NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2025 VT 48
No. 24-AP-298
In re Appeal of S.C.-M. Supreme Court
On Appeal from Human Services Board
May Term, 2025
Michael J. Donohue, Chairperson
Matthew Valerio, Defender General, and Kerrie Johnson, Appellate Defender, Montpelier, for Appellant.
Charity R. Clark, Attorney General, and Zachary D. Martin and Julianne Woolard, Assistant Attorneys General, Montpelier, for Appellee.
PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.
¶ 1. COHEN, J. Petitioner S.C.-M. appeals the Human Services Board’s decision
affirming his substantiation by the Department for Children and Families (DCF) for placing a
child, L.M., at risk of sexual harm. Petitioner argues DCF failed to prove by a preponderance of
the evidence that petitioner placed L.M. at risk of sexual harm and that the Board improperly added
findings that were both outside the record and unsupported by the evidence to reach its conclusion.
Petitioner also asserts DCF abused its discretion by declining to consider the individual facts and
circumstances of the case when it accepted the report as an investigation rather than an assessment
based solely on petitioner’s age. We affirm.
I. Legal Framework
¶ 2. Chapter 49, subchapter 2 of Title 33 sets forth the process for reporting and
responding to incidents of child abuse and neglect. Under § 4915, DCF must promptly assess a report and, “[i]f the report is accepted as a valid allegation of abuse or neglect,” DCF must conduct
either an assessment or investigation. An investigation must be conducted “when an accepted
report involves allegations indicating substantial child endangerment,” which includes “conduct
by an adult involving or resulting in sexual abuse.” 33 V.S.A. § 4915(a)-(b), (d). The statute
provides, however, that DCF “may conduct an investigation of any report.” Id. § 4915(d). If DCF
determines through investigation that a report “is based upon accurate and reliable information
that would lead a reasonable person to believe that [a] child has been abused or neglected,” the
report is considered “[s]ubstantiated.” Id. § 4912(16).1 DCF maintains a “Child Protection
Registry that . . . contain[s] a record of all investigations that have resulted in a substantiated
report.” Id. § 4916(a)(1).
¶ 3. Following the initial determination that a report of abuse or neglect is substantiated,
DCF must send notice to the person alleged to have committed the abuse or neglect of “the right
to request a review of the substantiation determination by an administrative reviewer.” Id.
§ 4916a(a)(4). If the person requests review, DCF is required to hold an administrative-review
conference at which the substantiated person may present evidence or other information supporting
their position. Id. § 4916a(e). If the reviewer upholds the substantiation determination, the person
has the right to appeal to the Board. Id. § 4916a(i). The Board is required to hold a hearing at
which the petitioner and DCF may present evidence and DCF must prove the facts alleged by a
preponderance of the evidence. 3 V.S.A. § 3091; Fair Hearing Rules § 1000.3(O), Code of Vt.
Rules 13 020 002 [hereinafter Fair Hearing Rules], http://www.lexisnexis.com/hottopics/
codeofvtrules; see In re R.H., 2010 VT 95, ¶ 17, 189 Vt. 15, 14 A.3d 267. The Board or the hearing
officer then issues written findings of fact, and “[i]f the hearing is conducted by a hearing officer,
1 At the time of the investigation, substantiation was based on a reasonable-person standard. As of September 2024, the statute requires proof by a preponderance of the evidence. 2023, No. 154 (Adj. Sess.), § 3. All statutes cited herein refer to the statutes in operation at the time of the investigation. 2 the hearing officer’s findings shall be reported to the Board, and the Board shall approve the
findings and adopt them as the findings of the Board unless good cause is shown for disapproving
them.” 3 V.S.A. § 3091(c).
¶ 4. If the hearing officer provides recommendations, the Board may “adopt the
recommendation of the hearing officer, or reject it and reach different conclusions on the basis of
the evidence at hand, or refer the matter back to the hearing officer for a continuation of the hearing
or for the receipt of additional evidence” upon considering all of the facts and arguments by the
parties. Fair Hearing Rules § 1000.4(F). The Board may affirm, modify, or reverse DCF
decisions, and both parties may appeal this decision to the Supreme Court. 3 V.S.A. § 3091(d), (f).
