Thursday, April 16, 2015

Substantiation Stricken

In re K.R.2015 VT 58

By Elizabeth Kruska

This case is about an appeal of a DCF substantiation. A substantiation is a finding made by DCF upon doing an investigation and finding that a person has abused or neglected a child or placed a child at risk of harm. Risk of harm is a “significant danger that a child will suffer serious harm other than by accidental means.” If a person is substantiated, his or her name gets placed on a child protection registry list. This all happens at the administrative agency level; there might be a court case that goes with it or there might not.

The child protection registry is not accessible to the public, but can be checked upon request by certain employers doing background checks or by certain government agencies. Having your name on the list means you might not get certain jobs, you might not get to be a foster parent, or you might be on DCF’s radar with respect to your own kids, just to name a few things. Even though it’s not publicly-accessible, it is potentially hurtful to have your name on this list.

Because placing someone’s name on a registry is a government action taken against a citizen, a person does have a due process right to have this determination reviewed. The first step is to have an independent administrative review. If the independent reviewer upholds the substantiation, the person could then appeal to the Human Services Board, who does a complete de novo review. That means the Human Services Board hears all the evidence anew – including any additional evidence – and makes a whole new finding. The Human Services Board can either uphold the substantiation or reverse it. If it’s upheld, the person can appeal to the Vermont Supreme Court.

Of course, there are timelines for all this, as set forth by statute. The current statute has very short timelines for requesting an independent review. This was shortened in 2007 with a change in the law. Before that people had a much longer period of time to seek review.

So, that gets us to the K.R. case. The facts are that K.R. overdosed on heroin, Flexeril, and valium sometime in 2003. She is the mom of T.F., who was not in her care at the time of the overdose. A few weeks later, DCF got an anonymous report that K.R. was using drugs around T.F. There’s a footnote in the opinion indicating that DCF said this was not an anonymous report. I don’t know whether it was or it wasn’t, although SCOV refers to it as “unattributed.”

DCF has to investigate reports, so they sent a social worker to K.R.’s house to get some information. When the social worker got there, she found it well-kept with no evidence of drug use, and she found T.F. to be cared for appropriately. This was an unannounced visit, so it’s not like K.R. had time to change her behavior or her home – it was found in the state it would normally be in on a regular day.

Nonetheless, DCF informed K.R. that she would be substantiated for risk of harm to T.F. if she didn’t engage in drug treatment and to make sure that information was provided to DCF. At a meeting with DCF a few weeks later, DCF learned that K.R. had an appointment with a substance abuse counselor. The opinion isn’t totally clear on this, but it would appear that K.R. didn’t follow through with DCF’s instructions to keep going to counseling. As a result, she was substantiated for risk of harm to T.F. in February 2004.

She appealed this in 2011, seeking an administrative review. Under the law at the time she was substantiated, she was able to seek review any time within seven years. At the 2011 hearing, K.R. said that she did overdose back in 2003, and she did use drugs frequently, but not when she was with T.F. She also indicated a longer-term problem, and that she had been in treatment for several years. She also said she went to treatment, and said she didn’t remember the DCF worker telling her she needed to provide that treatment information. The hearing board thought K.R. minimized her use and need for treatment, and concluded based on that that T.F. was at risk of harm. The Hearing Board looked at the totality of the circumstances surrounding the substantiation decision and decided to uphold the decision.

K.R. appealed, saying that DCF didn’t meet its burden of proof, and SCOV agreed with her, so the Hearing Board’s finding was reversed.

SCOV says their findings didn’t support the decision. At the time of the substantiation decision – back in 2004 – DCF only had the following information: the overdose, the possibly anonymous report about subsequent use, a well-kept home without evidence of drug use, and a safe happy child. The overdose happened while T.F. was not in K.R.’s care. DCF didn’t substantiate her based on the overdose, and the anonymous report alone isn’t enough for a substantiation, so it shouldn’t have been a substantiation in the first place.

It wasn’t until the hearing in 2011 that K.R. admitted greater drug use. DCF would not have known about this at the time of the 2004 substantiation; it wasn’t learned until seven years later. SCOV says DCF can’t now go backward in time and justify their 2004 decision with information they didn’t learn until later. And as for the idea that T.F. was at risk of harm because K.R. didn’t release her medical or treatment information, SCOV doesn’t buy that either. There was no actual evidence that there was “significant danger” T.F. would suffer any harm. The only evidence there was at all about T.F. was that he was at all his correct developmental stages and lived in a clean home. There was nothing K.R. could have mitigated by releasing treatment information, because T.F. was fine.

Chief Justice Reiber dissents. The point of there being a review of the administrative substantiation is to make sure it was done correctly and to make sure the decision was accurate and reliable. The Human Services Board appeal is a de novo appeal, which means that new evidence can be presented. There’s no law or statute that says the Hearing Board is limited in the information it can consider.

So here, K.R. comes before the Hearing Board for her de novo review, and she admitted that she had a greater drug problem than was previously known. She provided inculpatory evidence against herself, and nothing says the Board couldn’t have considered that information. The Chief Justice is concerned that there’s a double standard created here by saying that even though new information can be presented, it can’t be used to uphold a substantiation that shouldn’t have been made in the first place.

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