 Hello. Welcome to the Judge Ben Show. My name is Ben Joseph. I'm a retired Vermont Superior Court Judge. This is a program in which I interview people about legal problems that I've encountered and that I know about through my previous work. My guest today is Larry Christ. I better get this right. Who is the Executive Director of the Vermont Parent Representation Center? Incorporated. Have they get that right? You've got it right. Okay. Yes, your honor. Thank you very much. Larry's here today to talk about the Parent Representation Center, which he is the Executive Director of. And he's told me in the past that there are three major areas of activity in the in the Center. The Helpline. Bending the Curve Study completed in 2018. And the Substantiation Appeal Pilot Project. And preparing for this interview, it's occurred to me more than once that I could be here for three hours. You're doing so much. But I wanted to ask you at the beginning about the Substantiation Appeal Pilot Project. This is from appeals from orders taking kids away from abuse. Is that the idea? That can happen in this instance. The Substantiation Process is one where there is a report made to the Department for Children and Family. DCF, for short, that there may be abuse or neglect. They have a process where they review those reports. They will then, if they believe the report is valid, assign an investigator who will do an investigation to find out is their child abuse or neglect. The way the process works is that once that investigation is completed, it's that worker and their supervisor who decide whether the person should be substantiated for child abuse or neglect. It's a bit odd because it's sort of like if we allowed the police to do an investigation and then decide that the person was was guilty. But that's the way the system is set up. The legislature set it up many, many years ago that way. However, the implications of being substantiated today are very different than they were when this system was first created. When this system was first created, if you were substantiated, your name went on a child protection registry. But the only people who had access to that was then the Department of Social and Rehabilitation Services. They used that list to make sure that they did not give a child care or foster care license to someone who had been found to have abused children. However, about 15 to 17 years ago, the legislature made the decision, may have been longer than that a bit, that that list would be available to employers and other services so that they could make sure they didn't hire people who were on the list. Therein lies part of the problem because before there were no property interests involved in being on the list. You were on the list, nobody knew it except the state. The new system knew, it's been around now for a long time. If you were on the list, there are a multitude of jobs that you cannot hold. If you are, as an example, a teacher or a medical professional, a nurse, a therapist, if you are the janitor in a child care program, you can't hold those jobs. For all intents and purposes, you can't hold them. If you are a parent and you want to volunteer for your child's school trip, you can't do that either. Because each of those employers or people who work with volunteers check with the registry to see if you're on the registry before they either hire you or accept you as a volunteer. Now you can be hired by them, but they have to go to their insurance company and get the insurance company to approve it. How many insurance companies do you think will approve that? I think it's unlikely. So what that has brought in is the whole idea of a property interest now. You can't work, you can't volunteer. In some cases, you can't associate. You can't be in places with children if you've been substantiated. That's a whole different world, and unfortunately the legislature has not come to grips with that at this point. So our substantiation pilot was designed to take a look at the process, because once you've been investigated and substantiated, a person has review and appeal rights. The first step in the review is you can request of DCF that they hold a review for you, in which you get a chance to say this is what the department is saying I did, but here's why that isn't correct and why it shouldn't be substantiated. And the department can then overturn their own substantiation, and that's done using... The process, though, is that DCF has filed in effect a complaint, and then it can be reviewed by DCF at the request of the parent. That's correct. Okay, yes. But it is really more than a complaint, because if you don't ask for a review within 14 days of being notified, you are automatically put on the list and are, if you don't show up for your review, you're put on the list and you lose your appeal right to the human services board. Wow. If you appeal it within the 14 days that's allowed and you lose, then you have the right to a de novo appeal at the human services board. Do most of these people have attorneys? Very few of them have attorneys. Is that because of the expense? Yes, to... One of these appeals can range, if you were to hire a competent advocate, can range from $10,000 to $50,000. The average Vermonter does not... It can't afford that. So as an example of the 700 to 1,000 people who are substantiated each year, which is the average, only about 350 ask for a department review. 