In re D.D.

Robinson, J.,

¶ 38. concurring in part, dissenting in part. I agree that the merits adjudication was a final, appealable order, and that father’s notice of appeal, filed after disposition, was untimely. I also agree that given the gravity of rights at issue and the lack of clarity in our prior decisions, that we should reach the merits of father’s appeal. I cannot agree, however, that notwithstanding the trial court’s erroneous findings we should affirm the trial court’s conclusion that D.D. was a child in need of care or supervision (CHINS). Therefore, I concur in Part I and dissent as to Part II.

¶ 39. We have long recognized that “the freedom of children and parents to relate to one another in the context of the family, free of governmental interference, is a basic liberty long established in our constitutional law.” In re N.H., 135 Vt. 230, 236, 373 A.2d 851, 856 (1977) (citing Meyer v. Nebraska, 262 U.S. 390 (1923); Prince v. Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S. 645 (1972)). The State’s authority to interfere with that relationship in the name of protecting children is “awesome,” and is accordingly subject to statutory and constitutional restraints. Id. at 235-37, 373 A.2d at 855-57. “Accordingly, any time the State seeks to interfere with the rights of parents on the generalized assumption that the children are in need of care and supervision, it must first produce sufficient evidence to demonstrate that the statutory directives allowing such intervention are fully satisfied.” Id. at 235, 373 A.2d at 855.

*527¶ 40. Moreover, our laws contemplate separation of a child from his or her parents only when necessary for the child’s welfare or in the interests of public safety, and require that a court, “[i]n determining that a child is endangered and that State intervention is necessary, ... act with great care in deciding what type of intervention is appropriate.” Id. at 236, 373 A.2d at 856. Such solicitude for protecting the parent-child relationship unless otherwise necessary to protect the child’s welfare protects not only parents’ constitutional rights, but the important interest many children have in maintaining the central relationship or set of relationships in their lives. See Bell v. Squires, 2003 VT 109, ¶ 18, 176 Vt. 557, 845 A.2d 1019 (mem.) (recognizing in divorce context that “a child’s best interests are plainly furthered by nurturing the child’s relationship with both parents” (quotation omitted)).

¶41. For the above reasons, the Legislature has long required that a CHINS order be supported by adequate findings on the record. See 33 V.S.A. § 5315(e); id. § 5526 (repealed); In re M.C.P., 153 Vt. 275, 291, 571 A.2d 627, 636 (1989) (“We require that both merits and disposition orders be accompanied by findings of fact which are sufficient to support the court’s conclusion that the child is in need of care or supervision or its disposition order.”); see also E.J.R. v. Young, 162 Vt. 219, 225, 646 A.2d 1284, 1288 (1994) (requirement that- disposition orders be supported by findings on record “goes to the solemn responsibility the justice system owes to Vermont citizens when a child is to be removed from the parental home.”).

¶ 42. In this case, we have two sets of findings. The written findings, prepared by the State and endorsed by the trial court, are rife with assertions that are unsupported by the evidence:

• The written findings state that child’s kidney function level was declining. Although the record evidence suggested that his kidney function was expected to decline over time, the only testimony about his trajectory during the year preceding the merits hearing suggested that his function had remained stable or even improved.
• The written findings asserted that mother had failed to follow-up on treatment for an admitted substance abuse problem. The only evidence in the record at the merits hearing was that mother had completed a substance abuse program and was sixty days clean.
*528• The written findings indicate that a Fletcher Allen Health Care (FAHC) social worker reported that parents failed to pick up an antibiotic needed to treat an infection. There was no such testimony.
• The written findings list a host of specialist appointments that child assertedly missed in 2010 — none of which were the subject of any testimony in the merits hearing.
• The written findings state that someone from FAHC reported to DCF in June 2011 that child was not receiving proper care. There was no evidence to support this finding.

These various clear errors hopelessly compromise the trial court’s written findings in this case, undermining the level of confidence in the trial court’s assessment of the situation that we require in order to uphold a State intervention of this gravity.9

¶48. The majority concludes that the trial court’s ultimate conclusion is affirmable notwithstanding the carelessness of the trial court’s written findings because the remaining findings can support the trial court’s ultimate conclusion. Ante, ¶ 36. Removing a child from a loving, effective parent in the absence of a considered determination of harm and risk to the child on the basis of well-supported findings is not in a child’s best interests. Given the multiple material misapprehensions of the record apparent in the trial court’s findings, I cannot assume that, had the trial court properly understood the facts, it would have made a CHINS finding nor that a CHINS finding and removal of child from his parents are in child’s best interests; under these *529circumstances, affirmance may very well be contrary to child’s well being.10

¶ 44. I would be more willing to look beyond the problematic findings in this case if the evidentiary record compelled a CHINS finding without regard to the trial court’s actual findings. But it does not. This is not a case of abuse. There is no suggestion that either parent raised a hand against child or allowed another to do so. Nor are there findings that, apart from the issues concerning his medical care, these parents neglected child’s basic physical, developmental and emotional needs. Setting aside for a moment the trial court’s appropriate concerns about the parents’ attentiveness to child’s medical needs, the trial court’s findings do not suggest a broken parent-child bond, an unacceptably unstable home environment, a lack of attentiveness to child’s educational or developmental needs, a failure to provide appropriate nourishment or shelter, physical or emotional dangers to child in his home, or exposure to domestic violence, drug abuse or other risks commonly seen in CHINS cases.11 Nobody questions that child and his parents had a loving relationship. At the end of the merits hearing, the trial court acknowledged that the child was “confused, unhappy, doesn’t want to be where he is, wants to be home with [his parents].”

