Note: Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2016

- 058

OCTO BER TERM, 20 1 6

In re D.G. } APPEALED FROM: } } Human Services Board } } DOCKET NO. A

- 06/14

- 503

In the above

- entitled cause, the Clerk will enter:

Petitioner appeals from a Human Services Board decision, which upheld a determination by the Department for Children and Families (DCF) substantiating that he placed his child , C. G.

, at risk of harm. Petitioner asserts that the evidence as a matter of law does not support a conclusion that petitioner put his child at significant risk of serious physical injury

. We affirm.

In 2014, DCF substantiated a report that petitioner placed C. G

. at risk of harm during an

altercation with his wife, A

. G. C. G. was two years old at the time. Petitioner appealed t his

determination t o the Board. Following an evidentiary hearing, the Board d etermined that DCF’s

decision was supported by a prepondera nce of the evidence

. The Board explaine d that p etitioner

admitted to n umerous elements of the altercation , and to the extent that a conflict existed, the Board

credited the testimony of petitioner’s wife.

T he Board found that in November 2013, petitione r and A. G. had an argument. Petitioner grabbed a book from A. G. ’s hands, ripped it and threw it. A. G. decided to leave and began putting

on C

. G. ’s shoes and coat

. While she was kneeling down to help C. G. , petitioner hit A. G. over the

back of h er head wi th his baseball cap. Petitioner was acting with rapidly increasing ang er and physical aggression. A. G. left the house th rough the back door, which led onto a wet deck . She

had C. G. in her left arm

. P etitioner grabbed A. G. by the sleeve and tried to pull her back into the

house. The two engaged in a tug

- of

- war for a few seconds until petitioner suddenly let go , causing

A. G. to slip and fall

. A. G. landed on her left side with C. G. lying next to her. A. G. did not have

any control over how she and C. G. fell to the deck. C. G. ’s face hit the deck, and the Board found

that C. G. faced a significant danger of serious physical injury.

Based on these facts

, the Board concluded that petitioner placed C. G. at risk of harm

. It

exp lained that DCF must investigate reports of abuse, neglect, or risk of harm to children and maintain a registry of all investigations unless the reported facts are unsubstantiated. 33 V.S.A. §§ 4914

- 4916. An “abused or neglected child” includes a child “ whose physical health, psychological growth and development

, or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent.” Id . § 4912( 1 ). “ ‘Risk of harm’ means a significant danger that a child will suffer seriou s harm other than by accidental means, which harm would be likely to cause physical injury

. . . .” Id . § 4912(14). The term “physical injury” means “death or permanent or temporary disfigurement or impairment of any bodily organ or function by other2

tha n accidental means.” Id . § 4912(11). Under the relevant DCF policy, r isk of harm is substantiated when the person resp onsible for the child’s welfare “ [e]ngaged in a single, egregious

act that has resulted in significant risk that the child could have been seriously physically injured .”

See Vt. Dep ’ t for Children & Families, Family Serv ices Policy 56 : Substantiating Child Abuse and Neglect (August 31, 2016)

, http://dcf.vermont.gov/sites/dcf/files/FSD/Policies/56.pdf [ https://perma.cc/W3CU

- ALTL ]

. 1

The Board found it undisputed that petitioner was C .G. ’s parent, and noted that petitioner did not appear to dispute, nor could he reasonably do so, that there was a significant risk that C. G. could have been physicall y injured during the incident. Petitione r instead argued that his conduct

was not egregious and C. G. could not have suffered a serious physical injury when A. G. fell on the deck. He contrasted his behavior with a person who drives while intoxicated with a child in the car, asserting that unlike a drunk driver, A. G. was fully capable of mitigating the risk of injury

from the fall.

The Board rejected petitioner’s effort to shift the responsibility for A. G. ’s fall from petitioner to A .G. , and concluded that the facts showed that petit ioner acted in an egregious way by becoming angry and physically aggressive with A. G. and then reckless ly disregarding C. G. ’s safety by abruptly let ting go of A. G. , causing her and C. G. to fall suddenly onto the deck. The

Board also rejected petitioner’s assertions t hat because there were no stairs or sharp objects on the

deck his actions did not pose a significant risk of serious injury, that C. G. could use her arms to protect herself from serious injury, and that a two

- year old has the “physical structure to endure falls, trips and slips.” The Board found that C. G. could have been seriously injured by hitting her head on the deck, and thus, she faced a significant risk of serious physical injury as a result of the incident. Petitioner appealed from the Board’s deci sion.

Petitioner argues that 1) the re is insufficient evidence to support the Board’s conclusion

because A. G. testified that her fall was accidental; 2) e ven if he did cause her to fall, his acts were not egregious, and did not pose a risk of serious phy sical injury because the child could break her own fall from the short distance, and children have a physical structure that allows them “to endure falls, trips and slips”; and 3) the Board applied the wrong standard by noting that the fall could

have inju red the child rather than requiring proof of a probability of a significant risk. 2

We find no error

. See In re R.H. , 2010 VT 95, ¶ 21, 189 Vt. 15 (“[W]e defer to the Board’s decision regarding substantiation on appeal.”); K.G. v. Dep’t of Soc. & Rehab. Servs. , 171 Vt. 529, 530 (2000) (mem.) ( explaining that Court reviews Board’s conclusion regarding substantiation for abuse of discretion). The Board applied the appropriate legal standard, and its decision is supported by the evidence.

1 As the Board noted, this policy was revised effective July 1, 2015, but the language regarding risk of harm for serious physical injury is not materially different from the policy issued

in 2009.

2 Petitioner also argues that DCF “asserts that this i ncident was not a single event but rather part of a history of physical abuse.” The Board did not rest its decision on this ground , or even mention it in its decision . It conducted a de novo review of DCF’s decision, and concluded that petitioner engaged in a single egregious act. We thus do not address this argument.3

First, A. G. did not testify that her fall was purely accidental . I nstead, her testimony reflects

that i t was petitioner’s act of restraining her as she was trying to leave, and his sudden l etting go

that led to her fall. To the extent petitioner takes issue with th e Board’s findings of fact, we conclude that the findings were supported by the evidence. State v. Hinchliffe , 2009 VT 111, ¶ 22, 186 Vt. 487 ( credibility of witness and weight of evidence are “ matters which are entirely

within th e province of the [factfi nder]”).

Second, the evidence was sufficient to support the Board’s conclusion that petitioner placed

C. G. at significant risk of serious physical injury. The Board found that C. G. was being held at a significant height above the hard wet deck, and that s he would not have been able to protect herself from hitting her head and suffering a serious injury. Rather than using her hands to protect herself, the Board found that a child who felt herself falling while being held by a parent was more likely to grip the parent more closely, increasing the likelihood that she would directly strike her head or

back on the hard deck. The Board found it unreason able to believe that a two

- year

- old child, under these circumstances, had the physical attributes to withstand such a fall without serious injury. We do not agree that the evidence is in sufficient to support the Board’s findings and conclusions, or that the single egregious episode reflected in the testimony is insufficient to support a

substantiation.

Finally, o ur review of the Board’s decision as a whole confirms that the Board applied the right legal standard. Although it referenced the question whether C. G. “could have been seriously injured” during the incident, t he ultimate question that it asked and answer ed in its decision was not whether there was any remote possibility that the child could be harmed as a result of petitioner’s conduct but, rather, whether he placed her at significant risk of serious physical injury.

Affirmed

.

BY THE COURT:

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Beth Robinson, Associate Justice

_______________________________________ Harold E. Eaton, Jr., Associate Justice