NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.
2017 VT 26
No. 2016-248
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Washington Unit,
Criminal Division
Ashley Nutbrown-Covey January Term, 2017
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.
¶ 1. EATON, J. 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;
2
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.,
1
For the sake of clarity, we refer throughout this opinion to the criminal allegations against
defendant collectively as child abuse, although defendant is accused of child cruelty against A.C.
and aggravated domestic assault of A.N.
3
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 earlier action; and (5) applying preclusion
in the later action is fair.
Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990). As we have
noted before, cases of cross-over estoppel—where a party to a civil action claims that an issue
decided in the civil case is preclusive in a subsequent criminal case—are rare, but so long as the
elements of issue preclusion are satisfied, we see no barrier to the application of the doctrine in
cross-over cases. Cf. State v. Stearns, 159 Vt. 266, 268, 617 A.2d 140, 141 (1992) (holding that
issue preclusion did not apply in case in which defendant sought to bar prosecution in criminal
driving under the influence (DUI) refusal case following finding in civil suspension hearing that
defendant had not refused); State v. Pollander, 167 Vt. 301, 306, 706 A.2d 1359, 1361 (1997)
(holding that issue preclusion did not apply in civil license suspension case following defendant’s
acquittal in criminal DUI case because “defendant has not established that determination of his
4
BAC was necessary and essential to the criminal verdict, as required under the second Trepanier
factor”).
¶ 9. The State here concedes that the first factor—preclusion is asserted against one who
was a party or in privity with a party in the earlier action—is satisfied because defendant is
attempting to assert preclusion against the State in both cases. In light of the State’s concession,
we do not address this factor further.
¶ 10. The second factor asks whether the issue in the present action was resolved by a
final judgment on the merits in the earlier proceeding, Pollander, 167 Vt. at 305, 706 A.2d at 1361,
while the third factor asks whether the issue is the same in both proceedings. We address these
factors together.
¶ 11. As we have previously noted, “preclusion appl[ies] only to issues necessarily and
essentially determined in a prior action.” Id. (quotation omitted); see also Am. Trucking Ass’ns
v. Conway, 152 Vt. 363, 369, 566 A.2d 1323, 1327 (1989) (explaining that issue preclusion is
appropriate only “where that issue was necessary to the resolution of the [earlier] action”); People
v. Gates, 452 N.W.2d 627, 631 (Mich. 1990) (reasoning, in case where defendant asserted issue
preclusion in criminal case based on prior child-protective proceeding in probate court, that “[i]n
order for collateral estoppel to operate as a bar to a subsequent prosecution, the jury in the earlier
probate proceeding must necessarily have determined that defendant was not guilty of the criminal
sexual conduct charged in the prosecutor’s complaint”). Ascertaining whether two issues are the
same and whether one issue was necessarily determined “involves a balancing of important
interests: on the one hand, a desire not to deprive a litigant of an adequate day in court; on the other
hand, a desire to prevent repetitious litigation of what is essentially the same dispute.” Restatement
(Second) of Judgments § 27 cmt. c. (1982); see also Berlin Convalescent Center, Inc. v. Stoneman,
159 Vt. 53, 60, 615 A.2d 141, 146 (1992) (citing § 27 of Restatement of Judgments). Accordingly,
several considerations come into play for a court weighing the second and third Trepanier factors,
5
including: whether there is substantial overlap in evidence between the two issues; whether any
new evidence involves application of a different rule of law; whether pretrial preparation and
discovery related to the first matter could have reasonably been expected to embrace the matter at
issue in the second; and how closely related the two claims are to each other. Restatement (Second)
of Judgments § 27 cmt. c.
¶ 12. Defendant contends that the evidence the State presented at the CHINS proceeding
for J.N., which included testimony about alleged abuse of A.N. and A.C., is the same evidence that
forms the basis for the State’s criminal case against her for aggravated domestic assault of A.N.
and child cruelty of A.C. Additionally, defendant argues that because the family court found that
there was insufficient evidence to adjudicate J.N. CHINS for neglect under the preponderance-of-
the-evidence standard, and because the State attempted to present overlapping evidence in the
CHINS proceeding and the subsequent criminal case, the issues in the two proceedings are the
same. Citing language from State v. Dann, 167 Vt. 119, 125, 702 A.2d 105, 109 (1997),2 defendant
then argues that because the factual allegations in the two cases are similar, and because the family
2
The passage in Dann that defendant cites—“For the purposes of claim preclusion, two
causes of action are the same if they can be supported by the same evidence.”—involves claim
preclusion, not issue preclusion. 167 Vt. at 125, 702 A.2d at 109. While issue preclusion and
claim preclusion are related concepts, they are not identical, and different factors determine when
an issue, rather than a complete claim, has preclusive effect. See id. at 124, 702 A.2d at 109.
