 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 talk about the legal issues in Vermont today, I'm Very very pleased to tell you that my guest is Larry Christ Who is the executive director of the Vermont parent representation Center? Wow Yeah, good morning judge. Good morning, and he and Trina Beck and Bill Young who used to be commissioner of the Department of Social and Rehabilitative Services have published a Report that is just Well, I hope a lot of people will get to read it I've asked the station to project The office telephone number for Larry. So if you want to get more information in a copy of the report Which is broken system broken promises? And that's it's a very appropriate title This is an analysis of the current situation in the What they call the substantiation process at the Department of Children and Families It's I Guess can tell you how many details and important details. I'm gonna try to get into today Larry would you please explain what this process is if you can sure in 25 words or less 25 words or less Substantiation is a strange word most people have never heard yeah heard of the word But what it really means is you've been determined to have done something you've been found guilty in essence without a judge But you have been you have been found guilty of in this case child abuse or neglect. That's the Substantiation process it begins when a report goes to DCF of Alleged abuse or neglect or a concern the department does an investigation and then the investigator and their supervisor The two of them make a decision as to whether as an example you are guilty You're guilty. I mean that's how it works You are now guilty and you have the right to an internal administrative review Which DCF operates itself DCF again is the Department for Children and Families that is Vermont's child protection agency. Okay, and Then you after that review if you are not successful and most people are not Then you can appeal to the Human Services Board, which is a a more formal appeal process But the reality is even though the burden of proof is on the state to show that you did this The system is set up in such a way that if you can't defend yourself You are not likely to be successful in your appeals so each year Vermont DCF substantiates between 700 and 900 people each year of that number about only one third Appeal their substantiation. No one knows why because it's a confidential process I have we have some ideas as to why it's only a third of the people but In effect of that third of an appeal only about 10% of those people are successful in their appeals The number of people who appeal on to the Human Services Board is much much smaller than that But it is a difficult number to know because that's a confidential It's not a confidential process, but the outcome is often confidential Are these people giving it? Is this like in the criminal system where people get a public defender lawyer to represent them? No, you're you're not afforded an attorney and that is one of the major drawbacks to this system There are many drawbacks, but that's a major drawback because most people don't understand how to defend themselves in any kind of hearing And clearly when they get to the Human Services Board They don't know how because the Vermont rules of evidence are used there and the state DCF's position is basically prosecuted By the Attorney General's office, so you as an individual with no training in any of this have to compete in that environment now What our report showed and so folks understand the report was done as a test of the system This system to our knowledge has never been tested before it's been in place for a very long time And that is a big part of the problem. This system is antiquated. It was not designed To do what we ask it to do today and I can go into a greater detail with well If someone is associated and they appeals field They go on to something called the registry they go on to the child protection registry That is a registry that's maintained by DCF It has the names of all of the people who who have been Substantiated and who've lost their appeals are never appealed Currently there are roughly 25,000 names on the registry Statistically, it's a it's a huge number, but remember statistics are not always what they seem But that's one of every 26 Vermonters is on a child abuse registry now That's 25,000 people over a period of Decades, but some come on some go off if they if they are successful with an appeal for expungement to prove to the state that they Won't do whatever it is that they were Substantiated for in the first place, but the number stays about at this juncture about 25,000 and What our report was done was to test the system to say does the system Accurately determine whether people have been have committed abuse or neglect We went into this process and as I said We can't find any record of this system ever having been tested before or even been being tested anywhere else in the country So my hope when we started this test was that we would accept the first 15 appeals that came to us And my hope was we would lose them all Because that would show us that the system works that it identified Abuse and neglect it identified the person who did it and it put them on the registry the way the system is supposed to work What we found was just the opposite At the end of the 15 cases we had won all 15 cases Which which was an extraordinary number What caused me great concern was to say no one wins 15 cases the first 15 cases they take It just is it doesn't matter whether you're good or not or lucky No one does that so we added five more cases because I kept thinking maybe there's something wrong and how this process is playing out We won the next five cases then we added five more So as you see in the report, we have now completed 27 appeals over a two and a half year period and we've won all 27 and What we've found is in the report that the state cannot accurately determine whether someone has abused or neglected a child and Consequently we have an unknown number of people I mean based on our study you could say a hundred percent of the people on the registry shouldn't be there But we know that's not true. There are children who are abused and neglected in Vermont And that was the other half of our concern if a system is placing the wrong people