II. Factual and Procedural Background
¶ 5. In October 2020, DCF substantiated petitioner for risk of sexual harm to a child.
Petitioner requested a review, and in June 2022, the Commissioner’s Registry Review Unit upheld
the substantiation. Petitioner appealed to the Board. A hearing officer appointed by the Board
conducted a hearing in March 2024 and issued her proposed findings of fact and recommendation
in July 2024. The hearing officer recommended that the substantiation be reversed.
¶ 6. In September 2024, the Board issued its decision, which adopted the following
findings of fact from the hearing officer pursuant to 3 V.S.A. § 3091(c) but affirmed the
substantiation. In 2006, petitioner was substantiated for sexually abusing a minor based on a report
that he touched the breasts and buttocks of a twelve-year-old girl over her clothing. Petitioner was
twenty years old at the time and was reportedly “developmentally delayed.” Petitioner has a
learning disability, difficulty comprehending legal matters, anxiety when speaking with authority
figures, post-traumatic stress disorder, and depression. He functions between the upper end of the
intellectually deficient range and the low end of the borderline range of intelligence with a low
average processing speed.
¶ 7. In 2011, petitioner married his husband, with whom he currently lives.
3 ¶ 8. In 2019, petitioner pled guilty to open and gross lewdness involving an eighteen-
year-old male college student, as well as providing false information to law enforcement.
Petitioner was put on probation and was required to adhere to sex-offender special conditions of
probation. Petitioner was required to participate in and complete a treatment program for sex
offenders. As of July 2020, petitioner completed the intake but had not begun sessions.
Petitioner’s conditions also provided that petitioner “may not initiate or maintain contact with
females . . . under the age of 16 unless otherwise approved in advance and in writing by [the]
Probation Officer.” The condition further provided that “[s]aid contact may require being
accompanied by a responsible adult, approved by [the] Probation Officer or designee[;] unless
otherwise supervised by a third party adult guardian or parent.”
¶ 9. Petitioner has met with the same probation officer since 2019, except for a one-year
period around 2022 when petitioner met with a different officer. The probation officer initially
allowed petitioner to have contact with the four minor female and male children of a friend with
either the children’s parents or petitioner’s husband present. The probation officer subsequently
retracted this approval when he learned that petitioner’s husband was substantiated in 2000.2
¶ 10. Around ten years ago, petitioner and his husband became acquainted with L.M.’s
mother. In early 2020, L.M.’s mother posted on Facebook seeking a babysitter for L.M.
Petitioner’s husband saw this post and offered to help. Petitioner’s husband began to babysit L.M.
in petitioner’s presence at their apartment and petitioner would accompany his husband and L.M.
on outings. Petitioner did not tell his probation officer about his husband babysitting L.M.
¶ 11. In 2020, L.M. was eight years old, identified as a transgender boy, went by a
traditionally male name, wore stereotypical boy clothing, and had cropped hair. L.M.’s mother
knew petitioner would be around L.M., that petitioner was on probation for a sex offense, and that
2 Petitioner’s husband was only twelve years old at the time and DCF no longer substantiates children in most cases. DCF did not substantiate petitioner’s husband in this matter, concluding that he posed no risk because he was a minor at the time of his substantiation in 2000. 4 he had been substantiated in 2006. She did not know the 2019 offense involved a male college
student. L.M.’s mother was not concerned about L.M. being around petitioner.
¶ 12. Petitioner and his husband watched L.M. a couple days a week as needed and more
frequently in the summer. At times L.M. slept over at their 700-square-foot apartment. During
this time, petitioner’s friend lived with petitioner and his husband in their apartment and slept on
the sectional couch. Petitioner’s friend knew that petitioner was on probation.
