2010 VT 101


In re M.G. and K.G. (2009-381)
 
2010 VT 101
 
[Filed 05-Nov-2010]
 
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, Vermont05609-0801 of any errors in order
that corrections may be made before this opinion goes to press.

 
 

2010 VT 101

 

No. 2009-381

 

In re M.G. and K.G.


Supreme Court


 


 


 


On Appeal from


 


Human Services Board


 


 


 


May Term, 2010


 


 


 


 


Paul
  F. Hudson, Chair


 

William H. Sorrell, Attorney General, Montpelier, Martha E. Csala,
Assistant Attorney
  General, Waterbury,
and Bridget C. Asay, Assistant Attorney General, Montpelier, for
  Appellant.
 
Wayne R. Young, Norwich,
for Appellees.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
BURGESS, J.   The Department for Children and Families
(DCF) challenges the Human Services Board’s reversal of its determination that
petitioners M.G. and K.G. placed their children at risk of harm by having an
illicit drug laboratory in their residence.  The Board ruled that the
parents should be removed from DCF’s
child-abuse-and-neglect registry for lack of actual harm.  Because the
Board failed to make any findings of fact, we reverse and remand for additional
proceedings.  
¶ 2.            
We begin with a brief overview of the registry process.[1]  By statute, DCF must investigate
reports of child abuse and neglect and maintain a registry that contains a
record of all investigations that have resulted in a “substantiated report.”
 33 V.S.A. §§ 4915-4916.  The information contained in the
registry may be disclosed only to individuals and entities specified by
statute.  Id. §§ 4916(c)-(d), 4919.  A substantiated report is
one that is “based upon accurate and reliable information that would lead a
reasonable person to believe that the child has been abused or neglected.”
 Id. § 4912(10).  An “abused or neglected child”
includes a child “whose physical health, psychological growth and development
or welfare is harmed or is at substantial risk of harm by the acts or omissions
of his or her parent.”  Id.
§ 4912(2).  “Risk of harm” is in turn defined 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, neglect,
emotional maltreatment or sexual abuse.”  Id. § 4912(4). 
¶ 3.            
With this in mind, the record indicates the following history.  In
October 2007, police and federal drug agents raided petitioners’ home and
discovered numerous chemicals and other related materials that can be used to
manufacture methamphetamine and ecstasy.  Petitioners’ children were one
and three years old at the time.  Following an investigation, DCF
determined that petitioners had placed their children at risk of harm by
establishing a clandestine drug laboratory in the basement of their home. 
DCF thus informed petitioners that their names would be included in its
registry.  
¶ 4.            
Petitioners requested an administrative review of this decision. 
See id. § 4916a(c).  Following a
review meeting with petitioners and their attorney, the reviewer upheld DCF’s determination.  In reaching her decision, the
reviewer cited the applicable legal standards, including the definition of
“substantiated report” and “risk of harm.”  She also cited the applicable
DCF policies for cases involving the production of methamphetamine.  See
Vermont Dep’t for Children & Families, Family Services Div., Family
Services Policy Manual, Policy No. 55, at 5 (effective Jan. 1, 2007) (report of
abuse “should be substantiated if a reasonable person would believe that . . . through
action or inaction by the parent or caretaker, the child was exposed to
methamphetamine production”), available at
http://dcf.vermont.gov/sites/dcf/files/
pdf/fsd/policies/55__Risk_of_Harm__Final_1-07.pdf; Vermont Dep’t for Children
& Families, Family Services Div., Family Services Policy Manual, Policy No.
63, at 1 (effective Jan. 25, 2007) (defining “clandestine lab” as “[a] covert
or secret illicit operation containing a combination of apparatus and chemicals
that has been or could be used to make controlled substances”), available at
http://dcf.vermont.gov/sites/dcf/files/pdf/fsd/policies/
63_Meth_Interim_1-07_a.pdf.  
¶ 5.            
The reviewer found that the materials for the drug lab were located in the
basement of petitioners’ home in close proximity to the family’s washer and
dryer.  While father M.G. claimed that the children did not play in the
basement and that the basement was used for storage of their toys, clothing,
and other household goods, he could not explain why toys were found on the
floor of the basement near the washing machine.  Father admitted that the
washer and dryer were used several times per week.  While the door at the
top of the stairs to the basement was kept locked, the door could not be locked
from the inside, thus giving access to the basement by the children when one or
both parents were in the basement.  The reviewer found that the chemicals
discovered in the home were extremely dangerous and very easily could have contaminated
clothing, toys and the home in general.  She found that physical injury to
the children would have been serious.  Thus, based on her review of all
