In re Selivonik

IN_RE_SELIVONIK.94-170; 164 Vt 383; 670 A.2d 831

[Filed 17-Nov-1995]

       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,
  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.


                                 No. 94-170


In re Tonya Selivonik                             Supreme Court

                                                  On Appeal from
                                                  Agency of Human Services
                                                  Human Services Board

                                                  February Term, 1995



Theodore C. Kramer, Chair

       Robert Appel, Defender General, Anna Saxman, Appellate Defender, and
  Karen Barney, Legal Intern, Montpelier, for appellant

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane
  and Alexandra N. Thayer, Assistant Attorneys General, Waterbury, for
  appellee Department of Social and Rehabilitation Services


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       JOHNSON, J.  Petitioner sought to expunge her name from a state
  registry of sex abusers and appeals from an order of the Human Services
  Board denying her petition.  We affirm.

                                I.

       Petitioner was 15 years old in October 1988, when the Department of
  Social and Rehabilitation Services (SRS) initiated delinquency proceedings
  against her as a result of a violation of 13 V.S.A. § 3252(3), which
  allegedly occurred in May 1988.  The petition charged that she had engaged
  in inappropriate sexual conduct by fondling and kissing a child's penis
  while babysitting the child.  The court dismissed the delinquency petition
  in December 1988, and the State did not appeal.  The juvenile record in
  that matter was then sealed.

 

       The complaint was investigated by an SRS worker (FN1) and a state
  trooper, and in June 1988, SRS independently determined the complaint was
  substantiated and entered petitioner's name in its state registry for sex
  abusers.(FN2)  Petitioner was not notified of SRS's determination that the
  report was substantiated and was not told her name was entered on the state
  registry.

       In the fall of 1992 petitioner was employed at a day care center, and
  some time after she began work, the program's director was told by a parent
  that allegations of sexual assault had previously been made against
  petitioner.  The director confirmed the report with SRS, which warned that
  the program would be in violation of its license if it continued to employ
  petitioner. Petitioner was discharged from her employment.

       In January 1993 petitioner applied to the Human Services Board for an
  order expunging her name from the state's registry.  After an
  administrative hearing, the hearing officer recommended that petitioner's
  record be expunged from the state's registry, based on his interpretation
  of the registry statute and without reaching a decision on the merits.  The
  Board rejected the hearing officer's interpretation and remanded for a
  decision on the merits.  The hearing officer made further findings of fact
  and recommended that the petition be denied.  The recommendation was
  accepted by the Board.  The present appeal followed.

                                II.

       Petitioner argues first that since she was a child at the time her
  name was entered into the state child abuse registry, she has the right to
  expungement under 33 V.S.A. § 4916(g), which provides:

          (g)  A person may, at any time, apply to the human
     services board for relief if he or she has reasonable cause to

  

     believe that contents of the registry are being misused.  All
     registry records relating to an individual child shall be destroyed
     when the child reaches the age of majority.  All registry records
     relating to a family or siblings within a family shall be destroyed
     when the youngest sibling reaches the age of majority.  All
     registry records shall be maintained according to the name of the
     child who has been abused or neglected, and the name of the
     person about whom the report was made.

  (Emphasis added.)

       Petitioner contends that the Board ignored the plain meaning of the
  statute in ruling that the word "child" in § 4916(g) applied only to the
  victim and not to the person about whom the report was made, since the
  statute provides, "All registry records relating to an individual child
  shall be destroyed when the child reaches the age of majority."  We do not
  agree.

       As originally drafted, Section 4912(g) concluded with the clause, "All
  registry records shall be maintained according to the name of the child who
  has been abused or neglected." 1981, No. 207 (Adj. Sess.), § 1.  There was
  no provision for maintenance of records in the name of the perpetrator. 
  Thus, the original references to "child" had only one meaning -- the child
  who was the victim of abuse.  As petitioner concedes, the name of the
  abused child and the perpetrator were expunged when the child reached the
  age of majority.  The statute's concluding phrase, "and the name of the
  person about whom the report was made," was added by the Legislature in
  1990.  1989, No. 295 (Adj. Sess.), § 5.  The obvious purpose was to prevent
  loss of the perpetrator's name when the abused child's name was expunged
  from the registry.

       Petitioner argues that once "the person about whom the report was
  made" was included in the section, the Legislature also intended a change
  in the previous meaning of "child" to cover a child who was also a "person
  about whom the report was made."  Petitioner argues that testimony by a
  witness before the House Health and Welfare Committee in 1990 supports her
  argument that the Legislature intended to allow expungement of child
  perpetrators when they became adults.  Although a legislative witness did
  advocate this position to the committee, and suggested language be added to
  the bill to effectuate this result, the Legislature did not do so. In the
  context of a statute whose main purpose is the prevention of child abuse,
  the more

 

  persuasive interpretation is that the names of perpetrators were to be
  maintained regardless of age.

