In re R.H., 09–330.

• Decision Date: 29 October 2010
• Docket Number: No. 09–330.,09–330.
• Parties: In re R.H.
• Court: Vermont Supreme Court

14 A.3d 267

2010 VT 95

In re R.H.

No. 09–330.

Supreme Court of Vermont.

Oct. 29, 2010.

Kurt M. Hughes of Murdoch Hughes & Twarog, P.C., Burlington, for Petitioner–Appellee.William H. Sorrell, Attorney General, Montpelier, and Jody A. Racht, Assistant Attorney General, Waterbury, for Respondent–Appellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.DOOLEY, J.

¶ 1. This is one in a series of cases involving the child protection registry maintained by the Department for Children and Families (DCF). DCF included petitioner R.H. in the registry after concluding that she placed her then three-year-old daughter J.H. at substantial risk of harm by leaving her alone in an unlocked and unheated vehicle in the early morning hours of March 8, 2008. The Human Services Board reversed DCF's decision, acknowledging the risk of harm but concluding that no purpose would be served by placing petitioner's name in the registry. DCF appeals from this decision. We reverse and remand.

¶ 2. We begin with an overview of the registry process.¹ By statute, DCF must investigate reports of child abuse and neglect and maintain a record of all investigations that have resulted in a “substantiated report.” 33 V.S.A. § 4916(a)(1). The information contained in the registry is confidential, and may be disclosed only to individuals and entities specified by statute. Id. §§ 4916(c), 4919. This includes employers who provide care or transportation services to children or vulnerable adults “if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, transportation, or supervision of children or vulnerable adults.” Id. § 4919(a)(3), (e).

¶ 3. A substantiated report is one that DCF determines, after investigation, is “based upon accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected.” Id. § 4912(10). An “abused or neglected child” includes a child “whose physical health, psychological growth and development or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent.” Id. § 4912(2). “Risk of harm” means a “significant danger that a child will suffer serious harm other than by accidental means, which harm would be likely to cause physical injury, neglect, emotional maltreatment or sexual abuse.” Id. § 4912(4).

¶ 4. If DCF determines that a report should be substantiated, the party is notified and given the opportunity to seek an administrative review of DCF's intention to place the substantiated record into the registry. Id. § 4916a(a)-(c). At the administrative review conference, the petitioner has the opportunity to present documentary evidence and other information, and DCF bears the burden of proving that it has accurately and reliably concluded that the report was substantiated. Id. § 4916a(e). The administrative reviewer is a “neutral and independent arbiter,” with “no prior involvement in the original investigation of the allegation.” Id. § 4916a(f). If the administrative reviewer accepts DCF's substantiation determination, a registry record is made immediately. Id. § 4916a(h). Individuals have the right to appeal such decisions to the Human Services Board in accordance with 33 V.S.A. § 4916b, and the Board must hold a fair hearing pursuant to 3 V.S.A. § 3091. 33 V.S.A. § 4916b(a).

¶ 5. The law also provides a process by which parties can petition to have their names expunged from the registry. In such proceedings, the person seeking expungement must prove that a reasonable person would believe that he or she no longer presents a risk to the safety or well-being of children. Id. § 4916c. The statute identifies numerous factors relevant to such a determination, including: the nature of the underlying incident that resulted in substantiation; whether a similar incident is likely to occur; activities (such as therapy, employment or education) that reflect upon the person's changed behavior or circumstances; and references that attest to the person's good moral character. See id. § 4916c(b). The expungement decision may be appealed to the Board, and the “sole issue” for review in such cases is whether the commissioner abused his or her discretion in denying the request for expungement. Id. § 4916c(e).

