K.G. v. Dept. of Social & Rehabilitation Services

K.G. v. Dept. of Social & Rehabilitation Services (99-346); 171 Vt. 529;
758 A.2d 323 

[Filed 19-Jul-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-346

                               JUNE TERM, 2000


K.G.	                               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Human Services Board
                                       }	
Department of Social &	               }
Rehabilitation Services	               }	DOCKET NO. Fair Hearing 15,747


             In the above-entitled cause, the Clerk will enter:


       The Department of Social and Rehabilitation Services (SRS) appeals
  from an order of the  Human Services Board (Board) expunging K.G.'s name
  from the child abuse registry maintained by  SRS pursuant to 33 V.S.A. §
  4916(a).  SRS argues that the facts of this case constitute abuse as a 
  matter of law.  We disagree and affirm the Board's order.

       SRS received a complaint about a possible instance of abuse involving
  K.G. and her nine-year-old son.  In its investigation, SRS found the
  following facts.  K.G., her son, and her boyfriend  attended a sporting
  event at which K.G. and her boyfriend consumed some alcoholic beverages.  
  K.G.'s boyfriend drove her and her son to the event, but on the way home,
  with K.G.'s consent, the  boyfriend permitted her son to sit in his lap and
  operate the automobile.  As a result, the son was  seated in the car
  unrestrained and dangerously close to the driver-side air bag and
  windshield.  In this  way, they proceeded over back dirt roads, but were
  stopped when they pulled on to a main paved  road and were observed moving
  very slowly and swerving.  The boyfriend was subsequently charged  with and
  convicted of driving while intoxicated as a result of this incident.  K.G.
  was charged with  child endangerment, but the charges were dropped.  During
  the investigation, K.G. defended the  practice of teaching her son how to
  drive in an adult operator's lap, but agreed not to allow it in the 
  future.  

       SRS found that these facts substantiated the allegation of abuse, and
  listed K.G.'s name in the  child-abuse registry.  See 33 V.S.A. §4916(a). 
  K.G. appealed, and the Board accepted the findings,  but decided that the
  registry listing should be expunged.  See 3 V.S.A. §3091(a); 33 V.S.A. 
  §4916(h).  SRS appealed to this Court.

       Under the statutory scheme, when a person appeals an SRS decision to
  list the person in the  child abuse registry, the Board receives evidence
  and reviews the SRS decision de novo.  See In re  Bushey-Combs, 160 Vt.
  326, 328-29, 628 A.2d 541, 542-43 (1993).  SRS has the burden of proof 

 

  before the Board.  See In re Selivonik, 164 Vt. 383, 389, 670 A.2d 831, 835
  (1995).  On appeal from  the Board to this Court, the Board's decision
  represents the final agency decision for purposes of  judicial review.  See
  Bushey-Combs, 160 Vt. at 329, 628 A.2d  at 543.  Moreover, we employ a 
  deferential standard of review of the Board's decisions in these matters. 
  See id.  ("Judicial deference  to the agency's determination applies . . .
  to the findings and orders of the Board, not to those of  SRS.").  Thus,
  this Court will not reverse the Board's order to expunge K.G.'s name from
  the registry  unless we find that these facts constitute abuse as a matter
  of law.

       Under 33 V.S.A. § 4912(2), an "abused child," in pertinent part, is "a
  child whose physical  health . . . or welfare is harmed or is at
  substantial risk of harm by the acts or omissions of his or her  parent." 
  The statute goes on to define "risk of harm" as "a significant danger that
  a child will suffer  serious harm other than by accidental means, which
  harm would be likely to cause physical injury."   Id. § 4912(4).  The Board
  acknowledged that K.G's conduct was "ill-advised," but faced a judgment 
  call whether it created a "significant danger" to her son and was "likely
  to cause physical injury" to  him.  We conclude that on the facts this
  decision fell within the Board's discretion, and the facts do  not make out
  child abuse as a matter of law.  Thus, we affirm the Board's decision to
  expunge the  listing.

       As a way of overcoming the Board's discretion, SRS argues that it
  adopted a too-narrow  definition of child abuse, at variance with the
  Legislature's policy to protect children.  We cannot  find in the terse
  decision of the Board that it narrowed the statute.  Instead, it disagreed
  with SRS's  application of the facts to the statutory standard, and
  exercised its discretion to order expungement.


       Affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice