*1 291 Inc., Vt., Greensprings See, Adel v. e.g., true. that cannot be 2005) (D. that under Vermont (noting 692, 700 Vt. 2d Supp. 363 F. simply because liability “cannot avoid officers corporate law officers”). stated As we capacities within their acting held personally can be officers corporate Landfill, Valley Upper held liable.” also be corporation though “even hable actions for Thus, some there are A.2d at Vt. held officer can be corporate and the corporation both which officer corporate actions which namely, those hable Id. here. alleged as is participated,” “personally complaint amended second that plaintiffs we hold 20. Because dismiss, not address we need motion survives defendant’s amended third denying plaintiffs ruling subsequent trial court’s remand, reconsider. On motion to denying plaintiffs complaint second upon based with his lawsuit proceed can plaintiff complaint. amended the second remanded; motion to allow plaintiffs
Reversed is motion to dismiss granted, is complaint amended defendant’s denied.
2010VT Z.L., In re M.L. & Juveniles 400] A.2d [993 No. 09-089 Burgess, Dooley, Johnson, Skoglund Reiber, C.J., JJ. Present: January Opinion Filed *2 General, Sorrell, Montpelier, H. Martha Attorney William General, Racht, Waterbury, Attorneys Assistant Jody Csala and General, Attorney Montpelier, and Asay, C. Assistant Bridget Albans, Dunham, Defender, the Public St. for Steven Office of Appellants. P.C., Hughes Hughes Twarog, M. of Murdoch &
Kurt Burlington, Appellees.
¶ Burgess, from the family J. The of Vermont appeals State juveniles dismissal of its to declare M.L. petition (CHINS). supervision join in need of care or Children children family applied asserts that the appeal. *3 high proof an standard of and relied on irrelevant improperly affirm. reaching evidence in its conclusion. We children, M.L., daughter a born June 2. Parents two Z.L., 2008, In a son in November 2007. March born hospital rushed with life- three-month-old Z.L., injuries. treating head In doctors observed what threatening A signs of and current abuse. prior physical believed were had nondepressed CT revealed that Z.L. left scan — extending parietal temporoparietal right fracture words, left side originated a skull fracture that on the other from over the of his head. He essentially went ear to ear crown part right also had a linear fracture in the back side acute Additionally, skull. Z.L. had a new hematoma on subdural side, right the left chronic subdural hematoma on side appeared between weeks old.1 his brain to be two-to-four injured dropped told doctors that Z.L. was when M.L. Parents found top fell on of him. Z.L.’s treating physicians Z.L. and by explained, 1 As the brain one of the medical is covered series — layers. tough is One membrane outside of the brain called membrane hemorrhage bleeding dura over dura. A subdural is below surface of the surface of the brain.
explanation completely inconsistent with the nature of Z.L.’s injuries. extensive Following a police investigation, the State filed petitions CHINS, to have the children declared and the children were ordered into the emergency custody of the Department for (DCF). Children and Families
¶ 3. Prior to the hearing, merits mother moved to return M.L. custody. to her She asserted that there pattern was no of abuse neglect would allow the court to impute risk of harm to M.L. from the injuries severe by suffered Z.L. Following a court, two-day hearing, the family Judge Benthuysen Howard Van presiding, denied mother’s motion. The court found that evidence clearly and convincingly established that Z.L.’s acute head were caused when he was struck in the head force, enormous such as the force generated when an infant is swung by his feet and its head is struck against an object. Even if Z.L., M.L. had dropped reasoned, the court that act did not any cause injuries.
¶ 4. The court recounted that Z.L. had suffered not one but two life-threatening skull fractures and grossly traumatic brain injuries within a two-to-four-week period. The latter incident nearly death, caused his and it required two extensive brain surgeries. caused the clinical death of nearly half of alone, his brain. This latter incident concluded, the court sufficient for the court to be concerned about safety. M.L.’s It was horrific, traumatic, so so and required force, so much and it could only have been inflicted an adult. It was therefore reasonable to conclude that M.L. could be in danger if returned to custody. See E.J.R. v. Young, 219, 224, Vt. 646 A.2d (1994) (“The family rely on evidence of the treatment of a sibling CHINS.”). concluding that a child is a court, 5. The family Judge Mark Keller presiding, subse- quently held a nine-day hearing on the merits of the State’s petition. CHINS parties also agreed that the court could consider the evidence presented at the hearing before Judge Van *4 Benthuysen. 2009, In February the court issued a written decision dismissing the petition. CHINS It found the State’s medical evidence compelling, but reasoned that this evidence must be viewed in the totality of the circumstances. The court found that the nonmedical evidence established that parents were good parents, and that there was no nonmedical evidence support
295 concluded It thus Z.L. abused parents allegation the evidence aby preponderance prove failed to supervision. care or in need of that M.L. was abused briefly we findings, ¶ specific court’s recounting the 6. Before family case. The to this applicable principles general review “must be as this one such in proceedings concern primary court’s 420, R.B., 152 Vt. 415, 566 In re the child.” welfare of with when here, child is CHINS (1989). 1310, As relevant A.2d 1313 or is without parents his or her abused has been he or she for subsistence, necessary care or other care or parental proper 5502(a)(12)(A)-(B).2The State § 33 well-being. V.S.A. his or her preponderance child is CHINS that a prove must (1983). 121, A.D., 432, 435, 123 467 A.2d In re Vt. evidence. ¶ standard preponderance adopted expressly 7. We and convinc “clear stringent the more rather than cases CHINS cases. rights parental in termination applicable standard ing” and the State that both so, recognized Id. doing In we in interests at stake substantial, compelling legitimate, “safety in ensuring the State proceedings CHINS family “maintaining the parents child” and welfare 435-36, at 124. concluded Id. at 467 A.2d We integrity.” interests, par these balanced properly standard preponderance temporarily are at most rights ticularly given 436, See id. 467 A.2d at proceeding. in a curtailed CHINS (“[T]he a child from the risk in protecting interest par harm counterbalances irrevocable potentially serious curtailment of their erroneous avoiding an ents’ interest omitted). rights.”) (quotations decision, uphold we will of the court’s CHINS 8. On review erroneous; we clearly of fact unless are findings court’s by its supported where legal conclusions uphold the
will (1993). 867, A.F., 178, 175, 624 A.2d In re Vt. findings. family discretion of to the sound “We leave weigh and to credibility of the witnesses determine Id. evidence.” mind, turn to the court’s we these standards 9. With that Z.L. was above, alleged the State As reflected
decision. recently relating juvenile proceedings were amended. See The statutes 2009). defining Sess.) (effective provision January relevant (Adj. No. 185 5102(3)(A)-(B). § appears at and now 33 V.S.A. has renumbered CHINS been *5 by parents CHINS because he was abused and that M.L. was CHINS because she without proper parental was care or other necessary care for her well-being. Parents asserted that M.L. accidentally caused injuries, Z.L.’s theorized that Z.L.’s older hematoma by been caused various medical con- ditions.
¶ 10. Parents testified following to the version of events. On the day Z.L. was hospitalized, mother was home with the children. Father returned home from work about 4 p.m. Following an early dinner, parents went upstairs and left M.L. and Z.L. alone in the living room. M.L. was on a sitting chair, child-sized papasan adjacent to her in “boppy,” or horseshoe-shaped pillow, on the floor. When returned approximately downstairs five later, minutes mother saw Z.L. lying face up on the living room floor and M.L. getting up off the floor. Mother testified that M.L. told her that she fell with Z.L. At request, mother’s father fetched neighbor, their who was a nurse-in-training. 9-1-1, Mother called and the neighbor advised the dispatcher, relying on mother’s representations, that M.L. had been holding Z.L. and that Z.L. fell and hit his head on the floor.
¶ 11. Mother stated that she took M.L. upstairs when the ambulance was on way. She asked M.L. why picked she up Z.L., and M.L. replied “because he was so cute” and stated that she help “couldn’t herself.” Mother indicated that she went back upstairs again to check on M.L. before the ambulance arrived but she did not have any further conversation with M.L. Neighbor testified that after mother and Z.L. ambulance, left father asked M.L. to him M.L., show what happened. who was visibly upset, indicated that picked she up Z.L. and him against held her upper body She stated that she tried not fall on him. The court found that parent neither had the opportunity to influence M.L.’s statement, and that her statement utterance, was an excited which had a high degree of reliability. The court also neighbor’s found testimony highly credible.