¶ 6. As noted above, DCF determined in this case that on March 8, 2008, petitioner put J.H. at substantial risk of harm. Petitioner requested an administrative review of this decision, and following a review meeting with petitioner and petitioner's attorney, the independent reviewer accepted DCF's substantiation. See id. § 4916a(g) (administrative reviewer authorized to accept, reject, or place substantiation determination on hold pending further investigation). In a letter to petitioner, the reviewer recounted the underlying facts and cited the relevant statutory provisions defining “substantiated report” and “risk of harm.” The reviewer also relied on a DCF policy, then in effect, for cases involving a “single egregious act.” In such cases, the reviewer explained, a report should be substantiated “if a reasonable person would believe that all four of the following criteria are met: the parent or caretaker did the act alleged; the act was egregious; there was a significant risk that the child could have been physically injured as a result; and, the physical injury would be serious.” See Vermont Dep't for Children & Families, Family Services Div., Family Services Policy Manual, Policy No. 55, at 3 (effective Jan. 1, 2007) [hereinafter DCF Policy No. 55], available at http:// dcf. vermont. gov/ sites/ dcf/ files/ pdf/ fsd/ policies/ 55__ Risk_ of_ Harm__ Final_ 1– 07. pdf. The term “egregious” is defined as “conspicuously and outrageously bad or reprehensible.” Id. The reviewer determined that the legal and policy standards were satisfied and that petitioner's name should therefore be placed in the registry.

¶ 7. Petitioner then requested a fair hearing before the Human Services Board. Following a hearing, the Board reversed the substantiation. It found the following facts. The incident that gave rise to the registry action occurred while petitioner was going through a divorce from her husband. She and J.H. were returning from an out-of-state trip on a flight into Boston. The flight was delayed, and as a result, she did not begin driving to Vermont until almost midnight. She was scheduled to work the following day beginning at 8 a.m.

¶ 8. On the way home, at approximately 3:00 a.m., petitioner stopped at a friend's condominium to return a GPS system and to ask her friend to remove from her computer spyware that her husband had installed. J.H. was asleep, and petitioner decided to leave her inside the van. Petitioner intended to visit her friend for only a short time, and she believed that J.H. would be fine for that period. She turned off the car, left the radio and parking lights on, and left the car unlocked with the keys in it. J.H. had on a light winter coat and boots, but no gloves or hat. The outdoor temperature was about thirty-two degrees.

¶ 9. As it turned out petitioner was gone for approximately an hour. The police arrived around 4:00 a.m. in response to a call about a suspicious vehicle. They found J.H. in the front seat of petitioner's van. She was frightened, shivering, and asking for her mother. Her hands were cold. Shortly thereafter, petitioner returned to the vehicle.

¶ 10. Relying on testimony that post-dated this incident, the Board found that petitioner's husband had filed a relief-from-abuse action based on petitioner's actions. At the final relief-from-abuse hearing, petitioner testified that she had made a terrible mistake, she was sorry, and that it would not happen again. Petitioner stated that she had been scared and exhausted when she stopped at her friend's house; she had been getting moral support and lost track of time. She noted that she was in counseling due to the stress from her marital relationship. The family court found that petitioner had engaged in an act of “severe neglect,” and granted the relief-from-abuse order for a three-month period. The relief-from-abuse order was vacated in the fall of 2008 in connection with the parties' divorce proceedings.

¶ 11. Based on these and other findings, the Board reversed DCF's substantiation decision. As an initial matter, the Board rejected DCF's assertion that the family court's finding in the relief-from-abuse action of “severe neglect,” referenced above, conclusively established that petitioner placed J.H. at risk of harm on March 8, 2008. After evaluating the elements of collateral estoppel, the Board determined that applying the doctrine here would be unfair.

¶ 12. Turning to the merits, the Board applied a “gross negligence” or “reckless behavior” standard to determine if petitioner's actions rose to the level of “risk of harm.” Citing Rivard v. Roy, 124 Vt. 32, 196 A.2d 497 (1963), the Board defined such terms as whether “the act (a) demonstrated a failure to exercise a minimal degree of care or showed an indifference to a duty owed to another and (b) was not merely an error of judgment, momentary inattention or loss of presence of mind.” See id. at 35, 196 A.2d at 500 (“gross negligence” in motor vehicle case “amounts to a failure to exercise even a slight degree of care, and to indifference to the duty owed a guest passenger and utter forgetfulness of his safety; but there must be something more than an error of judgment, momentary inattention, or loss of presence of mind” (quotation omitted)). The Board concluded that petitioner's actions satisfied that standard here. It reiterated the essential facts, and found that leaving a child alone in a vehicle whether for a minute or for a longer period was negligent and fraught with risk.

¶ 13. Nonetheless, the Board concluded that even if gross negligence was found, the issue remained whether...