Imagine living in a Vermont where you, without any notice, are put on a secret government blacklist so that you are prohibited for life from earning a livelihood in hundreds of occupations. Imagine the only way to be removed from the blacklist is, after seven years, to request the same government bureaucracy which accused you in the first place to expunge your record. Does this sound implausible in enlightened, liberal Vermont which boasts a constitution providing some of the strongest protections for its people of any state constitution in the country? Not only is it possible, but it is a reality in Vermont.—and similar laws have been enacted in almost every other state. Over 20,000 Vermonters, indubitably mostly poor, single parents, are on this blacklist. It is called the Child Protection Registry (different from the sex offender registry not considered here), and a person listed on the Registry has been “substantiated” for abuse of children or vulnerable adults. The names on the list are accessible to any employer who seeks to hire workers or seek volunteers to work with children or vulnerable adults.
Being placed on the registry by the Department of Children and Families (“DCF”) is easy, and the accused does not even have to be actually notified. If the accused is a minor and in the custody of DCF then DCF need only notify the child’s DCF caseworker, and the child’s “attorney of record”. In reality, the child is often never notified. In a case several years ago, the Vermont Supreme Court acknowledged that a child who was substantiated by DCF never received notice until years later when she tried to obtain work at a day care center. The Court did not find that fact troubling and upheld the decision not to expunge her record. For adults, DCF need only mail the notice by first class mail to the accused’s last known address—a procedure that certainly does not guarantee actual notice. The Vermont Supreme Court has held that the Human Services Board—the Board which hears substantiation appeals– has no jurisdiction if the party did not appeal in time, even if the accused did not actually receive timely notice.
The standard of proof DCF must meet to place a person on the registry is risibly low. It is below the standard of proof even for a case in civil court. DCF caseworkers often do not evaluate the credibility of the reporter of alleged abuse nor do they perform any independent investigation to determine the accuracy of the report. Moeover, what DCF sometimes determines is “abuse” would puzzle most people. A few years ago, DCF substantiated abuse against a mother of a teenager who had been discharged from the hospital for a drug overdose, simply because the mother did not have her teen see a second counselor until several weeks after his first counselor did not work out. The length of time it took the mother to find an appropriate counselor for her son was considered substantiated abuse.
If an accused actually receives timely notice, then he or she can request a review from a “independent” reviewer who looks at all the information, mostly hearsay, and determines if the report should be substantiated. The statute provides for the accused to provide evidence on her behalf, but does not protect the accused if she decides to remain silent.
The “independent” reviewers provided for by statute are paid by DCF.
They agree with the initial substantiation 83% of the time. If the reviewer agrees with the DCF determination, then the accused is put on the Registry. The now registered “abuser” has a right to appeal to the Human Services Board, a Board which is part of the Agency of Human Services, not part of an independent judiciary. While the Board, to its credit, has attempted to mitigate the harshness of the Registry statute, the Vermont Supreme Court has rebuked the Board for its efforts. The Vermont Supreme Court has held that the Board can only decide if DCF met its burden that abuse occurred, and cannot make any determination either whether there is a further risk of harm, or whether placement on the Registry makes sense.
At the Board level, DCF can present hearsay evidence—not allowed in civil or criminal court. Even though their liberty interests are at risk, accused persons have no right to a free attorney as they do in criminal or juvenile court. Finally, the substantiation proceedings are secret.
These proceedings would have appalled our forbearers. The right to pursue employment has been held by the Vermont Supreme Court to be a liberty interest which requires due process protections. Vermont’s constitution explicitly provides that Vermonters have a right to liberty which cannot be taken away without “due process of law”. Our constitution also states that the courts shall be open “for trial of all causes… and justice shall be therein impartially administered, without corruption or unnecessary delay.” Finally, our constitution provides that the right to civil jury trial is “sacred”. These rights enshrined in our constitution were a reaction to the abuses of the English King and parliament, in particular, the formation of the King’s “prerogative” courts, including the Star Chamber, which hauled citizens in front of the King’s inquisitors, pressured them into confessions, and imposed sanctions, all under the veil of secrecy. This procedure where the Executive—the King– was prosecutor, judge and jury was considered by our founders to be a denial of due process prohibited by our constitution.
