Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-417

                                          MAY TERM, 2011

 In re W.M.                                            }    APPEALED FROM:
                                                       }
                                                       }
                                                       }    Human Services Board
                                                       }
                                                       }
                                                       }    DOCKET NO. Y-01/10-24


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

       In August of 2009, a Family Services District Office determined that W.M.’s driving
with a high blood alcohol count and driving off the road placed K.A., her seven-year-old
daughter, at risk of physical harm. W.M. was thus substantiated by the Department for Children
and Families (DCF) for abuse pursuant to 33 V.S.A. § 4912(10). The Human Services Board
reversed, concluding that W.M.’s action did not warrant placement on the Child Protection
Registry. We conclude that the Board failed to apply the correct legal standard, and remand.

       In June 2009, W.M. consumed alcohol while at a family gathering. She then left to drive
home with her daughter in the car. On her way, she was involved in a single-car accident, which
damaged her front bumper. W.M. continued to drive and was eventually stopped by a state
trooper, who observed her damaged bumper and that she was traveling to the extreme right of the
road. W.M. failed sobriety and dexterity tests, and an alco-sensor test revealed she had a blood
alcohol level of .219. She was charged with DUI and reckless endangerment, and she was
eventually convicted of DUI.

        DCF conducted an investigation. W.M. claimed that she had consumed only two drinks
and that her elevated blood alcohol level was due to medication she was taking. DCF
determined the medication would not cause an elevated blood alcohol level and substantiated her
for placing her child at risk of harm. DCF policy on substantiation at the time explained that
“Risk of harm is substantiated when the person responsible for the child’s welfare . . . Engaged
in a single, egregious act that resulted in significant risk that the child could have been seriously
physically injured.” Vermont Dep’t for Children & Families, Family Servs. Div., Response to
Child Abuse and Neglect 2010.06, at 16 (effective May 26, 2009), available at
http://dcf.vermont.gov/sites/dcf/files/pdf/fsd/rules/Child_Abuse_and_Neglect_Adopted_Rule_5_
26_09.pdf. W.M. requested an administrative review. An independent reviewer upheld the
decision based on the DCF policy regarding a single egregious act. Petitioner then requested a
fair hearing before the Board.

        The Board found that W.M. credibly testified that she had not had a drink since the date
of her arrest. PC 3. The Board did not, however, find credible W.M.’s claim that she had only
two drinks on the day of the incident or that her medication could raise her blood alcohol level.
The Board found that she “drank to excess and then drove a car in which her daughter was a
passenger while she was impaired by alcohol consumption.” Nonetheless, the Board concluded
that DCF erred in placing her name on the registry because she did not continue to pose a risk of
harm to her child, and her daughter was not actually harmed by her actions. In so concluding,
the Board did not apply DCF’s single egregious act policy, but applied a gross negligence
standard to W.M.’s actions. DCF appealed.

       DCF argues that the Board misapplied the relevant law, and requests a remand for the
Board to evaluate W.M.’s case under the correct standard. DCF argues that the Board erred in
not applying DCF’s single egregious act policy on risk of harm and in considering W.M.’s post-
incident conduct. On appeal, we defer to the Board’s decision regarding substantiation, but “the
Board must follow the law in deciding whether a report is substantiated.” In re R.H., 2010 VT
95, ¶ 21, 14 A.3d 267. Because the Board applied the incorrect standard, we reverse and
remand.

        This case closely mirrors our recent decision in In re D.McD., 2010 VT 108, 12 A.3d 543
(mem.), which in turn relied on In re R.H.. As explained in In re D.McD., we agree with DCF
that the Board erred in considering post-incident conduct:

              Under the statutory scheme in place, the only question before the
              Board was whether a reasonable person would believe that the
              child was placed at a substantial risk of harm due to the petitioner’s
              actions on the date in question. The analysis was not forward
              looking, but rather limited to the alleged act of neglect at issue. . . .
              The Board was not asked to decide petitioner’s future risk of harm,
              and petitioner’s rehabilitative efforts, while laudable, were
              irrelevant to the question before the Board.

Id. ¶ 7 (citations omitted). Therefore, on remand, the Board should not consider whether W.M.
presented an on-going risk of harm.

       In addition, the Board must apply DCF’s single egregious act policy, rather than the gross
negligence standard. See In re R.H., 2010 VT 95, ¶¶ 26-31 (concluding that the Board must give
deference to DCF’s interpretation of the statutory scheme and employ its standard for
determining risk of harm); see also In re D.McD., 2010 VT 108, ¶ 8 (directing Board on remand
to employ DCF’s single egregious act standard).

       Reversed and remanded.

                                              BY THE COURT:


                                              _______________________________________
                                              Denise R. Johnson, Associate Justice

                                              _______________________________________
                                              Marilyn S. Skoglund, Associate Justice

                                              _______________________________________
                                              Brian L. Burgess, Associate Justice



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