Appeal from Superior Court, Franklin Unit, Family Division
Martin A. Maley, J.
R. Star, Attorney & Counselor at Law, P.C., Middlebury,
for Appellant Mother.
A. Harriman, Franklin County Deputy State's Attorney, St.
Albans, for Appellee.
Michael Rose, St. Albans, for Appellees Juveniles.
PRESENT: Skoglund, Robinson, Eaton and Carroll, JJ.
1. Mother appeals an order concluding that her children were
children in need of care or supervision (CHINS) due to
educational neglect. On appeal, mother argues that (1) the
court erred in not requiring the State to demonstrate that
the children's absences were without justification; (2)
the evidence does not support the court's finding that
missing school caused the children harm; (3) the existence of
Individualized Education Plans (IEPs) for the two young
children, who were not legally required to attend school,
does not support a finding of educational neglect; and (4)
the court erred in admitting the school attendance records.
We affirm as to B.C. and reverse and remand the CHINS
determinations as to Bo.B. and Br.B.
2. The court found the following. In April 2018, the State
filed a petition alleging that B.C., born in January 2007,
Bo.B., born in May 2012, and Br.B., born in April 2013, were
CHINS for lack of proper education necessary for their
well-being. 33 V.S.A. § 5102(3)(B). At the time, B.C.
was in fifth grade, Bo.B. was in kindergarten, and Br.B. was
in preschool two days a week. Bo.B. and Br.B. had IEPs and
received support services at school, including speech
therapy. B.C. had been referred to an educational support
team because she was not meeting certain achievement levels
in her educational program. In prior years, there had been
three educational neglect/truancy assessments involving B.C.
The assistant principal of the children's school
testified that the classroom teachers take daily attendance
that is recorded in an electronic database from which reports
can be generated. Absences are considered excused if a parent
calls and declares that the student will not be attending.
Over mother's objection, the court admitted
computer-generated attendance reports for all three children,
concluding that they were business records.
3. The assistant principal was concerned because all three
children had a significant number of absences from school and
contacted mother to schedule a meeting. The assistant
principal also made a referral to Northwest Counseling
Services (NCSS) for both B.C. and Bo.B. for a home/school
coordinator and a truancy specialist. The assistant principal
explained that although Br.B. and Bo.B. were not required by
law to attend school, the structure, routine, consistency,
and social skills that children build in preschool and
kindergarten are important for preparing them for first
grade. In January 2018, the assistant principal reported to
the Department for Children and Families (DCF) that B.C. had
missed twenty-two days and Bo.B. had missed thirty-two days
of school and all absences were unexcused. Due to his
absence from school, Bo.B. was not receiving speech therapy.
DCF contacted mother, who asserted that the absences were
occurring because she was not receiving sufficient support
from the school, the children were often absent due to
illness, and transportation was a barrier. When asked, mother
did not appear to understand the details of Bo.B.'s IEP.
DCF set up a plan to implement services through NCSS in
March, however, mother cancelled the meeting.
4. The court found that the three children were CHINS due to
the parents' inability to provide for the children's
educational needs. The court found that the children's
absences resulted in missed educational opportunities that
put them at risk of harm, especially in light of their needs.
The court did not credit mother's assertion that the
school did not act appropriately to assist her. The court
explained that the school had acted appropriately to provide
mother services to address the children's needs, but
mother rejected the services, further placing the children at
risk of harm. The court acknowledged that the younger two
children were not required to attend school by statute, but
found that they were at risk of harm for two reasons. First,
both younger children were on IEPs and were receiving
services during school. Second, the older child had a pattern
of excessive school absences, and the court determined that
this was a pattern relevant to the younger children.
Therefore, the court concluded that all three children were
CHINS for educational neglect. Mother appeals.
5. A child is "in need of care or supervision"
when, among other things, the child "is without proper
parental care or subsistence, education, medical, or other
care necessary for his or her well-being." 33 V.S.A.
§ 5102(3)(B). The State has the burden of establishing
by a preponderance of the evidence that a child is CHINS.
Id. § 5315(a). "Because the critical focus
in a CHINS proceeding is on the child's well-being, the
State is not required to demonstrate that the child has
suffered actual harm, but rather is subject to a risk of
harm." In re J.C., 2016 VT 9, ¶ 7, 201 Vt.
192, 138 A.3d 830. "On review of the court's CHINS
decision, we will uphold the court's findings of fact
unless they are clearly erroneous; we will uphold the
court's legal conclusions where supported by its
findings." In re M.L., 2010 VT 5, ¶ 8, 187
Vt. 291, 993 A.2d 400.
6. We first address mother's argument that the State
failed to prove that the children's absences were
unjustified. The State can demonstrate that a child is CHINS
under one of four possibilities: abandonment, lack of proper
parental care, beyond parental control, and truancy. 33
V.S.A. § 5102(3)(A)-(D). Mother's appeal raises the
issue of the difference between demonstrating CHINS based on
lack of proper parental care for education versus truancy. In
truancy cases, children are CHINS if they are
"habitually and without justification truant from
compulsory school attendance." Id. §
5102(3)(D). In these cases, the State has the burden of
proving that absences are without justification by a
preponderance of the evidence. In re J.H., 2013 VT
31, ¶ 13, 193 Vt. 541, 70 A.3d 1054. In truancy cases,
under § 5102(3)(D), the State is not required to show
the children are being harmed or at risk of harm. In
contrast, the State need not prove that absences were without
justification to demonstrate educational neglect under §
5102(3)(B). However, there is no presumption that chronic
absence from school amounts to risk of harm. In a CHINS based
on educational neglect, the State must show that the children
lack the education necessary for their well-being. Because
this is not a truancy case, the State was not required to
demonstrate that the absences were unjustified, but it was
required to show that the children lacked the education
necessary for their well-being.
7. Mother argues that the court erred in finding that the
children were CHINS because she asserts that the evidence
does not show the children's well-being was negatively
impacted by missing school. She claims that staying at home
was best for the children's well-being in this case
because the children were sick and B.C. suffers from
depression and anxiety, stemming from being bullied at
school. Mother claims that the court essentially found that
missing school is per se educational neglect without any
finding that the absences harmed the children.
8. When reviewing findings, we construe the evidence to
support the findings if possible and "construe the
findings to support the judgment if they may reasonably be so
construed." In re M.O., 2015 VT 120, ¶ 7,
200 Vt. 384, 131 A.3d 738. Because the CHINS proceeding
focuses on the welfare of the child, the question is not