Of particular note is the provision that the right to civil jury trial is “sacred”—the only sacred right in Vermont’s constitution. While such a right may seem a quaint anomaly today, it was considered one of the most important rights a citizen enjoyed, as a safeguard against government overreach and the influence of special interests in both the legislature and the executive branch. The concerns of our founders were well placed. We now have a secret procedure run by the executive branch which blacklists Vermonters, mostly the poor, blocking them from a pursuing a myriad of livelihoods. The procedure is, at its outset, an inquisitorial model which relies solely on the competence and good will of government bureaucrats—a reliance on which our forbearers were wisely skeptical. The Vermont Supreme Court has held that the state’s burden of proof at the Human Services Board level cures the due process frailties of this procedure. It does not. The secrecy of the proceedings protects only the government and the lack of a right to a jury trial is fertile ground for government overreach. If the public was aware of the flimsy nature and the evidentiary frailties of the accusations in substantiation proceedings, it would also be appalled.
Our constitution requires that all Vermont’s citizens should be afforded the full panoply of due process rights before they are deprived of their liberty interest in earning a livelihood. These rights are just as important today as they were when they were enshrined in our Vermont constitution.
I have written before of the frustration I feel for my clients who do not understand why Family Court judges in Vermont seem to be reluctant to enforce family court orders. Recently in three separate cases clients rightly expressed their dismay at not receiving prompt and decisive responses from the court when the opposing party flaunted a specific court order–resulting in financial distress for each client. I can only caution patience and express sympathy for their plight. New Hampshire Courts, on the other hand, seem to be far more willing to enforce court orders and to punish miscreants in family court.
What is the difference between enforcement of Vermont Family Court orders and those in New Hampshire? Let’s look at the rules. Vermont Family Rule 16 provides that a court can initiate contempt proceedings on its own motion or by motion of a party. In my 33 years of practice, I have never seen a Vermont court issue a civil contempt proceeding on its own motion. Courts are reluctant to do so because they must not only be impartial, but they must also seem to be impartial to the parties in court. A judge who issues a contempt citation on its own motion necessarily will seem not to be impartial to the litigant who is the subject of the contempt.
Rule 16 also provides that if a litigant files a motion for contempt, it must be accompanied by an affidavit, and the motion and affidavit, along with the notice of hearing, must be served by sheriff (or by certified mail, if the case involves minor children). Rule 16 provides that alleged contemnor has at least 15 days to respond prior to a hearing. This rule applies in both ongoing cases, and in closed cases.
Rule 16 also provides as follows: “The court shall issue an order initiating a proceeding only if the alleged contempt, if proven, would be a clear and substantial violation of a previous order of the court.” Emphasis added.
Thus the rule not only requires costly service of process of the motion on the violator, but also requires a high bar for the victim to prove contempt -and allows judicial discretion on what is a “clear and substantial”. violation. As a practical matter, then, the person who is the victim of an opposing party’s defiance bears a heavy burden to bring before the court the violation and prove that the violation is clear and substantial. Here is where I believe the Vermont rule needs to be changed. The victim of the violation should not have such a heavy burden to prove that the alleged contemnor violated the order. Why? Two reasons: First, because as the survey respondents indicated, the public believes that following court orders is of the highest priority, and shifting the burden to violators would send a message that the courts take violations of court orders seriously. Second, when courts are reluctant to enforce orders, victims of violations of court orders must police the violators themselves, compromise their positions, or simply allow the violation to continue because of the expense and uncertainty of filing motions for contempt. Litigants should not be put in that position.
