Appealing a DCF Substantiation of Abuse or Neglect

The Vermont Department of Children & Families (DCF) Family Services Division investigates reports of child abuse or neglect and is required by law to determine whether the actions reported should be substantiated. A substantiated report means DCF decides the report is based on what it considers accurate and reliable information that “would lead a reasonable person to believe the child has been abused or neglected.”

Anyone substantiated for child abuse or neglect may challenge the decision, and the law provides opportunities for review after a recommendation of substantiation.  The first chance for review is from an independent reviewer; the second is a Fair Hearing; and, finally, in some cases, review by the Vermont Supreme Court.

People substantiated on or after September 1, 2007, have the right to request a review to challenge the substantiation before their name is placed on the Child Protection Registry (Registry).  If substantiated, DCF will send a letter stating it intends to add the name to the Registry, and that the individual has the right to request an independent review within 14 days of when the letter was mailed.  If a request for independent review is not made within the allotted time, the name is added to the Registry, DCF’s decision is final, and any further right of review is lost.

Upon a timely request for independent review of the substantiation, DCF will provide the time and place of the review, the review procedures – including ways to submit information for the independent reviewer to consider – along with copies of most of the investigation documents DCF relied on to recommend the substantiation.

After holding the independent review, the reviewer has three options: he or she may (1) reject or overturn the substantiation; (2) uphold the substantiation; or, (3) place it on hold and direct DCF to investigate further.  Notification of the decision is provided.  If the independent reviewer upholds the substantiation, the record will immediately be added to the Registry. Should that occur, the law presents the right to appeal the decision to the Human Services Board (Board). There is a deadline to request this appeal, and if missed, any further right to review is lost.

The appeal to the Board is basically a trial (called a Fair Hearing), though it is not held in a courtroom by a judge, but rather a conference room in a State building by a Hearing Officer.  During this Fair Hearing, the State will produce witnesses, experts and other evidence in an attempt to prove its determination of substantiation was justified.  Opportunity is given to cross-examine the State’s witnesses and experts, and bring independent witnesses and experts to show the substantiation was not reasonable, or justified.  It is important to realize, however, that the State will be able to cross-examine those witnesses and experts.  In addition, the accused has the opportunity to testify; though, the State can ask questions.

Much like the independent reviewer, the Hearing Officer may reject or overturn the substantiation; or, (2) uphold the substantiation.  The Hearing Officer will give his recommendation to the entire Board, which then decides whether or not to overturn or uphold the substantiation.  If the substantiation is upheld, there may be one last opportunity to appeal the decision: a petition to the Vermont Supreme Court.  While the Court might grant the petition and hear the matter, new evidence is not presented.  The issues are relegated only to matters of law.

Where a charge of abuse or neglect is substantiated, the individual’s name is placed on the Registry for at least three (3) years if the designated child protection level is 2 or if substantiated before age 18.  If the designated child protection level is 1, the name remains on the Registry for at least seven (7) years. Being placed on the Registry may have serious consequences.  It could limit the ability to have contact with children – any children – and may limit job opportunities, in addition to other costs.

The DCF substantiation process is complex and time consuming.  It usually involves the police and States’ Attorneys, as well as doctors, social workers, and The Office of The Attorney General.  The entire incident can be very stressful, with real consequences for entire families that can last for many years. The experienced attorneys at Bergeron, Paradis & Fitzpatrick, LLP, can assist in every step of this complicated process – from the initial investigation through and including each stage of the appeals process.