350 just swallow it. They take it. Well, more than that, basically, even more than that, simply don't ask for the appeal. Part of that is because they don't understand the process. Part of that is because the 14 days starts from the date on the postmark of the letter. So if you find that you move and you're not told during an investigation that you need to keep your address up to date with the department, sometimes people move, people change addresses. Another part of it is that, and there's no way to know how many people are affected by this, what we have found in our pilot project is that although the department, there is a statute about sending the letter in the 14 days, and there is a policy in DCF, and there is a practice as to how they go about sending the letter, there is no verification that the letter is actually mailed. So what we've encountered is we've begun to encounter people who find out that they were substantiated four and five years ago, were never notified. And they're on a registry now? They have been on the registry, and the reason that they didn't know for so long is because if you were currently in a job, your employer doesn't check. Right. But if you apply for a job or even a promotion in your company, the companies will go back and look. In the most recent case, in the one that brought this to light, it was a nurse who was denied employment for several job applications and couldn't understand why because she was eminently qualified. And when she finally checked with the employer, the last one who denied her, they said, well, you're on the child abuse registry. And she said, I've never heard of being on the registry before. And then it turned out that she had never received a letter. And when we challenged that in this pilot project, it was acknowledged through DCF's attorneys that no, there is no verification program, policy, rather. So they can't really prove that a letter is mailed. And the reason for me that that became important is because my background is I'm a retired state official. I know that there are mistakes in the system because it's human beings. We all make mistakes. But if you have no verification and you're going to put someone on a registry, we don't know today how many people may be on the registry who have no idea that they're there. There's no kind of public defender system where the person gets assigned an attorney to represent them. No, there isn't. And that is one of the major challenges here because this really is a process of looking at the law, of looking at an investigation in what was found or not found, and then building a case. And in fact, in a federal case that's going on right now, the state of Vermont has really likened this to a criminal prosecution. And in many ways, it's related to that. So we decided... Well, do some of these cases involve an allegation of abuse and that there's a parallel criminal proceeding going? Yes, some of them have a parallel criminal proceeding. Many of them have a parallel family court proceeding going on because... Tustidic visitation? No, it's basically a Chin's action. A Chin's? Because the process of dealing with a child in need of services, Chin's, is often commenced by an allegation by the department that a person has done something wrong. In some cases, it's things that people could be substantiated for, abuse, neglect, et cetera. So you have these two processes underway, each of which will frequently be dealing with exactly the same issues, but it's in two different forums. And in one, in the court system, you get an attorney appointed. But in the substantiation system, you do not. You're on your own. It's just appalling to me that there isn't a counsel available in the other, and she just described it. I mean, the reality of what our substantiation pilot has shown thus far is that for a competent person to assist, to represent the person, to speak on their behalf, at a minimum is 40 hours of work. And it ranges, with our cases, to over 150 hours. Now, people who can afford to hire an attorney can get somebody who can do that. The average rate for an attorney to do that is about $350 an hour. So you do the math. And what makes this even more complicated is that for your departmental review, your first round of appeals, you don't get the full investigative reports. You get a redacted report. Because the statute, which is antiquated at this point, requires it to be redacted. And what that means is about half of the report is blacked out, so you can't see. But by law, that you don't get the whole report? No. A report? Yeah. That's a basis for losing custody of your child? In some cases, that becomes the case. And on the other hand, your attorney, if you're involved in a CHEN's program, can get access to that information. But they're not working on your substantiation, because they're not paid by the state to do that. We have had some situations where we have handled a substantiation, had it overturned, then taken that information and given it to the public defender who was assigned to represent the parent. But the public defender, for whatever reason, wouldn't present it in the CHEN's hearing. The entire defense was there, because it was in the department acknowledged that it made a mistake in the substantiation. But the CHEN's process went forward. Now part of that is because they're often not in sync and they don't communicate. So if you represent yourself in a substantiation, there is, the department isn't responsible for telling the family court that a substantiation has