 Good morning everyone. This is a joint meeting between Senate Health and Welfare and Senate Judiciary Committees. It is April 16th and welcome. This morning we're going to talk about residential care programs in the state or residential programs for kids in the state and providing some oversight trying to understand some of the issues related to our licensure of residential programs for children and then get into some of the more concerning issues that we have had before us in our committees related to to the current Hatton School, among other areas. So, Senator Sears, did you want to say anything before we started? I thank you for pretty much organizing this meeting and putting together the agenda items. I think it's important for us to understand the process of residential licensing for treatment programs. Having run a treatment program for years, I'm familiar with licensing, but in these larger institutions. And I think I'll also need to understand what happens to current Hatton if the State Board of Education takes away their license and also whose overseeing what's going on right now given that they gave away their residential treatment license. And I'm particularly concerned about mandatory reporting. What appears to have happened at current Hatton and in other places, but what we heard in testimony in Senate Judiciary when we were dealing with S99 was a failure to report by both the institution and people who worked there, child abuse. And I that's deeply concerning to me. I don't know how much the Department of Children definitely spends each year trying to train people and being mandatory reporters. I know there's been a lot of interest in that. And I'm really particularly, and the Senate Judiciary Committee wants to if we should improve our laws regarding mandatory reporting and what and how institutions like current Hatton failed to do the mandatory report. Incidents of child abuse, how they should be dealt with. So thank you for that. And to that end, the issues that you've outlined are the very issues that we have asked. First, our legal counsel to bring to us and talk about with us, respond to some of the questions that we've had. And then after that, we'll hear from a Commissioner Brown of DCF. We do not have education here with us today. It's our understanding that the Education Committee will be taking this up separately when the AOE report is complete. But we do have Ledge Council from education here. So we'll get a broader spectrum of information going forward. So thank you all committee for being here a little bit early. I think we should probably dive in. We've we did ask Ledge Council to respond to some of the concerns and questions that Senator Sears has enumerated. And Katie, you are here. So do you do want to begin or do you want us to keep with the schedule with Eric going first up to you? I'm happy to kick it off. Okay, is that okay in there? Yeah. Katie Mclin, Office of Legislative Council. We Legislative Council was asked three questions with regard to current Manhattan. And so it crossed a number of attorney subject areas. So there'll be four attorneys at some point, kind of jumping in to answer these questions. The first question had to do with the current regulatory structure at current Manhattan. So myself and Jim Demeray are going to answer that. There was a question about mandated reporters. And when Bryn here is able to join us, she'll be addressing that question. And there was also a question about liability. And so Eric will will address that question. So the first question in terms of what is the current regulatory structure? It's our understanding that current Manhattan held a Department for Children and Families License as a residential treatment program, but agreed to voluntarily relinquish that license. And as a result, DCF now has no oversight over the current Manhattan facility, and no longer performs regular reviews or site visits of the facility. But DCF would be involved with current Manhattan, only if it received a complaint of abuse or neglect about a child who is currently or was previously at current Manhattan. In that case, DCF is still authorized to conduct investigations at current Manhattan for individual complaints of child abuse and neglect, as it would for a complaint of abuse and neglect about any child in Vermont. And then in terms of the AOE oversight, I will pass that question to Jim. Good morning. For the record, Jim Demeray lives console. So in Vermont, there are two regulatory oversight. Well, I should say that strongly, actually, there's approved in parent schools, which have a higher touch of regulatory oversight, and they're recognized in the parent schools, which have a very, very light touch. The approved in parent schools are schools that have been approved by the AOE looking at numerous factors, and they are able to accept public tuition dollars. The recognized in parent schools are are able to count for the student in terms of truancy. So very, very light there in terms of what actually does is educational program with those schools has to have a minimum course of study, according to the AOE rules. But basically, it's a very light touch. In fact, once recognized school applies, files and enrollment notice, then it may provide educational services. So it doesn't even have to be approved. Once it submits enrollment notice, specifying various factors, then it is automatically able to operate unless the secretary finds an issue. And then there can be a hearing about that. There is no investigative authority of AOE in terms of recognized schools, aside from the hearing, there's no express investigative authority as there is for approved in parent schools. The things that recognize in parents recognize schools have to do are to provide training of staff in child sexual abuse. That's true for recognized approved and in public schools. They have to do criminal background checks on employees and contractors, which is also true for approved and public schools. And they have to check with child protection registry. So those they have to do. And beyond that, looking at the memo for a second, I point out that, as I mentioned, there is no express investigative authority of the state board or AOE looking at recognized schools. And there is a duty of care under TAL-16 that is to prevent exposing students to unreasonable risk, but that only applies to school districts, not to approved or recognized schools. So I guess in summary, I would just say that the regulatory oversight, if you can even call it that, for a recognized school is very minimal. Thank you. And as I indicated earlier, the Education Committee will be looking at this information and at the AOE role in all of this. But I think it's important that we all understand the different levels of either oversight or lack there of, which we're hearing about. Go ahead, Senator Sears. And then I think Senator... I think this raises a lot of disturbing questions for all of us. Listening to the testimony on S99, which should be coming up soon in the Senate, which is a bill that eliminates the statute of limitations on child physical abuse. We heard from survivors of current hat. One woman was in her 80s. So we have this allegedly, excuse me, this institution that has had a great deal of at least alleged child abuse. I don't know how much has been actually substantiated. And now we have, if DOE drops out, and DOE's oversight is limited anyway, and DOE law drops out, we have no one with oversight over this institution in the state of Vermont. And yet people will continue to send kids there. And I'm really concerned about how we square that with what we've already uncovered. So that is a great... Senator, you have expressed it very well. Thank you. Yeah, no, I think that's a huge concern. So we'll stop for a couple more questions. One, Senator Nitka and then Senator White. I'm just wondering, could I ask a question of Jim, with regard to, I didn't hear, I didn't hear if you said that the in the recognized school, if they need to check, do they need to have fingerprints for their employees? I know you said they had to check the registry, but do they have fingerprint checks required or not? I didn't. They have criminal background checks required. Fingerprint checks, I'm not sure. I have to look that up for you. Senator Nitka, give me a minute. But yeah, definitely criminal background checks and definitely the registry. Okay, Senator White. Sorry, this is a question for Jim. I didn't hear whether there's a difference in the independent schools of whether it's a residential school or just a day school. Is there a difference in how they're treated? In terms of this discussion, no. They, if they're an approved school, they could be an approved school for special education. I don't think that's the case here for current