       Petitioner persuasively argues that our interpretation of the statute
  is inconsistent with the more general public policy of the state relating
  to juvenile offenders, which is to "remove from children committing
  delinquent acts the taint of criminality and the consequences of criminal
  behavior."  Title 33 V.S.A. § 5501(a)(2).  It is somewhat ironic that if
  petitioner had been convicted of child sexual abuse in juvenile
  proceedings, her record would have been sealed to protect her from the
  stigma of her misconduct in adulthood.  See In re R.D., 154 Vt. 173, 176,
  574 A.2d 160, 161 (1990).  Moreover, her conviction in the juvenile court
  would not have permitted the imposition of any civil disabilities resulting
  from the conviction or operated to disqualify her from any civil service
  application or appointment.  33 V.S.A. § 5535(a).  Instead, petitioner is
  permanently stigmatized by a Human Services Board finding, based on a
  preponderance of the evidence, that she committed one instance of sexual
  abuse.(FN3)  Although an expungement remedy is available in theory, the
  Legislature left no discretion in the Human Services Board to expunge an
  act for reasons other than that the allegation is untrue.

       Nevertheless, that the sexual abuse registry statute is seemingly
  contradictory to other public policies of the state is not sufficient to
  overcome the Legislature's intent to treat child sexual abuse as a special
  area of concern warranting different treatment.  The solution to
  petitioner's problem, if there is to be one, lies with the Legislature.

                               III.

       Petitioner next argues that her inclusion on the state registry
  violates her Fourteenth Amendment due process rights.  She contends that
  the standard of proof required both for substantiation of an abuse
  complaint and at the hearing on expungement falls below the due

 

  process standard of a preponderance of the evidence articulated by the
  court in Valmonte v. Bane, 18 F.3d 992, 1004 (2d Cir. 1994) ("some credible
  evidence" standard did not allow for balancing of evidence from both sides,
  as allowed by "fair preponderance" standard, which is constitutionally
  appropriate).

       SRS does not dispute petitioner's claim that inclusion on the state
  registry implicates protected liberty and property interests of petitioner. 
  See Valmonte, 18 F.3d  at 1002 (holding that statutory impediment to
  employment caused by inclusion on state child abuse registry implicates
  liberty interest).  SRS also does not challenge petitioner's argument that
  the Human Services Board must apply a preponderance of the evidence
  standard in its hearing on petitioner's request for expungement.  See
  LaFaso v. Patrissi, 161 Vt. 46, 54, 633 A.2d 695, 700 (1993) (noting that,
  "as a general rule," preponderance standard applies in administrative
  adjudications in Vermont).   The focus of the parties' dispute on this
  issue is whether the Board actually applied the preponderance standard.

       Petitioner's claim that the Board did not apply the preponderance
  standard fails because she does not distinguish between the low standard of
  proof required for substantiation of an abuse complaint, and the higher
  standard that is applied at an expungement hearing.  An abuse complaint is
  substantiated, and entered into the state registry if SRS determines "after
  investigation that a report is based upon accurate and reliable information
  that would lead a reasonable person to believe that the child has been
  abused or neglected."  33 V.S.A. § 4912(10).  Thus, prior to the Board's de
  novo hearing, agencies investigating reports of suspected child abuse need
  not apply a preponderance of standard to their determinations.

       The court in Valmonte appears to suggest that a preponderance standard
  is required at the time of initial determination, as well as at the
  hearing.  Valmonte, 18 F.3d  at 1004.  We do not agree that the initial
  investigation of a report must be conducted under the higher standard. We
  note, however, that the New York Central Registry at issue in Valmonte had
  a number of differences from the Vermont registry.  Most importantly, in
  New York a person included in

 

  the registry was not entitled to a hearing conducted under a
  preponderance standard unless the person had lost a job or been fired
  because of inclusion in the registry.  Id. at 997.  In Vermont, a person
  included in the registry has the right at any time to petition for
  expungement, 33 V.S.A. § 4916(h), and is entitled to a fair hearing
  conducted under the preponderance standard. A higher standard at the
  investigatory stage is not necessary to meet due process concerns because
  of the availability of such a hearing at any time after inclusion in the
  registry.

       At a hearing by the Board on a petition for expungement, the burden is
  on SRS to establish that a record should not be expunged.  33 V.S.A. §
  4916(h).  The Board requires SRS to meet this burden by demonstrating by a
  preponderance of the evidence that the report is based upon accurate and
  reliable information and that the information would lead a reasonable
  person to believe that a child has been abused or neglected.

       This higher standard was applied by the Board in reaching its decision
  in this case.  The Board concluded:

     [O]ther than the petitioner's denial of the allegations and
     unsupported, if plausible, conjecture as to some alternative
     explanation, there is no evidence that would call into question
     either the veracity of the children and their ability to have
     accurately reported what allegedly occurred or their (or their
     mother's) motives in bringing these allegations to the attention of
     the police and SRS.