the available information, including additional information not discussed here,
the reviewer found that the legal and policy standards were met and that
petitioners’ names should be included in the registry.  
¶ 6.            
Petitioners appealed from this decision to the Human Services
Board.  See 33 V.S.A. § 4916b.  An investigating police officer
present during the drug raid was the only witness to testify at the fair
hearing.  He stated that the type of chemicals found in the home indicated
a clear intent to produce either methamphetamine or ecstasy or both.  He
indicated that petitioners had “everything for a meth lab without any
question.”  He later clarified that while petitioners did not have a
“significant quantity” of ephedrine in the home, they did have enough to make a
single dose of methamphetamine.  
¶ 7.            
The officer also described the methamphetamine manufacturing process and
explained the risks and hazards associated with the chemicals found in
petitioners’ home, including the risk of using otherwise-legal chemicals in a
manner not anticipated by their manufacturer.  More specifically, he
detailed the inhalation hazards and explosive hazards associated with the
manufacture of methamphetamine.  The officer stated that the house was
dangerous to its occupants given the presence and the combination of the
chemicals in question.  In addition to the officer’s testimony, the
parties stipulated that certain photographs of the home, an inventory of items
found during the drug raid, and a diagram of the home would be admitted as
evidence, as well as the facts contained in DCF’s
summary of its investigation, with the understanding that any legal conclusions
were subject to dispute in the case.  
¶ 8.            
The parties later filed proposed findings of fact and conclusions of
law.  DCF asserted in part that the uncontradicted
evidence showed that all of the chemicals required for the creation of
methamphetamine were present in petitioners’ home; there were also manuals and
recipes for methamphetamine and ecstasy and glass equipment and cookers
required for the creation of these substances.  DCF reiterated that most
of the chemicals and equipment were found in the basement of petitioners’ home;
the basement area was not locked and there was a photograph of a child’s toy on
the floor of the basement adjacent to a “cooker” and in the vicinity of the
poisonous, gaseous, and combustible chemicals.  DCF pointed to the
officer’s testimony that the house was dangerous and argued that the evidence
plainly established that petitioners had created a clandestine methamphetamine
laboratory in their home.  Even assuming arguendo
that petitioners had not yet started to create illegal substances, DCF asserted
that the particular grouping of chemicals found in petitioners’ home created a
risk of harm to their children from ingestion, contamination and explosion. 
¶ 9.            
Petitioners argued, in response, that DCF failed to prove that the
children were ever actually at risk of harm.  They pointed to DCF’s statement that it was unknown whether drug
manufacturing (cooking) had previously occurred in the residence.  They
also noted that with one possible exception, the chemicals they possessed could
be easily and legally purchased, and there was no evidence to show that the
chemicals were improperly stored.  Petitioners acknowledged the possibility
that the children’s clothing could have been contaminated, but they argued that
there was no evidence to show that the clothing was actually
contaminated.  Contrary to DCF’s assertion,
moreover, petitioners maintained that they did not have all the chemicals
needed to make methamphetamine, although they acknowledged there was some ephedrine, an ingredient in common cold medications
as well as a necessary ingredient in the making of methamphetamine, in the
home’s upstairs bathroom.  They argued that there was no evidence that the
small amount of ephedrine was intended to make methamphetamine, and thus, the
State failed to show that petitioners possessed the essential ingredients for
the manufacture of methamphetamine.  
¶ 10.         The
hearing officer filed his written recommendations in July 2009.  In
reaching his conclusion, the hearing officer did not make any findings of fact,
but rather began his decision by stating that “[t]he following facts have been
submitted by [DCF] in its Proposed Findings.”  These “facts” included a
recitation of the police officer’s testimony that: “all the chemicals required
for the creation of methamphetamine were present in the home;” and that “the
house and the chemicals stored therein created a dangerous situation for
occupants of the home due to the combustibility of the chemicals and the gases
that may or were given off by the chemicals in their stored state as well as
gases given off in the cooking process of drug production.”  Another
“fact” submitted by DCF, and recited by the hearing officer, was that the
quantity and array of chemicals in petitioners’ home, as well as the manual and
notes for the production of methamphetamine, provided “uncontradicted
