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In re B.B.

Supreme Court of Vermont

February 15, 2019

In re B.B., B.C., and B.B., Juveniles

          On Appeal from Superior Court, Franklin Unit, Family Division Martin A. Maley, J.

          Sarah R. Star, Attorney & Counselor at Law, P.C., Middlebury, for Appellant Mother.

          Ashley 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.

          CARROLL, J.

         ¶ 1. Mother appeals an order concluding that her children were children in need of care or supervision (CHINS) due to educational neglect.[1] 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.[2] 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 ...


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