Updated at 9:34 a.m.

The Vermont Department for Children and Families went to extraordinary and illegal lengths to remove a child from its mother’s custody, aided by an internal program that monitors the pregnancies of multiple Vermonters, a new lawsuit filed by the American Civil Liberties Union of Vermont alleges.

The 30-page complaint, which was filed Wednesday afternoon in the Lamoille County Superior Court’s civil division, accuses the department of secretly tracking the pregnancies of multiple Vermonters that it deems “high-risk” with an internal calendar, without their knowledge or consent. 

The ACLU’s suit focuses on the case of one mother, identified only as A.V., in which the Department for Children and Families — citing concerns about A.V.’s mental health — allegedly used confidential medical information to secure custody of her daughter before she had even given birth. The department also allegedly sought a court order for the hospital to perform a caesarean section while the mother was in labor, all without A.V.’s knowledge.

DCF removed the infant from her mother’s custody immediately after she was born, according to the suit, only to have the child returned by court order months later.

“No court ever found that A.V. lacked parental capacity,” the suit reads, alleging that DCF did not cite any formal mental health evaluation of A.V. to support its actions.

In an interview, ACLU senior staff attorney Harrison Stark said the case was extremely concerning. 

“This case is so egregious in so many ways that it should really shock the conscience of any Vermonter who cares about personal autonomy or reproductive liberty,” he said. 

Two New York legal entities, the nonprofit Pregnancy Justice and the law firm Kramer Levin Naftalis & Frankel, as well as Middlebury attorney Sarah Star, are also representing the plaintiff with the ACLU.

The complaint names DCF as a defendant, as well as Morrisville’s Copley Hospital and Lund, a family services nonprofit based in South Burlington. The latter entities, according to the suit, improperly provided DCF with confidential information about A.V.

Chris Winters, the commissioner of DCF, said in a text message Thursday morning that he had not reviewed the suit and had no comment.

Wayne Stockbridge, the chief administrative officer of Copley Hospital, said in a brief interview Thursday morning that he had not seen the lawsuit and could not comment on it. Ken Schatz, Lund’s interim CEO, said in a text Thursday morning that Lund had not received the suit.  

‘No legal mechanism’

A.V., now 36, became pregnant with her first child in 2021, according to the ACLU’s lawsuit. The ACLU declined VTDigger’s request to speak with A.V.

Around the beginning of her third trimester, the suit reads, A.V. temporarily moved from her Elmore apartment to Charter House, a homeless shelter in Middlebury.

In January 2022, Charter House’s executive director spoke with DCF staffers about A.V. and expressed concerns about her mental health, according to the suit. Based on that conversation, the complaint said, a DCF caseworker conducted an “assessment” of A.V., interviewing and collecting confidential records from staff at Copley Hospital, where A.V. planned to deliver her baby, and Lund, where she had received prenatal counseling. 

Contrary to Vermont law, that assessment was done without A.V.’s knowledge or participation, according to the lawsuit. DCF allegedly collected confidential medical information during that assessment and concluded that there were “significant concerns” with A.V.’s mental health.

Crucially, that conclusion did not draw on a professional mental health evaluation, according to the lawsuit.

Having identified A.V. as a concern, DCF was keeping tabs on her pregnancy without her knowledge or consent, the suit alleges.

According to DCF policy, the department may intervene in cases of illegal substance use or a “lack of parental capacity” even before the birth of a child. The policy states that the department may conduct assessments in “situations where a woman is pregnant and either parent or caretaker has a substantial history with DCF.” That assessment can take place one month before an individual’s due date or sooner if they are expected to deliver the infant earlier, per the policy. 

That policy, the ACLU argues, has no basis in law.

“There is no legal mechanism — to my knowledge, and I can’t imagine one — that allows DCF to intervene while a fetus remains in somebody’s body,” Stark said in an interview.  

How exactly DCF could know the status of someone’s pregnancy is not spelled out in its policy. But according to the ACLU’s lawsuit, DCF maintains an internal “high-risk pregnancy docket,” a calendar that it uses to track pregnancies in individuals “because DCF speculates they will be unfit parents.”

