In re M.S., 2016-300

• Decision Date: 21 July 2017
• Docket Number: No. 2016-300,2016-300
• Citation: 2017 VT 64
• Court: Vermont Supreme Court
• Parties: In re M.S.

2017 VT 64

In re M.S.

No. 2016-300

Supreme Court of Vermont

March Term, 2017

July 21, 2017

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Human Services Board

Charles A. Gingo, Chair

Amanda T. Rundle and Christopher M. Rundle of Rundle & Rundle, PLLC, Springfield, for Petitioner-Appellant.

William H. Sorrell, Attorney General, Montpelier, and Jody A. Racht, Assistant Attorney General, Waterbury, for Respondent-Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. REIBER, C.J. Petitioner—a former instructional aid and soccer coach at Springfield High School—seeks to challenge his placement on the Child Protection Registry. The Department for Children and Families (DCF) placed petitioner on the Registry in December 2010 after substantiating that he had solicited, groomed, and sexually abused a sixteen-year-old Springfield High School student at his home during the fall 2009 semester. Petitioner appealed this substantiation to the Human Services Board, but the Board dismissed the appeal because it was untimely filed and because petitioner did not demonstrate good cause for the untimely filing. Petitioner now argues that (1) the Board incorrectly applied the excusable neglect standard rather than the good cause standard when it assessed whether he could proceed with his appeal despite its untimely filing; and (2) the trial court's acceptance of his no contest plea for contributing to the delinquency of a minor—which has no sexual act requirement—acts as a collateral estoppel against a substantiation that he sexually abused the student. We affirm.

¶ 2. Petitioner was employed as an instructional aid and soccer coach at Springfield High School until he moved to California in December 2009. In May 2010, DCF opened an investigation into a report that petitioner coerced a sixteen-year-old female student at the school to have sexual intercourse with him at his home on November 6, 2009. Petitioner was thirty-seven years old at the time of the alleged sexual intercourse. On November 23, 2010, DCF sent petitioner a letter entitled "Notice of Substantiation and Intent to Place Name on Registry."¹ The letter informed petitioner, "Based on the information we gathered, we have determined that a reasonable person would conclude that you did sexually abuse this child." The letter went on to explain that petitioner had until December 9, 2010, to request a review of this substantiation, and, if he did not request a review by that date, he would be placed on the Child Protection Registry as a Level One offender.²

¶ 3. On the same day that DCF sent petitioner the substantiation letter, the State criminally charged petitioner with sexual exploitation of a minor in violation of 13 V.S.A. § 3258. That statute prohibits a person from "engag[ing] in a sexual act with a minor" if the person is "atleast 48 months older than the minor" and "in a position of power, authority, or supervision over the minor by virtue of . . . undertaking the responsibility, professionally or voluntarily, to provide for the health or welfare of minors, or guidance, leadership, instruction, or organized recreational activities for minors." Id. The court released petitioner on bail but required him to surrender his Vermont educator license. On December 9, 2010, petitioner requested that DCF review its substantiation and also stay the review pending the conclusion of his criminal case. DCF responded by letter the following week, informing petitioner that it had stayed its review of the substantiation but had placed his name on the Registry in the meantime.

¶ 4. In January 2011, the State amended its charge against petitioner to contributing to the delinquency of a minor in violation of 13 V.S.A. § 1301. That statute reads, "A person who causes, encourages, or contributes to the delinquency of a minor shall be imprisoned not more than two years or fined not more than $2,000.00, or both." Id. Petitioner pleaded no contest to the amended charge in November 2011. The court accepted his plea, entered an adjudication of guilty, and sentenced petitioner to a $500 fine. In doing so, the court specifically noted that the plea was "voluntary and made with knowledge and understanding of the consequences and after a knowing waiver of constitutional rights." And it further noted, "Plea found to have a factual basis."

