STATE OF VERMONTORLEANS COUNTY, ss. IN RE: CERTAIN CHILDREN DISTRICT COURT OF VERMONTUNIT NO. 3, ORLEANS CIRCUIT [Filed - June 26, 1984]

OPINION: DETENTION ORDER At dawn on June 22, 1984, 112 children were taken into custody by the State in Island Pond, Vermont. They were delivered to this Court pursuant to 33 V.S.A. §640 (2) at which time the State requested a blanket order of detention under 33 V.S.A. §641. The Court refused to proceed ex parte and appointed counsel for the parents as well as counsel for the children on its own motion pursuant to 33 V.S.A. §653. Individual, contested hearings were then held with regard to the State's request for Section 641 orders of detention. Each such request was denied by the Court from the bench, and the Court indicated that this opinion regarding those Orders would subsequently be filed. (A.) One purpose of Vermont's Juvenile Procedures is "to provide for the care, protection and wholesome moral, mental and physical development of children." 33 V.S.A. §631 (a) (1). However, it is the unequivocal goal of the Vermont legislature "to achieve [this] purpose, whenever possible, in a family environment, separating the child from his parents only when necessary for his welfare." 33 V.S.A. §631 (a) (3). (emphasis applied). This clause recognizes the fact 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 (1977) [Hill, J.]; see, Stanley v. Illinois, 405 U.S. 645 (1972); Prince v. Massachusetts, 321 U.S. 158 (1944); Meyer v. Nebraska, 262 U.S. 390 (1923). The legislature, in Section 631 (a) (3), has expressly provided that a child be separated from his parents only when necessary precisely in order to ensure that this fundamental liberty will not be unduly tampered with. In re N.H., op. Cit.; In re J.M., 131 Vt. 604, 609 (1972). (B.) When the Court applies these clear and unambiguous constitutional and legislative mandates, regard must be had for compelling parental rights. In re N.H., op. Cit. At 237. Therefore, Vermont's Courts "have proceeded with great caution, and continue to do so in light of the awesome power involved" with the removal of children from their parents. In re G.V. and R.P., 136 Vt. 499, 503 (1978); In re D.R., 136 Vt. 478 (1978); In re J. & J.W., 134 Vt. 480 (1976). Of course, the best interests of the child involved is the principal concern in juvenile proceedings. However, as Mr. Justice Larrow has pointed out, "the 'best interest of the child' is a useful maximum, but it comes into play only when there is a legal jurisdiction." In re J. & J.W., op. Cit. At 485, 486 (Larrow, J., concurring). (C.) It is in this context that Mr. Justice Hill, writing for a unanimous Court, explicitly set out the controlling rule of law: "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." In re N.H., op. Cit. At 235; In re J.M., op. Cit. At 607. Therefore, it is the burden and heavy responsibility of the State to demonstrate by sufficient evidence, not generalized assumption, that it is necessary to separate each of these 112 children from his or her parents. 33 V.S.A. §631 (a) (3). (D.) The State virtually admits that it cannot meet this burden. It's Petition, on its face, does not even allege that the children are, indeed, in need of care and supervision. The allegation is merely a blatantly generalized assumption that "all children under the age of 18 residing in the Community of the Northeast Kingdom Community Church (NEKCC) in Island Pond … may be in need of care and supervision …" (emphasis supplied). Moreover, the State admits that there is not a single piece of evidence in the material submitted that documents a single act of abuse or neglect with regard to any of the 112 children. The theory is that there is some evidence of some abuse at some time in the past of some other children in the community. The same, of course, may be shown of Middlebury, Burlington, Rutland, Newport or any other community. Such generalized assumptions do not warrant mass raids by the police removing the children of Middlebury, Burlington, Rutland, Newport or any other community (even a small, unpopular one). Adlai Stevenson once quoted that "guilt is personal", and I might add "not communal". Our Court has held many times that mere presence at a particular place is not sufficient to establish participation in a particular act. See, e.g., State v. Wood, 143 Vt. 408, 411 (1983); State v. Carter, 138 Vt. 264, 269 (1980); State v. Orlandi, 106 Vt. 165, 171 (1934). Therefore, "when the court seeks to take the child out of [the] parental home, it may do so only upon convincing proof." In re Y.B., 143 Vt. 344, 347 (1983) [Billings, C.J.]