¶ 12. Both sides expert medical testimony to support their positions as to the intentional or accidental nature of injuries. The court prefaced its evaluation of this evidence making general First, three observations. found that medical opinions based their on anecdotal information that probability resulted that a certain version of events occurred. Second, the evidence primarily addressed the treatment of trau- Z.L., than the cause rather injuries like those suffered matic there its belief that injuries. Finally, court indicated of such parties’ It found of abuse. presumption a medical in cases such as this philosophy cited the frequently injury appeared to be one, an a child suffered where nonaccidental explanation by parents, offered inconsistent with The court proven until otherwise. “presumed” causation would for the medical approach an appropriate that this was observed legal to make decisions. legitimate way community, but not that a accept the assertion it would “not court stated *6 otherwise,” that because proven is abuse until suspicious injury liability. of prove to an absence parents would force ¶ experts explained that medical 13. The court Z.L. experts, According the State’s possible two scenarios. One occurred at injuries. a series of nonaccidental suffered from incident, and weeks March least two-to-four before Another was resulted in the chronic subdural hematoma. the acute when Z.L. suffered subdural March incident that child’s skull fractures hematoma. The theorized State time as the acute may roughly caused at same been up have occurred two weeks subdural hematoma could skull fracture had explained that bilateral earlier. The State than right and a different causation different orientation thus short, In maintained that temporal skull fracture. State least three or more acts had to have suffered from presented ex- injury, specifically, nonaccidental abuse. The State Z.L.’s treating physicians from testimony tensive medical others of its case. support
¶ that demonstrating also numerous studies 14. The State cited study One probabilities supported position. the odds and showed, had a chance example, for a child one-in-a-million fall. The also life-threatening injuries from short suffering often lie child abuse showing parents introduced studies siblings injuries. often for the child’s cases blame First, there with studies. problems The court found two these cases, and, some to each of the assertions exceptions Second, certainty a lack of there was exceptions were substantial. questioned The court whether as to which cases constituted abuse. study into a similarly decision would factored its CHINS lying child abuse. example used as an about subdural hematoma maintained that acute Parents his skull crushing were caused sister and skull fractures when she fell on him. top weighed eighty M.L. at the pounds time, and Z.L. weighed twenty pounds. The court indicated that if event, one believed M.L.’s statement alleged after the M.L. could head, directly have fallen on Z.L.’s driving it into the floor. The floor was pad wood covered a thin and carpet. Parents’ medical experts explain injuries. testified this would Z.L.’s acute 16. Parents’ also theorized about the chronic subdural hematoma. They suggested that Z.L. have suffered a subdural hematoma as a result of birth and that the excess fluid from the hematoma caused the excess between the space dura and brain, which stretched the veins. theory Another was that Z.L. had external hydrocephalus, which occurs when there is an excess space between the brain and the surrounding membranes brain. This space fluid, could have been filled spinal with which can cause the veins that extend from the brain through the arachnoid and dura to the skull to be stretched. Theoretically, the stretched veins would be more susceptible breaking from minor trauma or no trauma at all. argued Parents that it likely Z.L. had this condition because it has been connected to one (a conditions, two other macrocephaly very large in propor- head (a tion to body) positional plagiocephaly flat portion of the skull believed to occur when child is left in one position for long periods).
¶ 17. The court found that Z.L.’s head appeared large to be *7 age and body rate; thus, and that it may grown have at a fast it entirely was that possible Z.L. was macrocephalic at the time of accident, the making him a strong candidate for external hydrocephalus. The court also found that Z.L. had positional plagiocephaly. While the experts agreed State’s that Z.L. had a large head skull, flatness to a portion of his they asserted brain, that the depicted scans, child’s in the was normal (except presence hematomas), of the subdural and not indicative of a brain with external hydrocephalus.