¶ 5. Petitioner's attorney died in November 2012 without renewing a request for review of petitioner's substantiation with DCF, despite the fact that petitioner's criminal case concluded a year before. Petitioner attempted to restore his Vermont educator license in mid-2013 through the state Department of Education but was unsuccessful; he was subsequently informed by DCF that he was still listed on the Registry. In September 2013, he wrote to DCF explaining that he was "wrongly accused of an accusation in 2010," that he was "not convicted," and that he was "unaware" that he was still listed on the Registry. In October 2013, DCF responded that it had begun the process of reviewing the substantiation but that petitioner would not be eligible to request expungement of his name from the Registry until November 22, 2017.

¶ 6. In January 2014, DCF held a telephone conference to review petitioner's substantiation. Petitioner was self-represented during this conference. After the conference, DCF sent petitioner a letter upholding both the substantiation and petitioner's placement on the Registry. Referring to the November 2010 substantiation, the letter began by explaining that DCF had previously determined that petitioner had "solicited and groomed" the student through "extensive electronic contact," including phone calls, text messaging, and Facebook correspondence, and had engaged in "forceful sexual intercourse" with the student at his home. It then stated that the substantiation indicated that the report was "based upon accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected." It went on to acknowledge petitioner's claims during the telephone conference: petitioner "never had any other issues or accusations made against" him; the student "has extensive issues with her mental stability and with lying"; the student "was a student at [his] school but was not [his] student"; and he "reached out" to the student only because he "knew [her] father from going to high school together."

¶ 7. But DCF ultimately determined that the student's recounting of events was more credible than petitioner's and upheld the substantiation on that basis. The letter noted that the student disclosed her allegations "several months after the sexual abuse incidents, without leading or prompting" and "offered extensive and particular details describing several rooms of [petitioner's] home," and there was nothing to indicate that the student "had any motivation to make false accusations." Petitioner's recounting of events, on the other hand, was "inconsistent with the factual documentation, minimized [his] actions, and lacked overall credibility and accountability." DCF further explained that these concerns were particularly relevant in light of petitioner's no contest plea to the criminal charge of contributing to the delinquency of a minor. The letter concluded by informing petitioner that he had thirty days to appeal to the Human Services Board if he wished to appeal the decision further.

¶ 8. Petitioner did not appeal within thirty days. Instead, in March 2015—thirteen months later—petitioner retained counsel and requested a second DCF review of the substantiation. The letter requesting this second review pointed out that 33 V.S.A. § 4916a—the statute detailing the process for appealing substantiations to the DCF Commissioner—allows DCF to waive the normal appeals deadline. The letter then focused on petitioner's no contest plea for contributing to the delinquency of a minor and argued that the court's acceptance of that plea was proof that he had not sexually abused the student. Petitioner's letter stated that "a plea to a misdemeanor offense, that does not include any sexual activity as an element of proof, constitutes the equivalent of an acquittal or dismissal of the criminal charge that would have otherwise justified [petitioner's] designation as a sexual offender." It further suggested that DCF should have reviewed the substantiation after the court accepted petitioner's no contest plea but had not done so, presumably because petitioner's attorney died before bringing the plea to DCF's attention.

¶ 9. The next month, DCF sent petitioner a letter denying his request for a second review. It explained not only that 33 V.S.A. § 4916a "does not provide a second opportunity for [petitioner] to challenge his placement on the Registry," but also that petitioner's classification as a Level One offender was "consistent" with DCF policy because petitioner "engaged in sexual intercourse with a student at the same school." The letter noted the DCF policy that a Level One classification is appropriate "when the substantiation of a person responsible for a child's welfare involves substantial child endangerment, there are court adjudications for related conduct; or there is a high risk of future harm based on the assessment of risk." Seemingly referring to petitioner's no contest plea, the letter further stated that "there was a court adjudication for the same conduct in a criminal case," but it confusingly concluded that "[t]he disposition of the criminal case has no bearing on DCF's substantiation." In May 2015, petitioner sent a...