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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-299

                                         APRIL TERM, 2013

 In re J.D.                                            }    APPEALED FROM:
                                                       }
                                                       }    Human Services Board
                                                       }
                                                       }
                                                       }    DOCKET NO. M-09/10-441


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

        Petitioner appeals pro se from a Human Services Board decision denying a request to
expunge his name from the child protection registry. Petitioner essentially contends the Board
erred in denying the request because the evidence demonstrated that he no longer presents a risk
to the safety or well-being of children. We affirm.

        The facts may be summarized as follows. The law requires the Department for Children
and Families to maintain a “child protection registry” containing “a record of all investigations
that have resulted in a substantiated report” of child abuse or neglect. 33 V.S.A. § 4916(a)(1). A
person whose name has been entered in the registry may file a request with the Commissioner
“seeking a review for the purpose of expunging” a registry record. 33 V.S.A. § 4916c(a).

        In early 2010, petitioner contacted the Department seeking to expunge his name from the
child protection registry. Petitioner had been entered in the registry based on two substantiations
by the Department, one for sexual abuse in August 1996, and one for neglect in June 2004.
Petitioner met with a reviewer for the Department and submitted materials in support of his
request, including four character-reference letters.

        In September 2010, the reviewer—on behalf of the Commissioner—issued a written
decision denying the request. The reviewer noted at the outset that petitioner did not contest
either substantiation decision, and that he did not want the Department to wait until the
conclusion of a related family court proceeding before acting on his request to expunge his name.
The reviewer summarized the two underlying substantiated incidents as follows. In August
1996, the Department determined that petitioner, then fourteen years old, had sexually abused an
eight-year-old cousin. Petitioner was adjudicated a delinquent as a result, placed on probation,
directed to undergo sex-offender counseling, and discharged from probation in 2000 when he
reached the age of eighteen.

       The second matter involved a 2004 substantiation of neglect of two young children—
A.D., petitioner’s one-year old son with his partner G.C., and G.C.’s two-year-old child J.C.
Based on DCF records, the reviewer noted that a DCF investigation had found the trailer in
which the couple and the children lived to be in an extremely unsanitary condition and the
children to be suffering from severe neglect. A CHINS petition was pending in November 2004
when petitioner, G.C., and the children moved without prior notice to Montana. There, records
indicate that the children were taken into custody in March 2005 by the Montana Department for
Public Health and Human Services. The Montana Supreme Court ultimately affirmed an order
terminating petitioner’s parental rights to A.D. and G.C.’s parental rights to J.C., observing that
the evidence of abuse and neglect was “overwhelming.” In re J.C. & A.D., 2008 MT 127, ¶¶ 50,
52, 183 P.3d 22.

        Turning to the statutory criteria for determining whether petitioner had established that he
no longer presented “a risk to the safety or well-being of children,” the reviewer focused
primarily on whether the circumstances indicated that “a similar incident would be likely to
recur” and whether petitioner had engaged in any activities such as therapy, employment or
education that would “reflect upon [his] changed behavior.” 33 V.S.A. § 4916c(b)(4)(5). The
reviewer described a 1997 psychosexual evaluation of petitioner, and his ensuing treatment. In
1998, his therapist described a lifetime of troubling sexual thoughts dating back to a very early
age and ongoing, petitioner’s unwillingness to abide by a variety of risk management strategies,
and his knowing engagement in high risk activities and failure to report his lapse behavior.
Although petitioner claimed to have completed the sex-offender treatment, the reviewer noted
that he had not provided any documentation showing successful discharge from the program,
records indicated that his participation was “inconsistent,” and DCF records reflected that his
therapists had concluded that he needed a level of intervention that was not being met. The
reviewer further found that petitioner had not pursued or undergone any additional sex-offender
treatment since 2000 and that a 2005 psychosexual evaluation in Montana, based solely on
petitioner’s own self-report, found petitioner to be at a “moderate” risk to reoffend.

        With respect to the 2004 substantiation of neglect, the reviewer observed that DCF
records at the time characterized petitioner as “very resistive” to recommended services, and
indicated that “little progress had been made” prior to his move to Montana. Petitioner claimed
that Montana had been “wrong” to terminate his parental rights despite his stipulation there to
parental abuse and neglect and what the Montana Supreme Court characterized as
“overwhelming evidence” of severe neglect.

       The reviewer also described character-reference letters submitted by petitioner including
one from a man who had known petitioner for two years and one each from G.C.’s mother and
father—all expressing confidence in petitioner’s ability to safely parent his new child. In
addition, the reviewer noted that the letter from a Montana child care agency, dating from
September 2005, indicated that petitioner had completed a “parenting inventory” and
recommended an additional parenting program.

