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In re Appeal of Durkee

Supreme Court of Vermont

June 9, 2017

In re Appeal of Dezarae Durkee

         Supreme Court On Appeal from Human Services Board June Term, 2016 Charles Gingo, Chair

          Marc D. Nemeth of Law Office of Marc D. Nemeth, PLC, White River Junction, for Petitioner-Appellant.

          William H. Sorrell, Attorney General, Montpelier, and Seth A. Steinzor, Assistant Attorney General, Waterbury, for Respondent-Appellee.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          REIBER, C.J.

         ¶ 1.This case requires us to determine whether the Department for Children and Families (DCF) may deny an applicant temporary housing assistance under General Assistance (GA) Rule 2652.3 for having left her housing in response to a notice of termination without cause from her landlord. DCF argues that applicant caused her own loss of housing and therefore is ineligible for assistance, and the Human Services Board upheld this determination. Applicant argues that leaving in response to a notice of termination without cause does not constitute causing her own lack of housing and requests declaratory judgment and damages. We reverse and grant declaratory judgment but conclude that damages are not appropriate relief.

         ¶ 2. DCF administers the GA program, which consists of financial aid to provide the necessities of life, including shelter for those in need. See 33 V.S.A. § 2101(4). The program does not provide housing directly. Instead, it provides financial relief toward housing with no presumption that this aid will lead to permanent housing. See Bouvier v. Wilson, 139 Vt. 494, 501, 431 A.2d 465, 469 (1981). The DCF Commissioner has authority to establish eligibility standards and regulations for providing relief. 33 V.S.A. §§ 2103(b), 2104(b). DCF defines GA as "an emergency financial assistance program" for those with needs beyond the capacity of other programs and that "cannot be relieved without [DCF's] intervention." General Assistance § 2600, Code of Vt. Rules 13-170-260, http://www.lexisnexis.com/hottopics/codeofvtrules [https://perma.cc/Q7TK-EPDL] [hereinafter GA Rules]. 33 V.S.A. § 2103(a) requires DCF to distinguish between catastrophic and noncatastrophic situations of need. Applicants who meet the criteria under the noncatastrophic situation are eligible for twenty-eight days of financial assistance. See GA Rule 2652.3.

         ¶ 3. The facts in this case are undisputed. Applicant, a single mother, rented a mobile home where she lived with her three children between the ages of four and twelve. One of applicant's children is on the autism spectrum and received treatment locally. This child received $776 monthly in Social Security Disability Insurance, which was the household's sole source of income. At the time, applicant also received food stamps, but did not receive Reach Up financial assistance because she had already received sixty months of assistance and could not meet the work participation requirements to remain in the program. On April 30, 2015, applicant's landlord served applicant with a notice of termination without cause and advised her that the termination would be effective on August 2, 2015. On August 3, 2015, applicant left the mobile home with her children and stayed the night in a motel near the DCF offices. Her landlord immediately took the mobile home off the rental market, and the parties agree that applicant could not return. Applicant did not wait for and never received an eviction order from a court.

         ¶ 4. On August 4, 2015, applicant applied to DCF for temporary housing under GA Rule 2652.2, the catastrophic relief program, claiming that she had to leave her housing because it was not safe for her children. DCF asked her to come back with evidence to substantiate her claims. DCF also determined that applicant had other shelter for the evening at the motel and other options for shelter-specifically, her mother and the father of one of her children had each offered temporary shelter for applicant and her family. Because she had already paid for another night at the motel and therefore had other shelter for the evening, DCF denied applicant assistance that same day.

         ¶ 5. Applicant applied for temporary housing again the next day. She brought no evidence to support her claims that the mobile home was not safe. This time, she also applied under GA Rule 2652.3, the noncatastrophic program designed for "vulnerable persons." DCF denied applicant assistance on the basis that she had voluntarily left her own housing by leaving the mobile home after receiving a notice of termination but before receiving an eviction order from a court. The case worker who met with applicant wrote on her application for assistance, "Notice to quit only-no eviction." There is no dispute that applicant met the other criteria for assistance under this rule.

         ¶ 6. The day after that, applicant returned to the DCF office with her lawyer, who also had been her landlord's lawyer. Applicant argued that she should not have to wait for an eviction order from a court, and thereby undergo court proceedings, to get assistance under GA Rule 2652.3 once the landlord had formally terminated her tenancy without cause by serving her with a notice of termination. Applicant did not renew her claims of uninhabitability at that time and has not done so since.

         ¶ 7. The matter came up for expedited hearing on August 12, 2015, before a hearing officer of the Human Services Board. The hearing officer was initially uncomfortable with applicant's attorney representing applicant at the hearing due to potential conflicts of interest. In response, applicant waived any potential conflicts, including her claim of uninhabitability, and proposed to argue only the issue of requiring applicant to undergo a court-ordered eviction in order to get assistance under GA Rule 2652.3. The hearing officer then proceeded with the hearing and ultimately recommended to the Board that DCF's decision be upheld. As the reason for the recommendation, the hearing officer stated that applicant "did not show proof that she could not have remained in her last housing." The hearing officer agreed with DCF that a court-ordered eviction was required for applicant to qualify for assistance under GA Rule 2652.3, writing that "[w]hether or not she had a viable defense, " applicant "would have been legally in possession of the premises until the Court acted." Absent a court-ordered eviction, the hearing officer recommended that the Board find that applicant had voluntarily left her housing.

         ¶ 8. The Board heard applicant's case and accepted the hearing officer's recommendation, upholding DCF's decision to deny temporary assistance under GA Rule 2652.3. The Board found that applicant had not met her burden of showing by a preponderance of the evidence that she met the eligibility requirements for assistance under GA Rule 2652.3. Specifically, the Board found that applicant had caused her own loss of housing by "voluntarily leaving" her previous housing when she left after receiving her landlord's notice of termination.

         ¶ 9. On appeal, applicant argues that DCF erroneously denied her benefits under GA Rule 2652.3. She contends that her departure from her housing cannot be considered voluntary because she left after receiving a notice of termination without cause. Applicant further argues that DCF's policy would force her into court to contest an eviction action without a valid defense, thus damaging her long-term prospects for finding shelter. DCF argues that this case is moot because under GA Rule 2652.3, applicant could now receive assistance, as more than six months have passed since the day she left her housing. Failing that, DCF argues that its decision rested on a legitimate governmental purpose-prioritizing limited state resources to assist the people who need it most-and that DCF acted within its ...


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