Substantiation Situation

Can't let that clock run out

In re M.S., 2017 VT 64

By Elizabeth Kruska

Here’s something you probably have not thought about: DCF substantiations.

There’s this odd creature of statute called the Substantiation. It’s part of child protection and happens largely off-screen. It’s like the Wizard of Oz behind the curtain.

There’s a child protection registry (let’s call it “the Registry” from here on out because that’s what it’s called). It’s a confidential list and is not accessible to the general public. If someone engages in certain behavior (or doesn’t, as the case may be) that causes a DCF investigation to take place, that person could be substantiated for his or her behavior. It’s a low standard to be substantiated—it’s based on the evidence obtained, that a reasonable person could conclude that a child was abused or neglected. 

The next step is that the person is to be notified of the substantiation and DCF’s intent to place the person on the Registry. There are two levels: Level One and Level Two. Level One is reserved for more serious cases of substantial child endangerment, court-adjudicated child-related conduct, or high risk of future harm. Everything else is Level Two. The level matters for whether someone is immediately placed on the Registry and how long the person is on the Registry.

This information also isn’t public. It’s not like there’s a DCF Registry website everyone can look at like the sex offender registry. It becomes important if someone has future DCF involvement, like with their own kids or wanting to help out with someone else’s kids, or if someone is applying for work having to do with kids. An elementary school would, upon considering an applicant, contact the Registry to find out if the person is on it or not as a part of a background check. They don’t get information underlying the reason a person is on the registry, just that they are.

Even though this isn’t public information, it is the government taking an action against someone that has the possibility of having an impact on them. Therefore, a person has a right to due process in challenging this adverse government action. That’s where the substantiation review process comes in, which is what this case is all about.

And I recognize this is a long walk to get to the heart of the matter, but it’s helpful to understand how and why this case even is a thing. Also, I have a sense that people might not even know that DCF substantiations exist. And if you don’t know, now you know.

M.S. was a coach who worked at a school in Springfield. He was alleged to have engaged in some inappropriate sexual behavior with a student. A complaint was made and he was charged with a criminal offense alleging sexual exploitation of a minor. He also received a notice from DCF that he was going to be substantiated for sexual abuse of a minor, all arising out of the same set of allegations. He pled not guilty to the criminal charge and asked for the substantiation to be reviewed.

When there’s a substantiation connected to a criminal matter, it’s very common for the substantiation review to be stayed until the criminal case is resolved. A criminal defendant has Fifth and Sixth Amendment rights to silence during the pendency of their criminal cases. In the review process it’s common that an accused person (substantiee? That’s a terrible word I just made up) would have to discuss the underlying allegation. That’s directly contrary to silence.

For Level One-type allegations, even if someone asks for a review and a stay of the review, they get placed on the Registry pending the appeal. If the criminal case resolves and the substantiation is reversed, then the person can be removed. Practically speaking, someone could be charged with an offense and have the case kick around for a couple years before it goes to trial. But in the meantime, as a child protection measure, the person is on the Registry.

Ultimately, M.S. pled no contest—which means he did not admit guilt—to an amended misdemeanor charge of contributing to the delinquency of a minor. Don’t lose your minds over this. It’s entirely possible that as the case unfolded it also simultaneously fell apart. There might have been some trial risk to the state, but not enough risk that M.S. wanted to take a chance with a trial on a really serious charge. It happens.

Normally, at this point, M.S. would reach out and seek review of the substantiation, but for whatever reason didn’t do that. Here’s a guess: he probably assumed his lawyer would do that, which is reasonable. But the lawyer didn’t do that, and then the lawyer died.

A year and a half-ish after he pled out to the charge he tried to restore his educator license. That got denied when they found out he was on the Registry. At this point M.S. wrote to DCF explaining that the underlying charge was basically a false allegation and that he didn’t know he was still on the registry. He asked for a review. DCF discovered he isn’t eligible to be expunged from the list until 2017, which (a) was 3 years from the time of his writing and (b) is now a year ago. Funny how time works. No, not funny at all, because we’re all not getting younger.

But DCF allowed the review to go forward and held a phone conference to review the substantiation. They upheld it, finding that M.S. engaged in grooming behavior, solicited the student, and ultimately had sex with her. DCF found the student’s account of the matter more credible than M.S.’s, and also that they were considering the fact he pled no contest to the contributing charge. They informed him he had 30 days to appeal that decision to the Human Services Board.

He filed an appeal, but it was fifteen months later. He hired a lawyer who wrote a letter focusing on the underlying issues, and also the fact that there was no admission of guilt (because, no contest plea) and that the charge was amended to something lacking sex-related elements (also true). DCF, the honey badger (this just doesn’t get old) of administrative agencies, doesn’t care and denies the request for appeal.

So, then, he appealed to the Human Services Board in March 2015, but that was outside the statutory time limit for appeals. They docketed it anyway (why?) and didn’t address the fact it was untimely (why?), but instead discussed a collateral estoppel issue.

Then motions got filed and then all of a sudden it’s 2016 and M.S. was required to file a motion about the timeliness issue. Finally the case got dismissed for lack of jurisdiction because the Human Services Board couldn’t find that the review request was filed late for good cause.

What’s a good cause? Your mailman is Newman and just didn’t deliver it, and as we all know, when you control the mail, you control . . . information. Or, I don’t know, it isn’t defined, but the Human Services Board probably knows it when they see it.

M.S. appealed the Board’s refusal to accept his appeal, not the finding of a substantiation based on the underlying facts of it.

SCOV upholds the Human Services Board. It looks at the timelines set forth in the statute. It’s fairly clear about what the timelines are. The part about delay for “good cause” isn’t defined but does allow for some leeway in case it’s needed. But the petitioner has to actually show good cause, and it doesn’t appear that’s really been addressed in this case.

SCOV also clears up what the Legislature left sort of ambiguous. They indicate that the “good cause” language in the statute goes directly to petitioner needing to show why his appeal is untimely. It doesn’t have anything to do with the underlying facts. SCOV finds the words “good cause” in other rules and statutes, and generally they all have to do with timeliness of filing, not of the substance of the underlying cases.

SCOV finds that M.S. was entirely in control of his timing. Because he filed well after the deadline, and can’t show good cause for having done so, SCOV finds the Human Services Board just doesn’t have jurisdiction to hear this matter.

He also appealed DCF’s use of his no-contest plea to justify his being a Level One Registry entrant. His argument was basically that he didn’t plead to a sexual assault offense, so Level One is too high, given the situation.

SCOV disagrees. There was no adjudication at all of the original charge, so there could be no collateral estoppel argument. The charge was amended to a different charge with different elements. Since the elements were different, that does not estop DCF from going forward on a substantiation based on the same alleged incident. SCOV isn’t getting involved in whether Level One or Level Two is appropriate, because they don’t even need to get to that point.