 Hello. Welcome to the Judge Ben Show. My name is Ben Joseph. I'm a retired Vermont Superior Court Judge. This is a program in which I interview people about issues that concern the legal system in Vermont. Today is something I've looked forward to, frankly, I'm going to interview Larry Christ. Larry is the executive director of the Vermont Parent Representation Center. Did I get that right Larry? That's correct, Judge. Good. Thank you. And talking to Larry and thinking about the subject today, which is the child protective system in Vermont. It just seems to be so much going on that I'm going to try something I've never done before. We're going to have two interviews with Larry. In 30 minutes, we'll give in over to how the system is working and why I and many other people think it's broken. And then the second 30 minutes, we're going to talk about solutions to its problems. Larry's draft statutes, they set up a new system, and he'll explain how it might work. So now we're into interview number one. Larry, how long have you been working with parent representation in Vermont? Well, I've been doing this for just, it'll be four years in April. Wow. It seems like the time has flown by. I came here after being the executive director of the Vermont Red Cross five years and then prior to that I was a state official for 25 years here in Vermont. Wow. That's impressive. Yeah, but I think I was going to retire, but I kept being drawn back into activities that I hadn't counted on. Well, let's just kind of dive into this thing. What is a chin's proceeding in Vermont? Can you explain that? Yes, judge. The chin's proceeding really is it's, it is the term that is used for a child in need of services. And that's the official term that is really used in title 33 chapter 49 of Vermont statutes annotated. That's the governing law for child protection in the state. There are a lot of laws around it. There are a lot of policies and procedures, but title 33 chapter 49 is the key area. And the chin's proceeding is, is really a situation in which a determination is made by the state child protection agency, which in Vermont, as we all know, is the Department for Children Balance. That's DCF. It's DCF for short. And DCF will receive a complaint or report of suspected child abuse or neglect. They then review those. Make an initial determination as to whether it should be accepted or not. If it's accepted, they then do an investigation. The investigation may lead them to believe that there is a child who is in need of services, a child who's in danger of abuse, neglect, or who is simply unmanageable. And those are known as Chin's A, B or C in that order. What happens at that process at that point, though, is that DCF writes an affidavit of report to the court, which goes to the state's attorney in that particular county. State's attorney reviews it and decides whether this appears to be something that that the court really should be involved with the state's attorney will then submit that affidavit attached to a Chin's petition. And really oftentimes it can be a petition for an emergency care order, which means they really feel the child is in danger. Or it can be a non-emergency care order where we think there's a problem, but it doesn't have to be dealt with immediately. Then I'll run through very quickly how the Chin's process works. The first hearing would be an emergency care order. The second would be a temporary care hearing, which by law is supposed to be given within 72 hours of the original emergency care order. I'll get to the problems in the system after I go through the process. So that's 72 hours after a judge has been given this petition in which the person has the parents or whoever has the right to come in and say, you know, this information is incorrect. Or the state comes in and says the information is very correct. And so there needs to be a determination that the child either stays in custody or stays wherever the child has been assigned. Then the next hearing is called a merit hearing. And that's really a hearing in which the state has to prove that there was a reason for interceding. How much time passes between the initial proceeding and the merit hearing? Well, it is supposed to be 15 days. The merit hearing is supposed to commence within 15 days of the temporary care hearing and be completed within 60 days. However, as we will get into it, those time frames are rarely met. And that begins to be part of the problem. Once the merit hearing, which is really a trial in essence, before a judge, during that period, which can go for an extended period of time, the family is asked to be certain things by BCF. And a report is provided to the court. When they get to the merit hearing, merit hearing can go on for a while. Each side is supposed to present evidence relative to what they think occurred. And then the judge makes a decision. Was their merit in the state interceding and removing or taking some action with regard to this family and this child? Well, just during that time, is the child initially taken into custody pending that hearing? The child can be taken into custody at the emergency care order on the very first day. And their inline begins to lie the problems with our system because that emergency care hearing, it is presented to the judge through an affidavit. But there's very little quality control over that affidavit because DCF, the DCF investigator writes it. The superintendent, I mean, the supervisor approves it, but no one after that. Then it goes to the state's attorney, who's given a document saying these parents did X, Y, and Z. But the state's attorney has no way of verifying that that information is correct. They really have to take it on face value that the affidavit is accurate. And what we have found in many, many cases is the affidavits are not accurate. Simply because DCF is under a great deal of pressure. As we know from the tragic death of two children about five years ago, there is a tremendous amount of pressure on DCF workers, supervisors and managers to make