hadn't. I think they have special education students, if I recall, testimony. But in terms of recognized versus approved, the, the, there is nothing around residential there. So it's basically regulation of approved versus recognized. Okay, so just be if it's just a day school, it would have or if it's a residential, it would have the same light touch as if it were just a day school. I believe I see nothing in the regulations on recognized schools that distinguish between, between residential and day school. Thank you. For that right here. Thanks. Any other questions? I think mostly of clarification at this point. Okay. So we can move on. Jim, is there anything else that you wanted to add? I meant to say only that the recognized schools are required to adopt hazing, harassment and bullying policies are as are approved in public schools. Okay. All right, thank you. And I know that, well, we'll get to our discussion with the commissioner. But I do know that the current hat and school did have provisions for support services. And that's something we want to hear about from Commissioner Brown. Who is next? Is it Eric? You and you're still muted. You're still muted. Thank you. Sorry about that. Okay. Good morning, everybody. This is Eric Fitzpatrick with the Office of Legislative Council, continuing our discussion of some of the legal background principles underlying the current hat and situation. I was asked to look at the potential for whether or not the state itself could be libel, libel on damages or libel for any monetary compensation for any of the alleged abuse that happened at current hat. And, you know, that's really a very fact specific question. But but it turns on sort of what the state's role was with and is continues to be. But what the state's role was with respect to current hat. And by that, I mean, you know, what, what actions did the state take or not take or what knowledge did the state have or not? And that's going to be very fact specific inquiries, you know, into the circumstances of what happened. I certainly don't have that information available. But I can certainly lay out the general big picture legal standards that would apply in this situation so that the committee can be aware of that. As a background for a moment, I should mention that those those standards, those legal standards are coming from what's known as the Vermont Torque Claims Act. This is a chapter in Vermont law, Chapter 189, Title 12. And it's a particular type of statute that all 50 states have, the federal government has it as well as the Torque Claims Act is a, is a statute that essentially through which the state says how it can be sued or how it can't be sued, how it might be libel for damages, how it isn't libel for damages. It's very common. I say all 50 states have them. And this sort of legal standards, I'm going to mention in a moment, all sort of derive from that law from the Vermont Torque Claims Act. So as I said, I think the liability is going to turn on what the state's role was, what what actions it took or didn't take. And as far as I can tell, the state's role potential role actual role and potential role, there's really three, three different pieces to that. And the first, I think you've got licensing as one role that the state had licensing and inspection, you've got placement and again, potential that the state may or may not have placed place children at at Kernhatton and the investigatory role, whether or not there was knowledge and reports made to the state of abuse and what what the state did or didn't do in response to that. So back to the first of those three, the licensing role that the state has, I think, as you've heard and know very well, the state does have a licensing role with respect to Kernhatton, potentially inspection role as well. But there's no liability for that. And that's a pretty clear point that the Vermont Supreme Court has expressly held quite clearly that under the Tord Claims Act, the state's role in licensing facilities, inspecting facilities is not something for which they're subject for liability for damages. So that's a pretty clear answer on the licensing piece. On the second role that I mentioned, which really has to do with placement. And I don't know whether or not the state ever did place any children that were in its custody at Kernhatton. I don't know the answer to that question. But if the answer is yes, if the state did place children there, then, and they did so, then it turns on, well, what was the state's knowledge at the time? Was there some knowledge that either the state actually had or could be charged with having, in other words, that they should have known based on the facts and circumstances involved. If there was some knowledge that abuse had been occurring and the state still placed children there, despite having that knowledge, there is a potential for liability. That would be, if you think about it, it's the sort of general tort claims of violating a duty of care or disregarding a risk of harm, those sorts of principles that apply in the civil liability context that would obviously potentially be an issue if the state had knowledge that there was abuse going on and placed children there despite that. So that's one possibility is the, is the placement issue. And the last one really has to do with the investigatory role of the state, right? So if reports of abuse are made, the state has an obligation to investigate them. So the question is, again, factual question, I don't know the answer to, were reports of abuse made to the state contemporaneously with it occurring? That's a historical question. I don't know the answer to that. But again, if that, if the answer to that question turns out to be yes, if it turns out that yes, reports were made, then the possibility of the state having liability turns on how the state responded. How did the state react to those reports? If, and the Vermont Supreme Court happens to have addressed this exact issue as well with respect to child abuse reports. And the answer that gave really was, if, if the state responds to those reports by not investigating at all, in other words, report of child abuse is made, state doesn't investigate. There's a potential for liability in that situation, possible civil liability on the part of the state. On the other hand, if the state did respond and do some investigation, and the claim is just that the response was inadequate or in some way, not what it should have been. In that case, actually, there is no liability. That's, that's the falls under what's known as the discretionary function exception to the state Torah Claims Act. In other words, just alleging that someone didn't, in a matter of which over which the state actor had some discretion how to respond. There's a specific exception for that in statute, as opposed to not responding at all. In that case, there'd be liability because there's, you know, no discretion involved in failing to respond. Let's say there's a legal obligation to at least respond somehow. So sort of recapping then you've got, as I mentioned at the beginning, all this potential for state liability is something that has to be developed over time through facts. But, but with respect to the state's licensing role, does not appear to be any potential for liability. With respect to placing children at the facility, if the if they, if the state did place children there with knowledge that their abuse had occurred, then there's a possibility of liability there. And if reports of abuse were made to the state, and the state didn't respond at all, a possibility for liability there, but the state did respond in some way, then probably no liability based on sort of the adequacy or manner in which they respond. That's a summary. I should point out that overlaying all of this is a point that Senator Sears made earlier, which is that all this also is very much connected to the statute of limitations. So in other words, when did the alleged abuse occur? Because there's a very, very strong possibility that the older these cases are, they would be barred by the statute of limitations anyway, depending on what kind of abuse it was. So you may recall that a couple of years ago, the legislature passed a statute that repealed the statute of limitations for claims of childhood sexual abuse. And where we passed that so that and that was retroactive. So if any of these claims involve sexual abuse, there's going to be no issue with the statute of limitations because of the law that the legislature passed two years ago, that those can be brought at any time whenever the victim is ready to bring the suit. However, if it's physical abuse of a non sexual nature, that has a three year statute of limitations. So those, those had to be brought. And I should point out to that those sorts of