Thursday, November 11, 2010

Child Abuse and Neglect Registry 001

In re M.G. and K.G., 2010 VT 101

By Elizabeth Catlin

We have here the third case in two weeks regarding the state child abuse and neglect registry.  In terms of aiding the learning process, I believe the SCOV would have done better to issue this case first because it goes to an even more basic element of the process than “Child Abuse and Neglect Registry 101” (aka In re R.P. and B.P., 2010 VT 96) and “Child Abuse and Neglect Registry 202” (aka In re R.H., 2010 VT 95).  Here in Child Abuse and Neglect Registry 001, the Human Services Board learns the same lesson that the SCOV taught the Department of PATH last week in In re McNally, 2010 VT 99:  a recitation of the evidence presented by one of the parties is not the same thing as making your own findings of fact. 

As usual, the facts of this case are the opposite of uplifting.  The parents of a one-year-old and a three-year-old child got busted with all the makings of a meth and ecstasy lab in their basement.  In addition to the drug bust, parents were investigated by the Department for Children and Families (DCF) for putting their children at risk of harm.  Unsurprisingly, DCF concluded that the parents had put their children at such a risk and informed parents that their names would be added to the child abuse and neglect registry.  Parents went through the various stages of appeal (refer to Child Abuse and Neglect Registry 202 if you want to know all about the registry and the appeals process—it is a long process, with many steps, and many bureaucrats—it might be like going through the 5 phases of grieving, or all 9 levels of hell, or even the 12 steps for addiction recovery).

After the “fair hearing” was held before one of the Human Services Board’s hearing officers, the hearing officer reversed the decision to include parents’ names on the registry, concluding that there was no evidence that the children had been placed at any risk of harm.  Unfortunately for parents, the hearing officer’s decision was not supported by any factual findings.  Instead, the hearing officer simply recited the evidence that DCF had presented.  DCF noted this problem when it filed written objections to the hearing officer’s decision with the Board, but to no avail.  The Board proceeded to adopt the hearing officer’s report verbatim, thus prompting DCF’s appeal to the Supreme Court. 

It appears from the SCOV’s decision that when DCF arrived at the Court, it switched tactics a bit and tried to convince the Court that the hearing officer and the Board had actually adopted DCF’s proposed findings and just applied the law incorrectly and should be reversed on that ground.  The SCOV wasn’t going there, though.  Like a tough but fair parent itself, the SCOV had to make the same points with the Board that it also made with the Department of PATH in the McNally decision.  The SCOV told the Board that reciting the evidence of the parties is not finding the facts and cannot form the basis for a decision—the decisionmaker has to go farther and make its own findings. 

The Court doesn’t give much guidance on the formula for properly finding facts, but it seems that the decision maker must give some indication that she really owns the facts she is reciting.  Maybe in this case it would have been as easy as adding one final sentence to the hearing officer’s report, “I believe DCF’s witnesses and other evidence.”  But because the hearing officer and the Board did not find the facts, the Court could not simply apply the proper law to the facts and decide whether to affirm or reverse the decision.  Instead, the Court sent the case back on remand.  Hopefully the Board will be able to properly assimilate all of the new knowledge the Court has passed on to it in recent weeks.  Luckily, the Court dropped a helpful footnote in this case, directing the Board to refer to Child Abuse and Neglect Registry 202 when it considers this case on remand.

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