In re Appeal T.O.
| Decision Date | 11 June 2021 |
| Docket Number | No. 20-302,20-302 |
| Citation | 257 A.3d 240 |
| Parties | IN RE Appeal of T.O. & L.O. |
| Court | Vermont Supreme Court |
Cristina Mansfield of Mansfield Law, LLC, Manchester Center, for Appellants.
Thomas J. Donovan, Jr., Attorney General, Montpelier, and Edward M. Kenney, Assistant Attorney General, Waterbury, for Appellee Department for Children and Families.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. T.O. and L.O. (petitioners) are the grandparents of S.O., who has been adjudicated a child in need of care or supervision (CHINS) by the family division of the superior court and is in the custody of the Department for Children and Families (DCF). Petitioners appeal from an order of the Human Services Board concluding that the Board lacked jurisdiction to determine whether DCF failed to comply with certain provisions of state and federal law concerning the care of children by relatives. We affirm.
¶ 2. We begin with a brief overview of the two statutory schemes at issue—the statutes governing the Human Services Board's jurisdiction and the relevant CHINS proceedings. The Legislature established the jurisdiction of the Board, an executive-branch adjudicative body, in 3 V.S.A. § 3091(a), which provides:
An applicant for or a recipient of assistance, benefits, or social services from the Department for Children and Families, of Vermont Health Access, of Disabilities, Aging, and Independent Living, or of Mental Health, or an applicant for a license from one of those departments, or a licensee may file a request for a fair hearing with the Human Services Board. An opportunity for a fair hearing will be granted to any individual requesting a hearing because his or her claim for assistance, benefits, or services is denied, or is not acted upon with reasonable promptness; or because the individual is aggrieved by any other Agency action affecting his or her receipt of assistance, benefits, or services, or license or license application; or because the individual is aggrieved by Agency policy as it affects his or her situation.
¶ 3. Under the juvenile judicial proceedings statutes, shortly after a CHINS petition is filed, the family division must hold a temporary-care hearing to determine whether the child will be returned to the custodial parent, guardian, or custodian, or whether temporary custody will be transferred to someone else, including a noncustodial parent, relative, or DCF. See 33 V.S.A. §§ 5307 -5308. To aid the court in that determination, at this temporary-care hearing, DCF must provide certain information to the court, including "[s]ervices, if any, provided to the child and the family in an effort to prevent removal"; "[s]ervices which could facilitate the return of the child to the custodial parent, guardian, or custodian"; and "[t]he identity and location of a noncustodial parent, a relative, or person with a significant relationship with the child known to the Department who may be appropriate, capable, willing, and available to assume temporary legal custody of the child." Id. § 5307(e)(1)-(5)(A).
¶ 4. Before informing the court of a person who may be able to assume temporary custody, § 5307 compels DCF to conduct "an assessment of the suitability of the person to care for the child." Id. § 5307(e)(5)(B). This suitability assessment includes "consideration of the person's ability to care for the child's needs," a criminal history record, and a "check of allegations of prior child abuse or neglect by the person or by other adults in the person's home." Id.; see also Department for Children and Families Policy 91, Kinship Care and Collaboration with Relatives 3 (May 2, 2019) [hereinafter Policy 91], https://dcf.vermont.gov/sites/dcf/files/FSD/Policies/91.pdf [https://perma.cc/7PYW-STBB] (mirroring this assessment requirement and its contours). DCF must also "provide information to relatives and others with a significant relationship with the child about options to take custody or participate in the care and placement of the child, about the advantages and disadvantages of the options, and about the range of available services and supports." 33 V.S.A. § 5307(h) ; see also 42 U.S.C. § 671(a)(29)(A)-(D) (). After the temporary-care hearing and resulting temporary-care order, the CHINS process may result in many possible outcomes, including the return of the child to the parents, adoption, or transfer of legal custody to a relative. See 33 V.S.A. § 5318.
¶ 5. With this statutory overview, we turn to the pertinent facts. In July 2018, the State filed a petition alleging that S.O. was CHINS, and the family division held a temporary-care hearing. The court granted temporary custody to DCF, and DCF placed the child with a foster family as the CHINS process unfolded. In October 2019, petitioners, who were licensed foster parents for S.O.’s sibling, requested an amended license to care for S.O. DCF granted petitioners the amended license but declined to place S.O. with them.
