Summary
The Vermont Supreme Court reviewed a Human Services Board decision reversing the Department for Children and Families’ determination that D.McD. placed his children at risk of harm by driving intoxicated with them in the vehicle. The court held that the Board improperly considered the petitioner’s post-incident rehabilitation and future risk rather than focusing on whether the alleged conduct constituted a risk of harm under the applicable statutory and agency standards. The court reversed and remanded for application of DCF’s policy concerning single egregious acts.
Topics
Practice areas
Questions Presented
- Whether the Human Services Board erred by considering D.McD.'s post-incident rehabilitation and likelihood of future harm when determining whether his conduct placed the children at risk of harm under the child protection registry statutes.
- Whether the Board was required to apply DCF's policy concerning single egregious acts in deciding whether D.McD.'s conduct constituted risk of harm.
Holdings
- The Board erred by considering D.McD.'s rehabilitative efforts and likelihood of future harm. The statutory inquiry is limited to whether a reasonable person would believe that the child was placed at substantial risk of harm by the acts or omissions occurring on the date at issue.
- On remand, the Board must apply DCF's policy on single egregious acts to determine whether D.McD. placed his children at risk of harm.
Key quotations
“The Board was not asked to decide petitioner’s future risk of harm, and petitioner’s rehabilitative efforts, while laudable, were irrelevant to the question before the Board.” (189 Vt. 543)
“On remand, the Board must apply DCF’s policy on single egregious acts to determine if petitioner placed his children at risk of harm.” (189 Vt. 543)
Factual background
In March 2008, D.McD. drove while intoxicated with his two six-year-old children in the vehicle. Police found the children asleep in the car, several open beer cans in the passenger area, and observed numerous signs that D.McD. was intoxicated. Although D.McD. later obtained mental-health treatment, counseling, medication monitoring, and other assistance, the Board relied on that post-incident conduct and related opinions in finding that he was unlikely to pose a future risk to children.
Procedural history
DCF substantiated that D.McD. placed his two children at risk of harm by driving while intoxicated with them in the vehicle and notified him that he would be listed in the child protection registry. An administrative reviewer upheld the determination. The Human Services Board reversed, reasoning that D.McD. was unlikely to pose a future risk because he had undertaken rehabilitative measures. The Supreme Court of Vermont reversed and remanded.
Remand instructions
The Human Services Board must apply DCF Policy No. 55 concerning single egregious acts and determine whether a reasonable person would believe that D.McD. committed the alleged act, that it was egregious, that it created a significant risk of physical injury, and that the injury would be serious.