Human Services Board Decisions

Fair Hearing No. A-07/10-341 – summary judgment opinion – DCF filed for summary judgment in a “risk of sexual abuse” substantiation case where petitioner had had unsupervised contact with his girlfriend’s son. Petitioner had a conviction for murder of a young cousin more than 20 years before, when petitioner was 14, and a juvenile adjudication for sexual assault on the same victim. Petitioner also has a life sentence and was on furlough. DCF based its motion entirely on petitioner’s convictions and the fact that the unsupervised contact was in violation of petitioner’s furlough conditions. The HSB denied the motion for summary judgment, stating that according to DCF’s own rules, “history alone is not sufficient without a showing that the petitioner still poses a risk of sexual harm to the alleged victim.”

Fair Hearing No. N-04/10-181 – DCF’s only evidence of sexual abuse was a videotaped interview with a 5 year old child. Because the petitioner had been in jail on unrelated charges for over a year, the touching must have occurred when the child was 3 or 4. The child, now 7, was available and testified that he had no memory at all of the events in question. The hearing officer viewed the video and excluded it under VRE 804a, not because the content was questionable, but because the timing and circumstances failed to provide “substantial indicia of trustworthiness.” The hearing officer noted that DCF made no attempt to question the child about when the incidents had occurred, and also made no effort to rule out “any other possible explanations” for the allegations, such as “coaching.” The HSB did not explicitly exclude the video under 804a, although the Board adopted the reasoning of the hearing officer regarding the lack of trustworthiness of the interview. The HSB opinion hinted at excluding the video and ultimately decided that, even if the video was admissible, the evidence failed to establish by a preponderance that petitioner had sexually abused the child.

No. 08-297 The substantiation of physical harm was upheld based on testimony from school officials. The child could no longer remember being kicked twenty months later.

No. 08-309 The substantiation for abuse of daughter was reversed when the Department could not locate critical witnesses.

No. 08-486 The substantiation was overturned where the Department failed to file CHINS proceeding or take other action based on parents conduct over a prolonged period of time when the conduct was known to DCF, school and medical personnel.

No. 08-305 Petitioner’s appeal of substantiation was dismissed as untimely (submitted 80 days, not 30 days, after the review decision).

No. 08-237 Petitioner’s substantiation for risk of harm was upheld based on Petitioner’s chronic drug abuse, and leaving a knife, cigarette lighter, and cigarettes within the reach of a two year old.

No. 09-508 The substantiation of risk of harm for failure to provide appropriate medical care was upheld based on collateral estoppel from findings in contested CHINS proceeding.

No. 09-186 The substantiation of risk of harm by petitioner for DUI with kids in the car was reversed as it was a single instance of bad behavior subsequently addressed with meds and counseling does not support substantiation.

No. 08-293 Petitioner reflexively slapped child in the face causing bruise after child pinched his other hand between chair and bookcase. In this case the board found the petitioner did not pose a risk and closed the case finding the act accidental and harm not intended.

No. 09-96 The Department failed to show by a preponderance that petitioner failed to exercise a minimal degree of care towards the child or showed an indifference of duty towards the child.

No. 08-05 Here the finding was no risk of harm, collateral estoppel against DCF.

No. 09-258 Risk of harm must be shown based on evidence showing a significant risk that a child will be harmed, not on speculation.

No. 09-239 Substantiation for risk of harm sexual overturned. Petitioners knowingly allowed a convicted child sex abuser to have contact with their children without actual harm and contact was always supervised except for one brief accidental encounter.

Contact Information

Office of the Defender General
6 Baldwin Street, 4th Floor
Montpelier, VT  05633-3301
(802) 828-3168
(802) 828-3163 (fax)