 Hello, welcome. My name is Ben Joseph. I'm a retired Vermont Superior Court judge. This is a program in which I interview people about problem legal problems that are existing in Vermont at this time. This is a second interview that I'm doing with Larry Chris, executive director of the Vermont parent representation center. I think I got that right. Okay. The first interview, which I hope you've seen, and if you shouldn't, you should try to get a hold of it through town meeting TV. Larry talked about the problems of the current child protective system. And this, this, in this interview, we're going to spend 30 minutes talking about possible solutions and a very interesting law that Larry has passed along to the legislature, hoping to reform the system and make it more effective. So Larry, where were we? We finished interview one talking about the delays and things that can go wrong and the fact that decisions are made without adequate evidence. I've been very concerned that there can be custody disputes in which one side says some nasty things about the other, and you wind up in some long litigation, and perhaps even have a child taken away without a good reason. So what are you proposing to solve this mess? Judge Ben, I think that to review this just for a second, there appear to be two major concerns. Two major failings in the system. The first is that the legal representation system for children and parents really is broken in Vermont and has been broken for a long time. The attorneys carry too many cases. They don't have enough time to do, do diligence really in meeting with their clients. I have had some clients who have had as many as five attorneys in a two year period and never met three of them. The turnover is that high in many cases. In other cases, I work with a considerable number of people. I would say hundreds who have never met with their attorney outside of a few minutes before walking into the court. There's no preparation. There's no discussion about the case. There's no production of witnesses. None of this occurs, which if you and I were hiring an attorney, we would be pounding on desk with our checkbook saying why aren't you doing X, Y, and Z. These folks are being paid by the state because the parents can't afford their own attorney. As we said, between 10 and $30,000 for an attorney, a private attorney to take one of these cases and really do the right job with it. That's one of the problems because what happens is without an active representation on the child's behalf or the parents behalf, the judge is left with only one half of the story. The judge only hears the state's half. And that's not what justice is supposed to be. The second real issue is the substantiation process for substantiating or finding that abuse or neglect has occurred, which is usually completely separate from the court process. It is almost purely an administrative process that occurs within the Department for Children and Families, or DCF, as it's more commonly known. If you looked at this issue, when I came on board this job four years ago, I was actually hired to take seven years worth of data and write a report about the system. I had worked in the system many, many years ago as an administrator. And when I read the data. I said I can't to the board of directors, I can't write a report. I don't believe your data. I don't believe the system has gotten this bad because this is not the system I remember working in. I said what I will do though is I'll work with the data, but I'm also going to start working with families so that I can verify that what you're telling me you saw is in fact what I'm seeing as well. Two years of doing that two and a half years of doing that I went back to the board and said I told you you were wrong. I told you your data was wrong. I just didn't know how it was wrong. The system is worse than your data sets. It's much worse. So we then produce a report called bending the curve, how to improve our child protection system that came out November of 2018. So 117 page analysis of Vermont's child protection system. To my knowledge, it's the most comprehensive review of the child protection system that's been done to date in Vermont. And we felt like if we present this to the powers that be the legislature, the governor, etc. They will look at this and say let's fix the system. Well, folks read the report and nothing happened. Nothing really happened, which was discouraging. And the next two years, looking at what were the most effective ways of trying to fix this system. And what we identified is there were two places where we could make the greatest progress in the system. The first is to reform the system of child and parent legal representation. And we get away from contract attorneys who are paid far far far too little to do way way too much work. And the end the result is they can't do to work. So the judge is left sitting on the bench with one half of a story, and no one can test it. The, and I mean, in some cases there are attorneys who have said have bent over backwards to try to make the system work. They usually don't last too long in the system because they burn out. But for the most part, most attorneys who handle these cases realize this is what they're paying me. This is how much I can do. This must be the norm. This must be okay in Vermont. It's not okay. It's not okay in Vermont and it's not okay anywhere else. Children deserve better representation. Parents deserve better representation. The question is how do you develop it and how do you pay for it. We, we have