Suit allegations against trooper dismissed; those against DCF workers continue


BENNINGTON — Allegations against a Vermont state trooper in a suit filed by a former daycare facility owner who lost her business after being accused of a crime have been dismissed in U.S. District Court.

However, allegations in the suit against two state Department for Children and Families workers over their decisions in a related investigation of the facility were allowed to continue in the suit.

Debi Miller owned a North Bennington facility called Dooda's Daycare during a May 13, 2016, incident in which 1-year-old child required emergency hospital care after developing serious breathing problems.

She later sued Trooper Robert Zink and DCF employees Christopher Murphy and Stacy Edmunds-Bricknell over their actions in bringing criminal charges and later regulatory actions against her — all of which were dismissed or overturned.

Zink had investigated incidents on the morning the child could not be fully roused by staff at the daycare center and was transported to Southwestern Vermont Medical Center and later airlifted to Albany (N.Y.) Medical Center before making a full recovery.

The officer later determined that there was probable cause to seek charges against Miller through the State's Attorney's Office.

Miller subsequently was charged with reckless endangerment of a child and had her right to operate a daycare suspended by the state.

However, the criminal count against Miller was dismissed by a Superior Court judge for lack of probable cause prior to an arraignment, and a suspension of her daycare license and another restriction were later overturned after a state review.

But the licensing issue process continued for nine months, the suit states, and resulting negative publicity that followed a press release posted by state police about the incident and the criminal citation helped close and doom the business.

Miller alleged in U.S. District Court that the actions of the officials caused her to lose her business, which in May 2016 served more than 30 children and had eight employees, according to the suit.

The suit, filed in 2017 for Miller by Devin McLaughlin, of Langrock, Sperry & Wool, of Middlebury, seeks unspecified compensatory damages, as well as punitive damages.

It states that the defendants' actions "were committed willfully, wantonly and maliciously, and were motivated by evil motive or intent, and were recklessly and/or callously and/or deliberately indifferent to Mrs. Miller's rights under the United States Constitution."

The arresting officer and the DCF officials both initiated action against Miller that "was outrageous, was undertaken intentionally or with reckless disregard of the probability of causing emotional distress, and [their] outrageous conduct was the actual or proximate cause of Mrs. Miller's extreme emotional distress," the suit alleges.

The state Attorney General's Office, which is representing Zink and the DCF employees, had filed a motion in 2017 seeking summary judgments on all of the suit allegations.

In an Aug. 20 decision, Judge William K. Sessions III allowed a judgment in Zink's favor on all the suit counts he faced, which included alleged "false arrest and malicious prosecution" by Zink in seeking criminal charges, which the suit says was undertaken "without probable cause, and which deprived [Miller] of her liberty and right to operate a licensed daycare business."

But the judge denied summary judgment in favor of Murphy and Bricknell relative to the allegations they face. Those include allegations that the DCF workers also acted without probable cause and conducted a "malicious prosecution of Mrs. Miller."

After suspending her daycare license upon her criminal citation on May 25, 2016, for alleged reckless endangerment of a child, DCF briefly reinstated the license after the criminal charges were dismissed in Superior Court in June 2016 for lack of probable cause.

But the DCF later notified Miller that she was still under investigation by the agency, according to the suit.

Miller said in the suit that she was notified in mid-July that "DCF had decided to substantiate her as a child abuser," stating that on May 13 [2016] she had abused the one-year-old child by placing her at risk of harm.

The DCF decision barred her from operating a daycare until it was overturned the following February.

The actions of the defendants "put her out of the daycare business — her chosen profession for many years and her primary source of income," the suit alleges.

Miller contested the July substantiation decision by the DCF, according to the suit, "and its expressed intention to place her on the Child Abuse Registry."

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On Feb. 6, 2017, the suit states, a state reviewer "rejected DCF's substantiation decision, finding that the evidence did not meet the current legal and policy standards for substantiation, meaning no reasonable person would believe that Mrs. Miller abused the child."

In his 23-page Aug. 20 ruling on the summary judgment motions, Sessions said that during his criminal investigation Zink had found information that could reasonably be considered as probable cause for seeking criminal charges against Miller, which also were later approved by Bennington County State's Attorney Erica Marthage.

Among information cited by the judge was that Zink reported discrepancies among statements of Miller and others he interviewed, that statements from different people he spoke with appeared to be rehearsed, and that he had learned of 10 past violation notices the daycare had received for noncompliance with licensing regulations, ranging from food service violations to corporal punishment.

Zink also noted in seeking charges that two statements from physicians familiar with the child and/or the incident were critical of how the medical emergency apparently was handled by the facility staff prior to a call being made to have the child transported.

Sessions referred to the implied immunity for law enforcement officers in investigations. He said in his ruling that summary judgment is warranted "on the false arrest and malicious prosecution claims against Trooper Zink because Trooper Zink is entitled to qualified immunity."

The judge wrote that the facts Zink had learned during his investigation "amount to arguable probable cause," and that "a law enforcement officer of reasonable competence could find there was probable cause."

The judge also found that the actions of the officer could not be found "extreme or outrageous," as alleged, and he granted summary judgment on the allegation of infliction of emotional distress.

Misleading statements?

Murphy and Edmunds-Bricknell, who like Zink are represented by Assistant Attorney General Bartholomew Gengler, also had contended in a motion that they should have qualified immunity during investigations.

Gengler had argued that Zink and the DCF officials are entitled to qualified immunity from such claims in that they were acting in their official capacities, and that their actions were not unreasonable given the situation.

But referring to Murphy and Edmunds-Bricknell, Sessions determined that some questions had been raised in the suit that should be allowed to go to trial.

The judge wrote that the DCF workers contended they had a reasonable basis for substantiation of an allegation of child neglect against Miller, because the opinions of a doctor who was consulted were highly critical of the daycare's response to the medical emergency.

But the judge notes that Miller argues "that this opinion was based largely on misinformation. She argues that Murphy incorrectly communicated what happened to [the child] that morning and greatly exaggerated the events such that [the doctor's] opinion was not based on the reality of the situation."

The judge added, "Viewing the facts in the light most favorable to Miller, there is a question of fact as to whether [the doctor] had been given an accurate picture of the incident and whether Murphy intentionally used inaccurate or misleading language when communicating with [the doctor]. This dispute of fact precludes a finding of qualified immunity regarding Murphy and Edmunds-Bricknell."

In addition, the judge wrote, "If [the doctor] was given incorrect information it calls into question the rational basis of the substantiation decision. Because these fact questions remain, summary judgment is inappropriate for defendants Murphy and Edmunds-Bricknell on claims of malicious prosecution."

Summary judgment also was denied on allegations against the DCF workers on the lack of due process claims in the suit, especially related to the denial of a daycare license for Miller for nine months during the review process.

"This severe interference effectively destroyed her business and resulted in her being unable to reopen a daycare business ," the decision states.

The judge also denied judgment for the DCF workers on the suit claim of intentional infliction of emotional distress, saying in part that questions of fact remain that "precludes judgment on this claim for [the defendants]."

Reached Wednesday, McLaughlin said the plaintiff is pleased the suit can go forward against the DCF workers, although claims against Zink were dismissed by the court.

He reserved further comment pending a decision by the AG's Office on a possible appeal on the motion decision.

Gengler said Wednesday that the judge's ruling would be discussed within the office before any further comment would be issued.

Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien     


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