In Re E.C.

Decision Date02 June 2010
Docket NumberNo. 09-040.,09-040.
Citation1 A.3d 1007
CourtVermont Supreme Court
PartiesIn re E.C.




¶ 1. Appellant Department of Disabilities, Aging and Independent Living appeals a decision by the Human Services Board reversing the Department's substantiation of abuse by petitioner E.C. The Department contends that the Board misapplied 33 V.S.A. § 6902(1)(E) in its determination that petitioner's conduct did not meet the definition of abuse and that the Board did not set forth sufficient findings to form the basis for a decision. We affirm.

¶ 2. Petitioner worked as an individual assistant for special-needs students, providing one-on-one services to severely disabled students for approximately seventeen years. For four years, petitioner worked with A.M., a nineteen-year-old who has difficulty ambulating, impaired vision, a seizure disorder, and significant developmental delays and learning needs. A.M. uses a walker and has limited ability to walk and stand in a swimming pool, but has good upper body strength. He has the cognitive abilities of a child between the ages of two and four years old.

¶ 3. On February 21, 2008, petitioner and A.M. attended a physical therapy program for special-needs students in the swimming pool of a local fitness center. A.M.'s program included a series of abdominal crunches, which required petitioner to stand with her back against the wall of the pool and to support A.M. from behind. Petitioner would typically hold A.M. under his arms and around his chest while A.M. would lift his knees up toward his chest. On this particular day, however, A.M. did not want to do the exercises. He was noncompliant, splashing and vocalizing, rather than following petitioner's instructions. Petitioner asked A.M. to do the crunches, and he refused. When he said “no,” petitioner, without warning, put her hands on A.M.'s shoulders and dunked him underwater three times. After the third time, A.M. refocused and continued his program. The entire incident lasted for approximately twenty-five seconds.

¶ 4. The incident was promptly reported to the Department. Under Vermont law, upon receiving a report of abuse, the Department must investigate the report to determine if it can be substantiated. 33 V.S.A. § 6906. A person whose abuse has been substantiated has his or her name added to a registry of persons found to have committed abuse that is maintained by the Department. Id. § 6911(b). The registry is used by, among others, state agencies and prospective employers. See id. § 6911(c). Once listed, a person may seek to have his or her name expunged from the registry. Id. § 6911(f).

¶ 5. On September 9, 2008, the Department informed petitioner of its decision to substantiate the report of her abuse of a vulnerable adult, concluding that she had violated §§ 6902(1)(B) and 6902(1)(E), which define two types of abuse. 1 Petitioner appealed the Department's substantiation to the Human Services Board, see § 6906(d), which held a fair hearing on November 17, 2008. See 3 V.S.A. § 3091. Both parties stipulated prior to the hearing that A.M. was a “vulnerable adult” within the meaning of the statute. See 33 V.S.A. § 6902(14). Therefore, the only issue before the Board was whether petitioner's conduct constituted abuse. On January 12, 2009, the Board reversed the Department's decision to substantiate the report of abuse. The Board concluded that petitioner's actions, although “troubling” and “unprofessional,” did not fall within any of the statutory definitions of abuse set forth in § 6902(1). The Department timely appealed the Board's decision to this Court.

¶ 6. We generally give deference to the Board's decisions, In re P.J., 2009 VT 5, ¶ 7, 185 Vt. 606, 969 A.2d 133 (mem.), and will not set aside the Board's findings unless they are clearly erroneous. Zingher v. Dep't of Aging & Disabilities, 163 Vt. 566, 572, 664 A.2d 256, 259 (1995). Our review is thus limited to determining whether the Board applied the proper legal standard, whether the evidence before the Board reasonably supports its findings, and whether the Board's findings reasonably support its conclusions. In re Tinker, 165 Vt. 621, 622, 686 A.2d 946, 948 (1996) (mem.); Harrington v. Dep't of Employ. Sec., 142 Vt. 340, 344, 455 A.2d 333, 336 (1982); cf.

In re Entergy Nuclear Vt. Yankee Discharge Permit, 2009 VT 124, ¶ 36, 187 Vt. ----, 989 A.2d 563 ([W]here the trial court has applied the proper legal standard, we will uphold its conclusions of law if reasonably supported by its findings.” (quotation omitted)). In reviewing the sufficiency of the Board's findings, we will construe the record in a manner most favorable to the Board's conclusions.” Harrington, 142 Vt. at 344, 455 A.2d at 336.

