By Guy Page

The ACLU and Pregnancy Justice filed a lawsuit yesterday, January 15 on behalf of a Vermont resident whose rights – so the lawsuit claims – were violated by the Vermont Department for Children and Families (DCF) during an unlawful “assessment” of her parental capacity that was not disclosed to her and based on unsubstantiated claims about her mental health.

The suit names Copley Hospital and Lund, an agency that operates a home for mothers in crisis. The lawsuit says the state’s action violates the 2022 constitutional amendment protecting reproductive freedom. 

DCF Commissioner Chris Winters emailed this response to a VDC inquiry: “We just received the lawsuit today and are now reviewing it and won’t be able to comment. What I can say is that we take our mission of protecting children and supporting families seriously and work hard to balance the safety and well-being of children with the rights of parents. We will respond once we have had an opportunity to review the suit and investigate the claims made within it.”

What follows is largely sourced from a press release published this morning by ACLU-Vermont. 

The suit claims that with the assistance of multiple direct service providers and without her knowledge, DCF surveilled A.V., 36, of Elmore, lied to a state court about her pregnancy status, obtained legal control of A.V.’s fetus, tried to force her to undergo an involuntary cesarean surgery, and then took and retained custody of her newborn baby for seven months while attempting to sever A.V.’s parental rights.

Filed under the initials “A.V.,” the lawsuit names the Vermont Department for Children and Families (DCF), as well as service providers Lund and Copley Hospital, both of which shared confidential information and assisted DCF in surveilling A.V. during her pregnancy.

“For a state agency to violate the rights, privacy, and bodily autonomy of expectant parents like A.V. is a gross abuse of power,” Harrison Stark, Senior Staff Attorney, ACLU of Vermont said. “It also sets a dangerous precedent, particularly in the context of ongoing threats to reproductive liberty at the federal level. This case may seem like an extreme example, but it points to severe systemic problems, including a profound lack of transparency and accountability in Vermont’s child protection system.”

According to the ACLU, in January 2022, DCF received a report that A.V. “appeared to have untreated mental health issues.” This unfounded assertion prompted DCF to open an “assessment for lack of parental capacity”—without ever speaking to A.V., and even though the agency has no legal authority to investigate a fetus or assess a first-time, expectant parent for lack of parental capacity.

Although a DCF “assessment” is supposed to be a voluntary and supportive process, the agency never notified A.V. and instead turned to individuals from Copley Hospital and Lund to illegally disclose highly sensitive information about A.V. to the agency. In practice, DCF routinely and unlawfully intrudes on the privacy of expectant parents. For example, the lawsuit alleges that the agency maintains a “high-risk pregnancy calendar”—what the ACLU calls a standardless registry DCF uses to track people it deems unfit to parent effectively prior to the birth of their baby.

When A.V. went into labor on February 11, 2022, Copley Hospital informed DCF, prompting the agency to file a motion asking a family court judge to transfer custody of A.V.’s fetus to the agency. In its affidavit, DCF falsely stated that “Baby [V.]” had already been born. The agency also used confidential details of A.V.’s own victimization and DCF involvement as a child as evidence of her alleged parental incapacity. The court granted DCF’s request.

Having unlawfully severed A.V.’s custody of the fetus she was about to deliver, the state next tried to force her to have a cesarean surgery against her will—even though no mental health professional had ever determined she lacked capacity to make her own choices. In an emergency motion in civil court, DCF argued that her legitimate preference to continue with a vaginal delivery was an indicator of mental illness. During an emergency hearing on the motion, it came to light that A.V. had ultimately consented to the surgery and gave birth to a healthy daughter soon after.

A.V.’s joy at delivering a healthy baby was short-lived, as hospital staff refused to let her hold or touch her baby. Only then did A.V. learn for the first time of DCF’s assessment and the legal proceedings that had been underway for weeks. Not only was there no formal mental health evaluation supporting DCF’s speculation that A.V. was unable to care for her child—in fact, when A.V. was evaluated, the results confirmed the opposite.  And yet, over the next seven months she was only allowed infrequent, monitored visits with her baby—arranged by DCF to take place in challenging and intimidating environments, such as a police station—while DCF fought to keep full custody of her child.

After hearing the evidence, the court finally reunited the family in September 2022. DCF dismissed its petition in November 2022, approximately nine months after it first took custody of A.V.’s child.

“Like many expectant parents, A.V. was excited to become a mother and looked forward to giving birth to, nurturing, and bringing home her newborn baby,” Caitlyn Garcia, Staff Attorney, Pregnancy Justice said. “But she was denied that opportunity, and it is one she can never get back. DCF abused its power and manipulated the court system using lies and false assumptions to strip our client of her most basic rights and dignity.”

Pregnancy Justice is a New York City based advocacy group that says it “protects and advances pregnant people’s bodily autonomy and rights by defending those who have been criminalized,” especially “those most vulnerable to investigation, arrest, detention, or family separation related to pregnancy.”

Most of the information above is sourced from an ACLU press statement. VDC has asked DCF Commissioner Chris Winters for comment.