rw v. jm

Vermont Superior Court
Filed 03/18 2A
Washmgton mt

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 22-CV-04290
65 State Street
f1
Montpelier VT 05602
802—828—2091

wwwvermontjudiciaryorg

R.W., et a1. V.J.M., et a1

Ruling on DCF’S, S.D.’s, and K.D.’s 12/21/23 Motion to Dismiss

In this case, Plaintiffs R.W. (Mother) and A.M. (Daughter) claim that Defendant

J .M. (Father) With the assistance of Defendants M.M. (paternal Grandmother), S.D.,
J .B., and K.D., all employees (other than Father) of Defendant the Vermont State
Department for Children and Families (DCF) during the underlying events, acted in

concert to undermine DCF investigations into Father’s abuse of Daughter and the

resulting child-in-need-of—supervision (CHINS) proceeding brought against him.1

J
Defendants M.M., S.D., .B., and K.D. are alleged to have achieved these ends by

abusing their authority as DCF employees. Following this Court’s July 9, 2023, decision

and the family division’s subsequent determination making hearing transcripts from the

CHINS proceeding available for use in this case under 33 V.S.A. § 5117(b)(1)(F),

Plaintiffs filed an amended complaint. See In re A.M., No. 115-5-16 anv (Vt. Super. Ct.

Aug. 17, 2023).

Count 1 of the amended complaint is asserted by R.W. against all individual

defendants for intentional infliction of emotional distress. Count 2 is asserted by A.M.

1
The individual parties are referred to by initials pursuant to an order of the Court
entered on March 28, 2023. Daughter is a minor who appears in this case via Mother as
self-appointed “next friend.”
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against all individual defendants other than J.M. for a violation of the Vermont

constitution. The claim appears to be that custody determinations, presumably made by

the family court, have resulted in J.M. having or retaining custody of A.M. and somehow

amount to an unlawful seizure of her person in violation of Article 11 of the Vermont

Constitution. Count 3 is the same as Count 2 but framed under the Fourth Amendment

of the United States Constitution. Count 4 is asserted by R.W. and A.M. against the

State (DCF) for negligent supervision and retention of its employees M.M., S.D., J.B., and

K.D.

DCF, S.D., and K.D. (Defendants) have filed a joint motion to dismiss on statute-

of-limitations grounds, arguing that the claims against them accrued no later than 2016

in the course of the CHINS proceeding, and the 3-year limitation period for personal

injuries, 12 V.S.A. § 512(4), expired long before the original complaint was filed.2

Plaintiffs respond with two threshold arguments: (1) that the motion to dismiss should be

rejected as impermissibly seeking a second bite at the apple; and (2) that there is no

applicable limitation period because their claims arise out of allegations of childhood

sexual abuse for which there is no limitation period under 12 V.S.A. § 522. Failing that,

they do not dispute that the 3-year limitation period for personal injury would be the

correct limitation statute. In that event, however, they argue that (3) A.M.’s claims are

subject to the minority tolling statute, 12 V.S.A. § 551(a); (4) Defendants’ motion should

be rejected as impermissibly relying on extrinsic evidence (the CHINS hearing

2 DCF, S.D., and K.D. characterize themselves as the “State Defendants” even though

other defendants were DCF employees at the time relevant to the allegations. For ease
of reference in this decision, the Court refers to DCF, S.D., and K.D. simply as
Defendants. The claims against the other parties are not at issue at this time.
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transcripts), if the motion is not converted to summary judgment; (5) Plaintiffs’ claims

did not accrue until very recently; (6) Plaintiffs’ claims were timely filed under the

continuing tort doctrine; and (7) the Court should equitably toll the limitation period,

rendering the claims timely.

I. Allegations of the Complaint

The Court declines to recount the allegations of the amended complaint in detail.

The complaint is long and wide-ranging, and many of the allegations are vague and

conclusory. The thrust is that R.W. and J.M. had a tumultuous and abusive relationship.

By 2016, they were living apart, and J.M. had custody of A.M. DCF received complaints

to the effect that J.M. was neglecting and sexually abusing A.M. M.M. and the other

defendants who were DCF employees at the time improperly took steps to derail the

resulting investigation for J.M.’s benefit, intervening to prevent the first investigator to

complete her work and having the case transferred to an investigation team at a faraway

Middlebury DCF office. The same defendants continued to thwart the progress of the

second investigation.