¶ 7. The Department's first contention on appeal is that the Board applied the incorrect legal standard when it determined that petitioner did not abuse A.M. This contention is limited to the Board's conclusion that petitioner did not violate § 6902(1)(E). 2 That section defines abuse to mean [i]ntentionally subjecting a vulnerable adult to behavior which should reasonably be expected to result in intimidation, fear, humiliation, degradation, agitation, disorientation, or other forms of serious emotional distress.” The Department argues that this definition embodies an objective standard; that is, that the Board should have determined whether petitioner's conduct, from a reasonable person's perspective, “should reasonably be expected” to result in the enumerated types of emotional distress. The Department adds that the Board instead focused on whether A.M. actually suffered emotional distress, noting the Board's reliance on the fact that “A.M. was agitated prior to and during the dunking but not afterwards” and on A.M.'s “ability to get back on track.” Furthermore, the Department contends if the correct standard had been applied, that the Board would have had no choice but to substantiate the abuse as a matter of law. Although we agree that the legal standard at issue is an objective standard, we do not agree that the facts demonstrate abuse as a matter of law. We conclude that the Board's decision was consistent with an objective standard and that the Board acted within its discretion.

¶ 8. Our first recourse when interpreting a statute is to look to the plain language of the enactment. Chayer v. Ethan Allen, Inc., 2008 VT 45, ¶ 10, 183 Vt. 439, 954 A.2d 783. The plain meaning of the statute indicates that it has both subjective and objective elements. The mental element of the statute is subjective-the individual in question must have acted intentionally. The result of the individual's behavior is measured by an objective standard-whether it is reasonably to be expected that the individual's behavior will result in serious emotional distress in the vulnerable adult. Although we can reach this construction relying on the plain meaning of the language, our conclusion is also supported by the underlying purpose of the statute. See Devers-Scott v. Office of Prof'l Regulation, 2007 VT 4, ¶ 34, 181 Vt. 248, 918 A.2d 230 (noting that when plain meaning is not clear, underlying purpose of statute should guide analysis). Section 6901 indicates that the underlying purpose of the abuse-of-vulnerable-adults provisions is to “protect vulnerable adults whose health and welfare may be adversely affected through abuse.” An objective standard of behavior best furthers this purpose.

¶ 9. The Minnesota Court of Appeals recently addressed the same issue when construing a similar statute and arrived at the same conclusion.

In re Kleven, 736 N.W.2d 707 (Minn.Ct.App.2007). The Minnesota statute at issue defined abuse as [c]onduct which is not an accident or therapeutic conduct... which produces or could reasonably be expected to produce physical pain or injury or emotional distress.” Minn.Stat. § 626.5572, subd. 2(b) (2004) (emphasis added). The court, in interpreting the statute, was required to choose between applying a subjective standard or an objective standard. The court concluded that the subjective standard was “an affront to the purpose of the act and [would lead] to absurd results,” for application of that standard “would mean that the more vulnerable the adult, the worse his caretaker could permissibly treat him.” Kleven, 736 N.W.2d at 711. Therefore, the court interpreted the statute to set an objective standard. Id.; see also Williams v. Watkins, 379 S.C. 530, 665 S.E.2d 243, 246 (App.2008) (citing Kleven favorably). We agree with the Kleven decision.

¶ 10. We cannot conclude, however, that under the objective standard the facts show that petitioner committed abuse as a matter of law. The Department relies upon the dictionary definitions of “intimidation,” “agitation,” and “disorientation” to show that the terms have relatively low thresholds that must have been met here. Rather than relying on abstract definitions, we must evaluate the meaning of these terms in the context of the statute. The canon of construction, “noscitur a sociis,” which more or less means, “it is known by its associates,” MacDonough-Webster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 11 n. 2, 175 Vt. 382, 834 A.2d 25, requires us to “seek the meaning from the context, and by the light of what precedes or follows.” Park's Adm'r v. Am. Home Missionary Soc'y, 62 Vt. 19, 25, 20 A. 107, 108 (1890). The statute contains the terms “intimidation,” “agitation,” and “disorientation,” among others, and importantly concludes with the phrase, “or other forms of serious emotional distress.” 33 V.S.A. § 6902(1)(E) (emphasis added). This catchall indicates that the Legislature intended that the results in the statutory list apply only if they rise to the level of “serious emotional distress.” See id. The Department impliedly acknowledges that there is a severity element embodied in the statute in its distinction between playful, pre-warned...

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