crafted a bill which I believe is being introduced this week in the legislature so I don't have a bill number yet being introduced in the house and in the Senate, which calls for a working group to be created to design to design a new parent and child representation system, two different programs, one that focuses on children, one that focuses on parents. That is not part of the defender general's office, which is where that service currently comes from, and the reason is the defender general's office primarily is focused on criminal defense, mixing Children's services with criminal defense doesn't really work. It hasn't worked in the past. It's been found not to work in other places of the country. However, there are other systems. And we are lucky that Vermont has piloted at least two pilot projects. Utilizing a reform system. It was VP RC Vermont parent representation center that did these pilots. And the states of Washington state and Colorado state have implemented these new systems. Their results mirror the results we got here in Vermont. If we make some pretty straightforward reforms and I'll cover those very quickly. Instead of having a contract system for attorneys where attorneys are contracted for a portion of their time or a certain number of the cases. And are dramatically underpaid because it's all state tax dollars that pay for them. There are no federal money involved there. We would go to a system whereby attorneys are salaried. They are trained. And they focus. This is the focus of their work. They are trained child representation attorneys and parent representation attorneys. These programs are not co mix. So as an example, you can sometimes go into a courtroom now in family court in Vermont. And when you look at the attorneys sitting representing different people. And then the courtroom shifts and changes. It's the same attorneys who come in who sometimes are representing some of the same people but different people are they are they represented the same people in another hearing another time. So it's a it's a system that just makes no sense anymore. It's a terrible use of state money. It's a terrible thing to do to the families and to the children. And quite frankly, it's a terrible thing to do to the attorneys in the court system. Because everyone in this system knows this isn't working. It just isn't working. So what would happen with this reform system is that attorneys would be hired and trained to do just this kind of work. They would not be tied to the defender general's office so that they're not part of the criminal justice system with the criminal justice mentality and their caseloads would be manageable. Ideally, they would work with 60 cases. That's the recommended American Bar Association number for these kinds of cases. It's time to do the investigative work that needs to happen to time to meet with their clients time to develop strategy. And in the end, they would have the time and the wherewithal to present the court with another picture, rather than just the picture presented by the state and I'll tell you why. You can see an affidavit in a chin space, a child is in need of services, and the affidavit starts by saying Mrs X has a long and difficult history with the child protection system. Now that's the beginning of a 10 page affidavit. That's the first sentence the judge sees later on in the paragraph and the next paragraph you see that that long and difficult history was that Mrs X was a foster child. From the age of two until the age of 18. That was her experience with the child protection system. All of a sudden becoming a foster child or having been a foster child is a negative thing. But that's because of how it is presented and I have seen this over and over and over again, where the worst elements of an individual are presented. Only later if you sit through pages and pages, are you able to discern, wait a minute, what looked to be a negative thing in the beginning isn't. The attorneys who are well trained in this area would require because of their due diligence over time DCF would write better affidavits DCF would write affidavits that truly are accurate of the current situation. And therefore the judge gets a clearer picture. Is this a situation that the court needs to be involved with or not, because right now they don't have that. One of the things that I, I want to be sure we say it during these 30 minutes is that obviously what we're talking about here is, there's going to be some substantial amount of money that's going to have to come up to pay for people to do this work. And I think you've told me that there is now some way that a large portion of these expenses will be paid by the feds is that right. Not only would be paid by the feds, the federal government is begging states to adopt reform systems, and they're not only begging their pain states to do it. Currently, there is no federal money that I know of that goes into paying the contract attorneys who represent children or parents. The federal government is saying that the federal government would match whatever the state is paying dollar for dollar. For example, and I'm just picking the number. If Vermont is spending a million dollars today on an ineffectual contract system that has no oversight, very little quality control, and the outcomes are terrible. But if we reform our system, we will have $2 million to spend on this system, where we can provide adequate pay. I'm not sure that the people who are providing the defense for children and for parents, or as adequately paid as the state's