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In re Harwood

Supreme Court of Vermont

September 27, 2013

In re Catherine Harwood

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Human Services Board. Charles Gingo, Chair.

Catherine Harwood, Appellant, Pro se, Norwich.

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.

OPINION

BURGESS, J.

[¶ 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

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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 ...


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