on a registry It probably is making the same mistakes when it investigates the people who should be on the registry Yeah, and what our report showed is that if you have the resources if you have the money to hire an effective advocate You are probably not ever going to be put on the registry because the system is that broken But that can cost a lot of money The there is a cost range and for your first round of appeals with DCF If you were to hire an attorney who is capable and will devote the time to it It will cost you at least ten thousand dollars If you appeal on to the Human Services Board, it can cost you twenty thousand Or it can cost you we have a couple of cases were over fifty thousand dollars in Time attorney time has been put into and non-attorney time has been put into these cases The average for a monitor can't afford ten thousand much less fifty thousand Now what I'd like to do though is go back And look at what is the heart of the problem and the heart of the problem is this Substantiation system and the use of the registry were created about Thirty years ago Maybe a little longer for a totally different purpose It was created one to be able to tell the federal government What the level of abuse and neglect was roughly? But more importantly it was designed so that state government SRS then later DCF Would know when someone applied for a child care license or a foster care license No, we don't want to give this person a lesson I mean a license because we believe that they abused or neglected not that we know but we believed Because it was not looked at as a judicial proceeding It was gathering information and would a reasonable person believe that this person did what is alleged not we can prove it But what a reasonable person believe no preponderance of the evidence no preponderance of the evidence It's something called the reasonable person standard now you and I both have a fair number of friends and Most of our friends if not all are reasonable people wouldn't you say that I hope so that means we agree on everything No not with my friends But we're all reasonable people and that's the problem with the standard that we have carried forward over the 30 to 35 years Where these the system doesn't have to prove that you did anything It just has to show that somebody might think that you did something Whereas today and this is where the the shift came About 25 years ago The legislature and his wisdom said wait a minute. We have this registry of child abusers that only the state can see No, that should be available to employers So the legislature made it available to employers The problem is that once you do that you change the nature of how the registry is used It's now you being used to take away a property interest and a liberty interest as An example if you are on the registry you can't be a teacher Jesus you will not Get your teaching license or if you have it is a good chance you will lose it You can't be a therapist. You can't be a pediatrician. You can't be a childcare worker You can't be a parent who goes on field trips with your children's class if you are on the registry The moment that happened then commissioner bill young raised the issue with the legislature some 25 years ago That the system had to change it had to be based on a Proponderance of evidence so that you could actually prove that this happened and there needed to be an appeal process for people Well, here we are 25 years later. It is still the reasonable person standard however When you lose your DCF hearing your review and you appeal to the human services board The standard changes because the human services board uses a preponderance of the evidence so you can have DCF that Doesn't investigation Decides that they think you did it If you appeal to the human services board, you're not put on the registry at that time Well, let me back up a second You can be put you know, no you are put on the registry So you are on the registry until you win at the human services board Meanwhile, you've lost your job Or you're a student as an example who's who's about to graduate with an education degree. You can't be a teacher not not as long as you are on the registry and At the same time you can't as I said you can't volunteer at schools You can't do a host of things to the degree even that if you're a building contractor And you want to bid on a bid at a school project? There's a question as to whether the school will let you Will let you do that project. Well, because you can't go on the premises Well, you can't be around children in theory and you can't be and and in fact, there are situations where as an example a university that will go unnamed might be recruiting for maintenance people and in the athletic department But because that university has or had a child care program they have to run your name through the registry Which means you can't work in the kitchen. You can't work on a on a cleanup crew. You can't do any of those kinds of things So what is really what we found is that because the department continues to use? the reasonable person standard people go on the registry wholesale and Then to get to get off the registry it requires a huge endeavor at the human services board Most of these and people will ask well, this is only so far 27 cases These cases take months and years for the appeals We have had some cases that have been going on for two and a half years Before it's finally decided this person did not do what it is the state said that it did now Let me add the other piece of this and this is really a critical piece when that investigation the initial investigation happens and The system decides that you should be substantiated Children are often removed from the family Because at the same time those same allegations are converted into an affidavit That is sent to family court So you can have two processes happening the family court has opened a chin's case a child in need of services In which the child has been removed from the home because the person allegedly did x y and z that they're substantiated for Those two processes can go on for a year a year and a half two years in your own experience You've seen cases go longer than that Before it's ever determined that wait a minute There wasn't any proof that this thing actually happened the trauma that happens to children in this