been overturned. And unless you know enough to tell your attorney, the attorney never knows. And even if you told the attorney, the attorney is going to have to spend the time to go back and validate and make sure that it's exactly... But in most of these cases, the person who's now on the registry and been found to have done a bad thing, that person doesn't have a lawyer. No, unless they have a corresponding CHEN's case, or a corresponding criminal case. So we have had situations in this pilot where we found in the substantiation that we was overturned, we then used that, gave that to attorneys who were representing this person in the criminal charge against them. And the criminal charges were then dismissed because we had shown that the department made a mistake. And so that was the reason for this pilot. And the pilot, we decided to do this as fairly as we could. We decided to take the first 28 appeals that came to us. There was no cherry picking, no screening. We did not turn down a request. The only category we did not work with was we did not work with sexual abuse cases appeals. And the reason for that is they are very complicated. There's a whole nother process that is involved with them. But we dealt with physical abuse, emotional abuse, risk of harm, which is huge, a very general category, but it's about a third of all substantiations. And what we found is that we had 28 cases, didn't turn any of them down. You can't say it's a random selection because we didn't really select. We just took them. We only took 28 out of, as you say, that 700 to 1,000 a year, 28 out of that. But the process is when you look at how many hours it takes, it is impossible for a small non-profit agency to say, okay, we're going to do 20%. We took what came to us. Of the 28 cases, 21 have been resolved. All 21 have been overturned or withdrawn by the state. So that's basically, you could say, well, that's 100%. Is there a typical reason for this? The reasons, the reasons varied. And that was one of the concerns. It's one of the findings that we are working on in this process. There are so many reasons why these can be overturned. And it's not so that you can't just identify one thing. The biggest is that it appears that the state investigators, there are some who are very good, but there are more whose skill level is not up to the task. Who's skill level is not up to the task. Oh, how delicately put. They don't really understand or know how to investigate. The next category is that workers and supervisors don't seem to understand the laws that they're supposed to be upholding. So they will reinterpret laws. The third reason is that we find that the investigators will gather what looks to be evidence, but not understand that it has to be validated. So they will get an initial medical opinion from a physician who has never seen the child. Oh, stop. Well, yeah. And it happens frequently. Never seen a kid and then they has never seen that child. And then they can report. Well, they base it on the information the department gives them. Or maybe a photograph, the department sends them. But the department doesn't then, in many cases, take the child to a physician who, one, knows the child, two, who can look at the child and make an informed opinion. So what we find is they will substantiate based on an opinion they got over the phone or through email. And then when we go back and research it and look at and have the same information looked at and the child looked at, a physician will say, this isn't abuse. And so there are a variety of reasons why. And that's why it takes so long to do each of these appeals. So our reason for doing this substantiation pilot was to show what really was to find out, is this system realistic? Is it fair? Is it just? So far what we have found is it's not any of those things. And it's not any one particular person's fault. It's the system doesn't work. It, the system has never caught up with the severity of what it means to be on the registry today. But the, well, obviously being on the registry has all kinds of complications, I'll put it that way. One of the things I'm concerned about are delays in the process. I mean, things can go on for a long time. And then when it's ultimately determined that there was no adequate basis for the removal of the kid from the home, then it can be months or years before the kid goes back home. Well, in some cases, you're absolutely right. We have had some of these substantiations have been resolved. The quickest one was resolved within three months. That was the one where we showed that there was no verification system. So, so the substantiation was. But there have been other cases where there wasn't such, and the kid is still taken away. That's correct. We've had cases, the longest running case was two and a half years long to resolve this. Two and a half years. In which two children were removed, one for a year and a half, one for a year. And then the substantiations were overturned. It became clear that in one, there was no evidence. And two, unfortunately, and this happens, the child didn't tell the truth. And then recanted in a therapy session. And therein lies another part of the problem, because when DCF interviews a child and the child says, this happened to me, that's the information they have and go forward. And DCF, just for the viewers, Department of Children and Families. Correct. And is that part of a bigger organization? It is a department within the Agency of Human