claims, the statute of limitations does not run while somebody is a minor. So the three year statute of limitations for a child victim wouldn't start running until the child turned 18. So the child would have until they turn age 21, to bring suit based on on physical abuse, some sort of physical injury, a not of a non sexual abuse nature. But that may have passed that clock may have passed for many victims, depending on when this occurred. So as Senator Sears mentioned, there's a bill that the Senate Judiciary Committee passed out last week or the week before I can't recall now that repeals the statute of limitations in the same way that the law did that you passed two years ago for child sexual abuse claims, this repeals it for child physical abuse claims. So that would permit victims of physical abuse going forward. If it passes, obviously, that would permit these claims to be brought if there is a claim anytime in the future, without having the claim barred by the statute of limitations. So that's sort of a point to keep in the background of whether or not the state has any liability because it obviously will turn on that as well. Eric, thank you. That's very clear. I mean, this is an issue, I think that our committee has will want to dive into thoroughly and understanding how those complaints of abuse are made through our through district offices and then the frequency and intensity of those complaints, I guess, would be important for determining whether or not the state has acted appropriately in its response. Yes, that's right. Okay. All right. So any questions of clarification for Eric on this in this area, this this is an area that's going to take some time to go through. I think in our committee in particular, and then it will, it'll spill over into the other committees. No question about it. Jim. Do you want to respond to a question about fingerprints? They are required by public schools, approved infant schools and recognized schools have to get fingerprints for employees and contractors. Very much. All right. Thank you. Eric, thank you. You turned your picture off, but we appreciate you appreciate your time. Thank you very much. Happy to help. Sure. Okay. And I think Bryn is next is Bryn. Where'd Bryn go? Where did Bryn go? She left. Who's next Katie? I believe the last question was the mandated reporters question and Bryn had planned to address that. It may have been that we had scheduled from 830 to nine and she may have had another commitment to another committee at nine o'clock. I'll email her and check. Okay. I think because this is an area that both of our committees have significant concern about. And we've worked, we worked several years ago on the mandatory reporter law and statute. So knowing who is responsible for making reports, how those reports are made, and then the consequences of not reporting are critical to understanding current Manhattan. Senator Sears, I know this is a big area for you. So why don't you go ahead? Yeah. And I do want to add, and I did speak with commissioner Brown about this this morning and had spoken to him in the past about it. We are getting bombarded in Senate appropriations and you may be as well on emails from people urging us to fund $117,000 for child abuse from on for training. And I know the department has been putting a lot of effort into training to make sure that mandated reporters are doing their job. And we'd rather have them err on the side of caution and maybe report something that they suspect including child physical abuse. And this all started back during the Desiree Sheldon case. If you remember years ago, a young girl from the Maryland area who was murdered in there had been evidence that she had had a series of child abuse cases were broken on and served with board. So I've got to take care of the dog. Okay. And I think I'll be right back. Right. So but the issue you raised about within the big bill on our our prevent child abuse coalition providing training for minute for reporting is and I did I did see I did hear from commissioner Brown about that. So I and I will I know it's I know it's happening, but the more it happens, the better. So the more training we have for folks and how to report when to report and the frequency of reporting I think is going to be very important going forward. So I see that Bryn is doing a walkthrough in another committee. So what we'll do is we'll shift over to the next slide. Thank you. Thank you. Thank you. Thank you. DCF and commissioner Brown. Thanks for being here. With half of your team. I know that the other half is unable to be here. But our, our questions really relate to. The process for granting and revoking a residential treatment program license. As. As much as we can get today and then. Walk through how a complaint concerning a Kern hat and student might be addressed how that complaint might be addressed under the child abuse and neglect process. Because we're hearing that that is very important and how mandatory reporting occurs through DCF. So those are the two areas to begin with and then we'll move on from there. So thank you for being here commissioner. Yes. Good morning. And as I indicated earlier, Jennifer Benedict unfortunately couldn't be here today. And we hope she recovers quickly. And with me, I do have our general counsel, Jennifer Micah. We do have a short PowerPoint that will kind of highlight some of the overview processes that we can discuss a little more detail. And Jennifer will walk us through that. And then we'll be able to answer your questions as well. As, as we go through it and. And, and just, just, you know, for, for the committees. As we indicated earlier, the goal here is to understand what improvements we can make to the, to the process. So as we learn more about what has happened with Kern and then each of our committees will make recommendations, statutory recommendations to improve the process. Thank you. Are you, do you have share screen? I believe Nellie was going to pull it up and walk it. And as Jennifer walked us through it. Okay. Nellie, you're all set then. Yep. I'm all set. I will bring that up. Thank you. I'm going to turn it over to the other committee members. And then we have, we have, we have, we have, we have, we have a question for you. Hi. Thank you. I'm going to turn it over to Ben. Sean, please. Jennifer. This is Jennifer Micah, general council for. Vermont department for children and families. Before I start, I do want to. Remind the committee of the limitations of my expertise in this area. Jennifer benedict is the supervisor of the RLSI. She's the director of the RLSI division. But I think the biggest mistake I could make today is in misrepresenting how the RLSI operates. So I apologize if you're unsatisfied with my answers and we will try to get you the answers that I can't answer today, but we can go through it on a sort of overview and take back any specific questions to Jennifer when she's feeling better. So we can go to the next slide, please. So there, before I start, there are two things that DCF does. One is we investigate individual allegations of abuse and neglect. That happens throughout the state in any situation where we get a call of abuse and neglect of a child. The other one is our licensing function over residential treatment programs. Those overlap sometimes because our licensing implicates child safety. So we license and regulate RTP, we call them RTPs, residential treatment programs, foster homes, kin homes, agencies that place children and designated shelters for young adults. Special Investigation Unit does the child safety interventions, which are the assessments and investigations, which that is the situation where you have an allegation of abuse or neglect. We can go on to the next slide if there aren't any questions yet. This is the organization chart. Jennifer, what I'm going to say is because I can't see everyone and so if a committee member has a question of clarification, then please just speak up and offer your question. Thank you. As you can see, we have a number of the FSW means Family Services Worker and we have them throughout the state and they investigate in their regions in addition to having a main number that people call for a particular allegation. Now I would point out in response to some of the concerns raised by Senator Sears regarding mandated reporter functions and training that we have two staff in this unit who do take on the responsibility of providing mandated training to residential programs, so they're fully aware of their obligation under the law of how that works. I think we can go to the next slide please. So this is an area that I am not knowledgeable in the application process for a residential treatment license, so unfortunately I think we're going to have to wait for Jennifer Benedict to come