¶ 18. The court found that whatever the cause of the subdural hematoma, parents’ experts many journal articles an supported assertion that the subdural hematoma could rebleed and enlarge only with minor trauma. The court found this important it because could explain presence of a chronic subdural hematoma after it long normally would have It resolved. also that presence observed of the chronic subdural hematoma potential and the for a rebleed could have contributed to the acute subdural caused to the brain damage dramatic have caused words, could impact force of In other hematoma. chronic of the presence to Z.L. because damage more infant who another have caused than hematoma subdural condition. underlying this did court found positions, the parties’ forth setting 19. After support to compelling the State two occasions on at least injuries head that Z.L. suffered position experts The State’s nonaccidental. injuries were and that three different fluid of images revealed radiographic noted that also revealed sub-acute, images acute, and chronic. ages biparietal and the fracture fractures, bone right temporal two The fractures of the head. from the left side radiating fracture of normal or more inches two by approximately separated were experts opined differently. oriented skull were involving mechanisms by separate caused fractures were that the least two subdural that Z.L. had at They noted great force. Finally, the State’s in occurrence. by weeks separated hematomas to necessary deal of force great experts explained inconsis- skull, the fracture itself was and that break the child’s asserted, which, it was fracture compression-type with a tent head her Z.L.’s between crushing from M.L. expected would be also testified experts a result of a fall. The and the floor as body cause the fall insufficient to created in the the force injuries.
¶20. however, found, failed The court (1) was the what questions: additional fundamental answer two (2) brain; and what an infant’s skull and necessary injure force on falling an child eighty-pound generated be the force would topic inquired infant. The court a twenty-pound calling expert if an they would hearing, asking parties indicated that attorney testify to such matters. Mother’s was not. Father’s as the State calling not be such witness would under- and the mechanics possibilities that the attorney asserted did note that the State infinite. We such a calculation were lying similar to children testimony expert offer accidents, and that car high-speed involved had been who defied the laws these that M.L. caused theory by acceleration. multiplied mass equals that force physics, given *8 later and the court opined, also 21. The possibilities, based on were parents’ arguments that agreed, probabilities. Parents’ experts first raised the that Z.L. possibility could have suffered from a subdural during hematoma birth. The expert State submitted research and that testimony only small percentage hematomas, of children suffer from these subdural form, the births are traumatic in typically some hematomas resolve and disappear well before the child is three found, however, months old. The court that some of the articles offered “cause for pause.” For to an example, according article (5th edition), Neurological Surgery it might not be surprising parents point could not to a specific explain incident to a chronic that, subdural hematoma. The court also found due to the lack of specific information on very complex questions about the force necessary to cause injuries certain and the effect of those forces brain, on an infant’s there was a clear danger of oversimplification. ¶22. Nevertheless, continued, the court “if simply this was experts,” battle of the agree would with the State that Z.L.’s probably were is, result of nonaccidental means. That a fall involving M.L. probably extensive, not the cause of the damage Nor, acute court, to the skull and brain. said the was the chronic subdural probably hematoma by caused the series of medical conditions described parents’ experts. The court indi- cated that it used the “probably” word intentionally, insofar as the State’s case was indeed much more probable, while the defense case Yet, was more of a possibility. concluded, the court this case was not simply a battle of experts.
