Appeal from Superior Court, Franklin Unit, Family Division
Nancy J. Waples, J.
Matthew Valerio, Defender General, Marshall Pahl, Appellate
Defender, and Ryan K. Krause, Law Clerk (On the Brief),
Montpelier, for Appellant Mother.
A. Baker, Franklin County Deputy State's Attorney, St.
Albans, for Appellee.
PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and
Grearson, Supr. J., Specially Assigned.
1. Mother appeals from an order of the superior court, family
division, adjudicating her son, B.C., a child in need of care
or supervision (CHINS). She challenges: (1) the court's
admission of evidence of father's out-of-court
statements; (2) the court's reliance on findings from a
prior CHINS determination; and (3) the sufficiency of the
evidence, especially given that B.C. was in the custody of
the Department for Children and Families (DCF) when the State
filed the petition. We conclude that the family division
erred by admitting evidence of father's out-of-court
statements, and that without that testimony, and in light of
the court's findings with respect to other evidence, the
remaining evidence would be insufficient to support a CHINS
determination. Accordingly, we reverse the court's order.
2. B.C. was born on December 31, 2016. Mother has two other
children who were removed from her care prior to B.C.'s
birth,  at which time DCF was providing services
to mother and B.C.'s father to address concerns over
substance abuse and domestic violence. Within days after
B.C.'s birth, the family division granted DCF temporary
emergency custody of the infant, and the State filed a CHINS
petition seeking a determination that B.C. was without proper
parental care necessary for his well-being. See 33 V.S.A.
3. After the parties agreed to continued temporary DCF
custody, B.C. was first placed with his paternal grandmother.
In March 2017, he was transitioned to the home of his
paternal aunt and uncle. DCF's plan contemplated
reunification with both parents, who at the time intended to
co-parent B.C. Through the first two months of 2017, both
parents appeared to be making good progress towards
reunification. But in mid-March, father relapsed in his
substance abuse recovery, and mother represented to DCF that
she had separated from father and planned to parent B.C.
alone. In the ensuing months, DCF was unclear about whether
mother was being fully transparent about her relationship and
living situation, and perceived a decline in mother's
engagement with the reunification plan.
4. Hearings on the January 2017 CHINS petition were held on
March 16 and April 27 of 2017. During the first week of May
2017, mother canceled a visit with B.C., missed a substance
abuse counseling appointment, was arrested for allegedly
assaulting father following an altercation at her apartment,
and relapsed by using benzodiazepines on one occasion.
5. The circumstances surrounding the alleged assault, as
later found by the family division, were as follows. On May
5, father refused to leave the apartment he had previously
occupied with mother after stopping by to pick up his mail
and some of his clothing. Mother's father called the
police for help in making father leave. The police responded,
but concluded that they had no legal grounds to remove father
from the apartment and advised mother to initiate an eviction
proceeding. Two or three hours later, mother called her own
father back crying. She reported that father had just thrown
a coffee table at her, breaking a window and almost hitting
her. Mother's father returned to the apartment and saw a
coffee table with glass shards in it. He again called the
police, and the police returned to the residence. They spoke
with father again, and concluded they could not make him
leave the residence. Mother and her father then went to the
police station to seek a relief-from-abuse order. They
completed a petition, but the dispatcher declined to accept
6. The next morning, when the individual who was to supervise
mother's visit with B.C. arrived at mother's
apartment to pick mother up, father was still at the
apartment. The visitation supervisor told father to leave
because he could not be present when mother had B.C. at the
apartment. The supervisor left without mother to pick up B.C.
When she returned to mother's apartment with B.C. shortly
after 9:00 a.m., father was just leaving; the supervisor
remained in her car with the child until father went up the
street. Then the supervisor brought the child into the
apartment and locked the door, and mother and B.C. began what
the visit supervisor observed to be a "totally
normal" visit. Around 10:30 a.m. that day, the police
responded to a report that a man had been stabbed. They found
father near a grocery store parking lot, and observed a stab
wound on father's chest and a shallower laceration on his
back. Father reported that mother had stabbed him. While
mother was still visiting with B.C., the police returned to
her apartment and arrested her. She was released from jail
two days later, on May 8.
7. On May 17, 2017, while its initial petition was still
under advisement, the State filed a new petition alleging
that B.C. was without proper care necessary for his
well-being. The affidavit in support of the petition cited
pending drug charges against father, the parents'
tumultuous relationship, mother's suspected impairment on
several occasions, her missed visits and meetings with
service providers, and the events of May 6, including the
aggravated domestic assault charge mother faced.
8. On May 19, 2017, two days after the second petition was
filed, the family division held a temporary care hearing
concerning the initial CHINS petition. Following the hearing,
the court denied the initial petition on the ground that the
State had not proved that at the time the petition was filed
B.C. was at substantial risk of physical or emotional harm.
That same day, however, the court also issued an order
maintaining B.C. in the temporary custody of DCF, with
supervised parental visitation, in response to the
State's newly filed CHINS petition.
9. At a September 2017 temporary care hearing, after learning
that mother had been admitted to the Lund Center and was
progressing well there with B.C., the family division issued
a conditional custody order (CCO) placing B.C. in
mother's custody while she remained at the Center,
pending a disposition order. On December 7, 2017, the State
amended its May 17 petition by changing the date of when ...