¶ 13. When L.M. spent the night, he would either sleep on the couch near petitioner’s
friend, or on the floor in the bedroom doorway. Petitioner’s husband would sometimes move L.M.
from the floor to the couch. Petitioner’s bed is located against the wall in the bedroom and
petitioner sleeps on the side next to the wall while his husband sleeps on the side closest to the
bedroom door. The bathroom door is accessible through the bedroom.
¶ 14. From the couch, petitioner’s friend could see L.M. when he was on the couch or
the floor and could see into petitioner’s bedroom when the door was open. L.M. never got into
bed with petitioner and his husband. When L.M. slept on the couch, the bedroom door would be
closed. Petitioner’s friend could hear when L.M. would get up in the night, usually to use the
bathroom, and petitioner’s friend would let L.M. use her phone as a flashlight. When L.M. needed
to shower, petitioner’s husband would set out clean clothes and towels for L.M., start the shower,
and then shut the bathroom door in order for L.M. to shower by himself. L.M. would then get
dressed on his own and petitioner’s husband would clean up the bathroom afterward.
¶ 15. When petitioner’s husband and petitioner took L.M. on an outing, petitioner’s
friend would often accompany them. Petitioner’s husband or friend was always with L.M. and
petitioner was never alone with L.M.
¶ 16. Prior to this babysitting arrangement, L.M. experienced mental health and
behavioral problems. However, L.M. did not have these issues with petitioner’s husband and
5 petitioner; they all enjoyed spending time together and L.M. looked up to petitioner and his
husband, who were like family to him.
¶ 17. In July 2020, DCF received a report that petitioner and his husband posed a risk of
sexual harm to L.M. DCF opened an investigation and the investigator first interviewed L.M. and
his mother. L.M. stated that he enjoyed spending time with petitioner and his husband, he was sad
he would no longer be watched by them, petitioner and his husband were supportive of his gender
identity, and petitioner would sleep on the bedroom floor sometimes because he felt scared at
night. L.M. also stated that petitioner’s friend stayed at the apartment and slept on the couch. L.M.
reported one instance where he heard petitioner and his husband whispering and heard the bed
move and thought petitioner and his husband may be having sex. The investigator then told L.M.’s
mother that petitioner and his husband should not watch L.M.
¶ 18. In August 2020, the investigator interviewed petitioner over the phone with
petitioner’s husband and friend present.3 Petitioner told the investigator that he would stay in his
friend’s car or at a neighbor’s house when L.M would stay the night and that he did not know L.M.
was born female. Petitioner told the investigator that he had not told his probation officer about
the babysitting because they “did not see eye to eye.” Petitioner’s friend identified herself and
stated she could verify that L.M. would sleep on the couch because she was also sleeping on the
couch. Petitioner and his husband refused to speak further without an attorney.
¶ 19. Petitioner had a legal guardian at the time who communicated to the investigator
that petitioner needed assistance.4 The investigator attempted to accommodate petitioner by asking
petitioner if he wanted to meet with his guardian, probation officer, or an attorney. Petitioner’s
3 Petitioner’s friend testified she was not present during this call, but the Board credited the investigator’s testimony over the friend’s testimony. 4 Petitioner’s friend was formally appointed as petitioner’s guardian by the probate court in February 2023. It is not clear from the record whether petitioner’s friend was also his guardian at the time in 2020. 6 attorney subsequently contacted the investigator to set up an interview, but shortly before the
meeting the attorney canceled the meeting on petitioner’s request.
¶ 20. In October 2020, the investigator completed the investigation and substantiated
petitioner for risk of sexual harm to L.M. The investigator based this decision on interviews with
L.M., his mother, the probation officer, petitioner, petitioner’s husband, and petitioner’s friend, as
well as petitioner’s 2006 substantiation, petitioner’s criminal history, and guidance from the
investigator’s supervisor.
¶ 21. The Board found that despite petitioner’s cognitive limitations and anxiety,
petitioner understood that he was prohibited from having unsupervised contact with females under
the age of sixteen. The Board found petitioner’s statements to the investigator that he did not know
L.M. was biologically female conflicted with L.M.’s mother’s testimony and were not credible.