¶ 23. The court reasoned that expert testimony must be viewed in totality circumstances, indicating that all of the nonmedical proved very good were parents. assertion, As support for this it noted that parents had a sweet, caring, normal daughter who exhibited signs distress, no and that community spoke members highly of M.L. and her parents. Despite the fact that the pediatrician children’s testified unequivocally that caused intentional acts abuse, of physical the court only found that in the doctor’s prior dealings with parents, normal, he observed them to concerned individuals. The court also found that parents’ neighbor, who had daily family, contact with the stated that she signs noticed no Additionally, distress it found that M.L.’s kindergarten teacher indicated that likely M.L. would have if disclosed she was subject home, of abuse or an unhappy and she had not done found, well, so. The court had M.L., earlier without *9 for responsibility influence, assumed credibly parental coaching precipitated apparently that the incident baby the on falling ensuing 9-1-1 and the assistance neighbor call to the mother’s that allegation the support to evidence no nonmedical Finding call. the that Z.L., court concluded the abused both either or that Z.L. of the evidence aby preponderance prove failed to State that later indicated The court supervision. care or in need of by the State appeal This as well. to M.L. applied its decision followed. children improperly it to an court held that the argues The 24. State found its the court that when It maintains proof. of
high standard it by parents, than that asserted probable” “much more case to According proof. met its burden that the State acknowledged the State to requiring then State, court erred the the evidence. with nonmedical medical evidence its corroborate case was that its suggestion challenges the court’s also State abuse,” that posits presumption a “medical on based so exten- injuries were that Z.L.’s head testified medical for them was only explanation the possible that sive and extreme the court also The State asserts head trauma. abusive as to the extensive evidence misapprehended issue necessary to cause amount of force enormous relying erred that the court argues Finally, here. State condition. to Z.L.’s medical had no relevance two articles that ¶25. in a framed its decision the court agree We must stand. manner, that the decision we conclude confusing but that Z.L. noted, prove required State previously As by a parental care proper without and that M.L. was was abused is satisfied “[w]hen the evidence. This standard preponderance inclines the beam destroyed, and proof is equilibrium A bare burden, .... slightly however him who has the toward sufficient, but a feather’s drop the scales though is preponderance Livanovitch, 327, 328, 799, A. Livanovitch v. 99 Vt. weight.” omitted). (1926) (quotation find, argues, appear The court did prob much more it was evidence demonstrated the medical than acciden inflicted intentionally injures that Z.L.’s able however, fault the State for not, court did incurred. The tally evidence. nonmedical this evidence with to corroborate failing nonmedical concluded apparently case was entitled to at least as much weight as the medical evidence, State, and that the moving as the party, therefore failed See, to meet Brown, al., its burden of persuasion. e.g., K. et (6th 2006) (term § McCormick on Evidence at 471 ed. (1) proof’ “burden of encompasses separate two burdens: evidence, burden of “producing satisfactory judge, of a (2) issue”; particular fact “the burden of persuading the true”). trier of fact that the alleged fact is As one court has explained, term ‘preponderance’ “[t]he means that upon all the evidence the facts asserted the plaintiff are more probably true (2d than Lion, false.” Nissho-Iwai v. Co. Stolt 719 F.2d M/T 1983) omitted). (quotation Cir. If the court “finds that testimony balance, parties both is in or equally probable, then moving will party have failed to sustain required burden.” *10 Motors, Inc., 170, (Bankr. In re Kelton 1991); 130 B.R. 174 D. Vt. see also Rambo, Metro. Stevedore 121, Co. v. 521 U.S. 137 n.9 (1997) (“[T]he preponderance standard allows both parties to share the fashion, risk of error in roughly equal except that when the balanced, evidence is evenly the party with the burden of persuasion omitted)). must lose.” (quotations and citations
¶ recounted, 27. theAs court parents had a marriage, stable and father earned a salary sufficient to allow mother to stay at home with the children. Parents had no criminal records aside from father’s 1996 DWI conviction. There history was no abuse family, the any nor indication from neighbor, M.L.’s teacher, acquaintances, that occurred, abuse might have and the family had no prior Indeed, involvement with DCF. the court found that all of the witnesses regularly who saw or cared for the agreed children that there was no evidence that either child was in any abused relevant, manner. This evidence was and the court plainly found it persuasive as as the evidence presented by the on State the issue of whether the children were CHINS. Without so, expressly saying it is evident that family the court considered the evidence to be in equipoise. note, moreover, 28. We that while the court found the State’s
evidence compelling, it also expressed its reservations about the general nature of the medical evidence throughout its decision. The court acknowledged the expert State’s testimony the force generated by the alleged fall was insufficient to explain injuries. time, At the same parents’ experts testified that the fall was sufficient to injuries. this, cause Z.L.’s Given it is of, and the absence court noted why sought, the understandable necessary of force the amount specific information about additional and force specific the injure an infant’s skull brain to Additionally, the fall the here. alleged might generated presumption about “medical reservation expressed worded, reiterated the essentially abuse,” perhaps poorly while (without such medical any proof the benefit burden State’s like one. cases presumption) ¶29. decision reached a different might have While we held the court court, are family persuaded we not than the heard The court proof. standard of heightened to a State and, family court days, of nine over course much review its decision after reached acknowledged, is the role of mindful that it exclusive deliberation. We are credibility of the evidence assess family weigh court 178, turned A.F., A.2d at This case witnesses. Vt. evidence. While weight on court’s assessment burden, family facie court prima satisfied words, In other ultimately not its evidence. persuaded tending support although there was evidence evidence, in its judgment, court that such reasoned position, so, sense, it was unable legal in a preponderate, did Hubbard, v. McClary find the children were CHINS. See rationale). (1923) 238, 122 similar (applying A. Vt. of the evidence will not disturb the court’s assessment We appeal. citing erred in suggestion 30. The State’s correctly The State journal equally unavailing.
