In re P.B., Juvenile

VERMONT SUPREME COURT Case No. 23-AP-272
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

JANUARY TERM, 2024

In re P.B., Juvenile } APPEALED FROM:
(D.P., Mother*) }
} Superior Court, Caledonia Unit,
} Family Division
} CASE NO. 21-JV-01439
Trial Judge: Thomas J. Devine

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

Mother appeals from the trial court’s determination that daughter P.B. is a child in need
of care or supervision (CHINS). We affirm.

The trial court made the following findings. P.B. was born in September 2020 when
mother was seventeen years old. Mother lived with P.B. and P.B.’s putative father in the home
of putative father’s parents.* In September 2021, father was charged with domestic assault of
mother; the alleged assault occurred in P.B.’s presence. Father was released on conditions,
including that he have no contact with mother.

Mother’s friend testified that mother’s relationship with father was marred by violence.
She observed incidents of domestic violence between parents, sometimes in front of P.B.,
including spitting, hitting, and name-calling. She saw father blowing smoke at P.B. In the
weeks leading up to the filing of the CHINS petition, mother told her friend that she was
increasingly distressed about her relationship with father and her living situation. The court
found that the parties’ arguments and altercations escalated during this time, including arguments
in front of P.B. The arguments were serious enough that mother at times feared for her safety.

*
For convenience, we refer to putative father hereafter as father.
In mid-October 2021, mother had a video chat with her friend. She told the friend that
there was no food in the house and she showed the friend empty cupboards. Mother said that she
was afraid to leave her room because of father’s parents. The friend saw a makeshift crib or
enclosure in the corner, dog feces on the floor, and six or seven diapers on the floor, some of
which contained maggots. The friend was very concerned for P.B.’s safety and contacted the
Department for Children and Families (DCF). While mother denied that the conversation above
occurred, the court noted that mother had posted a video online indicating that she and P.B. had
no food and asking for financial help. The court rejected as not credible mother’s assertion that
she made this video just for fun. It found that mother posted this video because she needed help.
The court credited the friend’s description of mother and P.B.’s bedroom. It found that the room
where P.B. slept was unhygienic and unsafe.

A DCF Family Services worker made an unannounced visit to the home. Mother, father,
and P.B. were there notwithstanding father’s conditions of release. Mother and P.B. went to a
neighbor’s home and did not return during the employee’s visit. Father showed the DCF
employee a room that he claimed was P.B.’s room, though when pressed, he admitted that it was
not. The worker was bitten by a small dog while in the home and, when she was shown to
father’s actual bedroom, there were two large dogs on the bed. The bedroom was very cluttered
and dirty; the worker saw a highchair in the corner. Father told the employee that P.B. slept in a
different room. The court found father evasive in his discussion with the employee and
determined that P.B. likely slept in the cluttered room with the highchair. Father and mother
continued to have contact with one another despite father’s conditions of release. The court
found that mother’s ongoing contact with father and her inclusion of P.B. in that contact placed
P.B. at risk of serious harm.

Following this visit, DCF engaged in safety planning with mother. Mother denied any
domestic violence but agreed to stay with her friend. The friend observed mother being rough
with P.B. and allowing P.B. to cry without comforting her for an extended period. P.B. also had
a bad diaper rash when she arrived at the friend’s house. Mother and P.B. left the friend’s house
within a day or two of arriving there. DCF then filed a CHINS petition.

Based on these and other findings, the court concluded that P.B. was CHINS. With
respect to the living conditions in the home and domestic violence, the court credited the
testimony of mother’s friend. It rejected mother’s contrary testimony as not credible, finding it
undermined by other evidence in the case. The court also rejected mother’s assertion that DCF
had acted precipitously in filing a CHINS petition. It found that mother was deeply ambivalent
about the need to stay away from father and that father had repeatedly demonstrated his
willingness to violate his conditions of release. Mother lacked a support system and had few
resources and the court found it unclear whether she would abide by DCF’s safety plan. The
court concluded that the evidence fairly and reasonably established that, at the time the petition
was filed, P.B. was at significant risk of harm from exposure to domestic violence in the home.
She lacked proper parental care or subsistence, education, medical, or other care necessary for
her well-being. See 33 V.S.A.§ 5102(3)(B). Mother appealed.

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Mother contends that the court’s findings are insufficient to support its conclusion that
P.B. was CHINS. She argues that there was no evidence to show that P.B. was harmed or at risk
of harm from domestic violence between parents, notwithstanding P.B.’s presence during their
altercations. Mother asserts that she should not be faulted for failing to follow DCF’s safety plan
once she left the home where father was living. Finally, mother argues that, even if domestic
violence was established, the court did not find that she would fail to protect P.B. from harm.
She states that father’s willingness to violate his conditions of release is outside of her control.

We reject these arguments. As indicated above, a child is CHINS if the child lacks
“proper parental care or subsistence, education, medical, or other care necessary for his or her
well-being.” Id. The State must establish 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. “On review . . . 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.
“We leave it to the sound discretion of the family court to determine the credibility of the
witnesses and to weigh the evidence.” In re A.F., 160 Vt. 175, 178 (1993).

The court’s findings support its conclusion here. As set forth above, the court found that
P.B.’s living environment was unsafe and unhygienic. There were dog feces on the floor in her
room, as well as diapers full of maggots. There was insufficient food in the home. Mother and
father repeatedly engaged in violent altercations and arguments in P.B.’s presence, arguments
that caused mother to fear for her own safety. Mother was deeply ambivalent about the need to
stay away from father, she lacked a support system and had few resources, and the court was not
convinced that she would follow the safety plan and stay away from father. In other words, the
court was unpersuaded that mother would protect P.B. from harm. The court did not punish
mother for being a domestic-violence victim, as she suggests. It properly focused on the risk of
harm that mother’s behavior posed to P.B. The court’s findings are supported by the record and
they support the court’s conclusion that mother’s ongoing contact with father and her inclusion
of P.B. in that contact placed P.B. at risk of serious harm.

This case is not like In re A.O., 2023 VT 54, ¶ 13, cited by mother. In that case, the trial
court’s “decision rested largely on its general and nonspecific finding that witnessing domestic
violence harms children.” Id. There was one particular incident of domestic assault at issue in
that case, and the court “did not make a specific finding that these particular children had been
harmed by or were at risk of harm from witnessing the violence [that their father] directed at
[their] mother,” nor did the court make any “findings about the children’s proximity to that
altercation.” Id. (emphasis omitted). “There was also no evidence that the children lacked basic
necessities, medical care, or education, or that conditions in the home were unsanitary or unsafe
for the children.” Id. ¶ 12.

In this case, by contrast, the court made specific findings that P.B. was present during
multiple violent incidents between parents, where parents engaged in hitting, spitting, and name-
calling. The arguments escalated in the period leading up to the filing of the CHINS petition and

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caused mother to fear for her safety. Mother nonetheless denied that any domestic abuse
occurred, and she was ambivalent about keeping away from father. The court also found that
P.B.’s living area was unsafe and unsanitary. The court did not err in concluding that mother’s
continued involvement with an individual who allegedly perpetrated violence against her in the
presence of P.B. raised significant concerns for P.B.’s well-being and created a risk of harm.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

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