back and give you an overview of that particular process. But what I could say is that under Title 33, we're required to promulgate rules regarding the regulation of residential treatment programs for Vermont youth and we can provide those regulations to the committee, the link to them on our website, about 50 pages of regulations of how, you know, you become a licensed and how we regulate those programs as well and so we could refer to be able to refer to those throughout questions as well. So let me ask this question. When was the last time that the handbook and the rules were re-evaluated and updated? I'll have to get back to you on that question. Okay, yes I know because sometimes we hear that rules have been in place for 20 years and without review so it would be helpful for us to know where these rules are and where the information is for providers. We can get that to you. The one thing I want to point out around the RTP is that the fact that you have a residential treatment program licensed does not mean that every child in the facility is in need of residential treatment services. So you could be licensed and as with Kern-Hatton only have a very small number of children who fit within the needs that a treatment program would provide. I'm not saying this clearly but children with higher needs who need a treatment program, that's the reason why you might have a license but if you didn't have a lot of children who needed that kind of treatment then you wouldn't need the license and you might be more willing to let the license go which removes DCF from the oversight of that facility. And that's the case with Kern-Hatton that they only had a small number of children who needed a residential treatment program. It was by and large simply a residential school. So then the question arises while DCF did provide oversight through licensure, what was the nature of the treatment programs available to the few kids who were there and then what is the number of children, what's the cutoff point? If you have one child who needs support, that child needs support. So that's a question and then the other question I would ask is, and as we go forward we'll have to hear more about this but are those kids still in the school who are DCF kids in school, state-sponsored children still at Kern-Hatton? So that's maybe commissioner you can answer that. We do not have any children or youth in the custody of the Department for Children and Families placed at Kern-Hatton. And then the other question would be how many kids are there who require treatment currently? So I mean we'll have to dive into some of this a little more in detail to understand exactly what happened when the licensure was ended. And we don't, I don't have the numbers of how many children need treatment who are still there. It could be that parents could choose to leave a child there even if they needed treatment but that's not something I can answer today so we'll have to give back to you on that particular question too. And the other questions about the the actual programs those are not, those are really questions for the expertise of Jennifer Benedict. Okay thank you. I apologize for that. I know it's frustrating. Don't apologize, can't apologize for someone being sick. Senator Sears has got his hand up. Good just go ahead Dick yeah. Yeah I do and it's a little bit beyond the application process but when I was operating 204 Depot social workers were required to visit once a month with placed children. I don't know if that's still a requirement but part of that conversation with their kid was often the kid would report things the social worker would come to me or another staff member and discuss the concerns and then sometimes there were actual reports. Other times it was cleared up between the kid and the staff member or myself. I'm wondering if that's still the case number one and number two are did you get reports regarding current happens from social workers who visited there and would that bring another licensing visit? I don't know the answers to those questions. We'll have to ask Jennifer Benedict about those. I do know Depot certainly would have more oversight. We mean DCF would be more involved in Depot because of the nature of the program but we do and we do regularly have social workers visit when we have a child in custody. And they are still required to meet once a month with the children on their caseload. But the reason for my question and it's similar to the question that I had that I had discussion with Colonel Birmingham about and that is when a kid runs away frequently if he's picked up or she's picked up by law enforcement there's often a discussion with the law enforcement officer about the conditions at the facility. I don't know if any of those reports maybe you could check with check on that as well. I'm sorry Senator you were going in and out it was hard for me to understand I'm sorry my question yeah my question really is those conversations when a kid runs away there were a number of there's allegations that during the mark I think his name was mark Davis era at current hatton that a number of children ran away this all came up during our testimony on s99 they would run away be picked up and returned by the same trooper and and my experience is that when kids run away they often talk to whoever picks them up whether it be a trooper or a social worker or a staff member and say something about conditions and it's a ledge that those kids talked about the abuse that they were afraid of and that's what I wanted to you're right this is a question that we asked when we heard from the current hatton lawyer early on and we're still waiting for a response about that so it would be helpful to know how that information from a public safety officer is treated and whether it actually makes its way especially if it's a if it's a child under custody but also if it's a child in a licensed facility where does that information go how is it treated I would think it would be reported to our um well we I guess I guess the the direct question is was it was it reported so and if I could just jump in here I think what we would need is more information on the dates and timelines for us to go back on some of these questions to to check whether certain information came in through um our child safety intervention um process or through the regulatory process as well um because it could have come in through a couple different avenues depending on um you know who reported it and how it was reported to us whether it was our one of our social workers conducting a visit um whether it was law enforcement based on their interactions with youth or the program or or parents or staff as well and so we you know we would just need more details be able to um look into our records to make those those type of determinations okay you can why don't you just keep going okay next slide please belly so this is another area where I I do not have the expertise to go through this in detail I can't tell you um pertinent to the current hatton matter when we get an investigation when we get a report we do investigate and we have several potential outcomes which are the person the institution is in compliance there are no violations they're not in compliance in which case we try to encourage them to get into compliance and we offer them our expectations and um opportunity to improve through a corrective action plan or we notify the program um and then we also notify the program of our findings both verbally when we're doing this visits and in writing um and the regulatory interventions are reviewed at each licensing renewal which is as jennifer benedict talked about at the last meeting um every two years next slide so I'm not going to try to go through this flow chart with you uh this will be something that jennifer benedict will have to go through with you um but it does show what happens when we get an intake um and it's it'll be important when jennifer benedict comes back to talk to you about uh why we accept and not accept certain kinds of claims relevant to the current hatton case here that we're talking about the current hatton matter that we're talking about um most of the recent allegations regarding current hatton involved child on child activity there are historical claims of adult on child um abuse but when you get into issues around children there are issues of consent and not consent and children behaving in the way children do sometimes inappropriately but not necessarily abusively so it can be tricky to decide what what's happening when you have two children um engaging in sexual activity um so that but that is the crux from dcf's perspective of of the problems that we're facing in trying to regulate and license current hatton and other and and other schools of you know residential