The parents (appellants) appeal the juvenile court’s findings that their daughter B.B. (appellee) was a child in need of care and supervision (CHINS) and its dispоsition order transferring legal custody of B.B. to the Commissioner of Social and Rehabilitation Services (SRS). We reverse and remand.
B.B. was twelve years old when the following series of events occurred. B.B.’s parents sent her to live with her aunt during the early summer of 1988 because of escalated family tension, primarily between B.B. and her father. In July, 1988, B.B. refused to return home to her parents, and SRS was notified. SRS filed a petition in the juvenile court alleging that B.B. was a CHINS because she was “beyond the control of her parents, in that she has run away from home and refuses to return, contrary to 33 V.S.A. § 632(a)(12)(C).”
The court granted SRS temporary custody of thе child and scheduled a merits hearing. The merits hearing was held on July 25, 1988, and both B.B. and her mother testified. Based primarily upon the child’s testimony, the court made findings on the record and concluded that she was a CHINS. Written findings and an order were issued on that date. The disposition hearing was held in August 1988, after which the court determined that although the mother was willing to receive help from SRS, the father was not. The court concluded that the parents were unfit and unable to provide for the child’s basic needs which, the court stated, included a loving and warm environment and ordered that legal custody of B.B. be transferred to SRS.
The parents filed a timely notice of appeаl of both the merits and the disposition adjudications, and allege four errors on appeal: (1) the evidence taken during the merits hearing is insufficient to support the court’s findings of fact, and the findings do not support the conclusion that B.B. is a CHINS; (2) the court erred during the merits hearing by not permitting the parents to ask the child where she would want to live if she could not live with her aunt; (3) the evidence and the findings were insufficient to support the court’s disposition order; and (4) the court abused its discretion by failing to consider whether to reject B.B.’s proposed placement by SRS with her aunt. The child responded to the parents’ arguments, and SRS joined with the child.
We address first the pаrents’ argument that the results of the merits hearing were in error. Because we reverse on this point, we do not reach the other arguments.
At the end of the merits heаring, the trial court made the following oral findings of fact:
Based on the allegations — it’s claimed that [B.B.] doesn’t want to go home .... [B]ased on the evidence that was рresented, I’ll conclude that [B.B.] is presently age 12. She’s the daughter of the parents who are present here in court. She was living at home. She has — there are sеveral younger children in the family. B.B. has said that shedoesn’t want to go home and as far as what her home life is like, her father calls her names. He’s called her a slut, he’s called her a lazy, fucking bitch. She’s afraid of her father. He’s kicked her. She’s watched her father physically abuse a younger brother by picking him up by the neck, and shе’s at this point, afraid to go home. I’ll conclude that based on the evidence that was presented, that the State has, in fact, proved that at this point, she’s run аway and, in fact, does refuse to return home.
The written findings are more sparse. They state: “juvenile, is a runaway.”
Thé parents make a series of related attaсks on the merits decision. First they argue that one of the findings is unsupported by the evidence. Second, they argue that the remaining findings are insufficient to support the cоurt’s conclusion that B.B. is a CHINS. We will affirm the court’s findings unless they are clearly erroneous. See In re M.C.P.,
The finding attacked by appellants is that B.B. ran away from home. We agree that this fact is not supported by the evidence. All the parties agreed and all the evidence indicated that B.B. went to live with her aunt with her parents’ permission. Even the child concedes in her brief that there was no evidence that she had prеviously run away from home although she had threatened to do so. Hence, this finding cannot stand and cannot be used to support the court’s conclusion.
We alsо conclude that the remaining findings are insufficient to support the court’s conclusion that B.B. is in need of care and supervision. We have consistently held that a mеrits determination in a juvenile case must be supported by adequate findings to show that the “facts support the judgment in the particulars alleged in the petition.” In re R.H.,
The court may conclude that a child is in need of care or supervision if it finds that the child:
(A) Has been abandoned or abused by his parents, guardian or other custodian; or
(B) Is without proper parental care or subsistence, education, medical, or other care necessary for his well-being; or
(C) Is without or beyond the control of his parents, guardian or оther custodian ....
33 V.S.A. § 5502(a)(12). Although the State might have alleged alternative grounds on which B.B. could be found a CHINS, see In re R.M.,
The child claims, however, that the CHINS adjudication was actually based on specific instances of abuse and these incidents are more than sufficient to support a conclusion that she was a CHINS under § 5502(a)(12)(A). We are unwilling to reconstruct the State’s сase on a theory not
Because we reverse the merits adjudication, the disposition order must also be vacated. See In re M.C.P.,
Reversed and remanded.
Notes
The Juvenile Proceedings provisions of Title 33, 33 V.S.A. § 631 et seq., were recodified in 1990 as 33 V.S.A. § 5501 et seq. Since 33 V.S.A. § 632(a)(12) was not revised substantively, we refer hereinafter to the recodified version, 33 V.S.A. § 5502(a)(12).