His statements that he would sleep elsewhere when L.M. stayed the night were similarly not
credible because they were contradicted by his husband’s testimony. The Board ultimately found
that petitioner had “regular and ongoing access” to L.M. including on occasional nights. The
Board reasoned that although petitioner was never alone with L.M., this was not equivalent to
constant supervision because L.M. went on numerous outings with petitioner present, and spent
occasional nights in petitioner’s home while his husband and friend were sleeping, including on
their bedroom floor, and no adult approved by the probation officer was present to supervise.
¶ 22. The Board found that petitioner’s lies to the investigator also demonstrated
nonaccidental conduct. It concluded that DCF established by a preponderance of the evidence that
petitioner posed a risk of harm to L.M. under 33 V.S.A. § 4912(14). Petitioner appealed.
III. Analysis
¶ 23. We review the Board’s decision regarding substantiation for an abuse of discretion.
In re R.H., 2010 VT 95, ¶ 21. We are limited to deciding whether the Board “applied the proper
legal standard, whether the evidence before the Board reasonably supports its findings, and
7 whether the Board’s findings reasonably support its conclusions.” In re M.V., 2022 VT 31, ¶ 11,
216 Vt. 491, 282 A.3d 941 (quotation omitted).
¶ 24. Petitioner first argues that DCF failed to prove that petitioner resided with L.M. or
was unsupervised with L.M., and therefore failed to prove by a preponderance of the evidence that
he placed L.M. at risk of sexual abuse. An “abused or neglected” child is a child who is at
“substantial risk of harm by the acts or omissions of . . . [a] person responsible for the child’s
welfare” and can also include a child who is at “substantial risk of sexual abuse by any person.”
33 V.S.A. § 4912(1). As relevant to this appeal, “risk of harm” is defined as “a significant danger
that a child will suffer serious harm . . . which harm would be likely to cause . . . sexual abuse,
including as the result of . . . a registered sex offender or person substantiated for sexually abusing
a child residing with or spending unsupervised time with a child.” Id. § 4912(14)(F).
¶ 25. The Board found that L.M. spent the night on several occasions at petitioner’s
apartment with petitioner present. Petitioner does not challenge this finding. Though the Board
found petitioner was never alone in the home with L.M., it reasonably inferred from the
circumstances that petitioner had opportunities to access L.M. while petitioner’s husband and
friend were asleep. In turn, petitioner’s access to L.M. coupled with the evidence of petitioner’s
prior record, his disingenuous statements to the investigator that he slept elsewhere when L.M.
was over and didn’t know L.M. was born female, and his deliberate failure to report about the
babysitting arrangement to his probation officer, supported the Board’s conclusion that petitioner
posed a risk of harm to L.M.
¶ 26. Petitioner argues the term “unsupervised” in 33 V.S.A. § 4912(14) should be
defined to mean being around a child without the presence of another adult, even if that adult is
sleeping. We, and the Board, must defer to DCF’s interpretation of the statutes governing child-
abuse substantiation. In re M.V., 2022 VT 31, ¶ 22. DCF has evidently adopted a broader
interpretation of the term “unsupervised” in considering risk of harm. Viewed as a whole, the
8 statute appears to support this broader view, as it defines risk of sexual harm to include a “person
substantiated for sexually abusing a child residing with a child or spending unsupervised time with
a child.” 33 V.S.A. § 4912(14)(F) (emphasis added). The term “residing with” is not limited to
substantiated persons who live alone with a child. The statute therefore plainly contemplates that
the presence of other adults does not prevent a determination of risk of sexual harm.
