By Andrew Delaney
In re M.E., 2010 VT 105.
While most six-year olds were playing with Power Rangers and Legos, P.L. was smoking marijuana. (I hesitate to do it, but I cannot help imagining that P.L. might have used something like this.)
By age nine, P.L. was drinking alcohol and using cocaine on the side. When he was twelve, on May 25, 2008, P.L. had an overdose. At that time, he had Xanax, cocaine, marijuana, and Benzodiazepine in his system. I suspect that the contents of this toxic cocktail might lead even Robert Downey, Sr., whose famous son also began smoking marijuana at age six, to blush.
P.L.’s overdose landed him in the Brattleboro Retreat. A police officer and hospital staff member expressed concern about P.L.’s mother’s permissive attitude about P.L’s marijuana use to the Vermont Department for Children and Families (DCF). Three days after his overdose—against medical advice—P.L. left or was taken out of the Retreat to return to his mother’s care. The Retreat’s after-care plan recommended five things: “(1) weekly outpatient substance abuse treatment; (2) weekly family therapy; (3) close supervision before and after school; (4) around-the-clock adult supervision for the first two weeks followed by a reassessment of safety and compliance; and (5) a petition seeking a determination that P.L. was a “child in need of care or supervision” [a (CHINS) proceding] if P.L. was unwilling to follow his parents’ expectations.” Shortly after P.L.’s release, he missed an appointment with his school counselor, and, on another occasion, was sent home from school for being intoxicated (a/k/a “blazed up fo’ rizzle”).
All this led to a DCF investigation. (The only question being, what took you so long?) DCF substantiated P.L.’s mother for placing P.L. at “risk of harm.” Specifically, DCF found that the mother’s failure to schedule a drug and alcohol assessment or provide for intensive follow-up care placed P.L. at a risk of harm. An independent reviewer upheld the decision to substantiate.
The independent reviewer wrote a letter to P.L.’s mother, noting that P.L.’s mother believed that DCF did not accurately report her actions. P.L.’s mother maintained that P.L. was depressed because P.L.’s father was in jail. P.L.’s mother also indicated that P.L. had started seeing a therapist and was doing well in treatment. She also took issue with DCF’s concern over the time it took her to get P.L. into treatment.
The reviewer found that P.L.’s mother did not get P.L. into treatment until ten weeks after P.L.’s overdose and shortly after DCF’s final risk assessment. The reviewer also found that P.L.’s mother displayed an inconsistent attitude toward P.L.’s drug use and P.L.’s possession of drug paraphernalia and firearms. The reviewer concluded during the 10-week period after P.L.’s overdose, it was reasonable to believe that P.L. had been placed at risk of harm. In so concluding, the reviewer cited relevant statutory provisions and DCF Policy 55, which defines “risk of harm.”
P.L.’s mother appealed to the Human Services Board. Before the hearing, she also filed a motion for summary judgment. The hearing officer indicated that he was inclined to grant the motion, and gave DCF an opportunity to change his mind. DCF submitted a memorandum. The hearing officer did not change his mind, and recommended in writing that the Board grant summary judgment for P.L.’s mother.
In his recommendation, the hearing officer recited “facts” that DCF had submitted, but that were in dispute. The hearing officer did not acknowledge any factual disputes. He noted that everyone who was involved knew what was going on and didn’t do anything about it. Accordingly, he found that any abuse could not be attributed solely to P.L.’s mother. The hearing officer relied on CHINS-related statutes in reaching his conclusion, finding “no discernible difference in the legislative intent or public policy underlying the statutes governing CHINS proceedings and those governing the child-abuse-and-neglect registry with respect to the alleged neglect here.” The hearing officer reasoned that if DCF didn’t find the inaction of P.L.’s mother serious enough to file a CHINS petition, then DCF couldn’t substantiate P.L.’s mother under the same facts and a seemingly identical legal standard. The Human Services Board adopted the hearing officer’s recommendation verbatim, and DCF appealed.
