In Re M.E. & T.E., Juveniles

VERMONT SUPREME COURT Case No. 21-AP-203
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

AUGUST TERM, 2022

In re M.E. & T.E., Juveniles } APPEALED FROM:
(D.E., Mother*) }
} Superior Court, Chittenden Unit,
} Family Division
} CASE NOS. 487-11-19 Cnjv; 488-11-19 Cnjv
Trial Judges: Thomas J. Devine;
Kirstin K. Schoonover

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

Mother appeals pro se from the trial court’s determination that M.E. and T.E. are children
in need of care or supervision (CHINS). We affirm.

M.E. and T.E. are twins born in November 2004. Father died by suicide in September
2019. The boys had a poor relationship with mother leading up to father’s death, and the
relationship deteriorated further after his death. In November 2019, the State filed petitions
alleging that the children were CHINS due to a lack of proper parental care. The children were
placed in emergency custody of the Department for Children and Families. Numerous hearings
followed, and the children were continued in DCF custody. In August 2021, the court found the
children to be CHINS.

In its decision, the court recounted the history that led to the filing of the CHINS
petitions. It explained that around August 2018, mother developed a belief that father molested
the children. The children, who were then thirteen years old, vehemently denied that any abuse
occurred. Mother made a report to DCF about risk of sexual abuse, but the report was not
accepted. The police interviewed the boys, and they again stated that no abuse occurred. Mother
then took the boys to the hospital to be examined by a doctor for possible sexual abuse. This
greatly distressed the children given their repeated denials of abuse. The doctor declined to
conduct a SANE exam given the children’s clear and unequivocal denial of any abuse. During
the visit, the doctor developed concerns about mother’s presentation. Before releasing the
children to mother, the doctor contacted a pediatrician who knew the family and received
reassurances that the pediatrician would work closely with the family in the days to come.
Following this appointment, mother took the boys to a hotel rather than taking them home, and
she did not allow them to contact father. The boys began to feel increasingly frustrated and
powerless.
The following morning, a school day, the police were waiting in the hotel lobby to drive
the boys to mother’s car. Mother had reported to police that the children were in a state of
“heightened aggression.” Before being allowed in the police car, the boys were patted down and
searched, and an officer removed one boy’s house keys. Mother did not apologize to the boys
for subjecting them to this treatment or apologize for the confiscation of the house keys. Once
they were in mother’s car, mother drove the boys to the Chittenden Unit for Special
Investigations (CUSI) for another round of questioning even though the boys wanted to go to
school. The boys were separately interviewed at CUSI, and they again stated that no sexual
abuse had occurred. Mother’s behavior led to a significant deterioration in her relationship with
the boys.

At the CHINS merits hearing, mother insisted that she never accused father of sexually
abusing the boys. The court found that, while that might be true in a technical sense, mother
perseverated in the belief that the children were abused. Her relationship with the children was
damaged by her inability to accept the repeated assurances of various professionals and the
children’s own statements that they were not abused. Mother’s failure to discuss with the
children why she had taken the steps she did also contributed to the deterioration of the parties’
relationship.

Not long after the CUSI interviews, the boys were interviewed by their pediatrician. The
pediatrician did not find evidence of sexual abuse. The doctor recommended that the children
engage in counseling and encouraged mother to admit herself to the hospital for a mental health
assessment, which mother agreed to do. After mother was discharged from the hospital, she
moved to a garage apartment in the family home. Father tried to keep distance between mother
and the boys. He helped the boys put chain locks on their bedroom doors to prevent mother from
barging into their rooms. Mother began videorecording father and the boys and continued to do
so despite their requests to stop.

Mother’s therapist believed mother had adjustment disorder with anxiety, and the court
so found. No evidence was presented regarding how mother’s condition affected her parenting
ability, and, in the absence of such evidence, the court did not make any other findings about
mother’s mental health.

The boys began therapy in September 2018, which they found beneficial. Mother told
the boys’ therapist that father was sexually abusing and cutting the boys. The therapist was
concerned about mother’s presentation. Mother excitedly waived a sheaf of papers at her and
exhibited rapid, pressured speech and tangential thinking. The therapist reported mother to DCF
as posing a possible risk of harm to the children. The therapist recommended limited parent-
child contact (PCC) with mother. Mother had very little contact with the boys at that point; the
boys were primarily in father’s care.

Mother filed for divorce in May 2019, about six months before the CHINS petitions were
filed. As previously noted, mother moved into the garage apartment and largely stayed in her
own unit. Father and the boys stayed in the main house. The situation in the house was very
tense and fraught with conflict.

In connection with the divorce case, the boys were ordered to have additional contact
with mother, which they resented and which caused them stress. After father’s death by suicide
on September 24, 2019, the boys threw themselves into their activities but found it harder and
harder to keep up with their schoolwork. They boys stayed with a neighbor for a few days and
returned to find that mother had moved into the main house in the bedroom across from theirs.
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Her proximity alarmed the boys. Mother had also packed up all of father’s belongings, which
they found distressing. Mother engaged in other actions that caused the boys stress and fear,
such as berating them through their closed bedroom door and staring at them when they did their
homework downstairs. When at home, the boys spent most of their time in their room. Mother
would not take the children to see their established therapist, despite multiple requests from the
children. The court found that mother blocked the boys from seeing their therapist and that, in
the weeks after father’s death, the children had significant unmet emotional and mental health
needs.