     In light of the above, despite the striking of the children's
     testimony, it is concluded that SRS's "substantiation" of the report
     of child sexual abuse in question is supported by a preponderance
     of the evidence.

  (Emphasis added.)

       Petitioner further contends, however, that the preponderance standard
  applied by the Board requires a lesser showing than the "fair
  preponderance" standard articulated in Valmonte, 18 F.3d  at 1004. 
  Specifically, petitioner argues that the Board's standard does not require
  the finder of fact to be "convinced by a preponderance of evidence that the
  abuse occurred, but only that some reasonable person could believe that the
  abuse occurred."  We recognize that the Board's modified phrasing of the
  preponderance standard could  lead to some confusion as to the

 

  standard of proof required.

       Even if petitioner were correct in her assertion that the Board
  applied a lower standard of proof than preponderance of the evidence, the
  evidence in this case was sufficient to show by a preponderance of the
  evidence that the incident of abuse occurred.  The Board relied primarily
  on the hearsay testimony and written notes of the SRS investigator and the
  police officer who interviewed the child.  The Board found that the police
  officer and investigator were "experienced" and "unbiased," that their oral
  testimony and written notes showed that the child's allegations were
  "specific and left little room for mistake or misinterpretation," that
  their written reports were prepared  soon after the interview took place,
  and that their written reports were consistent.

       Although the Board's decision is supported only by hearsay evidence,
  that evidence has sufficient indicia of reliability to support a finding by
  a preponderance of the evidence that the alleged abuse occurred.  See
  Watker v. Vermont Parole Bd., 157 Vt. 72, 76-77, 596 A.2d 1277, 1280 (1991)
  (hearsay may be sole evidence in revocation proceeding if determined
  inherently reliable).  In Watker we stated that we must "evaluate the
  weight each item of hearsay should receive according to the item's
  truthfulness, reasonableness, and credibility."  Id. at 77, 596 A.2d  at
  1280.  Here, the sources of the hearsay evidence were disinterested
  persons, the hearsay was specific and detailed, and the two hearsay
  accounts were consistent.  The hearsay evidence had sufficient indicia of
  reliability to support the Board's decision.

                               IV.

       Finally, petitioner asserts that SRS lacked jurisdiction to
  substantiate the report of sexual abuse following dismissal of the juvenile
  proceedings against her, based on 33 V.S.A. § 5503(a), which provides:

       (a) The juvenile court shall have exclusive jurisdiction over
       all proceedings concerning any child who is or who is alleged to
       be a delinquent child or a child in need of care or supervision
       brought under the authority of this chapter, except as otherwise
       provided in this chapter.


  

       (b) The orders of the juvenile court under the authority of
       this chapter shall take precedence over any order of any other
       court of this state, except an order establishing child support, to
       the extent inconsistent therewith.

  (Emphasis added.)  As 33 V.S.A. chapter 49 has legislative goals,
  functions, and procedures completely different from those under 33 V.S.A.
  chapter 55, an SRS determination under chapter 49 that a sex abuse report
  has been substantiated, or a de novo affirmance of that determination by
  the Board, cannot be "inconsistent" with the judgment of a family court
  (sitting as a juvenile court).  Chapter 55 is concerned with the issue of
  delinquency; the issue in chapter 49 proceedings is substantiation of an
  abuse complaint.  The most salient demonstration of the two-track nature of
  the respective abuse-reporting and correction  proceedings under chapters
  49 and 55 is the lack of any reference in chapter 49 to the judgments or
  records in any other proceedings.  Moreover, the broad, remedial purposes
  of the Child Abuse and Neglect Reporting Act would not be served by tying
  its very carefully crafted criteria for substantiating a report of abuse to
  the outcome of adult criminal or juvenile proceedings relating to the
  conduct of the person  about whom the report was made.

       Affirmed.
                               FOR THE COURT:



                              _______________________________________
                              Associate Justice



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                                  Footnotes



FN1.  The SRS investigation was undertaken pursuant to 33 V.S.A. § 4915.

FN2.  The sexual abuse registry is created by statute, 33 V.S.A. §
  4916, and contains records by name of offenders and victims of child sexual
  abuse.  An owner or operator of a day care facility licensed or registered
  by SRS may request from SRS a record of substantiated reports of child
  abuse for a current or prospective employee.  SRS will inform the
  requesting owner or operator if such a record exists.  33 V.S.A. § 309.

FN3.  The committee hearings on the amendments indicate that the
  Legislature's concern was with repeat offenders who, if not listed as
  perpetrators, could escape notice when the child victims reached the age of
  majority.  No witness before the Committee raised the problem of stigma
  that might occur from a single offense committed by a minor.