Appeal from Superior Court, Windsor Unit, Family Division
Elizabeth D. Mann, J.
Matthew Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier, for Appellant Juvenile.
Tartter, Deputy State's Attorney, Montpelier, for
Michael Rose, St. Albans, for Appellee Mother, and Allison N.
Fulcher, Barre, for Appellee Father.
Present Reiber, C.J., Robinson, Eaton and Carroll, JJ., and
Grearson, Supr. J., Specially Assigned
1. Juvenile M.E. appeals the family division's dismissal
of the State's petition to declare her a child in need of
care or supervision (CHINS). The State joins in the appeal.
2. In May 2019, the Department for Children and Families
(DCF) filed a petition alleging that M.E. was without proper
parental care as provided in 33 V.S.A. § 5102(3)(B). The
CHINS petition was based on mother's admitted use of
heroin on one occasion and allegations that M.E. had been
exposed to drug use and paraphernalia while in the care of
her parents. The court issued an emergency care order
transferring custody to DCF. After a temporary care hearing,
custody was continued with DCF. A merits hearing was held on
August 7, 2019. In a written order issued on August 12, the
court concluded that the State had failed to establish the
merits and dismissed the petition.
3. The court made the following findings in its order. At the
time the CHINS petition was filed, M.E. was almost five years
old. She lived with mother and father in an upstairs bedroom
of the home of father's grandmother. Father worked long
hours and mother stayed home with M.E. In early 2019, mother
began working approximately twenty hours per week, during
which time M.E. was cared for by father's mother or
4. In May 2019, family members filed reports with DCF
expressing concern that mother, father, and M.E. did not
spend much time with the family, appearing only for meals.
They observed that both parents seemed to have lost weight,
had swollen hands, and seemed less involved with M.E. M.E.
appeared dirty and unbathed. Her hair was snarled and she
wore the same clothes for two to three days at a time. Mother
and father have had addiction issues in the past.
5. On May 21, 2019, a DCF case worker visited the home. When
he arrived, mother and M.E. were stepping outside to play. He
observed that mother's pupils were small and she seemed
shaky. He acknowledged that the sun was shining at the time.
He did not observe M.E. to be dirty, unbathed, or unkempt.
6. Mother told the case worker that she had used heroin once
within the past week to address tooth pain. She agreed to
sign up for substance-abuse case management. The case worker
also spoke to M.E., who stated that there were "little
baggies with white stuff in them in the bedroom." During
this conversation, mother went into the house "to take
care of something."
7. When mother returned, the case worker asked to see the
bedroom where M.E. lived with mother and father. The room was
dark and filled with mattress-height clutter that blocked
access to the windows. On the desk in the room, accessible to
M.E., were vape cartridges containing a small amount of oil.
There was also a dusty shelf with a square void. M.E.
reported the space was where "Daddy's box," in
which he kept the baggies with white stuff, had been earlier
in the day. Mother said the space was where father kept a box
containing his work knives. Father is a cook in a restaurant.
8. Mother agreed to a safety plan under which M.E. would stay
with cousins and mother would stay with a friend. The case
worker testified that this plan was created because mother
said she was afraid of repercussions from father when he
heard about DCF's visit. At the hearing, mother denied
that she was ever afraid of father. She returned to stay with
father on the following Friday. The same day, she reengaged
in substance-abuse treatment with her provider at Connecticut
Valley Recovery Center. DCF decided to seek an emergency-care
order after it learned that mother had returned to the home.
9. The court found that father had "displayed some
physically aggressive behaviors" after his grandfather
died when father was in his early twenties. The court found
that father was now thirty-eight years old and there was no
evidence that he had continued to be physically aggressive.
Father voluntarily completed an anger-management program
after undergoing intensive outpatient treatment several years
ago while he was under supervision of the Department of
Corrections. The DCF case worker stated that when he was able
to speak with father about M.E., father was
"standoffish" and terminated the conversation
before a safety plan could be discussed. The court found this
account to be credible. However, it noted that the case