Specifically, claim preclusion, also called res judicata, applies only when “there is a final judgment
in former litigation in which the parties, subject matter and causes of action are identical or
substantially identical to those before the court in this case. It bars claims that were litigated and
those which should have been raised in the prior litigation.” Longariello v. Windham Southwest
Supervisory Union, 165 Vt. 573, 574, 679 A.2d 337, 338 (1996) (mem.) (citation omitted); see
also New Hampshire v. Maine, 532 U.S. 742, 748 (2001) (“Claim preclusion generally refers to
the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether
or not relitigation of the claim raises the same issues as the earlier suit.”). Issue preclusion, also
known as collateral estoppel, “prevents a party from relitigating an issue that has necessarily been
decided in a previous action,” and therefore serves to bar relitigation of specific questions of fact
or law that were essential to the prior judgment, whether those issues arise in the same or a different
claim. Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 468, 661 A.2d 89, 91 (1995); see also
New Hampshire v. Maine, 532 U.S. at 748.
6
court reached a final decision on the merits in the CHINS proceeding, the second factor and third
factors are satisfied.
¶ 13. However, commonality of evidence alone is insufficient for issue preclusion; the
actual factual or legal question presented in the first action must be the same as the question
presented in the second. Cf. Dann, 167 Vt. at 127, 702 A.2d at 110. Additionally, while the
evidence that the State proffered in the CHINS proceeding may be similar to the evidence that it
intends to use in the criminal case, the family court never made a specific finding about child abuse
in the CHINS proceeding. The reason the court did not make a specific finding about child abuse
likely flows from the fact that the State’s CHINS case for J.N. was premised on neglect (CHINS-
B), not on abuse (CHINS-A). As a result, pretrial preparation and discovery related to neglect of
J.N. could not have been reasonably expected to embrace the question of abuse of A.N. or A.C.
because J.N. was born in 2013, and the alleged abuse that is the subject of the criminal charges
against defendant took place in 2011 and 2012. Most of the pretrial investigation that the State
might have conducted for the CHINS proceeding would have related to defendant’s relationship
with J.N. from 2013 onward rather than with defendant’s other children in the years prior to J.N.’s
birth. Thus, even if the CHINS court had found, for example, that defendant abused A.N. or A.C.
before J.N. was born, it might still have found that J.N. was not CHINS-B for lack of proper
parental care. That fact demonstrates that while there was a final determination on the merits of
the CHINS-B petition, the question of defendant’s abuse of A.N. and A.C. was not necessary to
the CHINS neglect petition concerning J.N. See Pollander, 167 Vt. at 305, 706 A.2d at 1361.
¶ 14. In a similar vein, the kinds of proceedings at issue here—a CHINS proceeding in
the family division and a criminal case—require the courts to consider and apply different rules of
law. See Restatement (Second) of Judgments § 27 cmt. c. (explaining that determining whether
issue was necessary to first judgment requires court to consider whether any new evidence involves
application of different rule of law). A criminal case is concerned with a defendant’s conduct in
7
some specified instance and therefore requires the State to prove particular elements of a crime at
the time and place alleged, while a CHINS case is concerned with the wellbeing of the child in
question and therefore considers the course of the parent-child relationship. See In re J.J.P., 168
Vt. 143, 147, 719 A.2d 394, 397 (1998) (“[W]e conclude that a CHINS order, where the child’s
interests are paramount, is not analogous to a criminal conviction.”). Put differently, a criminal
case seeks to identify any misconduct on the part of a defendant; a CHINS case seeks to identify
how to best protect the child, regardless of whether or not the child’s parent has engaged in
misconduct.
¶ 15. For example, in this case the question before the CHINS court was whether the
State presented sufficient evidence to establish that J.N. was “without proper parental care or
subsistence, education, medical, or other care necessary for his or her well-being,” 33 V.S.A.
