the issue involving grandmother, discussed below, mother stated that she had no objection to the plan. A.M.'s attorney and the guardian ad litem also agreed with the proposed plan.

[¶16] As indicated, mother asked the court to amend the disposition plan to include adoption or some kind of custody placement with grandmother as a third option. The court denied mother's request. It explained that the prior litigation involving grandmother had brought to light many troubling issues. The court recognized grandmother's role in A.M.'s life, but it pointed to all of the evidence found by the court in its July 2014 decision, including grandmother's substantiation for child abuse, the numerous relief-from-abuse orders obtained against her, her minimization of her alcohol use, and her regular use of marijuana. The court was also troubled by the fact that empty packets of heroin were found in grandmother's car, which raised obvious safety issues.

[¶17] The court noted that parents did not challenge the court's ability to find that they were unfit to care for A.M. -- they had essentially stipulated to the facts in the proposed disposition report. The court found no obligation to determine, by clear and convincing evidence, that grandmother was unsuitable as a caretaker. Given this, the court found it appropriate to take judicial notice of the prior findings concerning grandmother. It had the same concerns about grandmother expressed in the earlier ruling. The court also found it unlikely that some type of custody arrangement with grandmother would provide A.M. with the permanence he needed, as it was unlikely that a permanent guardianship or adoption with grandmother would ever be approved.

[¶18] The court thus overruled mother's objection to the goals set in the disposition plan. It found that the concurrent goals of reunification or, if reunification failed, adoption were in A.M.'s best interests. The court made a factual correction to the plan as requested by father. It also expressed its concern about the level of visitation provided in the plan. It set March 2015 as the target date for substantial compliance. The court adopted the plan with the amendments indicated and informed the parties that they would meet again in two months for a post-disposition review.

[¶19] After the court delivered its decision, mother's attorney again raised the issue of grandmother as a placement option. Counsel agreed that there were valid concerns about grandmother's suitability as reflected in the court's earlier ruling. He suggested, however, that grandmother might be able to " get on a program to rehabilitate herself" through parenting classes and a treatment program. ...

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