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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-258

                                      DECEMBER TERM, 2011

 In re D.McD.                                          }    APPEALED FROM:
                                                       }
                                                       }    Human Services Board
                                                       }
                                                       }    DOCKET NO. B-03/09-186


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

        Petitioner appeals from the Human Services Board’s decision substantiating him for
putting his children at risk of harm based upon a single egregious act and thus placing his name
on the child protection registry. On appeal, petitioner argues that the Board erred in concluding
that his action of driving intoxicated with his kids in the car amounted to a single egregious act
because (1) this is contradicted by the Board’s previous finding that petitioner’s conduct was not
grossly negligent, and (2) the evidence does not support that petitioner’s conduct was egregious.
We affirm.

        The relevant facts are not disputed. Petitioner is a father to twin boys and shares parental
rights and responsibilities with his former spouse. Petitioner is bipolar and takes prescription
medication. In 2008, petitioner took his then six-year-old sons to an out-of-state amusement
park. Sometime before or during the trip, he stopped taking his bipolar medication because it
was exacerbating flu symptoms, and began drinking alcohol to self-medicate his bipolar disorder.
Upon arriving at the amusement park area in the late afternoon, petitioner stopped at a gas station
to ask for directions to his hotel. That evening, petitioner stopped at the same gas station and
again asked for directions. The attendant recognized petitioner and telephoned the local police
department out of concern for the children he observed in the car. A police officer located
petitioner’s parked car at a local restaurant. Petitioner was not in the vehicle and the children
were asleep in the back seat. There were several open beer cans on the floor of the front
passenger seat. When petitioner returned to the car, the officer observed that petitioner’s eyes
were glassy and his speech was slurred. Based on the results of field sobriety tests, the officer
concluded petitioner was inebriated and cited him for operating under the influence. Petitioner’s
breath sample registered a blood alcohol content of 0.18—over two times the legal limit in
Vermont.

        The police department reported the incident to the Vermont Department for Children and
Families (DCF). DCF substantiated that petitioner’s actions of driving under the influence with
his children in the car put his children at risk of harm. This triggered petitioner’s placement on
the child protection registry. Petitioner appealed the decision, emphasizing that since the
incident he had sought help to treat his mental illness, including through hospitalization,
medication management, and counseling. The Board reversed DCF’s substantiation, concluding
that “petitioner was unlikely to pose a risk of future harm to children,” and DCF appealed to this
Court. We reversed, concluding that the Board “committed reversible error by considering
whether the petitioner was likely to commit similar acts of neglect in the future.” In re D.McD.,
2010 VT 108, ¶ 7 (mem.). We remanded the case and instructed the Board to apply DCF’s
single egregious act policy to petitioner’s actions. Id. ¶ 8. On remand, the Board affirmed
DCF’s substantiation. Petitioner appealed.

        Petitioner first argues that the Board’s conclusion that petitioner’s conduct amounted to a
single egregious act is inconsistent with the Board’s prior finding that petitioner’s conduct was
not grossly negligent. Petitioner’s claim depends on two premises: first, that the standard for a
single egregious act is more stringent that the standard for gross negligence; and, second, that the
Board previously found that petitioner’s actions were not grossly negligent. We disagree with
both of these premises.

        The single egregious act standard is not more or less stringent than the gross negligence
standard, but is different. See In re R.H., 2010 VT 95, ¶ 31 (concluding that Board should apply
DCF’s policy to prevent use of inconsistent standards). The Board’s gross negligence standard
demanded a finding that “a child’s physical health was at substantial risk of harm by the acts or
omissions of his or her parent.” Id. ¶ 26 (quotation omitted). In contrast, DCF’s policy requires
the Board to “consider whether a reasonable person would believe that: ‘[t]he parent or caretaker
did the act alleged; [t]he act was egregious; [t]here was a significant risk that the child could
have been physically injured as a result; and, [t]he physical injury would be serious.’” In re
D.McD., 2010 VT 108, ¶ 8 (alterations in original) (quoting DCF policy). Under particular facts,
the standards could yield different results, but neither one is necessarily more stringent than the
other. For this reason, we emphasized in R.H. the need for one consistent standard, and
remanded the case for the Board to consider the facts under the correct standard set forth in the
DCF policy.

        Moreover, the Board’s decision in petitioner’s first appeal avoided the issue of whether
petitioner’s actions were grossly negligent. The Board noted that in a case it characterized as
similar, the parent was deemed not grossly negligent, but did not consider the specific facts of
petitioner’s underlying misconduct. Instead, the Board focused on petitioner’s investment in
rehabilitation after the incident and the likelihood of neglect or abuse in the future—elements
explicitly omitted from DCF’s “single egregious act” standard. The Board concluded that,
regardless of the severity of petitioner’s involvement of the children in his DUI, petitioner
presented negligible risk of future harm, and therefore declined to substantiate him as a person
responsible for a “single egregious act that . . . caused the child[ren] to be at significant risk of
serious physical injury” as contemplated in the DCF policy. As explained in petitioner’s first
appeal, the Board’s reliance on petitioner’s post-incident conduct was error and required a
remand for an evaluation under the correct legal standard. In re D.McD., 2010 VT 108, ¶ 8.

         Petitioner next argues that the evidence does not support the conclusion that a reasonable
person would find petitioner’s conduct was egregious. On appeal, we will affirm the Board’s
decision regarding substantiation absent an abuse of discretion. In re R.H., 2010 VT 95, ¶ 21.
According to petitioner, his decision to stop taking his medication was not egregious because
petitioner had no reason to anticipate the negative consequences that resulted and did not act
with ill intent.

                                             2
        We conclude that there was ample evidence to support the Board’s conclusion that a
reasonable person would consider petitioner’s conduct egregious. Contrary to petitioner’s
assertion, his subjective intent is not relevant to the inquiry. The question is whether a
reasonable person could conclude that petitioner’s acts were egregious. Whatever petitioner’s
subjective intent, the Board did not abuse its discretion in concluding that petitioner’s act of
driving while under the influence with his children in the car was “‘conspicuously and
outrageously bad or reprehensible,’” and was, therefore, egregious. Id. ¶ 28 (quoting DCF
policy).

       Affirmed.


                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               Brian L. Burgess, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




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