instance is as great as Can be experienced by a child They're removed from the family the family has lost their child for a period of time and in our study 50% of the families had the children removed because of the allegations that The system said you did the this and this and Every one of those cases it was proven that wasn't the case it didn't happen The person did not do what they were alleged to have done The state couldn't prove that they had done it and in many cases the state knew in the very beginning that they couldn't prove it If it got appealed to the human services board, so you can have cases in which there's a couple of Parents of a child and one is angry at the other and makes a false allegation Yes results in the kid being taken away and put where with their foster home well, they can they can be placed with grandparents they can be placed with other relatives or they can go into foster care and And we and I say that almost lightly they can go into foster care That is a hugely traumatic experience. Imagine a child is taken from their home Move to a completely different home with completely different people people. They've never met before other children possibly there And one of the things that is you know equally concerning is they might go through two or three foster homes Before any of this is resolved and it's determined. Oops, we made a mistake now most of the children in this case were removed from homes for a period of weeks or months, but there were some who've been removed for years and Well, look to be to be taken away from your your mother for weeks. It can be a dreadful thing It can be really awful at absolutely and and I think again the other Really real concern that comes out of this report is that if the if the system can't tell that someone didn't abuse a child It's equally likely that the system can't tell that someone did abuse a child So potentially you have people who have abused children Been accused of it and when their appeals because they have the resources to hire somebody who can ably defend them and In our instance None of these people had the resources to be able to hire someone well these services were all provided In what's referred to as pro bono. It's a we're a small nonprofit We didn't charge people for these services and other Attorneys who were listed in and non attorneys who were listed in the report gave their time to work on these cases In some cases gave Thousands and thousands and thousands of dollars of their time because they felt like this system Doesn't work and we need to show why it doesn't work and that's what the report tries to do It doesn't blame people doesn't point fingers at individuals. It's a system problem And we can change all the people in the world in the system But if it's a bad system that is based on antiquated concepts, it's going to keep producing bad results And it's time to fix it well Years ago when I was practicing law in Philadelphia, there was a common expression which was Money talks and bullshit walks now. Is this money is this about money? it That's a really good question and and the answer I don't mean to be Embarrassing anything. No, no, no it to a great degree. It is if you are a person who does not have a Lot of economic resources. You don't have money yourself. Your family doesn't have money and You are it's alleged that you've done this stuff and you are substantiated It is very unlikely that you are going to be successful in your appeals the process And we have actually tried with a few of these individuals who we work with Especially as we got toward the latter part of this project to say okay What happens if we give the information to the individual the parent and they then take that information and Defend themselves We found they couldn't do it Just having the information is not enough Understanding how to present the information Understanding how to look behind the allegation to say alright. What else happened here? So as an example, there are people here who lost their first DCF appeal Because the department said well, we have video recordings of these victims and Those victims said x y and z happened What people will see in the report is when the cases went to the human services board were appealed there It turns out there either were no recordings or the recordings were for lack of a better term Unusable because either you couldn't hear them or you couldn't see them or both But more often than not it's that the recording didn't say What the report said? Let me just get this straight if the person's name is on the registry it stays there indefinitely It stays it stays there indefinitely Until the person is able to apply for another appeal for what's called expungement to have their name removed However Expungement is governed by several things. The first thing is there's a time frame when you're put say I was put on the registry for x y and z Thank you for not putting me there. Okay. Good. I you know, I want you to be the judge There's a time frame in which it is you can Larry you can appeal and you can ask for expungement in a year in Five years in 15 years. It actually goes that far Wow So but what happens when you get to that period is that? Statutorily there are about seven criteria that are that you use that are used to judge you as to whether you have in essence shown that you're rehabilitated However it is completely at the discretion of the commissioner of DCF as to whether you should be expunged or not And we were not going to work with expungement cases originally But as we kept winning these cases we said we really need to look at expungements at what as well And what we found was I believe I remember correctly There are three expungement denials in this report the only three we got we had all three overturned and Which is incredibly difficult, but the but the standard is you have to show that the commissioner abused his or her discretion in making a very subjective Decision and we were able to show that that was exactly the case But none of these people could have done that themselves. Oh That's not surprising. They didn't understand what to look for and how to gather the information So the bottom line again is we're using today a system that was never designed for what we're trying to use it for investigations Too frequently are misdiagnosed Information is viewed