New Hampshire’s Family court contempt rule has less onerous procedures than Vermont’s. Both allow punishment only after an opportunity to be heard, and require motions and affidavits in any post judgment proceeding. However, if there is an ongoing proceeding, a New Hampshire litigant need only file a motion with no affidavit, and service need only be by first class mail. There is no provision for a period of time for the alleged contemnor to answer.
Substantively, there is also a large difference between the rules concerning a finding of contempt. New Hampshire’s enforcement and contempt rule provides that the court may find a litigant in contempt “upon a finding of the violation of any Court order”. Thus the litigant need not prove a “clear and substantial violation”, as he or she must in Vermont; merely that the order has been violated.
New Hampshire’s rule makes more sense. First, if litigants are in the middle of divorce or other family law proceedings, any motion may be filed without an affidavit and served by first class mail in either state–except for a motion for contempt in Vermont. To require an affidavit and service for contempt motions as if the case were just starting adds an unnecessary burden on the victim of the violation, and provides no added protection for the violator. Second, New Hampshire’s standard for a finding of contempt comports with how the public feels about violations of court orders. Americans believe strongly that court orders should be strictly enforced. After all, as one client said to me, if a court won’t enforce its own orders, who will?
Litigants in Vermont Family Court who are the victims of a violator of court orders deserve to have their orders enforced and to have the violator punished, without having to shoulder the heavy burdens imposed by Vermont Family Rule 16.
- “Unbundling” legal services: In the past, if a lawyer was representing a client in family court, the lawyer was required to represent the client in all aspects of the case. This sometimes resulted in duplication of services and additional unneeded legal expenses. For example, while a client may need a lawyer to represent him or her in a child custody matter, the client may not need the lawyer to assist in child support issues. However, the rules used to require the attorney to be present at all hearings and proceedings. Now Vermont Family Proceedings Rule 15 (h) and New Hampshire Family Division Rule 1.19 allow an attorney to file a limited appearance, provided that the requirements of VRFP Rule 15 (h) or NHFDR 1.19 are met. Thus if you believe you need an attorney’s services for only part of your family court proceeding, and are able to represent yourself in other aspects of the case, your attorney can file a limited appearance for the part of the case where you need legal assistance.
- Obtaining an attorney’s advice while representing yourself: Most attorneys will be glad to give you advice about your case without requiring you to hire them to represent you in court. You can seek advice during any part of the proceedings, but I believe it is particularly important to talk an attorney about any agreement you have reached before signing the agreement. An attorney can help make sure the language in the agreement properly expresses what you agreed to. More importantly, an attorney will often be able to point out areas which may not have been covered, or pitfalls you may not have thought of. Attorneys can also assist you in drafting pleadings or agreements, but remember in New Hampshire, you must notify that court that a New Hampshire licensed attorney drafted the court pleadings.
- Educating yourself: Whether or not you hire an attorney, it is good advice to go to the Vermont or New Hampshire Judiciary pages to obtain information. Both the Vermont Judiciary Website and the New Hampshire Judiciary Website have good information for parties involved in family court litigation, and litigation forms that you can fill out yourself here and here.
- Obtaining and organizing financial documentation: Whether you are represented by an attorney or representing yourself, gathering and organizing financial documentation is a sound way to reduce attorney time and costs. In our office, if we are representing clients in Vermont Family Division, we provide the client with Form 813 A and 813 B, the financial affidavits required by the Vermont Family Court, and a checklist of documents we need—generally documents supporting the disclosures on the 813 forms. Vermont Family Court now only requires tax returns, pay stubs, and health insurance information—information necessary for child support determinations. We ask clients to provide the additional documents because they are necessary to determine property division and spousal maintenance. In New Hampshire, the Family Division requires a financial affidavit form and in the near future will also be requiring “Mandatory Initial Self Disclosure” (Family Division Rule 1.25A) which will require the same type of documents this office already requests our clients provide to us. Obtaining and organizing financial documents may seem onerous, but it will save time and money because you will need that information whether there is a contested hearing or a negotiated settlement.