In re J.T.S.

In re J.T.S. (99-063); 169 Vt. 620; 733 A.2d 86

[Opinion filed 08-Jun-1999]
[Motion for Reargument denied 26-Jul-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-063

                               MAY TERM, 1999

In re J.T.S.	                       }	APPEALED FROM:
                                       }
                                       }
     	                               }	Windham Family Court
                                       }	
                                       }
                                       }	DOCKET NO. 164-7-97Wmjv	

             In the above-entitled cause, the Clerk will enter:


       Father appeals from a disposition decision that transferred custody of
  his son to the Commissioner  of the Department of Social and Rehabilitation
  Services (SRS).  He claims that there was no  evidence that transferring
  custody was necessary to promote the best interests of his son.  The  State
  contends that the evidence was sufficient to support the decision, and the
  juvenile has joined  the State's brief.  We affirm.

       J.T.S. was taken into SRS custody in July 1997, and the parties
  subsequently stipulated to a  finding of CHINS because J.T.S. was beyond
  the control of his parents.  See 33 V.S.A. §  5502(a)(12)(C).  J.T.S. has
  been in residential treatment at the Baird Center since 1997.  The first 
  disposition order transferred custody to SRS because it found that
  residential treatment, as  opposed to placement with father, was "`most
  suited to the protection and physical, mental and  moral welfare of the
  child.'"  In re J.T.S., No. 98-315, slip op. at 2  (Vt. Nov. 12, 1998) 
  (quoting 33 V.S.A. § 5528).  Father appealed the disposition order.  He
  argued that protective  supervision would be more effective than SRS
  custody in providing the child with residential  treatment because the
  court may condition father's custody on placement at the Baird Center 
  whereas the court is not authorized to make conditions on SRS custody. 
  Because the disposition  order did not explain how the court selected among
  the disposition options under 33 V.S.A. §  5528, we remanded for the court
  to make further findings and to reconsider its disposition  transferring
  custody to SRS.  See id., slip op. at 3.

       On remand, the court made additional findings and explained how it
  selected among the  disposition options available.  See E.J.R. v. Young,
  162 Vt. 219, 225, 646 A.2d 1284, 1288  (1994) (court must indicate how it
  selected among disposition options).  The court found again  that placement
  at the Baird Center was necessary to meet J.T.S.'s special needs.  Further,
  the  court found that: (1) father has moved several times over the past
  several years, which has  frustrated treatment for J.T.S.; (2) father has
  never believed that long-term residential programs  were necessary to treat
  J.T.S.'s special needs; (3) father still proposes a home placement with 
  outside services; (4) father views residential treatment as a last resort
  if home placement does not  work; (5) the failure of a home placement could
  be a serious setback for J.T.S.; (6) an order for  protective supervision
  would leave father free to remove J.T.S. from the Baird Center; (7) state 
  action upon removal would take time, which could be detrimental to the best
  interests of J.T.S.;  and (8) SRS custody would ensure such problems would
  not arise.  Finally, the court concluded  that this disposition created the
  best chance for completion of the residential program and a  successful
  transition to home.

       Father appeals again.  He first argues that there was no evidence to
  support the court's conclusion  that an order for protective supervision
  would not be in the best interest of J.T.S. because father  would not
  comply with it.  Our review of the court's decision reveals no such 


 

  conclusion; rather, the court found that the risk of an interruption in
  residential treatment was  greater if father had custody than if SRS had
  custody, even if father's custody was conditioned  on placement at the
  Baird Center.  Given father's continued commitment to a home placement and 
  the history of father removing J.T.S. from residential treatment when
  J.T.S. was in father's  custody, the court's conclusion that custody with
  father would create a risk of interruption of  treatment was fully
  supported.  Because interruption in treatment would be detrimental to
  J.T.S.,  the decision to transfer custody to SRS was necessary for the best
  interests of J.T.S.  See In re  D.B., 155 Vt. 580, 587, 587 A.2d 966, 970
  (1991) (totality of evidence supported court's  rejection of protective
  supervision and transfer of custody to SRS).

       Father contends that this case is unlike D.B. because the mother in
  D.B. was violating the truancy  law while father here has not violated any
  law.  The decision to transfer custody to SRS in D.B.  was, however, based
  on the totality of the evidence, which indicated that: (1) D.B. would not
  be  likely to attend school while living at home; (2) the mother's frequent
  moves had prevented any  solution to the problem; (3) family dysfunction
  and continued lack of education would likely result  in dangerous
  delinquency; and (4) no feasible plan for protective supervision for a
  child with very  considerable needs had been presented to the court.  See
  id. at 586, 587 A.2d  at 970.  Although  the two cases have distinguishing
  facts, the totality of circumstances in both cases indicate that  SRS
  custody was necessary to adequately address special needs of the child.

       Next, father claims that the court violated his constitutional liberty
  interest in parenting his child  by considering father's inability to pay
  for J.T.S. to stay at the Baird Center in deciding to  transfer custody to
  SRS.  It is not clear whether the court relied on father's indigence in 
  determining the disposition in this case.  Although the court raises the
  issue of father's inability  to pay for treatment at the Baird Center, it
  indicates at another point that it is not basing its  decision on finances. 
  In any event, we need not reach the constitutional issue because the 
  remainder of the court's findings are sufficient to sustain the court's
  decision to transfer custody  to SRS.  See In re A.F., 160 Vt. 175, 178,
  624 A.2d 867, 869 (1993) (deletion of unsupported  finding did not alter
  disposition because remainder of court's findings sustained decision).


       Affirmed.


                                       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