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In re K.R.

Supreme Court of Vermont

April 10, 2015

In re K.R

On Appeal from Human Services Board. Charles Gingo, Chair.

Reversed.

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

OPINION

Skoglund, J.

[¶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

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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.[1] 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.[2] 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 ...


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