§ 5102(3)(B), whereas the questions before the criminal court in this case are whether the State
can establish that defendant “attempt[ed] to cause or willfully or recklessly cause[d] serious bodily
injury to [A.N.],” 13 V.S.A. § 1043(a)(1), and whether the State can establish that defendant
“willfully assault[ed], ill treat[ed], neglect[ed] or abandon[ed] or expose[d] [A.C.], or cause[d] or
procure[d] [A.C.] to be assaulted, ill-treated, neglected, abandoned or exposed.” Id. § 1304(a).
Thus, in the CHINS proceeding involving J.N., the fact of A.N.’s broken leg was relevant,
regardless of how the leg was broken, because the State’s theory of the CHINS case was that
defendant was not capable of providing proper parental care. In the criminal case, however, the
fact of A.N.’s broken leg is relevant only if the State can establish that defendant recklessly caused
the broken leg. 13 V.S.A. § 1043(a)(1). The issues before the two courts were not the same and
the question of defendant abusing A.N. and A.C. was never finally litigated in the CHINS court.
See Restatement (Second) of Judgments § 27 cmt. c.
¶ 16. Consistent with the decisions of other courts that have considered this question, we
conclude that this case does not satisfy the second or third Trepanier factor and hold that the civil
8
CHINS case, in this instance, has no preclusive effect in defendant’s pending criminal case. See,
e.g., Gregory v. Commonwealth, 610 S.W.2d 598 (Ky. 1980) (no issue preclusion in child sexual
abuse case where prior family court decision found that “best interests of these children would
[not] be served by committing them to the Department for Human Resources” because family
court’s findings “were not essential to its decision”); People v. Roselle, 193 A.D.2d 56 (N.Y. App.
Div. 1993) (no issue preclusive effect in criminal child abuse case where prior family court
decision found that defendant abused but did not neglect subject child). However, even assuming
arguendo that this case would satisfy the second and third Trepanier factors, we would still hold
that issue preclusion does not apply because under the facts of this case, the State did not have a
full and fair opportunity to litigate the issues of aggravated domestic assault of A.N. and child
cruelty of A.C. in the CHINS proceeding. Thus, in order to clarify Trepanier’s application in
cross-over estoppel cases, we address the fourth factor.
¶ 17. The fourth Trepanier factor asks whether there was a full and fair opportunity to
litigate the issue in the earlier action. Courts applying this factor must take into account, among
other considerations: the parties’ incentives to litigate; the foreseeability of future litigation; the
legal standards and burdens involved in the two actions; the procedural tools available in each
forum; and the possibility of inconsistent determinations of the same issue in separate prior cases.
See Dunn, 167 Vt. at 127, 702 A.2d at 110 (quoting Trepanier, 155 Vt. at 266, 583 A.2d at 587)).
¶ 18. There are significant procedural differences between the CHINS and criminal
proceedings at issue here. Section 5313(b) of Title 33, which governs the timing for CHINS
proceedings, provides that “a merits hearing shall be held and merits adjudicated no later than 60
days from the date the temporary care order is issued,” while the statute of limitations for all of
the criminal charges the State alleges against defendant is three years. 13 V.S.A. § 4501(e).
Although the timeline goals for adjudicating the merits of a CHINS petition are not always met,
the need to achieve permanency without undue delay for a child is paramount in our juvenile
9
system. See 33 V.S.A. § 5101(a)(4) (“The juvenile judicial proceedings chapters shall be
construed . . . to ensure that safety and timely permanency for children are the paramount
concerns.”); In re A.S. & K.S., 2016 VT 76, __ Vt. __, ¶¶ 9-10,150 A.3d 197 (emphasizing
importance of timely adjudication in CHINS cases). The short time to hold a merits hearing after
the filing of the CHINS petition—which stems from the necessity for prompt resolution in a
situation where a child’s custody is potentially being litigated—means that in a CHINS
proceeding, the State may have a more limited opportunity, compared to a criminal case, to conduct
discovery, to prepare witnesses, and to otherwise ready the case for a merits hearing. The
difference is especially important in a case such as this one, where at least one issue that is likely
to predominate in the criminal trial—how A.N.’s leg was broken—will depend on the testimony
of competing expert witnesses.
¶ 19. To give preclusive effect to a CHINS proceeding in a later criminal proceeding
might result in CHINS cases being delayed pre-merits while the State develops evidence in an
attempt to avoid the possibility that an adverse CHINS result would foreclose any related criminal
charges. A delay in reaching the merits of a CHINS petition would necessarily further delay the
adjudication of a child’s custody, and “[w]hen abuse is claimed . . . any consequent delays are
likely to be disruptive to the child and the child’s stability.” In re A.S. & K.S., 2016 VT 76, ¶ 10.
