On Appeal from Human Services Board Charles Gingo, Chair.
Nicholas L. Hadden, St. Albans, for Petitioner-Appellant.
William H. Sorrell, Attorney General, Montpelier, and Martha E. Csala, Assistant Attorney General, Waterbury, for Respondent-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morris, Supr. J. (Ret.), Specially Assigned.
¶ 1. In February 2004, the Department for Children and Families (DCF) determined that petitioner K.R. placed her son T.F. at risk of harm, and it included her name on the Child Protection Registry. In 2011, an independent administrative reviewer accepted the substantiation, and the Human Services Board upheld this decision. Petitioner now appeals to this Court. We reverse.
¶ 2. At the time of the substantiation, petitioner was twenty-two years old and shared custody of T.F., then age four, with T.F.’s father. Seven years after she was substantiated, petitioner requested an administrative review of DCF’s decision. See 33 V.S.A. § 4916a(j) (allowing “[p]ersons whose names were placed on the Registry on or after January 1, 1992 but prior to September 1, 2007... to seek an administrative review to challenge the substantiation”). In August 2011, following an administrative review conference, the administrative reviewer accepted the substantiation. See id. § 4916a(c)-(h) (explaining that independent and neutral arbiter conducts review conference during which petitioner can present evidence to support her position and to assist reviewer in making most accurate decision regarding allegation, and DCF bears burden of proving that it has accurately and reliably concluded that reasonable person would believe that child has been abused or neglected by that person). Petitioner appealed the administrative reviewer’s decision to the Human Services Board. See id. §§ 4916a(i) (allowing for such appeal), 4916b(a) (same).
¶ 3. The Board considered the matter de novo, and after a hearing, it upheld the substantiation decision. It made the following findings. In late August 2003, an emergency-room nurse reported to DCF that petitioner had suffered a drug overdose involving heroin, Flexeril, and Valium.  Petitioner admitted to the overdose. She stated that she was trying to “detoxify herself from Oxycontin” by using Flexeril and Valium, and that she had also used heroin on the evening in question. Petitioner’s son was not in her care at the time of the overdose.
¶ 4. Several weeks later, DCF received an anonymous report alleging that petitioner was using drugs in T.F.’s presence.  In mid-September 2003, DCF assigned an investigative social worker to petitioner’s case. DCF was concerned that petitioner had a drug problem and was using drugs while with T.F. The social worker saw T.F. on or about September 16, 2003 and found that he was developmentally on target, active, and appeared well cared for. During a September 2003 unannounced visit to petitioner’s home, the social worker found petitioner’s home well-kept, with no evidence of drug paraphernalia.
¶ 5. The social worker informed petitioner numerous times, beginning in September 2003, that DCF was concerned about the impact of petitioner’s drug use on T.F. and that it wanted petitioner to obtain a drug evaluation and follow any recommended treatment; take random urine tests to document that she was drug-free; stop using drugs and alcohol; and keep any drug paraphernalia away from T.F. The social worker repeated these recommendations to petitioner at a meeting in mid-October 2003. At this meeting, the social worker learned that petitioner had an appointment with a substance-abuse counselor at the local mental-health agency for an evaluation. The social worker informed petitioner that DCF wanted a copy of the evaluation, and she warned petitioner that she would be substantiated for posing a risk of harm to T.F. if she did not follow through with DCF’s recommendations.  The social worker met with petitioner again in November 2003 to discuss the steps petitioner needed to take, and to reiterate the warning about possible substantiation. The parties met again in January 2004 due to concerns that petitioner was not following through with DCF’s recommendations, including counseling and drug screening. In a February 2004 letter, the social worker informed petitioner that she was being substantiated for posing a risk of harm to T.F.
¶ 6. In its 2011 review, the Board found the social worker’s testimony credible in setting out DCF’s history with petitioner, DCF’s concerns about petitioner’s drug use, and the reasons for the substantiation. The social worker also kept contemporaneous case notes detailing the history of her interactions with petitioner, which the Board found corroborated her testimony.
¶ 7. While petitioner admitted at the hearing that she had overdosed in August 2003, she disputed admitting to the administrative reviewer in 2011 that she had used Oxycontin daily in 2003 and 2004. Petitioner maintained that she had used the drug only when T.F. was not in her care. Petitioner acknowledged that she might have said that she used heroin daily but indicated that she only experimented with heroin for one month. Petitioner testified that, after the overdose, she was able to stop using Oxycontin and heroin. She testified that she continued to need treatment for substance abuse. The Board found that, at the time of its decision, petitioner was in treatment for her opioid addiction and that she had been in treatment for several years.
¶ 8. Petitioner stated at the hearing that she did not remember the social worker telling her that DCF wanted a copy of a drug evaluation or informing her of the steps that DCF wanted her to take. She did not remember being asked for urinanalysis results or being told that DCF would substantiate her for risk of harm if she did not follow through with DCF’s recommendations. Petitioner testified that she sought other drug treatment and testing during the time in question but that she did not know she should share this information with the social worker. Petitioner stated that she also went to the Brattleboro Retreat at some point. She indicated that a doctor from the Brattleboro Retreat sent a letter to the administrative reviewer about her treatment. This letter did not state that petitioner was at the Brattleboro Retreat during 2003 or 2004, however, but indicated that petitioner had been in treatment for opioid dependency since July 25, 2006.
¶ 9. The Board did not credit petitioner’s testimony at the hearing that, when addicted, she limited her drug use to times when T.F. was not with her. It also found that petitioner minimized her responsibilities during DCF’s investigation. It noted that the registry reviewer who performed the substantiation review in petitioner’s case testified that petitioner admitted to daily Oxycontin use during the time in question. The reviewer stated that she ...