Vermont Superior Court Filed 12/06 23 Washington mt

VERMONT SUPERIOR COURT Washington Unit 65 State Street Montpelier VT 05602

802—828—2091 WWW.Verrn0ntiudiciarV.0r2

CIVIL DIVISION

Case No. 23—CV—852

inion and Order on Plaintiffs’ Motion for In'unction Pendin eal DCF substantiated Plaintiffs for abuse or neglect on preliminary basis, notified

them of its intent to list them on Vermont’s Child Protection Registry, and Plaintiffs

sought independent DCF review of those decisions pursuant

to 33 V.S.A. 4916a.

Plaintiffs then sued DCF in federal court and later in this case, seeking to enjoin the

administrative proceedings because, in their View, the statutory scheme is

unconstitutional. Though neither the federal court nor this Court has ever found the

statutory process unconstitutional or enjoined the administrative actions, DCF has

paused them voluntarily While the litigation has played out at length. Several years

after the initial substantiation decisions, Plaintiffs’ independent administrative reviews

still have not happened. The Court recently determined that the substantiation and

listing process is not facially unconstitutional, granted the State’s motion to dismiss, and

denied Plaintiffs’ motion to reconsider. Plaintiffs have appealed those decisions to the

Vermont Supreme Court.

Plaintiffs represent that, at some point after this Court’s dismissal decision, DCF

sprang to life and indicated its intent to proceed With their administrative reviews

despite the pending appeal. Plaintiffs now ask the Court to enjoin the administrative

Order Page of 23—CV-00852 Miriam Lowell and Seth Healey

v. Vermont Department of Children and Families et a1

-u 9E? 5;

Miriam Lowell and Seth HealeyV. Vermont Department of Children and Families et a1
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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 considers 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 the 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 

interested 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 such 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, the 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 statutory process, the substantiations may not have 
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23-CV-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 appropriately 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 the 

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 injunction 
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23-CV-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 do now what the controlling 

statutes have required 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, December 4, 2023, per V.R.E.F. 9(d).

 _______________________

Timothy B. Tomasi

Superior Court Judge