several articles is *11 by in one cited the court the author notes that of articles factors for chronic subdural explicitly precipitating stated that alcoholism, epilepsy, coagulopathy, hematomas are “chronic here. use none of which were issue anticoagulants,” of significance in an of a subdural Additionally, article about in a the author hydrocephalus, hematoma child with external injury,” “in the of other evidence of inflicted opined that absence in a a child with external presence of subdural hematoma was, itself, The prove abuse.” by insufficient hydrocephalus injury inflicted here that there was other evidence of State asserts actually child no had external and there was evidence hydrocephalus.
304
¶ caveats, 31. that the court aware of these presume We although it not to include within The opinion. chose them its of the statements about these is that there thrust court’s articles exceptions possible explanations are or for certain similar by emphasized point to those suffered Z.L. The court this in its event, in general. any observations about the In medical evidence probable the court medical case found more than theories, articles, parents’ despite observations about these its citing the State fails to show that it error by committed reversible these articles.
Affirmed. CJ., Reiber, dissenting. majority’s The decision fails family reconcile the court’s ultimate conclusion that did parents not abuse Z.L. with the finding the State much more probable evidence than parents injury as to how Z.L.’s arose. Because court found that Z.L. a suffered severe care, nonaccidental in injury while only exclusive possible trial conclusion court could have reached is that it is more than probable not that responsible inflicting serious abuse on Z.L. met its of burden demonstrating by preponderance of the evidence that is a Z.L. (CHINS). in child need care or supervision parents’ apparent good character did not rise to a level sufficient to rebut the court’s findings credibility of the medical evidence, which the trial court found conclusively established that injured nonaccidental I means. Because believe that case, the standard of proof was met I dissent. primary 33. Our concern proceeding is to protect CHINS from 219, 222-23, child future harm. Young, See E.J.R. v. 162 Vt. (1994) 1284,
646 A.2d (explaining adjudications CHINS are preventative). both remedial and strong Given the State’s interest “protecting a child from the risk of serious and harm,” A.D., potentially 432, 436, irrevocable In re Vt. (1983) A.2d (quotation omitted), the State has the burden proving “by a preponderance case re evidence.” In D.T., (1999). 148, 156, 170 Vt. 743 A.2d “The State do establishing any factors, so combination statutory includ- abuse, abandonment, lack ing or parental care subsistence necessary J.R., 267, 270, for the child’s well-being.” In re 164 Vt. *12 5502(a)(12)(A)-(B)3 § (1995); 33 V.S.A. see
668 A.2d abused or if he has is been that a child a CHINS (delineating case, impetus sole In a this by parent). neglected The injuries. brain skull and Z.L.’s severe filings was CHINS children, that Z.L. alleging on behalf both petitions filed that M.L. and by parents, his he was abused because was CHINS 5502(a)(12)(A)-(B). § 33 V.S.A. care. proper parental was without injuries was and extensive severe That Z.L. suffered fractures, from ear running one two skull Z.L. had disputed. base right his ear extending from behind the other ear and on the acute hematoma large He had subdural of his also skull. on the brain, hematoma his and a chronic subdural left side of the cause of at trial was of his The main issue right side brain. the State and and, recognized, injuries, trial Z.L.’s Z.L. was scenarios.” Either possible “two parents presented accidental fall injured during an by parents, he was abused State, injured According Z.L. involving his sister M.L. injuries. The State nonaccidental during a series of physicians treating of six five of whom were testimony experts, in hospital, children’s four who treated doctors experience and a with extensive regular pediatrician, pediatrician unequivocally experts agreed All of child abuse. these head trauma. injuries by caused severe stated that Z.L.’s were orientations, in different Z.L. had two skull fractures Because hematomas, experts subdural State’s both old fresh more than one occa- injury that Z.L. had suffered explained injuries all that Z.L.’s could not experts agreed sion. The State’s sister, older trial from an accident with his resulted experts this testified that reject court did not evidence.4 severe, injury and the did not fit simply too juvenile recently by majority, amended and statutes have been As stated 