Vermont Supreme Court Endorses Reliance on Non-Rule Agency Policy in Child-Abuse Substantiation Proceedings
Commentary on In re Appeal of T.J., 2025 VT ___ (Aug. 8, 2025)

1. Introduction

The Vermont Supreme Court’s decision in In re Appeal of T.J. settles two recurrent administrative-law questions in child-protection matters: (1) May the Human Services Board (HSB) consult Department for Children and Families (DCF) policy statements that have not undergone formal rulemaking when deciding whether to uphold a “substantiation” of child sexual abuse? and (2) What evidentiary and constitutional protections apply to respondents in those quasi-judicial hearings?

The petitioner, T.J., then a minor, sought review of an HSB order affirming his substantiation for sexually abusing his cousin, T.M., when they were both under age sixteen. He challenged (a) the legal standard employed—arguing that the Board improperly relied on DCF Family Services Policy 56, adopted in 2024 and not promulgated under the Vermont Administrative Procedure Act (VAPA); and (b) the hearing officer’s exclusion of testimony from another cousin, H.K., whose separate allegation had been withdrawn by DCF. The Supreme Court unanimously affirmed, thereby clarifying the permissible role of agency guidance and the scope of respondents’ confrontation and relevance rights in administrative child-abuse proceedings.

2. Summary of the Judgment

• Reliance on Policy 56: The Court held that DCF policy guidance—even if not promulgated as a formal rule—may be considered by the Board as persuasive authority, especially where it mirrors existing, duly promulgated regulations and merely assists in interpreting 33 V.S.A. § 4912(15).
• No Notice Violation: Because the governing statute has long criminalized “lewd and lascivious conduct involving a child,” petitioner was on notice that his conduct was proscribed; the later-issued policy did not create new liabilities.
• Evidentiary Ruling Upheld: Exclusion of H.K.’s testimony was within the hearing officer’s discretion; the testimony was deemed irrelevant to the sole substantiation under review, and the Sixth Amendment right of confrontation is inapplicable to non-criminal administrative proceedings.
• Substantiation Affirmed: Substantial evidence supported findings that petitioner repeatedly committed non-consensual, coercive sexual acts upon T.M. from ages five to thirteen, satisfying the statutory definition of sexual abuse.

3. Analysis

3.1 Precedents Cited

1. In re M.V., 2022 VT 31 – Established deference to DCF expertise in child-abuse registration cases and outlined the appellate standard of review (proper legal standard, support in evidence, logical nexus between findings and conclusions).
2. In re R.H., 2010 VT 95 – Confirmed that agency policy interpreting a statute warrants respect “absent compelling indications of error.”
3. In re A.P., 2020 VT 86 – Discussed ordinary meanings of “lewd” and “lascivious,” illustrating that statutory clarity may obviate extensive policy reliance.
4. Wood v. Wallin, 2024 VT 21 – Reiterated that deference to agency guidance persists unless such guidance is unclear or irrational.
5. Passion v. Dep’t of Soc. & Rehab. Servs., 166 Vt. 596 (1997) – Recognized hearing officers’ broad discretion over evidence and circumscribed review for abuse of discretion causing prejudice.
6. State v. Lambert, 2021 VT 23 – Clarified that confrontation rights extend only to evidence that is otherwise relevant and admissible.
7. Robertson v. Mylan Laboratories, 2004 VT 15 – Restated that issues raised for the first time in a reply brief are deemed waived.

3.2 Legal Reasoning

a. Deference to Agency Expertise. Drawing on M.V. and R.H., the Court reiterated that when interpreting statutory standards within an agency’s specialized domain (here, child-protection), courts owe “respectful consideration” to agency policy, even if not formally codified. The analysis emphasized:

• The policy’s contents closely mirrored a promulgated rule in the Vermont Code of Rules (§13-172-200, Rule 2001(20)(E));
• The Board did not treat Policy 56 as binding law but as interpretive aid;
• No “compelling indications of error” appeared in the policy’s articulation of lewd and lascivious conduct.

b. Notice & Retroactivity. The petitioner argued retroactive application of Policy 56 offended due process. The Court responded that the underlying statute, operative throughout the misconduct period, unequivocally prohibited the behavior, satisfying constitutional notice. The policy therefore served only to confirm—not create—liability.

c. Harmless-Error Doctrine. Even assuming arguendo that referencing the policy was improper, the Court held the error harmless because the statutory language alone sufficed to uphold substantiation, especially in light of the egregious factual record.

d. Evidentiary Exclusion. Building on Passion, the Court affirmed that administrative tribunals possess latitude to exclude irrelevant testimony. The petitioner failed to articulate how H.K.’s testimony would impeach T.M. or bear on the substantiation; consequently, no abuse of discretion arose. In addition, the Sixth Amendment confrontation right, per Lambert, applies only in criminal prosecutions, not civil administrative hearings.

3.3 Impact of the Decision

• Administrative Law: The decision fortifies Vermont’s doctrine of “respectful consideration” toward agency policy statements, clarifying that formal VAPA rulemaking is not a prerequisite for policies to inform quasi-judicial fact-finders.
• Child-Protection Practice: DCF investigators and HSB hearing officers can confidently rely on Policy 56 (and similar documents) to define “lewd and lascivious conduct” without awaiting legislative or rulemaking amendments—streamlining substantiation processes.
• Respondents’ Defense Strategy: Challenging substantiation on the ground that policies lack rulemaking pedigree will now face heightened difficulty; counsel must focus instead on factual disputes and statutory interpretation.
• Evidence Management: The ruling underscores the necessity for respondents to make timely, specific proffers demonstrating relevance; generalized assertions of impeachment value will not suffice.
• Constitutional Scope: Reinforces the boundary between criminal and administrative proceedings regarding confrontation rights, curbing attempts to import criminal procedural safeguards wholesale into civil administrative forums.

4. Complex Concepts Simplified

Substantiation

A formal DCF determination that a child-abuse report is supported by accurate, reliable information such that a reasonable person would believe abuse occurred. Substantiated individuals may be listed on the Child Protection Registry.

Lewd and Lascivious Conduct

Any indecent sexual act that violates community standards of morality and decency. In the child-protection context, it often includes touching of genitalia, breasts, or other private areas, especially when accompanied by coercion, threats, or lack of consent.

Policy vs. Rule (VAPA)

A rule is a binding directive adopted through notice-and-comment rulemaking under VAPA. A policy is an internal agency guideline lacking binding force but persuasive because it reflects the agency’s expertise and consistent practice.

Harmless Error

An error that, even if assumed, did not affect the outcome and therefore does not warrant reversal.

Preservation of Error

The principle that an appellate court will not review issues or evidentiary objections not raised before the tribunal below.

5. Conclusion

In re Appeal of T.J. cements a pragmatic approach to child-abuse adjudication in Vermont: substantive statutory clarity, supplemented (but not supplanted) by agency policy, provides adequate guidance for both the State and respondents. The Court’s endorsement of policy reliance—coupled with its reaffirmation of limited confrontation rights and broad evidentiary discretion—streamlines substantiation proceedings while safeguarding due-process fundamentals. Going forward, litigants must focus on concrete factual contests and statutory interpretation rather than procedural attacks on agency guidance. The decision thus stands as a significant waypoint in Vermont administrative law, harmonizing deference to agency expertise with constitutional and procedural limits.