sure that nothing bad happens to a child on their watch. As a result, I fear that our system has become so risk adverse that no one wants to take a chance. So once a report comes in and is accepted, there is tremendous pressure to say there is a problem here. Let's get this case to the state's attorney. Once the state's attorney gets the case, state's attorney has really very little to no opportunity to verify that that affidavit is correct. So it goes to the judge. But before it gets to the judge, can the kid be held in custody? No, at that point not. Only a judge can take a child into custody. But all of this can happen as an example on a Friday afternoon. So everything you described can happen in one day? All this can happen in one day. And usually does happen in one or two days. So an affidavit would be submitted on a Friday. And on Friday, the state's attorney needs to get it in front of the judge. And on Friday, the judge either rules on it or look at it and say, okay, this is important, but I think it can wait until Monday. The problem there in though, is that the only information the court has is that affidavit. There is no other information available to the judge. So if the affidavit isn't accurate, there is nothing for the judge to see that says, wait a minute, it says that this happened. But here's this other evidence that says this did not happen. And the reason for that is that this process moves so quickly, because it is, it's been put forth that this child is in real danger. So no one wants to take responsibility for saying, no, no, no, I wanted to see more information. And then God forbid something bad happened to the child during an infant period when you're waiting for more information. So the parents and the child have legal representation of their lawyers? The parents will be assigned an attorney, but if it's an emergency care order, that attorney either is a stand-in attorney, someone who's appointed by the state if the parents can't afford an attorney, which most parents cannot afford an attorney. Just to give you a sense, Judge, and I know you know this from sitting on the bench, a private attorney for one of these cases can charge between $10,000 and $30,000. That is, you know, that's an amount of money that not a lot of Vermont families have available to spend on an attorney in this situation. So what happens is there are stand-in attorneys who either will be available on the phone or outside of COVID time would appear, but they know nothing. They haven't seen the affidavit. They've never met the parents. They've had no opportunity to find out is there another side to this story. So it almost becomes an automatic process in many ways. And then the temporary care hearing, which is supposed to be held within 72 hours on the surface, that makes sense, except in many cases these attorneys have still never had an opportunity to meet with the parents to talk with them to look at other information. So the temporary care hearing in many ways does not achieve what it's supposed to achieve. It's really supposed to determine were we right in taking the emergency action. The other problem is that the law says that the temporary care hearings to begin within 72 hours of the emergency order. However, the courts have been so backed up in these cases. That they can't really initiate these and complete them within the timeframe that's allowed to do it. So what happens in many cases is the court will begin a temporary care hearing and then immediately recess and reschedule it for a month later, two months later, and some cases three months later. I actually had a case where it was rescheduled six months later. So technically, the court has met the legal requirement, but not, but not the spirit of the law because that child that the child was taken into custody, that child may be removed from their home to be with a relative or could be with a total stranger and foster care throughout this period before anyone has actually determined should this child had really been removed based on evidence, as opposed to based on an affidavit that no one has had a chance to query. And then again as you point out, if it's pushed out to six months, there's six months in which a child can be in foster care before anyone has actually ever looked at whether the child should really have been removed or not. And that's just the first of many delays, because you can then go to the process from a temporary care hearing that might, as you said, might go three months, or even six months, you then go to a merits here. And the merits hearing is supposed to be done within 15 days of the temporary care here. Well, those dates are typically not met. So that gets pushed out further. You can wind up going six months to almost a year sometime before you've had a merits hearing before it's really been determined that this child should have been removed, that the affidavit was accurate. And therein lies the heart of the problem. The next phase of this problem is that throughout this process. And I hate to use the term indigent parents, but that's the term that's used. The reality is there are an awful lot of families that can't afford 10 to $30,000, which means most Vermont families would be considered indigent in this case. They're assigned an attorney who is is typically a contract attorney, private attorney contracts with the defender general's office. The American Bar Association says that an attorney handling these kinds of cases should work with 60 cases. I have not met an attorney who handles less than who handles 60 cases. I've worked with attorneys who handle 100 200. In some cases, more than 200 of these cases at a time in the same year at the same time at the same time. These these attorneys have that it is physically impossible for them to devote the time that needs to be spent to meet with parents to understand the case to look at to look at evidence to gather evidence to identify witnesses to do all of the legal work that is required. There are an attorney to be able to provide effective lawyering, and