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State v. Nutbrown-Covey

Supreme Court of Vermont

April 21, 2017

State of Vermont
v.
Ashley Nutbrown-Covey

         On Appeal from Superior Court, Washington Unit, Criminal Division

          Kevin W. Griffin, J. (motion to dismiss); Kirstin K. Schoonover, J. (motion for permission to appeal) Rory T. Thibault, Washington County Chief Deputy State's Attorney, Barre, for Plaintiff-Appellee.

          Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          EATON, J.

         ¶ 1. This case presents the question whether the doctrine of issue preclusion bars the State from prosecuting defendant for alleged abuse of one child, A.N., after the family court, in an earlier child-in-need-of-supervision (CHINS) proceeding involving a different child, J.N., found that there was insufficient evidence to adjudicate J.N. CHINS for being without proper parental care or subsistence. We hold that, given the facts of this case, the prosecution is not barred by issue preclusion. Accordingly, we affirm the trial court's denial of defendant's motion to dismiss.

         ¶ 2. The facts relevant to this criminal case and the related family court proceeding involve an incident that occurred in the fall of 2011. Defendant is the mother of three children: J.N., born in 2013; A.N., born in 2008; and A.C., born in 2004. In August 2011, defendant and A.N.'s father took A.N.-then three years old-to the emergency room for an injury to A.N.'s leg. A.N. was examined by a physician, whose treating records indicate that although it was obvious that A.N. was injured, there were no deformities or external bruising to A.N.'s leg. The physician ordered X-ray examinations, which showed that A.N. was suffering from a spiral fracture of the left leg, meaning that A.N.'s leg had been subjected to significant torque. Although the physician was a mandated reporter, he did not notify the Department for Children and Families (DCF) of A.N.'s injury because nothing indicated that A.N. had been injured by defendant or any other adult. Neither DCF nor the State took any action until 2014.

         ¶ 3. On July 9, 2014, the State filed an information against defendant alleging one felony count (Count 1) of first degree aggravated domestic assault in violation of 13 V.S.A. § 1043(a)(1) and three misdemeanor counts (Counts 2 through 4) of child cruelty in violation of 13 V.S.A. § 1304(a). Defendant entered pleas of not guilty to all charges at her July 10, 2014, arraignment, and the State later dismissed Count 3. Counts 2 and 4 involve alleged abuse of A.C., while the factual basis for Count 1 involves the incident from August 2011 in which defendant and A.N.'s father brought A.N. to the emergency room with a fractured leg. None of the criminal charges involve alleged abuse of J.N.

         ¶ 4. On July 16, 2014, when J.N. was ten months old, the State filed a petition in the family division alleging that J.N. was without proper parental care in violation of 33 V.S.A. § 5102(3)(B). According to that statute, a child is CHINS if he or she "is without parental care or subsistence, education, medical or other care necessary for his or her well-being." The State's theory at the CHINS proceeding was that defendant posed a risk of harm to J.N. for various reasons, including: her alleged prior abuse of A.N. and A.C.; her behavior towards J.N.'s putative father during their contentious breakup, which involved, among other things, allegations that defendant engaged in elaborate schemes to falsely accuse J.N.'s putative father of domestic abuse; allegations that she verbally threatened J.N.'s putative father and the children; and her alleged propensity to leave J.N. in the care of questionable caregivers.

         ¶ 5. J.N. was placed in foster care pending the outcome of the CHINS proceeding. The family court held a merits hearing on the CHINS petition on December 11, 2014, and took testimony from, among others, two medical doctors, including the emergency room physician who treated A.N. in August 2011, the investigating detective, A.N.'s father, and a ten-year-old child, A.B., who was present when A.N.'s leg was injured. After hearing the testimony, the court found that there was "no evidence at all" related to "[defendant]'s care during [J.N.'s] life that in any way, shape, or form" suggested that defendant "presented a risk of abuse or neglect." The court did not, however, make specific findings about the alleged incidents of abuse of A.C. or A.N.[1] The court dismissed the CHINS petition and returned J.N. to defendant's custody. The State did not appeal.

         ¶ 6. On September 29, 2015, defendant filed a motion to dismiss the criminal charges against her for lack of a prima facie case pursuant to Vermont Rule of Criminal Procedure 12(d) and on the ground that collateral estoppel barred the State from relitigating the question of whether she abused A.N or A.C. The court held a hearing on May 2, 2015, where the State dismissed Count 3-a misdemeanor child abuse charge involving A.C.-and defendant withdrew her Rule 12(d) motions on Count 1, the assault charge concerning A.N, and Counts 2 and 4, the abuse charges concerning A.C. After hearing argument on the collateral estoppel issue, the trial court issued a written decision on June 15, 2016, finding that collateral estoppel did not bar the State from trying defendant for aggravated domestic assault of A.N. and criminal child abuse of A.C., despite the family court's dismissal of the CHINS petition that included the same factual allegations. We granted an interlocutory appeal of that decision.

         ¶ 7. The question before this Court is whether collateral estoppel bars the State from pursuing criminal charges against defendant for child abuse of A.N. and A.C. after the family court dismissed the CHINS petition concerning J.N. that included the same allegations. Because we conclude that the question of defendant's alleged abuse of A.N. and A.C. was never fully resolved in the CHINS proceeding and because the State did not have a fair opportunity to fully litigate that issue, we hold that the doctrine of collateral estoppel does not apply and the State is not barred from pursuing criminal charges against defendant.

         ¶ 8. The elements of collateral estoppel, also known as issue preclusion are:

(1) preclusion is asserted against one who was a party or in privity with a party in the earlier action; (2) the issue was resolved by a final judgment on the merits; (3) the issue is the same as the one raised in the later action; (4) there was a full and fair opportunity to litigate the issue in the ...

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