5102(3). Ante, § provision appears 6 n.2. this now at 33 V.S.A. testimony any expert on the of the lack of The trial court was critical necessary an an infant’s skull or created of force to break exact amount provided experts falling the State’s eighty-pound child on an infant. While none of numbers, equivalent evidence was admitted another terms of information identify the proof precise numbers that not limited to form. The State was falling prove the fall did not on Z.L. to force be created M.L. that would Instead, experts injuries. it was the State’s concurred cause Z.L.’s extensive equal involving weight child of a to M.L. simply impossible for an accidental fall necessary injuries. the amount of force likened to have caused Z.L.’s accident, a compression-type as would have from a resulted fall addition, they with M.L. In concluded Z.L. suffered *13 in distinctly points different time and that the parents’ evidence did not adequately explain injuries Z.L.’s time. multiple over The State’s experts agreed injuries that the were of the result abuse.
¶ 35. explanation injuries Parents’ was that of some by falling caused his holding sister while him crushing and his floor, head her between and the and that Z.L.’s chronic subdural hematoma the of preexisting was result medical conditions that prone made Z.L. more brain injury. to Parents’ experts allowed that parents’ explanation a possibility, was although could not it, confirm and the experts therefore did not conclude actually a preexisting had medical condition that would have resulted in a chronic subdural hematoma.
¶ 36. court recounted the expert testimony on both sides and “if concluded: simply experts this was a battle of the the court agree would injuries with the state that the to Z.L. were probably result of non-accidental Ultimately, means.” the court found the State’s medical evidence more probable than that Nonetheless, submitted by parents. court concluded other evidence, nonmedical which was more circumstantial and less witnesses, direct than the State’s it persuaded that Z.L. was not parents. abused The evidence the court on relied included: relationship; a history stable lack of abuse family DCF; or involvement with a lack of evidence of other instances Z.L.; of abuse of either M.L. reports or and from caregivers teachers and well-adjusted that M.L. is and has no behavioral court problems. The thus petition. denied the CHINS conclusions, however, 37. The court’s are not consistent "with its findings, and at a minimum the case should be remanded for the trial court to to attempt reconcile the discordancies between accident, to cause Z.L.’s head falling forces created from: a car long flight stairs, accident, down a shaking throwing ski a or a child. Although family specific court have wished it had more evidence of how injured, Z.L. was such detail provided by would to the cumulative experts certainly adequate State’s preponderance that was to meet our threshold proof, for the majority correctly burden has defined it. When abuse, through courts consider the frequently inflicted child there is no acknowledged, rarely eyewitnesses witness to the event. As another court there are abuse, rely to child expert testimony and therefore cases these often on medical Goblirsch, (Minn. and circumstantial evidence. State See v. N.W.2d 1976). on explanation further conclusions. Without findings have, be affirmed. the decision cannot the record we case, of appeals a similar Louisiana strikingly 38. In a not that an infant was abused trial conclusion reversed a evidence of decision on nonmedical trial court based its where the J.A.V., 811 v. So. nature. ex rel. W.H.V. parents’ loving 2002). case, infant (La. In that three-week-old App. 2d 189 Ct. the baby’s the mother noticed hospital after brought was an x-rays revealed on one side. Scans body twitching ankle, ribs, a fractured hemorrhage, fractured intracranial sought Services Department in the thumb. Social fracture parental in need of care based adjudicate the child as one Vermont, abuse, held a trial on matter. As and the court is a proceeding prepon- at such a proof Louisiana standard that the testified brain derance of evidence. Medical trauma, been caused caused could bleed birth, of shaken and that the child was victim by the child’s *14 baby’s grandmother and testified baby syndrome. parents The birth, they in their care since that the infant was exclusive injuries no the other than explanation hypoth- could provide The trial by a difficult birth. court esizing that were caused that the child Department prove that had failed to concluded the care, lack citing certainty in of the of medical was need nature the evidence, loving nonmedical factors such