Friday, December 24, 2010

Self Medicating, the DCF Registry, and the Folly of the HSB

In re D. McD., 2010 VT 108 (mem.).

Petitioner appeals from the Human Services Board concerning whether he had placed his children at risk of harm by driving with them while intoxicated.  If petitioner had, then his name would be placed in the Department for Children and Families child protection registry. 

Petitioner was intoxicated while driving with his two-year-old children in the car, a fact that petitioner does not dispute.  It seems that petitioner had a few too many while spending the day at an amusement park with his children, and stopped at a gas station to ask for directions.  The gas station attendant reported petitioner’s drunken behavior to the police, and soon an officer discovered the car at a restaurant, filled with empty beer cans and sleeping children.  Later, petitioner explained that he was replacing his bipolar medication with beer. He subsequently sought more professional medical help and dropped his prescription with Dr. Michelob.

Following an investigation by DCF, petitioner was notified that his name would be placed in the child protection registry for placing his children at “risk of harm.” In an administrative review of the decision, his drunk driving was found to be an “egregious” act which led to a “significant risk that the child could be physically injured as a result; and the physical injury would be serious.” Petitioner appealed to the Human Services Board.  The Board found that, in light of petitioner’s decision to seek medical treatment, such an incident was unlikely to happen again, and reversed DCF’s decision.

The SCOV reversed the Board’s decision, holding that the Board had misapplied the law.  The Board should not have considered what might happen in the future.  Instead, they had only one question before them: were the children placed at a substantial risk of harm due to the petitioner’s actions on the date in question?  As a result, the case was remanded for the Board to answer the specific question without consideration of any potential for recidivism.

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