It’s unclear how many people that alleged calendar tracks.

“Tragically, A.V.’s experience is not unique,” the suit reads. “She is only one of many expectant Vermonters who have been ensnared in DCF’s speculative surveillance and brazen intervention into their pregnancy and birthing plans.” 

‘It just doesn’t make any sense’

On Feb. 11, 2022, when DCF learned that A.V. was in labor, the department moved swiftly to obtain custody of her child, according to the lawsuit.

While A.V. was at Copley, DCF allegedly petitioned Lamoille Superior Court’s family division for an emergency order transferring custody of the still unborn baby to the department.

The DCF caseworker argued that the order was necessary “given the significant concerns regarding A.V.’s mental state, and her ability to provide safe care for an infant,” according to a DCF affidavit cited by the ACLU’s lawsuit. That affidavit said, falsely, that the baby had already been born on February 11, according to the suit.

Copley Hospital in Morrisville on Oct. 19, 2023. Photo by Carly Berlin/VTDigger and Vermont Public

The department learned about A.V.’s labor — something that should have been confidential medical information — from medical practitioners and staff at Copley Hospital, according to the lawsuit.

DCF’s affidavit also allegedly argued that the department should take custody of the child because of A.V.’s history with DCF. That history, the suit said, amounted to an incident — when A.V. was 16 — of “a physical altercation” with A.V.’s father and allegations that she herself was abused by a parent.

“The logic of that is, essentially, that if you are involved in the DCF system as a teenager, as a kid, as a victim — that somehow justifies the agency’s intrusion into your choices and your parenting as an adult,” Stark said. “It just doesn’t make any sense.”

The family court granted DCF’s emergency order, transferring custody of the still-unborn child to the department, according to the lawsuit.  

The department and Copley Hospital, apparently concerned about complications from the delivery, even allegedly took the unusual step of asking the court to order A.V. to undergo emergency medical procedures — a caesarean section or a “vacuum procedure,” a practice that employs suction to help deliver an infant.

In a legal flurry that took place while A.V. was in labor, and entirely without her knowledge, DCF allegedly sought the authority, first from the Department of Mental Health and then from Lamoille Superior Court’s civil division, to force A.V. to undergo the procedure. DCF argued that she was experiencing “delusions and paranoia” — an assessment that the court expressed skepticism about, according to the ACLU’s lawsuit. 

But during a court hearing on the matter, according to the suit, Copley staff learned that A.V. had already agreed voluntarily to the medical procedures.

‘Violates the right to personal reproductive autonomy’

On February 12, A.V. gave birth to a healthy baby girl, named in the suit as S.V., according to the complaint. But immediately after the infant’s birth, DCF separated her from her mother and subsequently placed her in a foster home, the suit alleges. 

“A.V. was not allowed to hold — or even touch — her baby,” the lawsuit reads.

James Lyall, executive director of the American Civil Liberties Union of Vermont, speaks at a press conference in Montpelier on October 8, 2019. File photo by Glenn Russell/VTDigger

A.V. received a mental health screening from Lamoille County Mental Health the day she gave birth — her first professional evaluation during this whole process, according to the lawsuit. Other than a flat affect, A.V.’s mental health was judged to be normal, per the ACLU’s suit.

Five months later, after a prolonged legal tussle, a family court ordered the baby to be reunited with her mother, the complaint said.

The 13-count lawsuit alleges that DCF, Lund and Copley Hospital violated a raft of laws and Vermont’s constitution. 

Additionally, “DCF’s ongoing pattern and practice of unlawfully surveilling pregnant Vermonters through the ‘high-risk pregnancy docket’ or ‘calendar’ systemically violates the right to personal reproductive autonomy” that Vermonters enshrined in the state constitution in 2022, the suit alleges.  

The suit asks a judge to declare that “high-risk pregnancy docket” illegal and to halt monitoring the pregnancies of Vermonters that DCF deems risky. It also seeks an unspecified amount of damages and attorney’s fees.