¶ 27. Petitioner argues the Board’s decision was arbitrary because the Board reached the
opposite conclusion in a 2024 substantiation appeal with “nearly identical facts.” In that case, the
petitioner was convicted of possession and distribution of child pornography and substantiated for
this conduct. Fair Hearing No. B-06/23-418, at 2 (Hum. Servs. Bd. Sept. 6, 2024),
https://outside.vermont.gov/agency/AHSHSB/Orders/Documents/2024/FH-B-06-23-418%20
Order.pdf [https://perma.cc/68PF-5D8M]. The petitioner had probation conditions that restricted
his contact with minors. He was substantiated by DCF for knowingly spending unsupervised time
with his fiancée’s two minor children during two overnight stays, during which his fiancée was
allegedly inebriated. Id. at 4. The Board reversed the petitioner’s substantiation because DCF
failed to consider the factors described in DCF’s policy for substantiation, the petitioner was
determined to be a low-risk offender, the petitioner’s fiancée provided credible evidence of her
commitment to the children’s protection, the petitioner had engaged in sex-offender treatment, the
petitioner was found to be credible in his testimony, and there was insufficient evidence that the
fiancée was so incapacitated that she was unable to provide supervision. Id. at 23-24.
¶ 28. The Board’s decision in Fair Hearing No. B-06/23-418 is not inconsistent with its
decision in the present matter. Several facts distinguish the two cases: (1) the petitioner in that
case had started sex-offender treatment and petitioner here had not; (2) the petitioner in that case
was determined to be a low-risk offender after completion of a risk assessment, whereas petitioner
here had not been assessed; (3) the petitioner in that case only spent two nights with the children
and petitioner here was present for babysitting during the school year and summer, and L.M.
9 occasionally spent nights at petitioner’s apartment; and (4) the petitioner in that case did not
conceal his conduct, unlike petitioner here, who did not inform his probation officer and lied to
the DCF investigator. Id. at 22-25. In Fair Hearing No. B-06/23-418, the Board found that DCF
did not consider these factors when substantiating the petitioner and failed to prove there was any
actual risk due to lack of supervision. Id. at 22-23. In contrast, here DCF presented evidence of
petitioner’s lack of credibility, petitioner’s prior record and lack of sex-offender treatment, and
that petitioner had repeated opportunities to access L.M. for the Board to consider in making its
decision. The two cases are therefore not so similar that it was arbitrary for the Board to reach
different conclusions in each.
¶ 29. Petitioner next argues that, as part of the “risk of harm” analysis, DCF was required
to prove that the 2006 substantiation was valid by a preponderance of the evidence and failed to
do so. Petitioner asserts DCF substantiated petitioner in 2006 based on the “constitutionally
deficient” reasonable-person standard and therefore the underlying conduct needed to be proven
by a preponderance of the evidence to avoid denying petitioner due process of law because his
protected liberty interest was at risk. Petitioner further argues that the hearing officer unfairly
denied his request for discovery to obtain the investigation files for the 2006 substantiation.
¶ 30. The Board was required to evaluate whether DCF established by a preponderance
of the evidence that petitioner posed a risk of sexual harm to L.M. See Fair Hearing Rules
§ 1000.3(O). DCF alleged that petitioner posed such a risk because he had been substantiated for
sexually abusing a child and was spending unsupervised time with L.M. See 33 V.S.A.
§ 4912(14)(F) (defining “risk of harm” as a “significant danger that a child will suffer serious harm
by other than accidental means, which harm would be likely to cause . . . sexual abuse, including
as the result of . . . a registered sex offender or person substantiated for sexually abusing a child
residing with or spending unsupervised time with a child”).
10 ¶ 31. Contrary to petitioner’s argument, DCF did not need to prove the facts underlying
the 2006 substantiation to support the current substantiation. The statute only required DCF to
show that petitioner had been previously substantiated, and not whether the underlying facts of the
prior substantiation were established by the current burden of proof. Id.; In re M.V., 2022 VT 31,
¶¶ 15, 18 (holding we look to plain language of statutes and “we do not read words into a statute
that are not there”). It was undisputed that petitioner was substantiated in 2006. This ends the
inquiry.
