Parental rights. State failed to carry its burden of proof of showing child abuse -- even though injuries to children were no accident -- because of no “non-medical” evidence of abuse.

In re M.L. & Z.L. (2009-089)(29-Jan-2010) 2010 VT 5 (Burgess, J. ) (Reiber, C.J., dissenting.)

The State of Vermont appeals from the family court’s dismissal of its petition to declare juveniles M.L. and Z.L. as children in need of care or supervision (CHINS). Children join the State’s appeal. The State asserts that the family court applied an improperly high standard of proof and relied on irrelevant evidence in reaching its conclusion. We affirm.

Following a two-day hearing, the family court, Judge Howard VanBenthuysen presiding, denied mother’s motion to return M. L. to her custody. The court found that the evidence clearly and convincingly established that Z.L.’s acute head injuries were caused when he was struck in the head by enormous force, such as the force generated when an infant is swung by his feet and its head is struck against an object 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 caused his death, and it required two extensive brain surgeries. The injuries caused the clinical death of nearly half of his brain. This latter incident alone, the court concluded, was sufficient for the court to be concerned about M.L.’s safety. It was so horrific, so traumatic, and required so much force, and it could only have been inflicted by an adult. It was therefore reasonable to conclude that M.L. could be in danger if returned to parents’ custody.

The family court, Judge Mark Keller presiding, subsequently held a nine-day hearing on the merits of the State’s CHINS petition. The court 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 to support the allegation that parents abused Z.L. It thus concluded that the State failed to prove by a preponderance of the evidence that Z.L. was abused or that M.L. was in need of care or supervision.

While we might have reached a different decision than the family court, we are not persuaded that the court held the State to a heightened standard of proof. The court heard evidence over the course of nine days, reached its decision after much review and deliberation. We are mindful that it is the exclusive role of the family court to weigh the evidence and assess the credibility of witnesses. This case turned on the court’s assessment of the weight of the evidence. While the State may have satisfied its prima facie burden, the family court was ultimately not persuaded by its evidence. In other words, although there was evidence tending to support the State’s position, the court reasoned that such evidence, in its judgment, did not preponderate, and so, in a legal sense, it was unable to find that the children were CHINS. We will not disturb the court’s assessment of the evidence on appeal.

The Chief Justice dissents on the grounds that the court explicitly stated it was not persuaded by the parents’ experts, that “a fall involving M.L. was probably not the cause of the extensive acute damage to the skull and brain;” and that Z.L.’s injuries “were probably the result of non-accidental means.” According to Justice Reiber, it was beyond the court’s discretion to ignore these findings because the parents also appeared to be good people. Under our standard of proof, competent, credible medical evidence of abuse cannot be overcome by testimony that parents appear to be caring and attentive.