schools especially so we'll bring jennifer benedict back when you're ready to have or go through the the details of how we do this and i would point out that that this flow chart is for the child safety interventions what we would refer to as a chapter 49 investigations and not a regulatory um um matter under their license and regulate responsibility but this would be how we investigate specific allegations of child abuse and we received tens of thousands of of these referrals a year through our centralized intake unit where all of those come into our uh the department so it also sorry yeah i'll ask mine and then senator hardy you're up next um but it also brings to mind the question about how the um policies and investigatory processes are in the residential facility itself so the does dcf review and that's on your earlier slide and maybe jennifer jennifer benedict can help us with this what's the process internal to the to current hatton for example when a complaint is made right so we'll have to wait for jennifer benedict to talk more in detail about that but i will say um piggybacking on what the commissioner said some of these intakes do then also get referred to licensing if we feel that there might be a violation of the licensing regulations as a result of uh for instance um failure to supervise that would be a super that would be a regulatory matter versus the child on child activity that we might be investigating in our rls i excuse me in our in our um what we call the child safety intervention investigations it will but it might be it might a policy in place might prevent some of the abuse that would might or the interaction child a child that might occur so we'll have to just look at that a little bit senator hardy go ahead thank you madam chair um and jennifer you may have just sort of answered what i was going to ask which was um i understand the complexities of investigating or um uh getting to the bottom of child on child um sexual contact contact but is it true that if an adult or a teacher or residential care provider knows about the contact and doesn't do anything about it is there not some kind of liability or responsibility for that adult to as you said super supervisory ability or reporting or intervention responsibilities for the adult in the situation yes so we're getting into where dcf would like to talk about some of what we see as gaps in the in the oversight of some of these schools and i'm not dcf doesn't think that it is really necessarily the right uh department to oversee some of this but let's say just as an example you have a school where children are engaging in um what might be considered inappropriate sexual contact with each other it is the adult's responsibility to make sure that the children are kept safe now in a home if there were if there were a parent who was failing to protect children from each other in their own home you could have an investigation and a charge of child abuse and neglect for failure to protect those children um in an in an institution it's much harder to get at because there isn't always an identified adult that you can point to who is failing to protect so um you you might have an institution that has for instance um cabins where where children are um engaging in inappropriate conduct and you might know that the adult is supposed to be there and they're not and that might be an easy case where you can point to that particular house parent who wasn't there but in another case you might have children sneaking off into an auditorium or going into the woods or um going into places where they're not supposed to be where there's ambiguity about which adult is supposed to be supervising at any given time so those are essentially the problems that we're facing in in investigating and trying to hold accountable institutions for failure to protect which I think is what a lot of is what which I think is what's going on um to some extent uh at current hatton how do you how do you make sure that the adults are that there are a sufficient number of adults um and that they're watching the children where they need to be watched senator oh I'm sorry no that's fine go right ahead thank you with regard to the the child-on-child activity if a child complains to an adult then what's the process so the the adult the mandated reporter should call our hotline and report the abuse like the activity and that and there will be um and I don't want I can't get into the details of it because I haven't been involved in that process but as a mandated reporter which is any any adult who's working at a school is a mandated reporter so they should be reporting it and we would then as the the flow chart shows we will accept it or not accept it um based on the facts of the initial case if it's a particularly serious case we might get law enforcement involved too and I think depending on the nature of that institution where that occurred if it's a licensed residential um it could be referred for a regulatory intervention as well as a um a child safety intervention investigation as well I think it's it's a fact specific depending on the circumstances involved um you know with with the conduct who's involved in the conduct and then also um the nature of of the institution where it occurred right as I noted earlier if you are an institution that doesn't need the children who need residential treatment then you don't feel licensed and then you avoid that kind of oversight uh thank you this is great um let's let's why don't we move on to your identified gaps that you were talking about and then um we'll open up for further questions so we've talked about we've talked a little bit about our regulatory oversight limitations if we if they don't if they don't need if it's not if they don't want to be a residential treatment program then we have no oversight of them on a licensing on a licensing matter we have no authority to close them um nobody does really as far as I can tell um maybe Jim Demerey can talk to speak to that more but I don't think there's any authority that would allow us or AOE to close an institution um I don't I apologize I don't understand that that second point I didn't do the um power point and I'm not sure what Jennifer was Jennifer Benedict was intending with that second one okay so we'll come back to that right there are we did hear about national or more regional regulatory activities through the AOE so maybe that's we'll come back to that at some point national accreditation that might be out there for like independent schools we're not able to share certain information I believe is the point there but we would need Jennifer to confirm yeah um DCF has not revoked an RTP a residential treatment program license um and part of the reason we don't we didn't want to revoke current hattons license is because we understood that we were providing some oversight um in a situation that we were concerned about and I don't know what more to say about that but I don't know but that leaves um those of us who may be sitting here hearing that leaves us with dozens of questions I'm sure what that means um we decided not to take it because maybe you could rephrase that or or so senator I guess you know how I would frame it for the committee is you know we had been engaged with current hatton and this is historical you know prior to the general council my cousin my time but um I as I uh came into this role this is one of the first issues I faced this summer um was how to move forward with current hatton based on our concerns with their program over the last several years and concerns that they really uh were more of an of a private boarding school than a than a treatment program and really shouldn't be licensed um and that you know they were ongoing issues with them um and and what was happening with kids in their program and so from our perspective you know the department that's responsible for child protection issues our one tool in our toolbox was to close their residential license and if we invoked that one tool we had we lost ongoing visibility into that program on an ongoing basis unless we received a specific child safety report invoking our chapter 49 authority to do a specific investigation however that would only be specific to that that and that in that report of abuse or neglect um and so our ability to provide any oversight to that program on an ongoing basis um evaporated as soon as we closed their license and so we were in a catch 22 at the time I would say so and if I compare that where current hatton is today would say Vermont Academy and nearby sacks and rivers you have no authority over uh Vermont Academy nor yet I don't think the state ever has other than if the word was a report of child abuse there you would obviously have to investigate um is that correct that is correct