Based on these and other findings, the court considered whether “whether, given all of
the circumstances,” the children were “without proper parental care, such that [their] well-being
[was] threatened.” In re J.C., 2016 VT 9, ¶ 16, 201 Vt. 192 (quotation omitted); see also 33
V.S.A. § 5102(3)(B) (defining “[c]hild in need of care or supervision” as child who is “without
proper parental care or subsistence, education, medical, or other care necessary for his or her
well-being”). The court recognized that the “primary concern in a CHINS proceeding is to
protect a child from future harm.” In re M.L., 2010 VT 5, ¶ 33, 187 Vt. 291.

Mother considered her behavior appropriate. The court agreed with the State that, while
mother had good reason to seek help when concerns about sexual abuse first arose, mother then
refused to listen to the professionals she consulted and refused to believe the children. This led
to an erosion of trust. The children were also subjected to increasing stress, tension, and turmoil
during the year that parents were trying to live separately in the marital home. Mother pulled
away the support of the children’s therapist despite their great need for it. The court credited the
testimony of the children that their life at home with mother in the weeks leading up to the
CHINS petitions was chaotic and anxiety producing. When they retreated to their room, mother
yelled at them through the door. One of the boys had breakdowns at school. The boys stayed at
school as long as they could to avoid going home. They begged mother to bring them to their
therapist, but mother refused. The court concluded that, while the children had food, clothing,
and housing, the evidence clearly and convincingly showed that they were in a state of acute
distress in the weeks after father’s suicide. It concluded that the children were at risk of
psychological harm. They were without proper parental care at the time the petitions were filed
in that mother was not able or willing to meet their emotional and psychological needs.

The court issued a disposition order in March 2022. It adopted the findings from its
CHINS decision and made additional findings. DCF had filed a disposition case plan that sought
another planned permanent living arrangement (APPLA). It chose this goal at the children’s
request. The boys were seventeen at the time, soon to turn eighteen, and DCF did not believe
reunification with mother was possible given mother’s intransigence in meeting the boys’ needs.
Mother opposed the plan.

Among other things, the court found that mother challenged DCF and the CHINS process
rather than prioritizing the children’s needs. A Family Time coach observed and provided
support during mother’s visitation with the children. Mother became increasingly opposed to
taking any suggested cues; she focused on debating the coach rather than giving attention to the
boys. Visits became tense and uncomfortable, and they were highly stressful and embarrassing
for the boys. During their final visit in April 2021, the boys were visibly upset and articulated
their need for space away from mother. When one of the boys walked away, mother followed
him against the advice of DCF and the coach. The boys thereafter refused any visitation with
mother. Mother did not acknowledge any issues in her relationship with the children and instead
blamed DCF. The court found that mother’s visits with the boys led to further alienation and

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distrust and that the more the boys were around her, the less they wanted to see her. Mother
demonstrated no ability to modify her behaviors to respond to the boys’ needs, and she did not
respect their requests for autonomy. Her behavior further strained her relationship with them and
placed the boys at risk of emotional harm when they were around her. The boys did not want to
see mother, despite DCF’s encouragement to do so, and DCF could not force them to see mother
against their wishes. The boys were scared of mother and dismayed by her behaviors. They
opposed reunification with her.

Based on these and numerous additional findings, the court concluded that DCF
established compelling circumstances for APPLA. It found that the boys were doing well in
their current placement; they were mature for their age and thoughtful. They attended school and
were doing well academically. They were working, happy, and safe. The children did not want
to return to mother’s care, and they had not seen her in person on a consistent basis for almost a
year. They would soon be eighteen. Mother wanted the boys to be immediately returned to her
custody, but she displayed no insight into the boys’ needs or their fears of reunification. She
remained unable to meet the boys’ actual needs as opposed to her own needs. Her behavior
placed the boys at risk of emotional harm. At the hearing, DCF indicated its willingness to
include a concurrent plan of reunification with mother and provide her with services to support
that plan. The court ordered DCF to file an updated disposition and permanency case plan with
these concurrent goals, which it did.

The court subsequently issued a decision on various motions filed by mother, discussed
in additional detail below. This appeal followed.

Mother first challenges the court’s determination that the children were CHINS. She
argues that she is an outstanding parent and that she was meeting the children’s needs. She
contends that she did not place the children at risk of harm by refusing to take them to see their
therapist after father committed suicide. She questions whether DCF is addressing the children’s
mental health needs and whether DCF applied a double standard regarding mental health
treatment.

As set forth above, a child is CHINS if he or she is “without proper parental care or
subsistence, education, medical, or other care necessary for his or her well-being.” 33 V.S.A.
§ 5102(3)(B). The State need not show that a child has suffered actual harm, only that the child
is at risk of harm. In re L.M., 2014 VT 17, ¶ 29, 195 Vt. 637. On review, we will uphold the
family court’s findings if they are supported by any credible evidence and “we will uphold the
court’s legal conclusions where supported by its findings.” In re M.L., 2010 VT 5, ¶ 8. It is the
exclusive role of the trial court “to weigh the evidence and assess the credibility of witnesses.”
Id. ¶ 29.