On appeal, DCF argued that the hearing officer’s conclusion that DCF couldn’t substantiate P.L.’s mother without filing a CHINS petition was, to paraphrase slightly, “totally whack.” The SCOV said, and I am paraphrasing again, “We feel you,” and reversed the Human Services Board’s decision. The SCOV noted that the Board misapplied the law and proceeded to lay the patented Supreme Court Smack Down.
The SCOV reasoned that whether or not DCF is pursuing a CHINS proceeding has no bearing on the decision to substantiate for purposes of the child-abuse-and-neglect registry. The Court referred to a 1995 decision, in which it recognized the different functions of the registry and juvenile proceedings. In re Selivonik, 164 Vt. 383, 391, 670 A.2d 831, 836 (1995). The Court noted that it has rejected the idea that juvenile or family court proceedings should bind DCF in substantiation of abuse or neglect proceedings.
The SCOV reasoned that CHINS proceedings and substantiation proceedings “are distinct and are in no way dependent on one another.” The SCOV noted that a CHINS proceeding “implicates fundamental interests not at stake in the registry process.” The SCOV speculated that DCF may have been trying to protect P.L. with a less-obtrusive measure than a CHINS petition.
The SCOV also noted that whenever DCF “substantiates” someone, it must place the report of abuse or neglect in the confidential registry. 33 V.S.A. § 4916(a)(1). Naturally, it would be bad public policy if DCF were required to institute a CHINS proceeding any time it placed someone in the child-abuse-and-neglect registry.
Finally, the SCOV said that the Board was required to determine whether the actions or inactions of P.L.’s mother placed P.L. at risk of harm. Because the Board did not address that question directly, nor did it apply the relevant law or DCF policy, the SCOV reversed and remanded.
Justice Johnson concurred, writing separately, to express her concern that DCF may be using the registry law in broader-than-intended circumstances, for the purpose of compelling cooperation rather than protecting children.
Justice Johnson noted that the Brattleboro Retreat’s discharge summary of P.L. indicated that he “‘did not appear to be at imminent risk to harm himself or others.’” She noted that the attitude of P.L.’s mother conveyed concern and that she promised to provide round-the-clock supervision for P.L. The focus was to prevent P.L. from having an inadvertent overdose in the future.
When P.L.’s mother—despite DCF’s urging—did not schedule an assessment for P.L., DCF notified P.L.’s mother that she would be placed on the registry. For Justice Johnson, this suggested that DCF was using the registry as a tool to coerce cooperation. Justice Johnson pointed out several inconsistencies in the record. She also noted that, on appeal, DCF seemed to be “backtracking” from its original decision to substantiate P.L.’s mother for a “single egregious act,” arguing other not-previously-identified shortcomings on P.L.’s mother’s behalf before the Board.
Justice Johnson also noted that P.L.’s mother specifically contested the premises on which DCF’s substantiation was based. For example, P.L.’s mother maintained that she brought him to a counselor in June, but P.L. did not like that counselor, and the agency said that this counselor was the only one they had who worked with children. Based on the competing contentions, Justice Johnson reasoned that the evidence on remand may undermine DCF’s claims of “egregious” neglect.
Justice Johnson noted that she shared the Board’s and the hearing officer’s concerns regarding the substantiation in this case. While the Board may have misapplied the law, Justice Johnson noted that they had their hearts in the right place. Finally Justice Johnson wondered whether DCF’s substantiation was based on a genuine desire to protect P.L. or on a less-noble desire to force P.L.’s mother to cooperate. Justice Skoglund joined in the concurrence.
Parents take note. This case illustrates that it is never too early to have that talk about drugs and drinking. While you might think that stories about orange splots, moons, and Berenstain Bears are appropriate bedtime fodder for your six-year old, let me humbly recommend that perhaps an entry from our little blog--such as the tale of the guy holding a bunch of cocaine who gives a false name and ends up getting arrested because the false name comes back with a warrant--would be apposite. After all, the last thing you want is your kid living in a van down by the river.