VermontSuperiorCourtFiled12/0623Washingtonmt

### VERMONTSUPERIOR

### COURTWashingtonUnit65StateStreetMontpelier

### VT05602802—828—2091WWW.Verrn0ntiudiciarV.0r2

### CIVILDIVISIONCaseNo.23—CV—852

### inionandOrderon

### Plaintiffs’Motionfor

### In'unctionPendineal

### DCFsubstantiated

### Plaintiffsforabuseorneglecton

### preliminarybasis,notifiedthemof

### itsintentto

### listthemon

### Vermont’s

### ChildProtection

### Registry,and

### Plaintiffssoughtindependent

### DCFreviewofthosedecisions

### pursuantto33

### V.S.A.4916a.

### Plaintiffsthensued

### DCFinfederalcourtand

### later

### inthiscase,

### seekingtoenjointhe

### administrativeproceedingsbecause,

### intheirView,the

### statutoryscheme

### isunconstitutional.Though

### neitherthefederalcourtnor

### thisCourthaseverfoundthe

### statutoryprocess

### unconstitutionalorenjoinedthe

### administrativeactions,

### DCFhaspausedthem

### voluntarilyWhilethe

### litigationhas

### playedoutat

### length.

### Severalyearsafterthe

### initialsubstantiationdecisions,

### Plaintiffs’independent

### administrativereviews

### stillhavenothappened.

### TheCourt

### recentlydetermined

### thatthe

### substantiationand

### listingprocess

### isnot

### faciallyunconstitutional,grantedthe

### State’smotiontodismiss,anddenied

### Plaintiffs’motiontoreconsider.

### Plaintiffshaveappealedthosedecisionstothe

### VermontSupremeCourt.

### Plaintiffsrepresent

### that,atsomepoint

### after

### thisCourt’s

### dismissaldecision,

### DCFsprangto

### lifeand

### indicated

### itsintenttoproceedWith

### theiradministrativereviewsdespitethependingappeal.

### Plaintiffsnow

### askthe

### Courttoenjointhe

### administrativeOrderPageof23—CV-00852MiriamLowellandSethHealeyv.VermontDepartmentofChildrenandFamilieseta1-u9E?5;MiriamLowellandSethHealeyV.VermontDepartmentofChildrenandFamilieseta1Order Page 2 of 4

23

- CV

- 00852 Miriam Lowell and Seth Healey v. Vermont Department of Children and Families et al proceeding pursuant to Vt. R. Civ. P. 62(d)(2) to maintain the status quo while their

appeal unfolds.

Rule 62(d)(2) provides in relevant part: “ When an appeal is taken from a final

judgment granting, dissolving, or denying an injunction, the court in its discretion may

suspend, modify, restore or grant an injunction during the pendency of the appeal upon

such terms as to bond or otherwise as it co nsiders proper for the security of the rights of

the adverse party. ” See Vt. R. App. P. 8(a)(1) (indicating that such relief ordinarily must

be sought first in the superior court). Such a motion is subject to th e Court’s discretion.

Relevant factors include “ (1) whether the stay applicant has made a strong showing that

he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured

absent a stay; (3) whether issuance of the stay will substantially injure the other parties

intereste d in the proceeding; and (4) where the public interest lies .” 11 Mary Kay Kane,

et al., Fed. Prac. & Proc. Civ . § 2904 (3d ed.) ; accord Gilbert v. Gilbert , 163 Vt. 549, 560

(1995)

. “[T] he burden of meeting the standard is a heavy one ” and s uch motions are

seldom granted. 11 Mary Kay Kane, et al., Fed. Prac. & Proc. Civ . § 2904 and cases

collected at n.15.

After considering those factors, t he Court declines to enjoin DCF from proceeding

with the administrative cases pending appeal. Though Plaintiffs characterize an

injunction now as merely maintaining the status quo, it is a highly unusual status quo

that has relied for years on DCF’s voluntary choice to not proceed with statutory

mandates during litigation . Plaintiffs have repeatedly asked courts to intervene in their

administrative cases , and none has. If the administrative actions

, instead

, had

proceeded according to the ordinary statut ory process, the substantiations may not haveOrder Page 3 of 4

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- 00852 Miriam Lowell and Seth Healey v. Vermont Department of Children and Families et al been confirmed or could have been stayed. Alternatively, if DCF’s independent reviews

affirmed the substantiations, Plaintiffs could have sought de novo , and potentially

expedited, review before the Human Services Board, raising all the issues they have

raised here but in the manner contemplated by statute.

Plaintiffs’ likelihood of success on appeal does not weigh in their favor. As the

Court has analyzed the issues, Plaintiffs’ success will depend largely on their ability to

persuade the Vermont Supreme Court to reverse its own decision in In re Selivonik , 164

Vt. 383 (1995)

. As noted in the dismissal decision, the current statutory process is far

more protective of their rights than it was at the time of Selivonik . And they have been

unable to produce legal support for a decision contrary to Selivonik under the revised

statutory process. They have not come forward with a “strong showing” that they are

likely to succeed on appeal.

Nor is irreparable harm apparent. To the extent that Plaintiffs characterize the

harm as the violation of their constitutional rights regardless whether their independent

reviews affirm their substantiations, that merely recasts their disagreement over what

the law requires

— addressed more appropriate ly under the likelihood of success factor

—

as harm. Otherwise, their fears about what may happen during or as a result of their

independent reviews are simply speculative. Those reviews in fact could reject t he

substantiations altogether.

Under the third and fourth factors, it bears noting that Plaintiffs thus far have

succeeded in interrupting DCF’s regular statutory role to make substantiation and

Registry listing decisions for an extraordinary time. While Plaintiffs suggest that their

own children are at no risk, the Registry is intended to protect the public. An injunctionOrder Page 4 of 4

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- 00852 Miriam Lowell and Seth Healey v. Vermont Department of Children and Families et al at this stage would merely delay further DCF’s ability to d o now what the controlling

statutes have require d all along. Delay is not harmless merely because so much already

has accrued . Whether Plaintiffs should or should not be substantiated and listed should

have been determined long ago. Indeed, the statutory scheme favors a prompt resolution

of such matters for all concerned and for the public.

Conclusion

For the foregoing reasons, Plaintiffs’ motion for an injunction pending appeal is

denied.

Electronically signed on Monday, Dec ember 4, 2023 , p er V.R.E.F. 9(d).

_______________________ Timothy B. Tomasi

Superior Court Judge