While mother contends that she was providing proper care to the boys, the court
concluded otherwise. The court did not base its decision on educational neglect, as mother
suggests. It found that the boys were highly intelligent and good, conscientious students who
worked hard. The court based its decision on the risk of emotional harm given that mother was
not meeting their emotional and psychological needs. It did not conclude that the boys were
CHINS simply because the State wanted them “to see a particular medical provider.” DCF’s
decisions regarding mental health treatment for the boys while in DCF custody, or decisions
about the courses that the boys take at school, have no bearing on the court’s CHINS
determination.

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As summarized by the trial court, a confluence of factors led to mother’s inability or
unwillingness to meet the boys’ emotional and mental health needs. In the weeks leading up to
the filing of the CHINS petitions, the boys’ emotional and mental health needs were going unmet
such that they were at risk of significant emotional harm. They wanted to meet with their
therapist with whom they had an established relationship, but mother refused their repeated
requests. The court made ample findings in support of these conclusions, and its findings are
supported by the record. Mother does not challenge any finding as clearly erroneous.
Essentially, mother wars with the court’s assessment of the evidence, and this Court does not
reweigh the evidence on appeal. Her disagreement with the court’s determination does not show
an abuse of discretion. See, e.g., Meyncke v. Meyncke, 2009 VT 84, ¶ 15, 186 Vt. 571
(explaining that arguments which amount to nothing more than disagreement with court’s
reasoning and conclusion do not make out case for abuse of discretion).

Having concluded that the court did not err in finding the children were CHINS, we reject
mother’s related assertions that the court applied an inappropriate or unclear standard in reaching
its decision or that it lacked “legal or reasonable cause” to reach the conclusion that it did. The
court looked at the children’s individual circumstances in making its decision, it applied the
appropriate standard, and its decision is supported by the record.

Mother next asserts that: she was not given credit for seeking help when father appeared
suicidal; the court should not have limited her contact with the boys; she was not given sufficient
time to present her case; she did not have full access to court records; and the case unfolded in an
unfair way, including a delay in issuing a CHINS merits decision and the timing of witness
testimony.

As to mother’s first argument, the relevance of, if any, and weight to be given to such
information, is for the trial court to ascertain. Mother does not provide any record support for
her assertion that she was not provided sufficient time to present her case. The trial court largely
considered and rejected mother’s remaining arguments in a March 2022 decision denying
various motions that mother filed. Mother asserted below, in part, that she had not been able to
fully access the documents in the children’s cases and that the disposition hearing was too short,
and she raised other claims that allegedly demonstrated the flawed processing of these cases to
her disadvantage. She argued that the remedy for these alleged violations was the immediate
return of the children to her custody.

The trial court found that, to the extent mother alleged a denial of visitation or contact,
these allegations were addressed at a January 2022 hearing on the children’s motion to suspend
PCC. The evidence presented at that time, including testimony from the children themselves,
was that contact was not denied by DCF per its sole discretion but was suspended at the request
of the juveniles. Thus, absent evidence to the contrary, the court found that any suspension of
visitation appeared to represent DCF’s protection of the children’s rights and respect for their
health and interests. In its January 2022 order, moreover, the court ordered that visitation should
occur as recommended by the family therapist or at DCF’s discretion, and it otherwise ordered
mother not to contact the children and to stay away from them, their foster home, and their
school unless approved by DCF.

With respect to the issue of delay, the court noted that the time limits established by
statute “are directory and not jurisdictional.” In re H.T., 2020 VT 3, ¶ 28, 211 Vt. 476 (quotation
omitted). To the extent that any delay could be found to constitute error, and even if the court
were to consider the representations in mother’s affidavits, mother failed to show prejudice
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caused by the delay. As to the procurement of records, the court found that mother failed to
demonstrate that the procedure for accessing records was inconsistent with due process. Finally,
the court found that while mother asserted various substantive and procedural due process errors,
she did not provide evidence to support her claims. It thus had no evidentiary basis to rule on
any of her claims of due process violations.

In sum, the court found that mother presented no evidence to support her claims and no
legal argument as to why, even if procedural or substantive violations were established—which
they were not—such violations would constitute a basis to dismiss the CHINS cases and vacate
all prior orders. It thus denied her request for relief.

Mother offers no basis to disturb the court’s rulings on these points. She essentially
reiterates arguments that were considered and rejected below. The trial court had discretion in
considering whether to limit mother’s contact with the children and it provided a reasoned basis
for its decision. It provided a reasonable basis with respect to the other conclusions cited above.
Mother has not shown that she was denied a fair opportunity to present her case or that she
objected to the order in which the witnesses were presented at the merits hearing below. Even if
she had objected, the court may “exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence.” V.R.E. 611(a). We have considered all of the
arguments discernable and adequately briefed by mother, and we find them all without merit.

Affirmed.

BY THE COURT:

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

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