. Here, the State lacks any proof whatsoever as to these children and these parents, much less "convincing proof". "The right of children and parents to relate to each other free from government interference is a basic liberty … and will only be interfered with upon requisite proof of parental unfitness." In re Y.B., op. Cit. At 348. One's right to the care, custody and control of one's children is a fundamental liberty interest protected as well by the due process clause of the Fourteenth Amendment to the United States Constitution. In re C.L., 143 Vt. 554, 557-58 (1983); Santosky v. Kramer, 455 U.S. 745, 753 (1982). These concerns apply at the detention stage of juvenile proceedings. "In cases of juvenile detention it is important .. to minimize the possible intrusion upon the parents' constitutional right to family integrity." In re R.S., 143 Vt. 565, 569 (1983) [Gibson, J.]. For these reasons this Court refused the State's rather incredible request that the Court issue a blanket detention order for 112 children ex parte and without even holding hearings. The same reasons compelled denial of that request after holding the adversary hearings. (E.) Indeed, it is all too clear that the State's request for the protective detention permitted by the statute upon an appropriate showing was entirely pretextual. What the State really sought was investigative detention. In effect, each of the children was viewed as a piece of potential evidence. It was the State's admitted purpose to transport each of the 112 children to a special clinic where they were to be examined by a team of doctors and psychologists for evidence of abuse. If no signs of abuse were found, a child would be returned to its parents provided the parents "cooperated", that is, gave certain information to the police. Thus, not only were the children to be treated as mere pieces of evidence, they were also to be held hostage to the ransom demand of information from the parents. This stated plan of the State lends credence to the complaint of a number of the parents during the course of the hearings to the effect that they had been told by law enforcement personnel at the time of the raid that they would not be reunified with their children unless they gave certain information. During the course of the hearings the State did indicate that, if custody were awarded, children would be returned to "cooperative parents". Had the Court issued the detention orders requested by the State it would have made itself a party to this grossly unlawful scheme. In our society, people are not pieces of evidence. Such a "contention … clashes with a fundamental written into our Constitution …; no human being in the United States may be [so] dealt with … by government officials, or by anyone else." Blackie's House of Beef, Inc. v. Castillo, 467 F.Supp. 170 (D.C. 1978). Our rules relating to the issuance of search warrants reflects this basic concept. Such a warrant may be issued for a person only if there is probable cause to arrest that person, V.R.Cr.P. 41 (b) (5), or for a person who has been kidnapped or unlawfully imprisoned or restrained. V.R.Cr.P. 41 (b) (4). Were it otherwise, the State could use the device of a search warrant or other detention to compel a traumatized rape victim to submit to physical and psychological examination in order to provide the State with evidence. Our society and laws would not for a moment countenance such an outrage. Yet, that is precisely how the State here proposes to treat these 112 children. As for that part of the scheme that would return the children to "cooperative parents", such practices are disapproved "because of society's abhorrence of techniques of coercion". Whitebread, Constitutional Criminal Procedure, 163. Statements may not be obtained by means of physical brutality, Brown v. Mississippi, 297 U.S. 278 (1936); Williams v. United States, 341 U.S. 97 (1951), nor by psychological pressures. Spano v. New York, 360 U.S. 315 (1959). No person may be held "in order that he may be at the disposal of the authorities while a case is discovered against him." In re Davis, 126 Vt. 142, 143 (1966). Neither may his child. (F.) Upon a proper evidentiary showing of abuse, this Court is not the lest reticent to take immediate and affective action under the law to protect the children who are the objects of such abuse. Even such a goal as avoiding the abuse of children, however, cannot justify the means here employed. The request for the detention orders were properly DENIED. Dated this 25th day of June, 1984. [Signed] Frank G. Mahady, District Judge