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In re M.L.

Supreme Court of Vermont

March 16, 2018

In re M.L., Juvenile

         On Appeal from Superior Court, Addison Unit, Family Division

          Samuel Hoar, Jr., J. Matthew Valerio, Defender General, and Katina Francis Ready, Montpelier, for Appellant Mother.

          David Tartter, Deputy State's Attorney, Montpelier, for Appellee State.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Grearson, Supr. J., Specially Assigned

          ROBINSON, J.

         ¶ 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 of supervision.[1]

         ¶ 2. On February 16, 2017, the State filed a CHINS petition alleging that thirteen-year- old M.L. was beyond mother's control.[2] 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 time.

         ¶ 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 ...

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