On Appeal from Human Services Board February Term, 2013 Charles Gingo, Chair
Catherine Harwood, Pro Se, Norwich, Appellant.
William H. Sorrell, Attorney General, Montpelier, and Peter Kopsco, Assistant Attorney General, Waterbury, for Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Petitioner Catherine Harwood appeals a Human Services Board decision applying the doctrine of collateral estoppel to uphold the substantiation of her abuse of a vulnerable adult and thereby placing her name on the adult abuse registry. Petitioner argues that she should not be precluded from appealing the abuse substantiation because she was never given a full and fair opportunity to challenge the allegations. We agree, and reverse and remand.
¶ 2. The relevant facts are undisputed. Petitioner is the mother of M.T., a thirty-five-year-old woman who has significant developmental disabilities and is unable to care for herself. Specifically, M.T. suffers from severe to profound mental retardation and developmental delay, epilepsy, bilateral ankle contracture and unsteady gait, premenstrual syndrome, bilateral strabismus and astigmatism. M.T. has the cognitive abilities of a child around twenty months old. She also has a history of throwing tantrums and demonstrating self-destructive behavior, such as banging her head against the wall and biting her arm when she is agitated. Petitioner was M.T.’s sole legal guardian and the supervisor of M.T.’s care from April 2010 until the probate court terminated her guardianship in June 2011. While she was M.T.’s guardian, petitioner purchased M.T. a home across the street from her own in Norwich using a trust established with M.T.’s funds for M.T.’s benefit. Petitioner also employed two private caregivers, who cared for M.T. at night.
¶ 3. This case involves two sets of proceedings initiated by the Department of Disabilities, Aging, and Independent Living (DAIL). In May 2011, DAIL received a complaint alleging that one of M.T.’s caregivers had seen petitioner physically and verbally abuse M.T. The caregiver, who has no prior experience or special training in caring for a developmentally disabled adult, alleged that petitioner pulled M.T. by her hair, yelled at M.T., grabbed and pulled M.T. by her arm, and put her hand over M.T.’s mouth in a forceful manner.
¶ 4. DAIL investigated the complaint immediately in accordance with 33 V.S.A. § 6906. During its inquiry, DAIL’s investigator interviewed several of M.T.’s care providers and family members. Based on the information gathered, DAIL filed an ex parte motion for immediate removal of petitioner as M.T.’s legal guardian and for appointment of a successor guardian on June 6, 2011. That same day, the probate court granted DAIL’s motion on an emergency basis, removing petitioner as temporary guardian under 14 V.S.A. § 3077 and 14 V.S.A. § 3081. The court found that petitioner was “unable to meet the health and safety needs of [M.T.].”
¶ 5. The probate court held an evidentiary hearing on June 16, 2011 for final termination of petitioner’s guardianship. During the hearing, the court heard from several witnesses, including petitioner, who participated pro se. The court removed petitioner as guardian in a written decision entered on June 22, 2011. In particular, the court found that petitioner had not established any services for M.T. and expressed concern over petitioner’s “ reluctan[ ce] to accept assistance from others.” The court concluded that the “situation could escalate” and that there was “a significant risk of serious and irreparable harm to [M.T.]” if petitioner remained M.T.’s guardian. The court also noted that it was troubled by petitioner’s “very physical and harsh treatment of [M.T.] which she did not refute.”
¶ 6. Petitioner filed a motion to amend the court’s order on July 6, 2011, requesting the court to: (1) clarify whether her conduct meets the statutory definition of abuse in 33 V.S.A. § 6902; (2) strike the court’s order requiring her to provide the court and other interested parties with a copy of the trust that she set up with M.T.’s assets; and (3) relieve her from the court’s order requiring her to maintain responsibility for the payment of M.T.’s bills and home care. DAIL opposed the motion, emphasizing its need for the trust information in order to obtain necessary services for M.T. The probate court denied petitioner’s motion on July 22, 2011, reasoning that there was no legal basis for petitioner’s refusal to provide a copy of the trust and ordering her to provide the copy and continue to pay all of M.T.’s bills.
¶ 7. Meanwhile, DAIL had finished its investigation and substantiated petitioner’s abuse of M.T. in a written report submitted on June 8, 2011 . Petitioner timely requested an administrative hearing to challenge the finding of abuse, and the hearing took place on July 15, 2011. On August 25, 2011, the Deputy Commissioner of DAIL notified petitioner that she was substantiating the abuse allegations and informed petitioner of her right to appeal the decision. Petitioner’s name was added to the state abuse registry in accordance with 33 V.S.A. § 6911(b). See In re Appeal of Tinker, 165 Vt. 621, 622, 686 A.2d 946, 947 (1996) (mem.) (“A substantiated report of abuse as defined by § 6902(1)(A) does not give rise to criminal penalties; rather, the person found to have committed the abuse will be included in a registry that can be accessed by employers... who hire individuals to care for elderly or disabled adults.”).
¶ 8. Petitioner immediately appealed DAIL’s abuse substantiation to the Human Services Board. In a February 3, 2012 decision, the Board held that the doctrine of collateral estoppel barred petitioner from revisiting the issue of whether she had abused M.T. under the five-part test adopted in Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990). The Board reasoned that it was not unfair to deny petitioner the opportunity to litigate the abuse issue because petitioner was a party in the probate court proceedings and the probate court’s findings of fact were sufficient to show that petitioner abused M.T. Petitioner appeals.
¶ 9. On appeal, petitioner argues that the Board erred in applying the doctrine of collateral estoppel in this case because she was never given a full and fair opportunity in the probate court proceeding to challenge the investigator’s allegations that she abused M.T.  DAIL advances two arguments. First, DAIL contends that the Board correctly applied collateral estoppel because the probate court’s findings addressed the same issue and were part of a final decision made after a contested evidentiary hearing. Second, DAIL posits that the facts of this ...