         Based on the foregoing, the Department reviewer found that petitioner had failed to show
that he no longer presented a risk to the safety or well-being of children. Despite the
documented concerns regarding his sexual attraction to young children, petitioner had presented
no documentation that he had completed additional sex offender treatment. Despite the extreme
neglect that had resulted in the termination of his parental rights to A.D., petitioner had presented
little documented evidence of progress in his ability to care safely and adequately for R.D., and
had shown “minimal insight” into these concerns. As for the character-reference letters, the
reviewer observed that they tended to “minimize” petitioner’s considerable past problems, and
she noted that G.C.’s father—one of petitioner’s character witnesses—was himself on the
registry for a sex offense involving a child, casting further doubt on petitioner’s judgment in such
matters. The reviewer also noted a then-current ongoing DCF investigation into potential risk of
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neglect and sexual abuse petitioner posed to his youngest child. Given these factors, the
reviewer concluded that it was not appropriate to remove petitioner’s name from the child
protection registry.

        Petitioner appealed the decision to the Human Services Board, which reviewed the
record, heard additional argument, and issued a decision in July 2012. Although review was on
the record, additional facts noted by the Board were the dismissal in January 2011 of the CHINS
petition that had been pending at the time of the review, the birth of another child to petitioner
and G.C. in January 2012, and a letter, dated January 20, 2011, from the director of a sex-
offender treatment program who had evaluated petitioner while the CHINS petition was pending.
The letter expressly declines to address the issue of petitioner’s inclusion on the child protection
registry. On the “narrowly drawn question” of the risk presented by petitioner to sexually abuse
R.D., the letter concludes that, based on “static” or historical factors, petitioner would fall in the
“low risk range” for future sexual offenses, while also cautioning that petitioner should be
monitored for “dynamic” or situational risk factors, and recommending that he engage in
ongoing psychotherapy and psychiatric screening.

       Based on its review, the Board concluded that the Department did not abuse its discretion
in concluding that petitioner had failed to carry his burden to show that expungement was
appropriate, and affirmed the order denying the request. This pro se appeal followed.

        The scope of our review is limited. Petitioner bears the burden of proving that he “no
longer presents a risk to the safety or well-being of children.” 33 V.S.A. § 4916c(b). On appeal
of an expungement decision to the Board, the Board is restricted to determining whether, on the
record, the Department abused its discretion. 33 V.S.A. § 4916c(e). The question before this
court is whether the Board erred in concluding that the Department did not abuse its discretion in
denying the expungement request. We, like the Board, must apply the deferential abuse-of-
discretion standard in evaluating the Department’s decision. See Turner v. Roman Catholic
Diocese, 2009 VT 101, ¶ 10, 186 Vt. 396 (abuse of discretion standard requires this Court to
uphold ruling “unless the [lower tribunal’s] discretion was either totally withheld or exercised on
grounds clearly untenable or unreasonable.” (quotation omitted)).

        Petitioner appears to raise several claims concerning the sufficiency of the evidence to
support the Board’s decision. First, he contends the Board failed to properly consider the most
recent psychosexual evaluation set forth in the letter dated January 20, 2011. The statutory
scheme governing petitions for expungement provides, however, that the Board’s review “shall
be on the record,” 33 V.S.A. § 4916c(e), and the evaluation in question was not submitted to the
Department reviewer; indeed, it was not completed until after the review was complete.
Moreover, as noted, the evaluation did not purport to address the propriety of petitioner’s
expungement request, and its assessment of petitioner as a “low risk” to sexually assault his new
child was qualified by a recommendation that he receive counseling and on-going monitoring,
neither of which had he obtained.

        Petitioner also asserts that the Department reviewer and the Board ignored evidence that
he is raising two young children without any proven incidents of sexual abuse, that the children
are developing normally, that a home health nurse visited his home multiple times after R.D. was
born and did not identify any concerns about the home he was providing his child, and that the
DCF investigations that were open during the review process had since been closed because he


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posed no risk to his children. Again, the Department did not err in noting the existence of open
DCF investigations at the time of its review, since the investigations were, at that time, ongoing.

        Moreover, evidence that petitioner’s child was developing normally, that visiting nurses
did not express concerns about the well-being of his own child in his home, and that the
Department apparently concluded that it could not prove a present risk of neglect or abuse to
petitioner’s own child is most relevant to an investigation of potential abuse or neglect by
petitioner of his own child. The expungement question—whether petitioner has demonstrated
that he no longer posed a risk to the safety or well-being of children—is a related but different
question. The Department found that as of 1997 and 1998 petitioner struggled with troubling
sexual thoughts of young children, that he had failed to demonstrate that he had completed sex
offender treatment or other psychosexual treatment, that a 2005 psychosexual evaluation found
him to pose a “moderate” risk of reoffending, and that he showed minimal insight into the
conduct that led to his substantiation for neglect. Given these findings, we cannot conclude that
the Department abused its discretion in denying petitioner’s expungement request. See In re
K.G., 171 Vt. 529, 530 (2000) (mem.) (noting that we will not reverse expungement ruling
unless we find “abuse as a matter of law”). Accordingly, we discern no basis to disturb the
Human Service Board’s judgment.

       Affirmed.




                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Brian L. Burgess, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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