that really is the key is an attorney effective at presenting their case. And in these cases, there are some attorneys who work themselves to a nub, trying to to do the right thing, it is just physically impossible. For a while, most attorneys except the fact that you can't do effective lawyering, you can only do what you can do. And in most cases, that means that the attorneys work with their clients and say look. If we fight this, it's going to take us a long time in this case. If you just admit to whatever it is DCF says you did agree to do it DCF says you should do. If you don't get your, your children back as fast or quicker than if we if we fight this case. Most parents sometimes that's rather big I mean, can sometimes it can take months before they get the kids back. It can take years before they get the kids back. I mean, I've worked in cases where an infant was removed, and nine months later when they finally finish the merits hearing the judge announces from then. Well now that we finished the merits hearing I can rule. I never saw a reason in the first place this child should have been taken. The child goes back to their parents now that's in that was a newborn taking from a mother in the hospital who's now going back as a nine month old child. And I hate to describe our system, but it is a broken system and it's not anyone's fault. But it is everyone's fault, because everyone who works closely in this system knows that it is broken. They know that it operates the way that I'm describing. Let me be clear, I'm not saying that there are not abused or neglected children in the state, they're clearly are, and they need our protection, and they need the protection of the juvenile court in the state. But families, and many children are not getting the protection. What they are getting is put into a system that really operates like a machine. There's a whole lot of concern about what are we really doing to these children and to these families. And I'll sum this up, and this is going to sound very strange, but there was an old saying in the Soviet Union. The state pretends to pay the workers and the workers pretend to do the work. To a great degree, that is the system that we have set up in Vermont and had for many years here, because it is physically impossible for the majority of attorneys who handle these cases on a regular basis to actually provide effective legal counsel. They just can't do it. They don't have the time. They don't have the resources. And frankly, they would go broke if they did. I can work with a family and go back and look at all of the evidence which I do on a regular basis and help them advocate for themselves, but I can spend 100 hours on a case. An attorney can't spend 100 hours in the case. They just can. So we have to find a better way to do what we do. Now that's one half of the system. The other half of the system that we haven't talked about yet is the substantiation process. Right, have you handled substantiation case appeals. Yes, I have, I have at this point handled 17 appeals for substantiations assisting parents and presenting their cases. I don't do this as an attorney because I'm not practiced. I'm not licensed to practice law in Vermont. I do this as an advocate and a support person for them. I guide them through the process, but it is really their process. So, to look at this part of the system is remember Vermont substantiates between 800 and 1000 people a year for child abuse and neglect. That substantiation is often based on the information that was in an affidavit to begin with, because the affidavit comes out of an investigative report. If those affidavits of the court are incorrect, the substantiation reports are incorrect. However, with regard to the affidavits, people can lose their children with regard to the substantiations, people can lose their livelihood. Because if you are any kind of helping professional, if you're a nurse, any kind of medical person, any kind of educational person, and you are substantiated, you are frequently precluded from practicing your profession, you'll lose your job. And in some cases you will lose your licensure. So, it is a very significant issue. It just doesn't take your children away from it. The first, the CHINSS process can result in losing your children. The substantiation process, which can be simultaneous, can result in you losing your livelihood. Now, as I said, I wanted to see if the substantiation process was as broken as the CHINSS process is. And what I found is, and remember, these were not cases that I selected. These were the first 17 clients who came to, to VPRC and asked for help with Vermont Parent Representation Center. Yes. So we took the first 17 people that came to us. We have gotten decisions in 16 of those appeals. We have won all 16. And in every case, what we have found is that the state could not prove that these people actually abused or neglected their children. And in some cases. That's just shocking. It is. I mean, it is, but it is indicative of how broken the system is that we have. In those cases, have the children been taken away from the parents and put in a foster home or something? At least two thirds of those cases, at least two thirds of those cases, if not, yeah, if not more, the children will remove for some period of time. And two, and at least three cases that I can think of, the children will remove for more than a year. I think when we were able to finally get into a hearing process and show that there was no evidence that there had ever been abuse or neglect. That either workers DCF investigators had misinterpreted the law, or they hadn't gathered all of the information. Are they misinterpreted the information that they got. There are some of these cases like custody fights where parents are separated and one accuses the other of abuse. Several of the cases did involve custody fights. Yes, unfortunately. And you know that happens it's it's human nature. People use whatever tools they can find when they're when they're angry and upset. But sometimes this