¶45. Even with respect to child’s medical care, this is not an open-and-shut case. In addition to ordinary medical care, child’s condition requires regular catheterization, weekly shots and evaluation of his growth and surgical site, and quarterly testing with a *530nephrology specialist at FAHC. Nobody disputes that parents were appropriately catheterizing the child. Child’s pediatrician testified that parents routinely contacted her when they had concerns about child’s health, and that parents follow-up and reschedule when they occasionally miss scheduled appointments due to transportation problems. Child’s pediatrician testified that there is some flexibility with respect to the administration of the weekly shots, and that child generally needs the shots within one to two weeks. The visiting nurse who had visited the family, on average, once a week for four and one-half years for the purpose of giving these shots and evaluating his progress, identified only a handful of occasions when she was not able to provide child’s weekly shot and evaluation on the scheduled date. She did not testify that on these several occasions, as a result of the missed weekly appointment, child went without the shots beyond the acceptable two-week window.

¶ 4f3. Given the above, the State’s CHINS case necessarily rests almost entirely on the parents’ failure to get child from northern Franklin County to Burlington for regular quarterly lab tests and appointments with specialists. In particular, child did not see the specialist between September 2010 and June 2011 — a far longer period than the medically required three months. Parents then missed a September 2011 appointment and child did not see the specialist until November 2011. Again, the approximate five-month gap was substantially longer than appropriate. Parents called FAHC in advance to reschedule several January 2012 appointments, but had a still-timely February 2012 appointment on the books when DCF sought custody through a temporary-care order. The State’s decision to seek custody of child thus rested almost entirely on a nine-month gap in specialist evaluation between September 2010 and June 2011, and a five-month gap — two months longer than the required three-month interval — between June and November of 2011.

¶ 47. Parents’ failure to timely schedule and bring child to quarterly appointments with the specialist is no small matter. It is clear from the record that his medical condition is serious, and the risk of harm resulting from undetected changes in child’s lab values is significant. But given parents’ attentiveness to child’s daily catheterization regimen; their compliance, with very few exceptions, with weekly visiting nurse monitoring and administration of shots; their demonstrated ability to identify potential *531problems and willingness to contact child’s pediatrician when necessary; and the lack of evidence of actual harm to child as a result of the delays, although a court could make a CHINS finding, it is not compelled by this evidence to do so.

¶ 48. Moreover, the State’s response here was draconian. At the outset, rather than seeking a conditional custody order subjecting the parents to close state supervision with respect to child’s visits to medical specialists, the State removed child from his home and sought custody. See 33 V.S.A. § 5308(a); id. § 5308(b)(1) (requiring return of child to parents absent finding that return home would be contrary to child’s welfare, and identifying conditional custody order with parents as preferred alternative approach following temporary-care hearing). Then, the State sought a CHINS order and a disposition that contemplated continued foster care for an indeterminate time. Rather than placing child with his parents and mobilizing its resources to ensure that the parents took him to his quarterly appointment with the specialist — an approach that would have addressed the specific harm warranting State intervention in the first place without triggering a host of. new harms — the State promoted a plan that severed the day-to-day connection that cements the parent-child bond. This was not a brief period of foster care; by the time of the disposition hearing in this case, child had been living away from his home and apart from his parents for more than four months, and the disposition order contemplated an additional period of foster care. The risk to child’s physical health from his parents’ failure to get him to the specialist was real, but the risk to the young child’s mental health and well being as a result of his removal from a loving and otherwise safe and appropriate home and placement in foster care is also substantial and cannot be ignored.

¶ 49. I realize these concerns about the State’s response go more to the question of disposition, and that the focus of father’s appeal is the trial court’s merits decision. But this case highlights the gravity of a CHINS finding and the potential consequences for parents and child of a CHINS finding lacking the necessary' support. For the above reasons, I respectfully dissent.

¶ 50. I am authorized to state that Justice Skoglund joins this concurrence and dissent.

In this case, where the trial court simply noted “so found” at the bottom of the proposed findings submitted by the State, the circumstances suggest that our recent generalization about the greater care reflected in written, as opposed to oral, findings is not necessarily true. Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, ¶ 46, 193 Vt. 490, 70 A.3d 1036 (noting that preference for written over oral findings arises from “a greater opportunity for considered analysis and careful reflection” in written findings (quotation omitted)). This Court does not condemn the practice of relying on, or even adopting as a whole, proposed findings submitted by the parties, but does caution that the findings must reflect a careful review of all the evidence. V.R.C.P. 52(a) Reporter’s Notes — 1987 Amendment. I note that counsel of record, as officers of the court, likewise have a duty to ensure that proposed findings submitted to the court reflect the evidence actually admitted at an evidentiary hearing, rather than the evidence counsel hoped to admit.

Moreover, the consequence of reversal would not be returning child to a dangerous situation without recourse. More than a year has passed since the CHINS hearing at the crux of this appeal. I do not know whether child is still in DCF custody or whether, as contemplated by the disposition plan, child has returned to his parents’ custody. If the former, and if the State had evidence based on the parents’ ongoing conduct that a return to his parents’ custody would pose a substantial danger to the health, welfare, or safety of child, the State would be free to take appropriate action. 33 V.S.A. § 5308(a).

As noted above, the trial court’s written finding that mother has “admitted a substance abuse history but has yet to follow through with treatment” was not supported by the evidence. The trial court made two terse oral findings at the end of the merits hearing relating to stability and substance abuse: “[t]he family suffers from instability,” and “[tjhere is substance abuse.” Although family instability and parental substance abuse are often factors supporting a CHINS order, in this case neither of the trial court’s conclusory statements provides enough detail, or shows enough of a connection with child’s welfare, to add support to the trial court’s ultimate CHINS finding.