in in in a way that says oh well this shows the person did it whereas if you ask the next question About that information example a person says look this individual witnessed my child falling off a picnic table It was accidental young child if you talk to this person they can tell you the child fell The department and law enforcement worked together in many of these cases. They interviewed the witness Did you see the child fall off the table and the witness says no I didn't that's it questioning ends However when we went back and looked and re-interviewed the witnesses and said okay You told the department and law enforcement that you did not see the child fall That's why I didn't see the child fall Were you there when the child fell? Oh, yeah, I was there I was swinging my own child with my back to the picnic table But I saw the child get on the picnic table and then I heard the child cry as he fell off the table And I saw the parents pick the child up and cuddle the child etc But no I didn't see the child fall off, but yes the child fell off the table Well all that had to happen in the investigation was simply to ask the next question You were listed as a witness. Why would they have listed you as a witness? Oh, because I was there when the child fell off the table And I saw the the results of the just saw the child go on the table And then I saw the child lying on the ground crying and being picked up That was common. It was incredibly common and in other instances. What we found is that is That a child would have made us made a statement The statement would be this is what happened to me That would be written in the report it would go forward in a hearing and end the Substantiation and then what we would learn is the fact that the child later recanted to a therapist and the therapist contacted the department and said This person made a recantation and I believe it and Given the history of this child. I fully believe it, but that information was never put in the report and There was another Substantiation that was overturned now. This is this is hard work. This is terribly difficult work What I mean be this is the investigations Investigators are under a huge amount of pressure But it can't the system can't work this way. It can't Continue to remove children and disrupt families Because it thinks something happened. This is something is this something that needs legislation absolutely much of what and I'm not blaming DCF DCF operates within certain guardrails, which are the statutes that they operate under the statutes are antiquated and and there needs to be basically a Reform of the substantiation system which has to happen Statutorily so is there anyone in the legislature now who has a responsibility for this system there? No, actually there is no one in-state government that has responsibility for this system other than you have a governor a Secretary of Human Services and a commissioner and a deputy commissioner of DCF. Those are the four people there really is no other Adequate oversight of the system if you want to complain about the system you have to go to one of those four people and There's not an independent body that looks at at complaints There there's no other outside group and this is in my mind the only System that operates in confidentiality and without oversight well, I want to appeal to Anybody who's watching the show Who knows someone in the legislature or one of these four persons that you describe? That can ask for some response here This cries out for for for a change in the way that it operates It just cries out for it and the number of children that are being removed from their homes and the trauma is just obvious It must be so difficult for a kid to say well, you know, that was last year. Why am I still here? Yes, and I think what we what we often fail to realize is that this is about children and families and We need to make sure that children are protected We also need to make sure they're not improperly removed from their families and we need to make sure that families are Supported in general but particularly are supported when it's alleged that they did something none of those things happen in our current system and It's it is not difficult to fix the legislature can fix these things Can do it this session and there will be bills that will be coming forward to address The specific issues raised in the report and I would suggest to people, you know, you hear our report How interesting can that be I haven't had a person yet who has read the report who hasn't come back and said I couldn't put it down when I started reading. I couldn't put it down It's 47 pages, but it's an easy 47 pages to read And I would suggest that people who are interested in this subject They just have to go to the web page which is on the screen www.vtprc.org And you can download the report or you can view it online It's you know, and it is called broken system broken promises because that is exactly what we have We have a broken system That is trying to provide promises of fairness to children and fairness to families and it doesn't work Thank you. Thank you. Thank you I hope that if you're watching the show and you think there's anything you can do about this Contact your contact your legislator and say what's going on with this? I think it's something that just needs to have a real focus people have to be aware of this I have not been aware of any of this and I've practiced law and done a lot of different things And I never was contacted about anything like this. No and in part of the problem is the entire system is shrouded in confidentiality Ideally, it's to protect children and innocent people but what it does is it protects the system that doesn't get it right and Unfortunately, no one can see that Seeing these 27 cases is more cases than anyone or any group has ever seen at one time And it's because of seeing this many cases that we were able to learn all of the problems in the system When you see one case here, and then one case a few years later, you can never make the connections This report does that Thank you. Thank you for what you're doing and Thank you for watching. I hope that you'll Take it to heart and figure out something you can do to help a lot of kids are really being hurt by all this and not to mention Many of their parents. Thank you so long