as the abuse, prompt and parents’ lack of evidence of other parents, seeking attention. Id. at 197. action medical ¶ reversed, that the appellate noting though The court even 39. how explain exactly could not the infant was experts medical injury that was caused injured, they agreement were that uncontroverted medical emphasized abuse. Id. The court type injured that of external trauma evidence demonstrated “some than occasion while the exclusive care this infant on more one grandmother.” Id. As to the parents and control evidence, not explained: court ‘We must appellate nonmedical to ‘goodness’ parent(s) allow trial court’s belief in the this medical evidence that child overwhelming overshadow life-threatening injuries and even sometime sustained serious hospital from his birth and following his release between . . Id. nearly four weeks later . .” The in this case. compel The a similar conclusion 40. facts injured by that Z.L. was proof medical factfinder, nonaccidental means. As the trial court could certainly found that State’s were credible experts or that the experts convincing. medical more The court con- not, however, that it persuaded by parents’ experts cluded involving and that “a fall M.L. not the probably cause damage acute to extensive the skull brain.” court further that persuasive concluded the State’s were more and that injuries probably Z.L.’s “were the result of non-accidental means.” Having conclusion, reached beyond this it was discre- ignore tion findings because the also appeared be good our people. proof, competent, Under standard credible medical evidence of abuse be by testimony cannot overcome H., and attentive. See In re Marcus parents appear caring (Ill. 1998) 862, 697 N.E.2d Ct. App. (reversing trial court’s conclusion that infant was not though abused even found medical baby’s injuries evidence credible that were not consistent with an accident and explaining once the trial court found that the were sustained nonaccidental means the court evidence). could not disregard medical The conclusions the upon court reached based the direct medical evidence are the important most in its analysis. above, As outlined a CHINS is finding compelled once the court finds that child has suffered J.R., care. See In re nonaccidental while in parent’s 270, facts, Vt. at 668 A.2d 673. On finding these the court’s account of injury was more result probable must in a CHINS conclusion. Livanovitch, See Livanovitch v. 99 Vt. 328, (1926) 131 A. (explaining that a preponderance- of-the-evidence standard is met when “the beam toward inclines burden, him who has the slightly”). however No conclusion other than was abused possible is from this finding. trial court appeared accept unable to parents, *15 whom witnesses presented as attentive caring parents, and could capable been inflicting injury that the medical evidence indicated Z.L. had suffered. The that parents fact were positively by irreconcilable, viewed community members is not however, abuse, with the State’s theory as the court appears suggest. Child is a pernicious problem abuse societal every afflict families of strata commonly and occurs in private, settings. closed appear “good Individuals who parents” can — their abuse children if only even momentary loss — temper and can abuse one child and not the other. court, only Indeed, of the trial is findings given occurred here. what explanation rational a fall injured by not that Z.L. was finding trial court’s Z.L. was not abused conclusion that M.L. and its concurrent with key and unanswered the by the court left not reconciled were day injured Z.L. was happened on of what question Given the court’s determination injuries. previous what caused his evidence, to this only answer of the medical credibility parents. his General is that Z.L. was abused question critical good nature cannot diminish parents’ apparently evidence about regarding medical evidence nature of the State’s “compelling” here, plausibility injuries inflicted enhance specific merely but rejected possible, theory, which the Lines, Inc., F.2d Exp. Porter Am. probable. See v. (3d 1968) (“Factual probability.”). determination rests Cir. — ¶43. sum, findings In head trauma and that the result of nonaccidental serious of his parents during of his time under exclusive care it is only probable one conclusion: that more support I parents. than not that Z.L. suffered abuse the hands court, trial order that Z.L. and would reverse the therefore are M.L. CHINS.
2010VT Realty Ferrisburgh v. Robert A. Schumacher and Investors
Bonnie L. Schumacher A.2d
[992 1042] No. 08-077 JJ., C.J., Skoglund Burgess, Davenport, Reiber, Johnson, Present: Supr. J., Specially Assigned February Opinion Filed