In re L.M., 93 A.3d 553

Background

L.M., born June 2010, became subject to a CHINS petition filed by DCF on May 31, 2013; mother stipulated to CHINS (drug use, homelessness); father contested.
DCF social worker met parents in March 2013; parents reported a multi-year pattern of homelessness, transience, and drug use; father admitted a ten-year opiate addiction and self-medicating with street Suboxone and was on a waitlist for treatment.
DCF recommended daycare for L.M. and a substance-abuse evaluation/treatment for father; father did not obtain an assessment, did not enroll L.M. in daycare, and did not secure stable housing before the petition.
At the merits hearing (father absent), testimony came from the DCF social worker and paternal grandmother, who was caring for L.M. around the time of filing and recounted parents’ repeated failures to follow through on promises and offers of help.
The family court admitted testimony recounting mother’s out-of-court statements against father as party-opponent admissions, found father’s chronic addiction, homelessness, and noncompliance supported a CHINS finding, and entered judgment adjudicating L.M. CHINS as to father.
On appeal, the Supreme Court held the admission of mother’s statements against father under V.R.E. 801(d)(2) was erroneous (inadmissible hearsay) but deemed the error harmless because the remaining admissible evidence supported the CHINS adjudication; the decision was affirmed over a multi-justice dissent.

Issues

Issue	Plaintiff's Argument (Father)	Defendant's Argument (State/DCF)	Held
Admissibility of mother’s out-of-court statements against father (hearsay)	Testimony about mother’s statements was inadmissible hearsay; cannot be used against father because mother had stipulated	Statements are admissions by a party-opponent and thus nonhearsay under V.R.E. 801(d)(2)	Court: Admission under Rule 801(d)(2) was erroneous; mother’s statements were inadmissible hearsay when offered against father, but error was harmless
Whether child can be adjudicated CHINS though living with grandparent at filing	L.M. was living with paternal grandmother and her needs were being met — CHINS inappropriate	Placement with grandmother does not preclude CHINS; focus is whether child lacked proper parental care given all circumstances	Court: Child can be CHINS despite temporary care by relatives; here father’s chronic addiction/instability rendered L.M. without proper parental care
Sufficiency of evidence connecting father’s addiction/instability/noncompliance to risk of harm	Evidence was generalized (addiction, housing instability) without individualized proof of risk or actual harm to L.M.; insufficient for CHINS	Father’s long-term opiate addiction, chronic homelessness, failure to follow DCF recommendations (daycare, evaluation), and unstable pattern created prospective risk to child	Court: Admissible evidence (father’s admissions, social worker and grandmother testimony) supported findings that prospective harm/risk existed; CHINS sustained
Prejudice / harmless-error analysis	Erroneous hearsay admission affected outcome and requires reversal	Even excluding the hearsay, ample admissible evidence supports findings; any error was harmless	Court: Error harmless — substantial rights not affected; affirmed

Key Cases Cited

In re Ty.B., 878 A.2d 1255 (D.C. 2005) (rejecting use of one parent’s out-of-court admissions against another parent)
In re Care & Prot. of Sophie, 865 N.E.2d 789 (Mass. 2007) (extrajudicial statements of one party are not admissible against co-party absent rule text)
In re V.N.W., 292 P.3d 548 (Or. 2012) (discussion of hearsay rule purpose and admissions exception)
In re B.S., 659 A.2d 1137 (Vt. 1995) (erroneous admission of evidence reversible only if substantial right affected)
In re D.D., 82 A.3d 1143 (Vt. 2013) (appellate standard: uphold factual findings unless clearly erroneous and sustain legal conclusions supported by those findings)
In re G.C., 749 A.2d 28 (Vt. 2000) (CHINS adjudication can be proper despite temporary foster/third-party care when prospective risk exists)
In re M.L., 993 A.2d 400 (Vt. 2010) (preponderance standard for CHINS balances child welfare and family integrity)
E.J.R. v. Young, 686 A.2d 1284 (Vt. 1994) (actual harm not required; prospective risk can support CHINS)
In re C.P., 71 A.3d 1142 (Vt. 2012) (child may be adjudicated CHINS as to one parent even if allegations proven only as to that parent)