senator that helps me a lot because I'm comparing the two programs today um if if if current hatton loses the state board of education designation and they would be more alike uh Vermont Academy which I don't think is recognized by the state with education and I might add if you have a lot of out of state students then the aoe designation isn't as important to you either yeah so then I mean that raises a huge number of questions about uh oversight period and this can go on and on and where the responsibility lies because these are children so um and and then just to go back to your number one the first bullet that you have there uh where you're closing the license or revoking the license the oversight that was provided was a result of kids state children being placed and or treatment necessary for kids so if the treatment continues whatever that is whether mental health or behavioral treatment what why isn't there some well should there be from your perspective be some oversight for those kids in treatment to ensure that the treatment services are offered adequately so I'm not sure how to answer that um other than to say if parents have a choice where to send their children um and if they go to a school that chooses not to be licensed as a treatment program but they're happy with what the school is offering their child then you get into issues about um the rights of parents to to choose the education for their children um as just one point I mean and I would say when we were working with Kern Hatton recognizing I think they recognize that they really were not a residential treatment program um and we had recognized that and we had concerns about the way they were operating and we were moving towards um revoking their license when they voluntarily said they wanted to relinquish it before we would allow them to do that we required them to take certain steps to make sure that um surrounding states who might refer children to their educational institution were made aware that they were not a licensed residential treatment program and treatment was not a component of their program because as as uh general counsel Michael indicated um you know they do receive a number of students from surrounding states um into their program and we wanted to make sure those states and other um organizations that refer children there were aware that they were no longer a licensed treatment program nor and did not provide treatment that they were solely an educational institution okay thank you all right are there any other questions at this point for um senator or commissioner brown go ahead thank you oh thank you go ahead go ahead commissioner commissioner brown you said that um current hatton relinquished their license but that you were in the process of revoking it and can you address that I mean what why why was there that revocation that was imminent and then the um relinquishing instead well you always if if you know when you're working with another entity you know whether it's in this area of dcf or other areas you certainly want to come to a resolution by agreement um if at all possible and in our work with current hatton in in our continuing regulatory findings of of that we were um in our concerns of of their treatment program which we didn't think they met that the criteria any longer to be a licensed treatment program and they agreed and then they'd agreed that they that instead of you know um and and they agreed and recognized that and said that we would like to volunteer relinquish but we wanted to make sure they met certain conditions before that happened had they not met those conditions we would have then moved forward in a timely way we would have moved forward at that point to revoke their license and then ourselves notified other organizations that they were no longer a licensed treatment program but current hatton was able to meet those conditions um and then voluntarily surrendered their license and so I think that that that that was the mechanism that moved forward so when we bring jennifer benedict back in uh will she be able to ask more in-depth question uh question answer more in-depth questions about this particular issue because it's a it's one that um I'm very concerned about and I think other members of our committees are concerned about yeah and and I think and that's the gap we identified senators we were concerned to recognizing um what was happening in their school um but that they also weren't a treatment program and our only tool in our toolbox was to close their license which shut the door to our ongoing um oversight role of that of that institution but you indicated that they would have had to meet certain uh conditions so it would be helpful to us to understand what those conditions are or were yep and we have the and we can provide the documentation of of the correspondence that we provided to current hatton with those with those conditions in it senator we do have that um documentation thank you okay any other questions I can't see hands senator sears I can see yeah um I just um wanted to thank commissioner brown and the others from dcf and some fortunate that if you think of her name right now i'm stumbling um jennifer benedict that's okay yeah jennifer benedict was unable to join us today i appreciate that both mr. rodin jennifer i think that you actually uh explained a lot but also left a lot of information and i think um there may need to be significant changes in the way we license independent schools um when i thought i think of an independent school i think of bern burton and i'm sure people from the kingdom um you know linden institute and some of those other schools not necessarily um residential school uh like current hatton so um it leaves with a lot of questions but i think also um you've explained a lot too to help me understand the process i'm hoping that colonel barringham can shed some light on some of the other issues so i think senator hardy has a question uh and then go ahead senator hardy and then then i'll have a question for you senator sears go ahead thank you madam chair um so um commissioner i'm wondering if given everything that you've learned and processed and shared with us if you have specific recommendations for what we should be doing moving forward to improve the legal structure given that that's what what we're able to do is make laws change laws um and and i i had hoped to see a slide that sort of had your bullet point recommendations and i'm wondering if if you've gotten that far i mean it seems clear to me that there are certainly recommendations about private school oversight which is obviously not in your um bailey wick but if there are things in your area that you think we should tighten up legally um what would they be i think you know and i would defer to jennifer micah to jump in here but i think you know there's the issue of the one tool in our toolbox is is closure so i think if there is a residential treatment program and there's ongoing compliance issues and we certainly would not want to just close their license and lose visibility and and access to that program on an ongoing basis you know i think we would want to explore what opportunities are there maybe to expand our capabilities there or tools in our toolbox but i think also in general i think jennifer touched on the other point like if if if this was a private home and and and and it was youth on youth um you know the parent would be as ultimately responsible for their children and and you know in many times we do act in those situations um either through a conditional custody order or a family support case or we take them into custody in place those children in another setting and we have that ability to do that we didn't have the ability to do that here and i think jennifer touched on that a little bit um on how how we would intervene in these situations that could be ongoing of um children on children abuse occurring and and who do we accountable is it is it the staff are there staffing pattern issues that are actually problematic of leadership and resources in the institution and that's where the accountability lies i think those are questions that need to be fleshed out and explored more is are there opportunities to to to look at for us there as well but i'm also sensitive that in the other chamber right now there's a conversation going on with the child advocate where there's been a lot of testimony that we overreach and and are too intrusive and too quick to act and so i think that highlights for us you're sensing our hesitancy that we would be careful because we do have an awesome responsibility here and at times we have some pretty broad powers and and when you exercise those sometimes it creates conflict and and and um and and i think we're seeing that in between the the testimony and the