Such a result would further undermine the goal in the juvenile docket of “efficient and timely
resolution of cases.” Id. ¶ 12.
¶ 20. Additionally, the State has an interest in having a jury rather than a judge make
determinations about the credibility of witnesses, the factual basis for the criminal prosecution,
and the weight to give to proffered evidence. See Singer v. United States, 380 U.S. 24, 36 (1965)
(concluding that Government has legitimate interest as litigant in trial by jury, except where
defendant would be prejudiced by jury trial). Because CHINS proceedings are statutorily
conducted by a judge, not a jury, giving preclusive effect to findings of the CHINS court would
10
prevent the government from having a jury decide important issues in the criminal case. This
procedural difference weighs in favor of not giving preclusive effect to the CHINS court’s
findings.3
¶ 21. Second, the State has different incentives to litigate a CHINS proceeding and a
criminal prosecution. The nature of a CHINS proceeding, which is fundamentally concerned with
the child’s welfare and with ensuring that the judicial process identifies the custody circumstances
that are in the child’s best interests, means that the State’s incentive is to focus on issues that bear
on the child’s best interests and not solely on the behavior of the custodial parent. Third, there is
no possibility of inconsistent verdicts in this case because it is possible that J.N. was not lacking
sufficient parental care for CHINS purposes, even if J.N.’s siblings were criminally abused before
J.N. was born. This conclusion is consistent with the reasoning of other courts that have considered
this issue. See, e.g., People v. Percifull, 12 Cal. Rptr. 2d 331, 334-35 (Ct. App. Cal. 1992) (“One
critically important element of the criminal trial process is the exercise of the district attorney’s
sound discretion as to whether prosecution is or is not warranted in any particular case.”); People
v. Moreno, 744 N.E.2d 906, 911 (Ill. 2001) (collecting cases and endorsing conclusion in Percifull
that there would be no issue preclusion in child abuse case following juvenile abuse and neglect
3
Public access is an additional procedural difference between a CHINS proceeding and a
criminal proceeding, and although that difference may not prejudice either the State or defendant
in this case, it is worth noting because it implicates important interests of third parties.
Specifically, the public and the press have a protected First Amendment right of access to most
stages of a criminal trial, but public access to CHINS proceedings is statutorily restricted.
Compare State v. Tallman, 148 Vt. 465, 469-71, 537 A.2d 422, 425-26 (1987) (describing First
Amendment right of press and public to access criminal proceedings where proceeding was
historically open and where public access played significant positive role in function of process in
question), with V.R.F.P. 2(f)(1) (“When the court determines that a person is a proper or necessary
party pursuant to 33 V.S.A. § 5102(22)(F), but is not a party specifically listed in that section, the
court may place limits on that person’s participation . . . .”). When, as happened in this case, a
party uses confidential information from a CHINS proceeding in a criminal case, that sensitive
information about a juvenile—in this case, a child who would not have otherwise been involved
in the criminal proceedings—may become a part of the public record. On the other hand, if that
information is not made part of the public record, the public and the press are not able to play their
protected role in ensuring just and orderly judicial proceedings.
11
proceeding in which every factual finding was identical to those at issue in criminal case because
“policy considerations required that prosecution be allowed,” and in particular because “the
criminal trial process [i]s the exclusive forum for determining guilt or innocence”); State v.
Hameed, No. M2009-00152-CCA-R9-CD, 2010 WL 3582485, at *11 (Ct. App. Tenn. Sept. 15,
2010) (no issue preclusion in child abuse case where prior family court ruling found that there was
no clear and convincing evidence that defendant committed acts of abuse against child); State v.
Cleveland, 794 P.2d 546, 551 (Wash. 1990) (no issue preclusion in statutory rape and indecent
liberties criminal case following finding by family court that State had not shown by
preponderance of evidence that sexual abuse had occurred because dependency proceedings are
expedited, dependency is not decided by jury, and State might be incentivized to initiate
dependency proceedings only after criminal trial if issue preclusion applied). We hold that the
fourth Trepanier factor is also not satisfied here and that the State is therefore not precluded from
prosecuting defendant for abusing A.N. and A.C.
Affirmed.
FOR THE COURT:
Associate Justice
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