A CHINS-A (abuse) and B (neglect) petition nevertheless was filed. The

investigation, however, had been so badly compromised that the State was unable to

present any compelling evidence in support of the petition, which the Court denied,

leaving A.M. in J.M.’s custody to suffer continuing abuse and defeating R.W.’s efforts at

regaining custody. The CHINS hearing took place over three days: September 8 and 27

and October 12, 2016.

Defendants argue that the transcripts of the CHINS hearing, which Mother

attended, clearly show that much of the hearing time was devoted to testimony related to

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the alleged conspiracy, and thus Plaintiffs’ claims accrued at that time regardless

whether additional details were learned later.

II. Whether Defendants’ Motion is Improperly Duplicative

Plaintiffs argue that Defendants’ motion should be denied as impermissibly

duplicative. The thrust of the argument seems to be that their prior motion to dismiss on

limitation grounds was denied, and it is unfair to permit them to essentially refile that

motion simply because Plaintiffs amended their complaint. They argue that the

amendment changes nothing as far as limitation issues go.

As Plaintiffs are well aware, the Court denied Defendants’ first motion to dismiss

on limitation grounds because it depended largely on self-serving excerpts of transcripts

from the CHINS proceeding that remained confidential under 33 V.S.A. § 5117. It did

not address the substance of their argument as to the time of accrual or the other issues

that the parties have raised now. After that decision, the family division authorized the

use of those transcripts in this proceeding. Defendants then filed the new motion along

with those complete transcripts. There is no unfair surprise or prejudicial second bite at

the apple.

III. Claims of Childhood Sexual or Physical Abuse, 12 V.S.A. § 522

Plaintiffs generally argue that their claims “result” from the alleged childhood

sexual abuse of A.M. by J.M. and, under 12 V.S.A. § 522, there is no applicable limitation

period for such causes of action. Section 522 permits claims “for recovery of damages for

injury suffered as a result of childhood sexual or physical abuse” to be brought “at any

time after the act alleged to have caused the injury or condition.” 12 V.S.A. § 522(a).

Defendants argue that this statute is inapplicable to the claims brought against them

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because it only applies to claims brought against the perpetrators of abuse or the entities

that supervised those perpetrators. Defendants’ argument is based on the statutory

provisions expressly defining abuse as having been committed by the “defendant.” 12

V.S.A. § 522(c)(1), (2). Under existing Vermont case law, however, the argument is not

persuasive.

DCF proposed the same interpretation of the former version of § 522, and the

Supreme Court unanimously rejected it, in Sabia v. State, 164 Vt. 293 (1995). The

plaintiffs in Sabia were sisters who alleged that DCF improperly failed to intervene to

protect them from sexual abuse as children. DCF argued that the older sister did not get

the benefit of the longer, at the time, 6-year limitation period at 12 V.S.A. § 522 because

it and its employees were not the alleged perpetrators of the abuse. The Sabia Court

ruled as follows:

The State argues that . . . judgment on the pleadings should be
affirmed with respect to plaintiff Patterson because her suit was not filed
within three years of her eighteenth birthday. According to the State, the
six-year statute of limitations for actions based on childhood sexual abuse
[12 V.S.A. § 522] applies only in suits against the perpetrators of the abuse,
not other persons whose negligence may have contributed to the abuse.

In support of its argument, the State points out that under § 522 an
action shall be commenced within six years of the “act” alleged to have
“caused” the injury, and that the statute defines “childhood sexual abuse” as
any “act” committed “by the defendant.” Further, the State notes that
under the statute the victim need not establish which “act” in a series of
continuing sexual abuse incidents caused the injury. In the State’s view, if
the Legislature had intended to allow nonperpetrators to be defendants
under the expanded statute of limitations, it would have required plaintiffs
to establish which incident of sexual abuse caused the injury.

We find nothing in the statutory language suggesting that the
Legislature intended to exclude nonperpetrators from the reach of the
statute. Use of the word “act” in different contexts in different sentences of
the statute does not compel the conclusion that the “act” complained of must
always be the “act” of sexual abuse itself. The statute applies to civil actions
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“brought by any person for recovery of damages for injury suffered as a
result of childhood sexual abuse.” Plaintiff Patterson’s suit plainly falls
within the scope of the statute. We decline to read the term “against the
perpetrator” into a remedial statute whose purpose is to benefit victims of
childhood sexual abuse, not to punish the perpetrators of the abuse.

Sabia, 164 Vt. at 308–09. Thus, under the version of § 522 in place at the time of Sabia,

a claim need not have been asserted against the perpetrator of the abuse for § 522 to

apply; it was sufficient if the claim was asserted against one who “contributed” to the

occurrence of the abuse.

