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State v. Roy

Supreme Court of Vermont

July 6, 2018

State of Vermont
v.
Liana M. Roy

          On Appeal from Superior Court, Bennington Unit, Criminal Division William D. Cohen, J.

          Alexander Burke, Deputy State's Attorney, Bennington, for Plaintiff-Appellant.

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

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Davenport, Supr. J. (Ret.), Specially Assigned.

          ROBINSON, J.

         ¶ 1. The central question in this case is whether a parent may be convicted of custodial interference under 13 V.S.A. § 2451 for interfering with the custody of the Department for Children and Families (DCF) in the absence of a court order specifying the schedule and limitations of the parent's visitation. Defendant Liana Roy was convicted of custodial interference for taking her four-year-old daughter, who was then in DCF custody, on a two-day trip out of the state without DCF's permission. After the jury returned its verdict, the trial court granted defendant's motion for a judgment of acquittal, concluding that, in the absence of a court order specifying defendant's parent-child contact, defendant was not criminally liable. We hold that § 2451 does not require such an order and that the evidence of defendant's knowing and egregious actions in derogation of DCF's custodial rights support her conviction. Accordingly, we reverse.

         ¶ 2. The State presented the following evidence at trial. In October 2015, the family division of the superior court assigned conditional custody of defendant's juvenile daughter D.B.[1]to D.B.'s maternal grandfather in Bennington, Vermont. In January 2016, the court vacated this conditional custody order and assigned temporary custody of D.B. to DCF. D.B.'s physical placement remained with grandfather. The order did not specify the terms of defendant's parent-child contact. DCF assigned D.B.'s case management to a DCF social worker who had authority to make decisions regarding family reunification, physical placement, medical treatment, and education.

         ¶ 3. The social worker was also in charge of establishing the schedule and framework for defendant's visits with D.B., which she coordinated with defendant. Visits were to be supervised by Easter Seals[2] at the state office building in Bennington on Tuesdays and Thursdays. Defendant could have weekend visits supervised by her mother (D.B.'s maternal grandmother), but these visits had to occur in Bennington.[3] The social worker testified that she spoke with defendant on multiple occasions about these visitation rules; in particular she told defendant that she could not visit D.B. outside of these guidelines and could not bring D.B. out of the state without permission.

         ¶ 4. In addition, there was a protocol for D.B.'s medical appointments. D.B. had a local pediatrician in Bennington. Defendant could attend these appointments; however, either grandfather or Easter Seals had to transport D.B. and supervise the medical appointments. The social worker testified that defendant knew of this arrangement.

         ¶ 5. This case centers on an incident in March 2016. On the evening of Tuesday, March 29, defendant and grandmother picked D.B. up at grandfather's home and took her to grandmother's home in Lanesborough, Massachusetts. Defendant sent the social worker a text message asking permission for this visit, but the social worker was on vacation and did not respond. On the morning of March 31, 2016, the social worker received a call from D.B.'s preschool that D.B. was absent. She called defendant, who stated that she had brought D.B. to her mother's home in Massachusetts because D.B. had pneumonia and needed medical treatment. The social worker requested that defendant bring D.B. to school by 11:00 a.m. After D.B. failed to arrive by 11:00 a.m., the social worker contacted defendant again and set a new deadline of 1:30 p.m. When D.B. failed to arrive at 1:30 p.m., the social worker called the Bennington Police, who contacted the Lanesborough Police to conduct a welfare check on D.B. The social worker eventually drove to Lanesborough and brought D.B. back to Bennington.[4]

         ¶ 6. After the State rested its evidence at trial, defendant moved for a judgment of acquittal, V.R.Cr.P. 29, arguing that the evidence failed to demonstrate that she interfered with DCF's custody to a degree necessary for 13 V.S.A. § 2451. At most, defendant argued, this was just "a visit gone bad." The court denied this motion, holding that the State had established a prima facie case.

         ¶ 7. The defense then presented one witness, D.B.'s grandmother. The grandmother testified that the March 2016 visit was the last in a string of visits to Massachusetts stretching back to before DCF gained custody of D.B. On one such visit in February 2016, defendant and grandmother took D.B. to Massachusetts for eight days. The grandmother testified that the social worker became aware of this visit after the fact and never told her to discontinue these trips.[5]

         ¶ 8. The State called the social worker back to the stand, who said that she had been made aware of the visit to Massachusetts in late February 2016, and she had had several subsequent conversations with defendant regarding the visitation rules and the fact that she could not take D.B. out of the state without permission.

         ¶ 9. The State then rested, and defendant renewed her motion for a judgment of ...


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