¶ 6. In May 2020, petitioners filed a petition for a hearing with the Human Services Board, arguing that DCF refused to comply with the above-noted provisions of state and federal law in failing to notify or assess them for kinship care of S.O. They maintained that this failure represented a decision by DCF to deny them a service in the form of consideration and assessment to serve as a placement for S.O., or a de facto denial of their foster care license for S.O. In response to DCF's motion to dismiss their petition, petitioners also argued that to deny them a Board hearing would amount to a violation of due process.
¶ 7. The Board dismissed the petition for lack of jurisdiction. The Board reasoned that it had jurisdiction over licensing decisions, while petitioners raised claims regarding the child's placement—a matter entrusted to DCF. Because petitioners were granted the amended license they sought, the Board concluded that there was no basis for Board jurisdiction. The Board did not consider petitioners’ argument that DCF deprived them of a service created by state and federal law, or petitioners’ due process claim.
¶ 8. In this appeal, petitioners argue that the Board has jurisdiction over their petition under 3 V.S.A. § 3091 because they are intended recipients of a "social service" from DCF, which they claim the agency failed to provide. They identify this service as the suitability assessment DCF must conduct under 33 V.S.A. § 5307. Petitioners further argue that the denial of a Board hearing constitutes a violation of procedural due process.
¶ 9. The parties briefed our standard of review as one deferential to the Board. Normally, we extend deference to the Board's decisions. See, e.g., In re E.C., 2010 VT 50, ¶ 6, 188 Vt. 546, 1 A.3d 1007 (mem.). But, here, the Board did not address the question of statutory interpretation at issue in this appeal, namely, whether petitioners are recipients of a social service under § 3091. The Board determined that it lacked jurisdiction because its authority extended to licensing decisions and petitioners raised claims regarding the child's placement, a distinct matter. See In re B.F., 157 Vt. 67, 70, 595 A.2d 280, 281 (1991) (). The Board did not consider petitioners’ argument that they had been denied a service. Thus, there is no agency interpretation requiring deference.
¶ 10. When interpreting a statute, our aim is to discern and effectuate the Legislature's intent. Northfield Sch. Bd. v. Wash. S. Educ. Ass'n, 2019 VT 26, ¶ 13, 210 Vt. 15, 210 A.3d 460. "If the intent of the Legislature is apparent on the face of the statute because the plain language of the statute is clear and unambiguous, we implement the statute according to that plain language." Flint v. Dep't of Labor, 2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080. In doing so, we "examine and consider fairly, not just isolated sentences or phrases, but the whole and every part of the statute, together with other statutes standing in pari materia with it, as parts of a unified statutory system." Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38, ¶ 20, 194 Vt. 12, 72 A.3d 346 (alteration omitted) (quotation omitted). If statutory language is ambiguous, "we consider the statute's subject matter, effects and consequences, as well as the reason for and spirit of the law." Cornelius v. Chronicle, Inc., 2019 VT 4, ¶ 18, 209 Vt. 405, 206 A.3d 710 (quotation omitted).
¶ 11. It is unclear from the record whether DCF assessed petitioners’ suitability to care for S.O. Assuming it did not, we hold that petitioners are not "recipients" of a "social service" from DCF as those terms are used in § 3091, and accordingly, they are not entitled to a hearing before the Human Services Board. Our conclusion is based on the plain language of the relevant statutes and further supported by their purposes and effects.
¶ 12. As relevant, § 3091 provides that "[a]n applicant for or a recipient of assistance, benefits, or social services from the Department for Children and Families ... may file a request for a fair hearing with the Human Services Board." 3 V.S.A. § 3091(a). The sentence that follows similarly makes "[a]n opportunity for a fair hearing" dependent on the presence of "assistance, benefits, or services." Id. Thus, for example, we have reviewed the Board's orders over agency decisions regarding food-stamp benefits, Hall v. Dep't of Soc. Welfare, 153 Vt. 479, 572 A.2d 1342 (1990) ; Medicaid benefits, In re Landry, 2015 VT 6, 198 Vt. 565, 119 A.3d 455 ; and developmental disability services, In re R.R., 2019 VT 31, 210 Vt. 88, 210 A.3d 1246.
¶ 13. We specifically reviewed the Board's jurisdiction in Vigario v. Dep't of Soc. Welfare, 140 Vt....
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