The statute has since been amended to eliminate any limitation period at all, and

to apply it to claims of physical abuse. Nonetheless, the current version of the statute is

substantially similar to the version in place at the time of Sabia in material respects.

Moreover, the current version appears to embrace the Sabia analysis insofar as it limits

claims against entities “that would have been barred by any statute of limitations in

effect on June 30, 2019” to circumstances of gross negligence. Such a limit would not be

necessary if the claim could be asserted only against the perpetrator of the abuse. The

interpretation of § 522 in Sabia has continuing force under the current statute and is

binding.

A.M. alleges that S.D. and K.D. contributed to the occurrence of the abuse insofar

as they are alleged to have undermined the DCF investigation and CHINS proceeding,

causing A.M. to remain in J.M.’s custody and suffer continuing abuse, and DCF is alleged

to have supervised its employees in a deficient manner to the same effect. Under Sabia,

these claims are free of any limitation period under 12 V.S.A. § 522.3

3 The entity liability provision in § 522 appears to be irrelevant in this case.
Section
522(d) provides: “In an action based on childhood sexual abuse that would have been
barred by any statute of limitations in effect on June 30, 2019, damages may be awarded
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The question next turns to whether the same analysis applies to R.W.’s claims. In

all reported cases of claims brought under § 522, the plaintiff was the alleged victim of

the abuse. In this case, R.W.’s claims depend, at least to some extent, on the abuse

allegedly suffered by A.M.; but R.W. was not in any direct sense the victim of that sexual

abuse. There are reasons to think that § 522 and its expansive limitations period

properly applies only to claims brought by the direct minor victim. The first sentence of §

522(a) eliminates any limitation on claims “for recovery of damages for injury suffered as

a result of childhood sexual or physical abuse.” This language implies that the one who

suffered the injury is the one who experienced the abuse. The second sentence appears

to more specifically refer to that person as the victim: “The victim need not establish

which act in a series of continuing physical abuse or sexual abuse or exploitation

incidents caused the injury.” Moreover, in Sabia, the Court specifically indicated that

the purpose of the statute “is to benefit victims of childhood sexual abuse.” Sabia, 164

Vt. at 309.

On the other hand, Sabia was not addressing the issue presented here, and the

first sentence of § 522(a) also refers broadly to “any person,” which might extend in

certain circumstances to persons other than the immediate “victim” of the abuse: “A civil

action brought by any person for recovery of damages for injury suffered as a result of

childhood sexual or physical abuse may be commenced at any time after the act alleged

to have caused the injury or condition.” Considering the breadth of the interpretation of

against an entity that employed, supervised, or had responsibility for the person
allegedly committing the sexual abuse only if there is a finding of gross negligence on the
part of the entity.” At the relevant time, the limitation period of § 522 was 6 years.
Thus, counting from 2016, A.M.’s claim against DCF would not have been barred in 2019.
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§ 522 in Sabia and the potentially very broad language of the first sentence of § 522(a), it

is at least possible that § 522 extends to Mother’s claims in this case.

The Court declines to rule definitively either way at this time, however. None of

the parties has briefed this issue in any detail. Nor have they cited Sabia, much less

analyzed its implications on this point. The application of § 522 to Mother’s claims

presents novel matters of first impression. The Court declines to rule on them under Vt.

R. Civ. P. 12(b)(6) in these circumstances. See Ass’n of Haystack Prop. Owners, Inc. v.

Sprague, 145 Vt. 443, 447 (1985) (“Moreover, courts should be especially reluctant to

dismiss on the basis of pleadings when the asserted theory of liability is novel or

extreme.”).

Plaintiffs’ remaining defenses to Defendants’ statute of limitations argument are

posed in the event that the Court concludes that § 522 does not apply. Because § 522

applies to A.M.’s claim, and the Court has not yet determined whether it applies to

R.W.’s claims, the Court declines to address the alternative arguments at this time as it

is not clear that this case will present any controversy as to them. See In re Opinion of

the Justs., 115 Vt. 524, 529 (1949) (“Organically, courts are not instituted to render

advisory opinions.”).

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Conclusion

For the foregoing reasons, Defendants’ motion to dismiss is denied as to A.M.’s

claims. It is denied without prejudice as to R.W.’s claims at this time as set forth above.

The parties shall confer and submit a proposed Discovery/ADR schedule within 21

days.

Electronically signed on Friday, March 15, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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