¶ 32. Petitioner is essentially requesting a second look at the allegations in his 2006
substantiation under a standard not in place at the time. See 2023, No. 154 (Adj. Sess.), § 3
(amending 33 V.S.A. § 4912(16) in September 2024 to require DCF prove elements by
preponderance of evidence in order to substantiate). Petitioner had the opportunity to request
review of the 2006 substantiation but did not do so, making it final. 33 V.S.A. § 4916b(d). He
cannot challenge that substantiation in this proceeding. See Town of Pawlet v. Banyai, 2024 VT
13, ¶ 11, 219 Vt. 90, 315 A.3d 1008 (“When a party’s arguments are an impermissible collateral
attack, they are barred.” (quotation omitted)). Because the validity of the 2006 substantiation was
not at issue in this proceeding, petitioner has also failed to demonstrate that the hearing officer
committed reversible error in denying his request for discovery of the investigation files for the
2006 substantiation.
¶ 33. Petitioner asserts he should be able to challenge the validity of the 2006
substantiation because has a protected liberty interest in avoiding erroneous placement on the child
protection registry and a right to a fair hearing. We agree with petitioner that the interest in
avoiding erroneous placement on the child protection registry is substantial because it negatively
impacts employment opportunities and petitioner’s reputation. See Lowell v. Dep’t for Child. and
Fams., 2024 VT 46, ¶ 32, __ Vt. __, 325 A.3d 42. However, petitioner’s interest in avoiding
potentially erroneous placement on the child protection registry is protected by the extensive
11 review process afforded by statute. See id. ¶¶ 34-37. It does not give him the right to reopen a
final decision from nearly two decades ago. Accepting petitioner’s argument would potentially
require DCF to relitigate all substantiations finalized prior to September 2024 in future
substantiation proceedings. Notably, when the Legislature amended the substantiation burden of
proof, it did not state the burden should be applied retroactively. Petitioner’s argument would
effectively contravene the Legislature’s intent through collateral attacks during later substantiation
proceedings. See A.B. v. S.U., 2023 VT 32, ¶ 21, 218 Vt. 123, 298 A.3d 573 (holding “any
retroactive application must be explicit” due to “general prohibition against retroactive
construction of statutes in 1 V.S.A. § 214”).
¶ 34. In the alternative, petitioner argues there is an insufficient connection between the
2006 substantiation and the alleged threat petitioner posed to L.M. because the 2006 incident
occurred fourteen years prior to the 2020 report, when he was much younger, and involved a girl.
When a person under investigation by DCF has been previously substantiated, DCF policy directs
investigators to collect the following information about the prior substantiation: (1) the date of the
offense and the amount of time that has passed since the offense; (2) the offender’s age at the time
of the prior offense; (3) the victim’s age, gender, and relationship to the offender; (4) the offense
behavior, severity, frequency, and duration; and (5) whether any treatment was completed.
Department for Children and Families Family Services Policy Manual, Risk of Harm/Sexual
Abuse Investigations No. 57, at 3 [hereinafter DCF Policy No. 57], https://dcf.vermont.gov/fsd/
laws-rules/policies [https://perma.cc/BH7L-V64D]. Investigators are also instructed to consider
the history of sexual abuse or offenses perpetrated by the offender when deciding to substantiate.
DCF Policy No. 57, at 6.
¶ 35. Here, DCF collected evidence that fourteen years earlier, in 2006, petitioner was
substantiated for touching the breasts and buttocks of a twelve-year-old girl over her clothing. He
was twenty years old at the time. The incident occurred in the basement of another person’s house
12 with several other people present but no parent, guardian, or caregiver. There is no indication that
petitioner completed any treatment for the 2006 substantiation. DCF considered these factors in
its justification for substantiation. The Board evidently concluded that the circumstances of the
2006 substantiation, specifically the victim’s age and gender and petitioner’s behavior, were
sufficiently similar to be relevant to the current case. It was reasonable for the Board to weigh
these factors over the length of time since the 2006 substantiation, particularly because L.M. and
the 2006 victim were of similar ages and petitioner attempted to conceal that he knew L.M. was
born female. See In re T.C., 2007 VT 115, ¶ 26, 182 Vt. 467, 940 A.2d 706 (“The factfinder is
best situated to weigh evidence.”).