Services. So what we found, and your timing issue is a good point, by statute, when, if say, you were substantiated, not that you would be, but say you were substantiated, and you requested within the 14 days that you would like to have a hearing. The statute says that the department, DCF, will hold that hearing within 35 days. We have, it's, the hearings have ranged from seven months to two and a half years before you got your hearing. Unbelievable. And that was because this DCF was simply not able to hold that hearing within 35 days. Unbelievable. And that was because this DCF was simply not able to process the hearings. And... Because of lack of personnel? I can't tell you why. I don't know why. But they didn't process them. But they weren't processed. So you would be notified that they've gotten your request, and then you would be told, we will notify you when your hearing is scheduled. You might not hear for a year. Today, there's a lot of lawsuits floating around in all this. Well, there would be, except that there is a ruling by the Supreme Court that says that with regard to these kinds of issues, if there is no penalty written into the statute for the state agency, it's just advisory. Oh, wait a minute, penalty? I mean, someone's losing custody of their child for months. It's been a long time since I've been in law school. But one of the lessons I learned is that the word shall in a statute means you must do it. It appears that the Vermont Supreme Court has ruled that in certain instances where state government's concerned, the word shall is really may. And there really is no recourse because there is no body to appeal to. You are appealing to the appeal body. And there lays some of the problems because, first of all, the statute says 35 days. But in that 35 days, you haven't gotten the material yet. You don't know why you've been substantiated because, you see, your substantiation letter doesn't tell you why. It simply tells you what you've been substantiated as. You have to wait for the paperwork to come in. And by statute, the paperwork has to come to you at least 10 days prior to your hearing. Well, if you have to locate an attorney or an advisor, if you have to do the research, it is impossible to do that in that time frame. Got it. Um, so that's why these cases have gone in some cases two and a half years before the resolution. And we are developing a long list of the statutory changes that need to be made to make this system work properly because there are children who are abused and neglected. There are people who are abusers in this state. The current system, if those people have money, they don't wind up on the registry. Yeah. If they didn't abuse or neglect a child, but were charged with that, there's a very good chance they will wind up on the registry. So that's our goal is to fix this system so that it works in both directions. So is there, have you prepared legislation to change this? We prepared legislation. We thought there was going to be a hearing on this matter. The last two sessions, there were no hearings on the one bill that was there, but we are preparing to do that on this coming legislative session. And in all fairness, within DCF, there are people who are reviewing this as a result, and in part as a result of their concerns, but also as a result of the evolving data that's coming out of our substantiation project, because no one has ever done this before. No one has ever tested this system. Which committee in the legislature would this be submitted to, do you know? Well, it could be human services. It could also be judiciary. It's probably going to wind up being at least both of those, because it requires changes in the law, but it also has a huge impact on social service programs. Well, all I can say is I so admire what you're doing. I think it's extremely important. Well, it's important that you are providing a forum for folks to begin to discuss this, because this is really what it's about. It's looking at our public systems working, is the taxpayer getting their money's worth, our children being protected, and our families being supported. And right now, the answer in many cases is no, but it's not rocket science. It can be fixed. Well, you may be coming back here. We may want to talk about some other parts of this. Well, as I said, I'd like an Oscar or an Emmy, but a Ben will do. Well, okay. Look, I want to thank you all for looking in on this. And thanks for Larry for what he's doing. This is really so important, and so much to do with the quality of our families, of our lives, how these children are being treated by the system. This is very, very important. So thank you for looking in on this, and perhaps we'll be seeing you again soon. This is, is there some place, is there some number that someone who is faced with this could call to get support? Yes, they can either send an email to larryly.crist, as in Tom, at vtprc.org, or they can call our office at 802-540-0200. Thank you very much. Your show is taped. If you see it, remember that you can download it and send it to other people. You can forward it around. I think one of the things that's been so gratifying to me is I get calls from different parts of the state saying, I saw your show, and I want to get more information. And something like this really needs more public input. I think this is a very, very important subject. I want to thank you all for watching. Thank you, Larry. Thank you very much for having me. So long.