Appeal from Superior Court, Addison Unit, Family Division
Hoar, Jr., J. Matthew Valerio, Defender General, and Katina
Francis Ready, Montpelier, for Appellant Mother.
Tartter, Deputy State's Attorney, Montpelier, for
PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and
Grearson, Supr. J., Specially Assigned
1. This case calls for us to determine whether the evidence
and findings support the trial court's conclusion that a
child with significant mental-health issues was a child in
need of care or supervision (CHINS) because she was
"without or beyond the control of . . . her parent,
guardian, or custodian, " or "CHINS-C." We
conclude that a child with significant mental illness who
cannot be safely cared for by a parent in the home is not
CHINS-C if the parent has effectively exercised parental
authority to ensure that the child's care is properly
managed in another setting. Accordingly, we reverse the trial
court's merits determination that M.L. is a child in need
2. On February 16, 2017, the State filed a CHINS petition
alleging that thirteen-year- old M.L. was beyond mother's
control. See 33 V.S.A. § 5102(3)(C) (defining
CHINS, in relevant part, as a child who "is without or
beyond the control of his or her parent, guardian, or
custodian"). In its affidavit accompanying the petition,
the State described the following events concerning M.L.,
which are largely undisputed. M.L. had recently been charged
with two delinquencies- unlawful mischief and domestic
assault. On January 20, 2017, a school counselor reported to
DCF that M.L. had been identified as a victim of sexual
assault at school. The local police department became
involved in the sexual assault investigation and had
possession of her electronic device. M.L. threatened to harm
herself if police, who were investigating the reported sexual
assault, did not return her device.
3. On January 23, mother showed a police officer and a DCF
investigator M.L.'s journal, in which M.L. wrote about
cutting and choking herself and engaging in hypersexual
behavior with multiple boys. Mother explained that she had
locked up all of the sharp objects in their home, but that
the child would use anything, dull or sharp, to cut
herself-including earrings. That same day, M.L. became upset
and threatened to kill herself and cut herself when mother
would not return her electronic device. A police officer took
M.L. to Porter Hospital to be evaluated for hospitalization.
The next day, the Counseling Service of Addison County
evaluated M.L. at the hospital and recommended a
hospitalization at Northwest Family Institute (NFI). Mother
was clear at that time that M.L. could not return home. M.L.
was admitted to NFI on January 24.
4. On February 3, NFI concluded based on M.L.'s conduct,
including glorifying her sexual behaviors, choking herself
until she passed out, and cutting her arms, that M.L. no
longer met the criteria for continued stay at NFI and would
have to be discharged. Mother opposed the discharge on the
basis that M.L. was not ready.
5. On February 6, mother brought M.L. to University of
Vermont Medical Center (UVMMC) to be screened for
hospitalization again. At that time, M.L.'s arms were cut
up and she was threatening suicide. M.L. stayed at the UVMMC
emergency department for five days before she could be
admitted to the Brattleboro Retreat. On February 10, M.L. was
admitted to the Brattleboro Retreat.
6. On February 14, a clinician at the Brattleboro Retreat
recommended long-term residential treatment for M.L., and
against M.L. returning to her home. The clinician explained
that because this was a first admission for M.L., and she had
not exhausted outpatient services, she would not be able to
access a residential placement through the Department of
Mental Health. The clinician opined, "I believe DCF
custody would be the only available mechanism for securing a
residential placement." On February 15, mother indicated
that she would not support M.L. returning to her home at that
7. The affidavit accompanying the CHINS petition indicated
that DCF was seeking a CHINS-C adjudication because of
M.L.'s threats to kill her family, her mental
instability, her sexualized and self-harming behaviors, her
inability to keep herself safe, and mother's inability to
parent M.L. and keep her safe at home.
8. Based on the petition and accompanying affidavit, the
family court entered emergency and temporary orders placing
M.L. in DCF custody.
9. The court held a CHINS merits hearing on April 17, 2017.
Following the presentation of evidence, the family court
adjudicated M.L. as CHINS in what the court called "a
very close call." Applying the applicable
preponderance-of-the-evidence standard, the court concluded
"by the slimmest of ...