office child advocate but then also the flip side here um you know in in this situation and so we're sensitive to that to that tension and we just want to approach it thoughtfully that i completely appreciate that and understand that you're in a really difficult situation and also it seems to me with the residential care treatment facility situation you're kind of in a catch 22 also that if you revoke a license you have no oversight but if you allow a program that shouldn't be a program to continue then you're also not doing the right thing so what is the right thing to do there so i appreciate that i think though that we do want to move forward with something at least as we flesh this out with to improve the system that makes it clear for you all and also more protective of children in the state and these kinds of programs okay thank you um and thank you commissioner i'll echo senator sears comments um and and jennifer um this has been very helpful it's again it's we're getting further down the tip of the iceberg so and we will we'll come back to this again so but thank you very much uh so senator sears my question is we have both matt birmingham and uh brinn here here and i was thinking that perhaps we should go to the mandatory reporter uh report uh brinn's report first and then um colonel birmingham but i'll leave it to you and you're muted senator story of my life on zoom is muted at the time and when i don't want something i say heard i'm not muted so anyway um i'm fine with uh i just want to make sure we have adequate time for colonel birmingham so yes so let's do this let let's listen to brinn and we'll try to restrain ourselves with with questions and just comments uh and sort of listen and then we'll move to we're scheduled to to break at 10 i mean we can go a little bit longer than that okay i'm a judiciary yeah we're we're we're tight as well so um brinn welcome thank you i think we asked a question about um mandatory reporters and what happens with the failure of mandatory reporting so perhaps you could speak to that a little bit sure and my apologies i had to leave earlier um but that's the way it goes so good morning time of year um brinn here from legislative council for the record here to talk about um what happens if a person who's a mandatory reporter fails to report um so as everybody knows there's a there's an obligation in title 33 for mandatory reporters to report to any um reasonably suspected child abuse or neglect to the department uh for children and families within 24 hours that that abuse was first received or observed so a failure to report um child abuse and neglect by a mandatory reporter if it is a misdemeanor um the statute the mandatory reporter statute provides for a five hundred dollar fine um for a person who violates the requirement um and also an enhanced penalty of us up to a six month prison sentence and up to a thousand dollar fine for a person who fails to report um with the intent to conceal child abuse or neglect um so there there is a criminal penalty directly in the mandatory reporter statute um and then also and this is i can speak to this more generally there's also uh depending on the employer of the mandated reporter there could also be um employment sanctions for a failure to report depending on the type of employee so some organizations impose employment disciplinary action up to an including termination for a failure to report um depending on the person's motivations and um depending on the mandated reporter's profession there could also be uh professional licensure um implications if a person fails to report so that would really be up to the board or the agency that oversees that person's professional license um and it would be very fact dependent on um on the situation um and depending on whether or not that failure to report would constitute unprofessional conduct pursuant to that um person's license and then um it also is possible uh that the mandated reporter statute could create a private um civil right of action for a person that was harmed by um a mandated reporter's failure to report um there there is a provision and the restatement of torts that if there is a legislative um provision that protects a class of people by requiring certain conduct but it doesn't um indicate whether or not there is a private civil right of action a court can find that there is um a suitable tort action that was available to a person who's been harmed um or create another cause of action that's analogous to an existing tort action um and the Vermont Supreme Court has um has said that they have not ruled on this issue about whether or not there is a private civil right of action um in 2018 they ruled that they haven't made that determination and they um and they declined to make that determination in a in a case that was before them in 2018 um but they did note that there really is a split of authority in in other jurisdictions about whether or not the mandated reporter statute implies a private right of action for civil damages against a person who's failed to report. Thank you um this is an area that both of our committees have worked on in the past so I think we're we'll probably be working on it again uh Senator Sears I think yeah I think there's two areas to look at for the future Brennan maybe even thinking about wrapping one is it's very difficult to I would imagine to prove intent to conceal and I think we should look at that particular um criminal but I think maybe we need to make clear that there is a civil case against someone who fails to report that that they could um create a civil cause of connection and secondly um we may want to look at how do we hold an institution accountable that allows that type of failure to report um there's allegations that current hattons administration itself encourage people not to and how could they be held accountable. I'm not asking for answers today I'm thinking in terms of draft things. Understood right now we got that uh any any other questions of clarification for Bren. And I could provide some quick data for the committees as well in this area um this is calendar year 2019 data we do not have 20s all put together yet but 2019 we received um 20,078 reports to our child protection line approximately 78 percent of those came from mandated reporters. Wow okay thank you all right um let's let's move on Bryn thank you very much this is really very helpful. Let's move on to and for folks who are signing in Nellie I think let's hold the waiting hold people in the waiting room if they're coming in for the next part of our meeting just because it interrupts the flow of what we're trying to do. So um let's uh turn to Colonel Matt Birmingham um and Dick Senator Sears you um should probably introduce the topic. Well Colonel Birmingham and I had a number of discussions about Manhattan and the main question is the allegations during our work uh and what you heard in the joint hearing as well as in a Senate judiciary was that a number of cases the same trooper um was returning kids who had run away from current Manhattan back to the facility um and um the children claimed that they ran away because they were afraid of being either sexually or physically abused by Mr Davis and I wondered about any of that but also other runaways who claimed that they had been abused did they talk to the officer I know that when I had kids run away from 204 it was frequent that they would say things some of it true some of it not they would tell the officer or whoever picked them up maybe their social worker or even a staff member like myself certain things that we were not aware of some of those truth so I asked the colonel if you could go back and look at the records but also maybe a little bit information about how runaways are handled by the Vermont State Police. Thank you. Thank you Senator. Thank you Colonel. Uh for the record I'm Matt Birmingham the director of the Vermont State Police uh I appreciate the opportunity to come and speak with all of you um just for a little background the state police has especially trained investigators assigned to the special investigation units around the state um that deals solely with allegations of physical and sexual abuse against children so we work very closely with DCF on those investigations that are criminal in nature um also for the record troopers are all mandatory reporters under the law uh and are required to report any allegations of a child physical or sexual abuse um specifically to Manhattan we have run a couple of numbers since January of 2017 um in that time frame uh we the state police investigated no cases of runaway juveniles between that time from Manhattan but there were five active investigations by our criminal investigators um related to uh all four of them were all child on child assault