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.