In re T.R.

In re T.R. (98-536); 169 Vt. 574; 730 A.2d 621

[Filed 09-Apr-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-536

                              MARCH TERM, 1999

                                     }	  APPEALED FROM:
                                     }
                                     }
In re T.R.	                     }	  Franklin Family Court
                                     }	
                                     }
                                     }	  DOCKET NO. 74-03-97 Frjv	


             In the above-entitled cause, the Clerk will enter:
  Mother of T.R. appeals from a family court order that found T.R. to be a
  child in need of  care and supervision (CHINS).  She claims that the
  evidence did not support the CHINS finding.  We agree and reverse.(FN1)

       On March 28, 1997, T.R. was placed in the custody of the Department of
  Social and  Rehabilitation Services after he reported to school officials
  that his mother's live-in boyfriend hit  him in the forehead causing him
  pain and bruising.  In June 1997, the court held a CHINS  hearing; T.R. was
  six years old at that time.  At the hearing, the boyfriend denied ever
  hitting  T.R.  He claimed that T.R. hit his head falling on ice.  Mother
  did not believe that her boyfriend  hit T.R.  She also stated that T.R.
  bruised his head by falling on ice.  The court requested that  the parties
  file proposed findings, but before the parties were able to do so, the
  court issued an  order, stating that the findings were on the record and
  adjudicating the child CHINS.  Mother  appealed on the ground that the
  finding on the record -- that the boyfriend hit T.R. -- was  insufficient
  to support the CHINS finding.  We reversed and remanded for findings of
  fact and  conclusions of law.

       On remand, the court made written findings of fact.  It found that
  T.R. was credible and  that the explanation that mother and her boyfriend
  provided for T.R.'s injury was not believable.  The court concluded that
  mother failed to protect T.R. from her abusive boyfriend, and that her 
  persistent refusal to believe her son about this abuse placed the boy at
  risk for continuing harm.  Consequently, the court concluded that T.R. was
  CHINS.  Mother appeals again.

       At the merits stage of a CHINS proceeding, the State has the burden to
  establish by a  preponderance of the evidence that the child is in need of
  care or supervision.  See In re M.B.,  158 Vt. 63, 70, 605 A.2d 515, 519
  (1992).  The statute provides three bases for finding a "child  in need of
  care and supervision."  33 V.S.A. § 5502(a)(12).  In this case, the CHINS
  finding was  based on the allegation that the child "[i]s without proper
  parental care or subsistence, education,  medical, or other care necessary
  for his well-being" because mother did not believe T.R. and  consequently,
  was unable to protect him from her boyfriend.  Id. § 5502(a)(12)(B). "We
  will not  disturb the court's findings of fact unless there is no credible
  evidence to support them."  In re  C.B., 162 Vt. 614, 614, 644 A.2d 1294,
  1295 (1994).

       Mother argues that a finding of CHINS based on a parent's failure to
  protect a child cannot  be based on her disbelief of a single incident of
  abuse, particularly where, as here, there 

 
  
  is testimony from the same witness indicating another reason for the
  bruise on his forehead.  She  maintains that our failure-to-protect cases
  require more evidence than this.  For example, she  relies on In re C.M.,
  157 Vt. 100, 102-03, 595 A.2d 293, 294-95 (1991), in which we upheld a 
  finding of CHINS based on mother's failure to protect.  In C.M., however,
  the findings indicated  that father had abused C.M., mother was aware of
  the danger father posed to the child, and  mother continued to leave the
  child alone with father.  See id.  See also E.J.R. v. Young, 162 Vt.  219,
  224, 646 A.2d 1284, 1287 (1994) (mother long tolerated violence against
  herself and  children and continued to deny abusive home environment);
  M.B., 158 Vt. at 71, 605 A.2d  at 519  (single incident of abuse by third
  person, plus continuing lack of supervision adequate to protect  children,
  supports CHINS finding).

       We agree that the evidence in this case does not adequately support
  the conclusion that T.R.  faces an obvious risk of future harm caused by
  mother's inability to protect him from her  boyfriend's abuse.  See In re
  C.A., 160 Vt. 503, 506, 630 A.2d 1292, 1294 (1993) (sparse  findings did
  not support conclusion that children at risk of future abuse).  Contrary to
  SRS's  contention, the court did not find that mother fabricated a story to
  account for T.R.'s injury.  Nor  did the court find that the boyfriend was
  likely to further abuse T.R., that mother was aware the  boyfriend posed a
  risk to T.R. or that she insisted on leaving T.R. alone with the boyfriend.  
  Rather, the court found that mother did not believe T.R.'s claim that the
  boyfriend hit T.R.  She  believed that T.R. injured his head by falling on
  the ice.  And T.R. testified that mother was not  present when the
  boyfriend hit T.R., that mother had taken T.R. ice skating, that T.R. had
  fallen  on the ice and hit his head and that, as a result, T.R. got a mark
  on his head.

       Reversed.

                                     BY THE COURT:


                                     _______________________________________
                                     Jeffrey L. Amestoy, Chief Justice

                                     _______________________________________
                                     John A. Dooley, Associate Justice
	
                                     _______________________________________
                                     James L. Morse, Associate Justice

                                     _______________________________________
                                     Denise R. Johnson, Associate Justice

                                     _______________________________________
                                     Marilyn S. Skoglund, Associate Justice
     


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  FN1. Mother also claims that (1) the court erred in permitting
      significant limitations on mother's  confrontation rights, and (2) T.R. 
      did not take an oath that satisfied 12 V.S.A. § 5854 or V.R.E.  603.  
      We do not reach these issues.