allegations and then one is actually ongoing as we speak so um there um and that's from 2017 on the concern obviously about the trooper that Senator Sears was talking about in the in the 80s related to um the allegations back then I don't have specific information at this point on that certainly we you know there are as far as I know there are no troopers that are currently still employed um with the state police from the 80s um and it would be important for me to to um dig into those records which are all paper files at this point so it will take time to do so and identify which trooper that could have been operating down there at the time we obviously didn't have special investigators at that time nor do we have SIUs at that time and handled um complaints very differently so that's still underway and it will take some time to figure out um who that may have been at the time but certainly something we are interested in ensuring that um you know we we get to the bottom of whether or not that that was true or not at the time um so that's what I have for you currently I'm certainly happy to answer any questions um from our end um you know obviously when we receive any allegation of of physical or sexual abuse of a child we do we notify DCFS does everyone and then um our SIUs are immediately assigned and involved in any criminal allegations from from there on out and criminal investigators work very closely with the DCF investigators on those cases and present those cases to the state's attorneys in the respective counties for prosecution they are specially trained they go through child forensic training courses to learn how to interview child victims and learn how to do those types of investigations which are very sensitive and require a very different approach and many other criminal investigations that we're involved in can be happy to answer any questions I have a quick question but Senator Sears you go first no you go well I'm just going to ask if what if in terms of either the training or the the contacts with kids and other other folks involved are do you work with DCF on this and and then because I obviously you do work with DCF on this but in terms of the training process and then the investigation process how closely and under what conditions do you work with DCF and social workers and so on as close as it gets where we work sometimes in the same offices we work right alongside their investigators in these SIUs around the state you know and troopers are mandatory reporters so regardless of you know if a complaint comes in and regardless of how it comes into the state police we're required to notify DCF on any allegation of abuse of a child and they at times can handle some of those reports on their own and then sometimes if there are criminal allegations they will come back to the state police and the SIUs and and then we will work right alongside DCF investigators on those investigations. Thank you Senator Sears you're up yeah I get my question Colonel is I'm assuming that the four cases of child on child sexual conduct were decided not to be prosecuted by the state's attorney am I correct that those three three of them were declined and one was prosecuted and the ongoing investigation may or may not be prosecuted by them correct that is ongoing everything is written no matter what you do every the decision that we're that a charge or not is actually with the state's attorney in Wyndham County not the attorney general is that correct that is correct senator the all of those cases that I spoke of except the one that's ongoing which I assume is also being closely reviewed by the state's attorney were reviewed by the state's attorney and and three were declined and one was prosecuted but these these SIUs work very closely with the state's attorneys and their staff and and have in many cases specific prosecutors that are assigned to prosecute these cases as well because as as the as I said previously the investigation of these cases is very very sensitive and requires special training as does the prosecution of them so there are many prosecutors designated around the state to oversee and manage that that caseload I think it's important also to understand that many of our child section use laws were updated and let us say it was 2010 following the and in case it was act one that year and that changed a lot of what has happened I think we may have locked up and so when we're looking back to the 80s that was well before a lot of those changes that nobody needs to comment on a number of changes taken I think senator hardy has a question thank you madam chair um thank you colonel for being here today um you gave us statistics about investigations since 2017 was there is that is there a reason for that what do you have information on investigations prior to that is one question and the second question is you said you work very closely with DCF on these types of investigations and matters and I'm wondering if at any point you've seen you saw a sort of pattern that concerns you we we did hear from commissioner brown that that DCF had concerns and I'm wondering if if your people also had concerns and if you did see a pattern or see a pattern anywhere else at any other place how do you what do you do when you start to see a pattern where there are repeated cases or or yeah situations um so the first question uh 2017 was probably an arbitrary date that uh people that I asked to look into this look back I've certainly we can go back as far as um our our cat rms records go which is probably back to 1992 and I can pull those easily prior to 1992 which is when our current cat rms which is our computer records management system went online everything is in paper files which are in storage so it's much harder to access that information but certainly I can go deeper with them 2017 if you like it was a it was really I think just a snapshot in time um your second question um you know I that's that's a good question I don't know um you know I certainly you know that would probably be the local siu investigative team and the supervisory um oversight of both the criminal investigators and DCF side of the house um whether or not they feel there is a um some sort of trend or some sort of issue that that uh they want to highlight um and I would leave it up to the local investigative teams to to to do so um you know uh because all of these you know the current one I can't get into but the the four prior to were child on child there certainly was no um nothing no red flags that I was aware of that that were raised about um child physical or six abuse by staff or or adults at the facility um and certainly if if that was the case we we would probably be having you know that would raise a lot more red flags um but I I would leave that up to the local investigators and um and supervisors to manage um if they if they feel there's some sort of issue that that really needs attention okay thank you um other questions I'm sure that this again there'll be a lot of other questions and as we look back on the what's what's been reported by those involved at Kernhattan we're we're going to want to know more and I think some of this does relate to the to the role of the mandatory reporter and some of it actually you know does relate to how to collate the information and determine whether or not it's actionable so um Senator Sears I think that this probably is a good time to wrap um and I before we do that I I wanted to thank Commissioner Brown and Colonel Birmingham and your your staff who are here who are not here but I especially want to thank um Katie McClinn who had to leave for putting this all together with me uh we did a bit of planning on this and Senator Sears as well so um I think that's it this is not the end uh this is the beginning again another beginning but we have a lot of questions and really appreciative that the um department has identified some gaps and and as we go forward together uh continue to identify the gaps that need closure both in public safety and Department of Children and Families and then extending into the Agency of Education so thank you all um this will be the Zoom room for health and welfare so we're going to take a five-minute stretch uh we'll end the the joint meeting with Judiciary and then any Judiciary members who would like to stick with us you're welcome to be here uh see you're all excited about it yeah hopefully all the Judiciary members will come over to the Judiciary Zoom with Peggy Delaney um at 1015 we're scheduled to start so okay we've got time to move to a different room um yeah walk down the hall yeah walk down the hall um Judiciary is right around the corner for health and welfare if you need directions all we need is a door between the two committee rooms will be all set all right take care thank you all