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In re M.E.

Supreme Court of Vermont

December 27, 2019

In re M.E., Juvenile

          On 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.

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

          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

          CARROLL, J.

         ¶ 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. We affirm.

         ¶ 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 grandmother.

         ¶ 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 ...

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