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Is the Human Services Board “The Boss” of the Department of Chil
DEVELOPMENTS IN VERMONT LAW
By Kimberly B. Cheney
Is the Human Services Board “The Boss” of the Department of Children and Families in Determining Whether Abuse of a Child is Substantiated
Mrs. R.H. was in the middle of an emotionally disturbing divorce. On March 8, 2008 she was driving home to Vermont from Boston with her three-year-old daughter, J.H. The temperature was 32 degrees. About 3am she stopped at a friend’s house to return a borrowed GPS. Intending a brief stay, she shut off the car, left it unlocked with the keys in it, with flashers on and went inside. She got involved in a supportive conversation with her friend and lost track of time. About 4am the police responded to a “suspicious car” report, found the baby inside shivering with cold without a coat or gloves and asking for her mother – who then arrived. R.H. was charged with child abuse and placed on the Department of Children and Families (DCF) abuse registry as a “substantiated” abuser. As a result, she was barred from volunteer work at her child’s school, and from participating in J.H’s extracurricular activities.
She appealed to the Human Services Board. The Board consists of lay people and some retired Judges who are not connected with DCF. The Board decided that the situation was unique because of R.H.’s divorce (i.e. she was not a real abuser). Neglect was out of character for her, and was unlikely to be repeated. Accordingly it reversed the “substantiation.”
DCF appealed to the Supreme Court. It argued the Board had no authority to consider whether R.H. was the type of person who would neglect her child again. Its function was only to review the facts, apply DCF’s rules, and determine whether the March 8 incident was a single “egregious act” which placed J.H. in substantial risk of harm. Whereas, the Board reviewed the case to determine if R.H. was grossly negligent – a standard that allowed the Board to consider the degree of harm involved. Even though a year had elapsed from the incident, the Board could not consider R.H.’s intervening conduct in deciding the case.
The Supreme Court ruled for DCF. It decided that DCF was authorized to make rules defining what conduct warranted “substantiation,” and the Board didn’t have the authority to invent a different one such as “gross negligence.” Further, the Board couldn’t consider post incident conduct in the first place. That consideration was only appropriate if R.H. filed a new case asking to be expunged from the substantiation registry.
In this case, the Supreme Court rejected the Board’s attempt to put a more human face on the issue and consider the true character of R.H. and her actions. Instead, it ruled the legislature enabled DCF to adopt strict rules, which Board had to follow. Citizen review which might cut some slack for deserving people would not be permitted. In Re R.H. 2010 VT 95
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