¶ 36. Petitioner next argues the Board speculated as to the contact between petitioner and
L.M. and made findings outside of the record. Specifically, petitioner argues the Board
impermissibly speculated in paragraph 39 of its decision that petitioner could have had
unsupervised contact with L.M. despite finding petitioner was never alone with L.M. and
testimony from petitioner’s husband and friend that both would wake up if either petitioner or
L.M. moved.
¶ 37. The Board adopted the hearing officer’s findings, which it was required to do absent
good cause. 3 V.S.A. § 3091(c). However, the Board was not required to adopt the
recommendation of the hearing officer as to the ultimate legal issue. Fair Hearing Rules
§ 1000.4(F). The Board’s statements in paragraph 39 reflect the beginning of the Board’s own
analysis and the inferences it drew from the facts. Its statement that petitioner “had regular and
ongoing access to [L.M.], including on occasional nights” was a reasonable inference based on the
amount of time L.M. spent with petitioner and his husband, including overnights. The Board did
not make findings outside the record.
¶ 38. We are unpersuaded by petitioner’s claim that the Board’s statements in
paragraph 39 deprived petitioner of due process because petitioner was unaware the Board would
13 form its own opinion and therefore was unprepared to respond to the Board’s conclusion about the
potential for unsupervised contact. The record below, including the transcripts of the hearings and
petitioner’s own filings, shows that petitioner was on notice that his substantiation was premised
on the fact that he was allegedly spending unsupervised time with L.M. He therefore had the
opportunity to prepare for arguments and evidence that petitioner was unsupervised or residing
with L.M. Again, that the Board weighed the evidence differently than how petitioner wished is
not an abuse of discretion. See In re T.C., 2007 VT 115, ¶ 26.
¶ 39. Petitioner also argues the Board abused its discretion by relying on the 2019
conviction because it involved an adult, and the statute requires proof that the person being
substantiated is a registered sex offender or was previously substantiated for abusing a child.
However, the Board and DCF did not rely on the 2019 offense to satisfy this element of the
statutory definition of risk of harm. Rather, they considered it as an additional factor alongside
the 2006 substantiation, petitioner’s failure to engage in sex-offender treatment, and petitioner’s
dishonest responses during the investigation and failure to notify his probation officer that he was
caring for L.M. We see no error in the Board’s consideration of evidence of petitioner’s 2019
conviction for a sex-related offense. DCF Policy No. 57 states investigators should “begin their
investigation by gathering and reviewing as much background information as possible” which may
include, but is not limited to, Department of Corrections (DOC) records. DCF Policy No. 57, at 1.
¶ 40. DCF Policy No. 57 further states if an offender is under DOC supervision,
investigators should contact DOC to determine the offender’s compliance with supervision and
treatment, among other factors. Id. at 3-4. DCF has the authority to issue rules “outlining
procedures for investigations.” 33 V.S.A. § 4922(a)(3). Therefore, DCF had the authority to
include DOC records in its investigation to evaluate whether petitioner put L.M. at risk of sexual
abuse. Petitioner’s 2019 offense and subsequent supervision by a probation officer was relevant
to the investigation as it involved sexual misconduct. See DCF Policy No. 57, at 6.
14 ¶ 41. Finally, petitioner argues DCF abused its discretion by declining to consider the
individual facts and circumstances and instead mandating an investigation based solely on
petitioner’s age. Petitioner argues DCF’s policies contravene the Legislature’s intent to create “a
range of responses to child abuse and neglect” that balance “the need to protect children and the
potential employment consequences of a registry record for persons who are substantiated” by
mandating investigation in circumstances not explicitly prescribed by the statute. See 33 V.S.A.
§ 4911(4), (5).
¶ 42. The statute states DCF “shall conduct an investigation when an accepted report
involves allegations indicating substantial child endangerment.” Id. § 4915(d). “ ‘Substantial
child endangerment’ includes conduct by an adult involving or resulting in sexual abuse.” Id.