evidence of a clandestine methamphetamine lab.”  After reciting DCF’s proposed findings, the hearing officer noted
petitioners’ response that all the chemicals found in their basement were legal
for them to possess and that, although some of the chemicals were dangerous,
there was no evidence or allegation that they were stored improperly or that
the parties’ children were ever exposed to them or had been in the vicinity of
these chemicals unsupervised.  
¶ 11.         The
hearing officer then concluded that DCF failed to prove that the children were
at risk of harm.  He explained that DCF had substantiated petitioners
because they created a “clandestine lab” to manufacture a controlled substance,
which constituted a risk of harm to their children from “ingestion,
contamination and explosion.”  DCF conceded, however, that there was no
evidence that petitioners’ enterprise ever advanced to the stage of actual
production of any controlled substance.  At most, the hearing officer
reasoned, it might be concluded that petitioners intended to manufacture drugs,
but were foiled primarily, if not solely, by timely police action.  The
hearing officer concluded that the mere presence of dangerous chemicals in
their basement, whatever the intent for their ultimate use, did not satisfy the
statute.  The hearing officer thus recommended that DCF’s
decision be reversed.  
¶ 12.         DCF
filed written objections, arguing, among other things, that the hearing officer
failed to make actual findings of fact.  In its argument before the Board,
DCF again reiterated that no findings of fact had been made, including a key
finding as to whether a methamphetamine lab had been established.  DCF
noted, moreover, that its policy did not require that production of drugs
actually begin before a risk of harm could be found.  Notwithstanding
these objections, the Board adopted the hearing officer’s recommendations
verbatim.  This appeal by DCF followed.
¶ 13.         DCF
acknowledges in its brief that the Board did not make its own findings as
statutorily required.  Nonetheless, DCF maintains that the Board appears to
have adopted DCF’s proposed findings as its
own.  We are not so persuaded and hold that the Board’s failure to make
findings requires reversal.  
¶ 14.         By
statute, the Board or the hearing officer must “issue written findings of
fact,” and the Board must “enter its order based on the findings.”  3 V.S.A. § 3091(c).  The Board failed to meet this
obligation here.  Its mere recitation of the evidence does not
suffice.  “[A]s we have stated on numerous occasions, a recitation of
evidence in findings is not a finding of the facts contained in the testimony
related and it cannot be so construed.”  In re Hale
Mountain Fish & Game Club, Inc., 2007 VT 102, ¶ 9, 182 Vt. 606, 939 A.2d 498 (mem.) (citing Krupp v. Krupp, 126 Vt. 511,
514, 236 A.2d 653, 655 (1967) (quotation and additional citation omitted));
accord In re E.C., 2010 VT 50, ¶ 14, __ Vt. ___, 1 A.3d 1007 (mem.) (reiterating that “a mere
recitation of testimony is not the equivalent of a finding of the facts
contained in that testimony”).  Inadequate and commonly referred to as “Krupp
findings,” such recitations of evidence, which are not adopted by the court as
fact, “cannot form the basis for a decision.”  In re E.C., 2010 VT
50, ¶ 14.  
¶ 15.         Among
other key findings missing, the Board failed to determine if petitioners had
established a clandestine drug laboratory in their home and whether they had
all of the materials necessary to make methamphetamine.  While it appears
that petitioners “could” have manufactured methamphetamine with the materials
found in the home, petitioners claimed that they had no intent to use the
ephedrine found in the upstairs bathroom to do so.  The Board made no
findings as to petitioners’ intent or whether the materials upstairs were part
of the drug laboratory.  The import of any such findings is yet to be
determined, and we do not here consider whether the Board erred in holding that
petitioners must actually begin cooking methamphetamine before they can be
substantiated for placing their children at risk of harm.[2]  The Board could not properly assess
the risk of harm subject to review by this Court without first determining the
facts.  Thus, because the Board’s conclusion is unsupported by any
findings, we reverse and remand for additional proceedings.  
Reversed and
remanded.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
We note that the laws governing the registry process have changed since DCF
substantiated petitioners here.  See 2007, No. 168 (Adj.
Sess.).  We apply the law as set forth in 2007, No. 77, and all
statutory references are to such laws, unless otherwise noted.  


[2] 
We do note, however, that the Board should have considered DCF’s
policy standards for cases involving methamphetamine labs in reaching its
conclusion.  See In re R.H., 2010 VT 95, ¶ 29, __ Vt. __, __
A.3d __ (“DCF is the agency responsible for the administration of the registry
statutes, and its interpretation must be followed absent compelling indications
of error.”).  