case is just based on a lot. And in some cases, I mean, I've worked with some cases these did not turn out to be substantiations because we assisted the families at the moment that each report was made. I worked with one family that has had DCF visit them six times in 18 months based on reports made by a strange relatives, the same relatives, time after time making exactly the same report. And, and then DCF for lack of a different procedure has to go out and do an assessment or investigation each time. We were able to show in each case that the, the allegation, there was no basis for the allegation, you know, there'd be a basis of saying they have no food, there's no running water, the children live in filth and don't have beds. I would go out to the house, unannounced, meet with the family, and there's food, there's running water, the children have really nice rooms and toys, and the kids were taking for a tour of their room. So then it's a question of getting in touch with the DCF workers to say, I look, I will meet you at the parents house and let's go through it. And, and interestingly enough, with COVID, we've been able to use remote visits, which have worked really well, especially when it's the children who walk around the house with the cell phone showing the DCF worker their bedroom and their toys. But that's, you know, that's something of an aside. The substantiation process is one that really does need to be reformed. And DCF at this point, I believe, is leaning very much in that direction of saying that it does need to be taken a look at. But remember, it has gone on for years, it has gone on for years and it's gone on with an average of 800 to 1000 people each year substantially. One of the things to keep in mind is that unlike the chins proceedings in chins, a parent who can't afford an attorney is assigned an attorney. The attorney may not do much for them, but at least they have a lawyer and a substantiation process, they are not assigned an attorney. They have to contend with the power of the state on their own. Well, that's, that's just, and then when it goes to the secondary appeal to the Human Services Board, it's a quasi judicial proceeding. The Vermont rules of evidence are in play the average, the average parent in this state has no idea. And the Human Services Board bends over to, to help those folks, but the reality is they're competing with an assistant attorney general who handles these cases day in and day out. It is incredibly not just unfair playing field. There is such an absence of due process that I believe there are strong constitutional issues at question. The reality is no one, no matter how good they might think they are wins 16 out of 17 cases. And the reason it's 16 out of 17 is I am waiting any day to get the 17 decision. But those, those two systems really do define the, the child protection system that is really broken. Now, there's another piece of the system, which we're not going to go into here, which is the service provision and service provision has its challenges. But in Vermont, there are a lot of good service agencies, there are very good DCF workers who do their best to connect people with services. And often those services are really helpful. The difficulty there though, is that in many cases, because we are so risk adverse DCF will coerce parents into extended services and violation of law. It just happens, it happens every day. The statute is very clear that when an assessment is done, if DCF does not find any abuse or neglect. But they see that services might be utilized there to offer those services to the parents, and if the parents say thank you very much, but no thank you DCF by law is supposed to close the case. What has happened over the last few years is that DCF has introduced a risk assessment tool now, which they then use and say, I'm sorry. The statute says you don't have to accept this, you know these services, but you scored very high on our risk assessment, and if you decide not to accept our services. We're going to have to go to the state's attorney and present your case and see if they want to take you to court. Most parents don't want to go there. They will say, fine, we'll accept services. The end result is that on any given day in Vermont, we can have hundreds of parents receiving services that they never needed in the first place were never proven that they needed in the first place and didn't want. But they are utilizing valuable resources that could be going to children and families that really need them. That is sort of the overview and you know in the end, when bad things happen in this system, people can lose their children permanently through termination of parental rights. At the very least, they can lose custody of their children for a period of months or years before they get them back. And on the other end of that with the substantiations. There was one client I worked with who lost their license to practice. They lost their job. They lost their home. They lost their children. They wound up becoming a welfare family living in a hotel paid for by DCF only for us to discover that none of the allegations were true. DCF wound up dropping the charges, but only after two and a half years, and that kind of. And again, it's not pointing fingers at anyone. That's just the system we've created. It is broken. It doesn't work. And if you have a phone line opened up, Judge Ben, and ask parents who have gone through these experiences negatively to call you. The phone system would crash. That'll be another show. I want to wrap this up for now. And then we'll go into the second interview in which you can talk about how this thing can be reformed and made better. Thank you. Thank you very much Larry. And thank you for looking in. This will be released through community television. And after some time then the second interview in which we talk about the solutions to the problems will be broadcast as well. Thank you for your attention. And I hope that you get to see the second interview, not just this version. Thank you.