attorneys are, are the assistant attorney generals. It's, it's an unfair playing field at this point, I hate to describe it as playing field, but in judicial terms that's what it is. It is clearly unfair. I mean it is comparable to someone being invited to a fight and they bring a knife and the other person has it done. I don't want to describe it that way, but that's the, that is the inequality that currently exists. So you would have attorneys, not just attorneys, but you would have attorneys who are teamed with social service personnel, who can work with the families can identify the proper services can identify the services the family maybe needs and can be convinced to accept, or be able to say with a straight face in court, there is no need for services for this family, the families already receiving five services on their own, and those services meet their needs. Right now, the defense attorneys don't have that information. They don't have the time to gather that information. So by having dedicated services, have the costs of which are paid for by the federal government. And by having a system where there are performance measures for those attorneys, there is supervision form, there is train revenue or training specific to what they do. That will make the system work better. It will make it work better because the judges will get better information. It will make it work better because the state's attorneys will see that they have to question the DCF affidavits before they go forward with them. And in the end, DCF will be able to write better affidavits, so that the kids who really do need protection from the courts can get it. But the families who don't aren't brought in through the court and just clog the court systems up through no fault with their own. And I think that's a key piece. I've worked with DCF workers in the past who have said to me, yes, I know that what I'm putting in this affidavit isn't really accurate. But sometimes that's what I have to do to get a kid in the court, and then the judge will figure it out. And my response to him is no, the judge doesn't figure it out because the judge never gets to see anything other than what you've presented. But as we've said in the earlier segment, the system is so risk-reversed that no one wants to be the one who's blamed for a child being injured or killed. And that's understandable, but we have to give the workers in the system a better system, and we have to give the children and their parents a better system. That's one piece of the reform. And that's a bill that is there. It will hopefully get at least a hearing this year, and then we will spend the next year working to get it implemented. What I like about the bill is that the person who would oversee this process is the Chief Justice of the Supreme Court, and that is because that's how it's been done in other states. Because in the end, it is the judiciary that is responsible for overseeing that the child protection system works. It's not DCF, it's not the state's attorneys. And it's not the defense attorneys. It's the judiciary. So let's give the judiciary a system that it really can manage and can get the information it needs. That's all this bill says. Let's get it right. So if there was this working group would be created to be created through the aegis of the under supervision of Chief Justice. That's correct. That's how it's been done in the other states where it has been extremely successful. And let me just speak for one minute about the success where this system has been used, and it was reflected here in Vermont with our two pilot projects. Cases are processed faster. There are fewer continuances. The outcomes come about quicker. Fewer cases come into the system because everybody is required to do their job better. And those children who sadly enough cannot be reunited with their families into adoption faster. And when you can achieve all of those things, that's the kind of system we all want to be able to point to and say that's how we do things in Vermont. Now, those second piece and much shorter piece is the substantiation process that we have in Vermont. How do we determine that someone is abused or neglected children. This system again is woefully inadequate. It is based primarily on a report that comes into DCF a DCF investigator who investigates who then presents their findings to their supervisor. And that is it. That person is substantiated. The onus is then on that person to prove that they did not do what DCF said. There's a two step hearing process where the person gets to go to DCF and meet with an independent review officer, plead their case. If the review officer said you're right. The department did not meet its responsibilities here. There's not enough evidence for a reasonable person to think that you did this. It's overturned. Most cases are not overturned. Most people do not know how to present their defense. Do they have attorneys representing them? No, they are not provided with an attorney. The end of the year the monitor has to do it themselves. So if they lose at that point, they can then appeal to the human services board where believe it or not, it's a different standard of proof. It's a tougher standard of proof. And therein lies one of the reforms. We need to have a single standard of proof in Vermont. Right now a DCF worker doesn't really know what constitutes abuse or neglect. Because on the one hand, the department only has to show that a reasonable person would say that this was abuse or neglect. But as soon as the cases appeal to the human