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
...