“Unsupervised” Re-Defined: Vermont Affirms Broad DCF Discretion in Risk-of-Sexual-Harm Substantiations
Commentary on In re Appeal of S.C.-M., 2025 VT 48

1. Introduction

The Vermont Supreme Court’s decision in In re Appeal of S.C.-M. (2025 VT 48) clarifies the boundaries of “unsupervised time,” confirms the non-retroactivity of the new preponderance-of-evidence standard for earlier substantiations, and endorses the Department for Children and Families’ (DCF) broad discretion to investigate allegations of child endangerment. The case arose after DCF substantiated the appellant, S.C.-M., for exposing an eight-year-old transgender boy (L.M.) to a risk of sexual harm. The appellant contested both the factual findings and the legal framework used by DCF and the Human Services Board (HSB).

Key issues included:

• Whether DCF proved, by a preponderance of the evidence, that the appellant placed L.M. at substantial risk of sexual abuse.
• The proper interpretation of “unsupervised time” under 33 V.S.A. § 4912(14)(F).
• Whether the appellant could collaterally attack a 2006 substantiation decided under the former “reasonable-person” standard.
• The scope of DCF’s investigative discretion and the validity of its policies requiring investigations where sexual risk is alleged.

2. Summary of the Judgment

Affirming the HSB, the Court held that:

1. DCF met its burden of demonstrating a substantial risk of sexual harm, despite the presence of other adults who were asleep when L.M. stayed overnight.
2. “Unsupervised time” includes situations in which an adult offender has physical access to a child even though other adults are on the premises but not actively supervising.
3. A prior, final substantiation need not be re-litigated under the current higher burden of proof; its mere existence satisfies the statutory element in § 4912(14)(F).
4. DCF’s policies (§ 51 and § 57) that mandate investigations when allegations suggest risk of sexual abuse are within the agency’s statutory authority.
5. Comparisons to another 2024 Board decision did not render the Board’s ruling arbitrary because the factual matrices differed materially.

3. Analysis

3.1 Precedents Cited

• In re R.H., 2010 VT 95 – Standard for appellate review of HSB decisions (abuse of discretion) endorsed.
• In re M.V., 2022 VT 31 – Deference to agency interpretations reaffirmed; used to justify reliance on DCF’s reading of “unsupervised.”
• Town of Pawlet v. Banyai, 2024 VT 13 – Prohibition on collateral attacks applied to bar re-litigation of 2006 substantiation.
• A.B. v. S.U., 2023 VT 32 – Principle that legislative changes are not retroactive unless expressly stated.
• Lowell v. DCF, 2024 VT 46 – Confirmed that placement on the Child Protection Registry implicates a protected liberty interest but is balanced by statutory process.
• HSB’s own earlier order, Fair Hearing No. B-06/23-418 (2024) – Cited by appellant; Court distinguished on facts and risk factors.

3.2 Legal Reasoning

The Court’s analysis turned on four pillars:

1. Construction of “Unsupervised.”
   • Reading § 4912(14)(F) as a whole, the Court found the Legislature did not confine “unsupervised” to the absolute absence of other adults. The combination “residing with or spending unsupervised time” signals that lack of active supervision suffices.
   • Deference was accorded to DCF’s policy interpretation under In re M.V..
2. Use of Prior Substantiation.
   • The statute requires only proof that the individual “was substantiated.” It does not require proof, anew, of the underlying conduct.
   • Collateral attack doctrine barred re-opening the 2006 case; non-retroactivity principles blocked imposition of the 2024 preponderance standard on that earlier matter.
3. Agency Discretion to Investigate.
   • Section 4915(d) expressly allows DCF to investigate any report. The factors in subsection (c) apply only to assessments.
   • The policies (No. 51 & 57) merely implement undefined statutory terms such as “substantial child endangerment” – a permissible gap-filling exercise.
4. Evidence & Credibility.
   • Appellant’s contradictory statements and concealment from his probation officer substantiated a finding of non-accidental conduct.
   • The Court accepted the Board’s inference that an offender can access a child while other adults sleep, rejecting appellant’s claim of pure speculation.

3.3 Potential Impact

• Expanded Scope of “Unsupervised.” Practically lowers the evidentiary bar for DCF by treating passive adult presence (sleeping, intoxicated, distracted) as insufficient supervision.
• Finality of Old Substantiations. Individuals previously substantiated under the older, lower “reasonable-person” standard cannot leverage the 2024 statutory amendment to reopen cases.
• Agency Rulemaking Latitude. The decision confirms DCF’s ability to define investigative triggers beyond the literal statutory examples of endangerment.
• Guidance for Defense Counsel. Counsel must now confront a more defendant-unfavorable understanding of risk analysis and cannot rely on mere co-presence of adults as supervision.
• Child Protection Registry Litigation. Future registry appeals will likely focus on procedural fairness rather than relitigation of historical substantiations.

4. Complex Concepts Simplified

• Substantiation: DCF’s formal finding, after investigation, that child abuse or neglect likely occurred.
• Child Protection Registry: A confidential statewide list of individuals with substantiated findings; affects employment in child-related fields.
• Preponderance of the Evidence: A “more likely than not” standard (just over 50% certainty) used in civil proceedings.
• Reasonable-Person Standard: An earlier, lower burden requiring only that a reasonable person would believe abuse likely occurred.
• Collateral Attack: Attempt to undermine a final judgment or administrative decision in a different proceeding instead of direct appeal.
• Unsupervised Time: Post-S.C.-M., any interval where no actively vigilant adult approved by oversight authorities observes interactions with the child.
• Endangerment vs. Harm: “Endangerment” focuses on risk; “harm” is actual injury. Vermont law allows intervention at the risk stage.

5. Conclusion

In re Appeal of S.C.-M. cements three doctrinal points: (1) supervision must be meaningful and active, not merely corporeal presence; (2) prior substantiations, once final, are conclusive statutory elements in future risk assessments; and (3) DCF’s investigative reach, guided by its own policies, is entitled to judicial deference so long as it remains tethered to statutory purposes.

For practitioners, the decision signals that challenges to substantiations must focus on present-day procedural fairness and factual disputes, not on historical findings. For DCF, it validates a proactive stance toward child safety premised on potential, not just actual, abuse. And for the courts, it underscores the delicate balance between safeguarding children and preserving due-process rights—achieved here through a rigorous yet deferential review framework.