DCF’s policy for screening reports of child abuse and neglect further clarifies the term “substantial
child endangerment” and what potentially constitutes “involving or resulting in sexual abuse.” See
Department for Children and Families Family Services Policy Manual, Child Safety Interventions
No. 51, at 16 [hereinafter DCF Policy No. 51], https://dcf.vermont.gov/fsd/laws-rules/policies
[https://perma.cc/GL6W-G5R2].5 The policy states DCF shall investigate a report “if [the report]
alleges substantial child endangerment, including but not limited to allegations that . . . [a] child is
at risk of harm for sexual abuse by any adult” and other possible scenarios. Id. Petitioner argues
that by mandating investigations into allegations that a child is at risk of harm for sexual abuse by
any adult, DCF is acting contrary to the statute, which only requires investigations when there is
conduct by an adult involving or resulting in sexual abuse.
¶ 43. We disagree with petitioner. The plain language of the statute provides a
nonexhaustive list of conduct considered to result in substantial child endangerment. This
includes, but is not limited to, conduct by an adult involving or resulting in sexual abuse. 33
5 The same language appeared in the version of DCF Policy No. 51 that was in effect at the time of the substantiation. 15 V.S.A. § 4915(d); see In re Windham Windsor Hous. Tr. JO Appeal, 2024 VT 73, ¶ 5, __ Vt. __,
328 A.3d 1225 (“When interpreting a statute, our primary goal is to give effect to the legislative
intent and to do so we first look to the plain meaning of the statute.” (quotations omitted)).
Moreover, the statute expressly provides that DCF “may conduct an investigation of any report.”
33 V.S.A. § 4915(d). The Legislature also granted DCF the authority to promulgate “rules setting
forth criteria for determining whether to conduct an assessment or an investigation.” Id.
§ 4922(a)(1).
¶ 44. DCF exercised this authority in DCF Policy No. 51. The policy defines allegations
that require an investigation because DCF considers them to constitute “substantial child
endangerment,” including and in addition to what was explicitly defined in the statute. DCF Policy
No. 51, at 16. As we stated previously, we defer to DCF’s interpretation of the statute it is charged
with executing. In re M.V., 2022 VT 31, ¶ 22. Requiring investigation of allegations of “risk of
harm” is reasonable, because the term “endangerment” includes risk and not just actual harm. See
Endangerment, Black’s Law Dictionary (12th ed. 2024) (“The act or an instance of putting
someone or something in danger; exposure to peril or harm.”). DCF’s policy is an authorized
elaboration on terms that were not specifically defined or limited in the statute.
¶ 45. Petitioner argues DCF is required to consider the three factors in 33 V.S.A.
§ 4915(c) when determining whether to conduct an assessment or investigation, and automatically
requiring an investigation into allegations of risk of sexual abuse by an adult contravenes the
statute. However, § 4915(c) merely states “[t]he decision to conduct an assessment shall include
consideration of the following factors.” (Emphasis added.) Section 4915(c) does not involve
investigations and did not require DCF to evaluate petitioner under those factors when it
determined that the report against him involved allegations that qualified as substantial child
endangerment.
16 ¶ 46. Petitioner faults DCF for not conducting an individualized assessment of his case.
However, DCF considered the factors set forth in DCF Policy No. 57, which are similar but not
identical to the assessment factors in § 4915(c), when deciding whether to substantiate him.6 DCF
Policy No. 57, at 6. DCF decided to substantiate petitioner because petitioner was substantiated
in 2006 for sexual abuse of a minor, petitioner had a 2019 offense of sexual misconduct with an
adult, petitioner had ongoing access to L.M., petitioner had not completed sex-offender treatment,
and petitioner was not credible in his responses to the investigator and concealed his access to and
association with L.M. The Board did not abuse its discretion in affirming petitioner’s
substantiation based on these facts.
Affirmed.
FOR THE COURT:
Associate Justice
6 DCF Policy No. 57 states the following criteria are to be taken into account when deciding to substantiate: “[t]he history of sexual abuse or offenses[,] [t]he nature of the abuse or offense[,] and] [t]he history of treatment.” DCF Policy No. 57, at 6. 17