services board, the department has to prove by a preponderance of evidence more than 51%. That in fact, these abuses occurred to totally different standards. Why we have two standards, I think it's just an accident of law. So that's one. The second though is that when someone appeals to the human services board, it's a quasi judicial hearing. The Vermont rules of evidence come into play. The average for monitor does not know the rules of evidence. You've not assigned an attorney. The human services board hearing officers bend over backwards to accommodate people, but they can only accommodate people to a certain degree. So what you have is you have the average remonder going before a hearing officer, and being contended with by an assistant attorney general who does this job every day, and is usually very good at it. First of all, not many people apply to the human services board simply because it's too terrifying to do. And when they do apply, they don't know how to defend themselves. And, and this raises huge socio and economic justice issues, because judge Ben, I know it's hard to believe this, but if you have money in Vermont, you probably won't be substantiated, because you will hire a good lawyer. If you don't have money, there's a very good chance you will be substantiated and you won't be able to win your appeals, because you don't know how. What it comes down to. So, we have been advocating with the Department for Children and Families to say this system needs to be fixed, it's not serving anyone. And as we mentioned in the last segment. We here at the VRC have taken on 17 appeals, not cherry pick just took the first 17 appeals that came to us. And we have now won 16 of 17. And we're just waiting for a decision on the 17. That is not the indication of good advocacy. It truly isn't because no one no matter how good an advocate they are wins every time they challenge a substantiation. So, I recall having one of these cases before me and which was clear that I was the only one in the room who'd read the whole file. The people don't have the time to prepare them. They don't. They, they truly don't. And, and that is why these two pieces will go a huge distance in reforming our system will have better information in court. We will have a better process of deciding whether somebody has abused or are neglected a child. And these systems can be fixed as we said, the federal government's willing to match this dollar for dollar and reforming the legal representation system. And through basic changes and administrative practice in the law in Vermont, we can make the substantiation system much more fair than it currently is. The idea is not to get people off. The idea is to make sure that we are identifying people who are abusing neglecting children and protecting children from them, but not substantiating people and taking your livelihoods. And that's simply because an individual worker in a supervisor decided that spanking your child is a reason for you to lose your job. Now, this may come as a shock to some people, but it is not against the law to spank a child in Vermont. It's not good parenting. And I can say, growing up as a child who was spanked on a regular basis, I made the decision that I would never spank my children, never spank them once. There are many reasons because I realized as a child, spanking never stopped me from doing anything. So, but the reality is, we have people who get substantiated for spanking all the time. And it gets upheld because they don't know how to defend themselves. They don't know how to say to a review officer, this isn't against the law. There is no bruise, there's no mark, there's no, there was no intention to harm this child. But you know, that's a, that's a, that's one example. There are many examples. I mean, we have examples of people who are substantiated because a child, one child dropped medicine on the floor. The parent looked, told them to pick the medicine up, swept the floor, then vacuum the floor. And it is possible a day later, their younger child became lethargic. That parent has been substantiated for not finding that pill, which that child might have taken. But they're substantiated. They're precluded from a human servant, a working, working in human services. A reasonable person would look at that and say, wait a minute, if you go through all those steps, what is a parent, what is a parent supposed to do? How are you supposed to ensure that that never happens? Well, there's no common sense in the system anymore. And, and because there's no real oversight and no true quality assurance and looking at the substantiation process, there is no one I feel who's really in charge of it anymore. Whatever people say is, is, is abuse and neglect is pretty much what it turns out to be. But we have found in 16 of 17 cases, it wasn't true. Larry, I want to thank you very much for your time. As I suspected, we could spend a great deal of time talking about this, but I don't want to tax the, I just don't want to tax the attention viewers. Please, please let me know if you have any thoughts about this and you want more information. You can contact the, I hesitate to say channel 17 because I think it's got a different name now. You can contact me through community television. And I'll be happy to try to get you more information if you should need it. Larry, I want to thank you so much. You're doing a terrific job. Really, I can't, I can't thank you enough. Well, thank you. Thank you, Judge, Ben, for this opportunity. Thank you very much. So long. See you next month. Bye.