Appeal from Superior Court, Bennington Unit, Criminal
Division William D. Cohen, J.
Alexander Burke, Deputy State's Attorney, Bennington, for
Allison N. Fulcher of Martin & Associates, Barre, for
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and
Davenport, Supr. J. (Ret.), Specially Assigned.
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.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 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. 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
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
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 ...