This is not official SCOV Law commentary.
Justice Louis Brandeis said “Sunlight is the best disinfectant.” One thing that’s bothered me since I was a child is that DCF—called SRS back when I was a child—operates as a shadow government. The courtrooms it inhabits are closed to the public. The threats it makes cannot be challenged. And once a family is “in the system,” it can take an act of congress to get them out. My late father was involved in trying to get citizen oversight of SRS. So perhaps I’ve got a chip on my shoulder.
This is not to say that DCF doesn’t do good and necessary work. It does. Nor is it to say that everyone’s dirty laundry should be aired in public. It shouldn’t. But the lack of oversight and openness has always bothered me. When a client calls complaining about DCF, my stock response is: “There’s likely very little that we’ll be able to do about that.”
That brings us to the first of this week’s two cases. Shortly before plaintiff Jane Doe married her husband John Doe (not their real names), allegations were made against John that resulted in criminal charges. The charges were dropped and the record was sealed. But DCF got involved and concluded that John posed a risk to Jane’s kids, who he’d be living with after he and Jane got married. DCF told Jane that if John moved in, it’d be filing a children-in-need-of-supervision (CHINS) petition. So Jane sued DCF. Without getting too far into the procedural maneuverings below, Jane ultimately sought a declaratory judgment that John didn’t pose a threat to her kids and that it’d be okay for them to live together as a family without DCF running to the courthouse. The State moved to dismiss and the trial court denied the motion, but granted interlocutory appeal. On appeal, SCOV reverses and remands. SCOV reasons that because the harm hasn’t occurred yet—DCF filing a CHINS petition—there’s no justiciable controversy, and the State’s motion to dismiss should’ve been granted. Doe v. Department for Children and Families, 2020 VT 79.
Our second case for the week explores hold-without-bail orders and the effect of COVID-19 on motions for bail and the like. In this particular case, defendant has been held without bail ever since his at-the-time-seventeen-year-old stepdaughter accused him of sexual assault over two years. He was charge with three potential-life-imprisonment charges. Because the trial court found that the weight of the evidence was great and that defendant’s history did not inspire confidence in his ability to follow conditions, the trial court ordered defendant held without bail. None of that has really changed since, though defendant does argue that without any trial date on the horizon, he should be released. SCOV reasons that the trial court’s analysis and orders based on the facts of this case were within the trial court’s discretion. Of note, SCOV does attribute the COVID-19-related delays to the government, which is something to keep in mind. State v. Labrecque, 2020 VT 81 (mem.)