In re H.H.

• Decision Date: 31 December 2020
• Docket Number: No. 19-324,19-324
• Citation: 251 A.3d 560
• Court: Vermont Supreme Court
• Parties: IN RE Appeal of H.H.

251 A.3d 560

IN RE Appeal of H.H.

No. 19-324

Supreme Court of Vermont.

September Term, 2020

December 31, 2020

Matthew Valerio, Defender General, and Marshall Pahl, Deputy Defender General, Montpelier, for Petitioner-Appellant.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Zoe Newman, Assistant Attorney General, Waterbury, for Respondent-Appellee Department for Children and Families.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

EATON, J.

¶ 1. Petitioner H.H. appeals from a Human Services Board order upholding the Department for Children and Families’ (DCF's) substantiation of a report that she placed her daughter at risk of harm from sexual abuse pursuant to 33 V.S.A. § 4912. The Board granted summary judgment to the State, concluding that the stipulated findings in a related child-in-need-of-care-or-supervision (CHINS) proceeding precluded petitioner from contesting her substantiation and resulting placement on the Child Protection Registry. Petitioner argues that the Board erred in applying collateral estoppel on the basis of the CHINS adjudication. We agree, and therefore reverse and remand.

¶ 2. Because the issues in this case turn on the interrelation of separate family-court and administrative proceedings arising from the same allegations, we recount the factual and procedural history underlying both in some detail.

¶ 3. In October 2015, when the events triggering these proceedings took place, petitioner's daughter, S.H., was six years old. Petitioner and S.H. lived with S.H.’s father, who is petitioner's former spouse; S.H.’s nine-year-old brother, T.H.; petitioner's boyfriend; and several other adults and children. After receiving a report that S.H. had been sexually abused by an adult in the home (the October 2015 report), DCF filed petitions alleging that S.H. and T.H. were CHINS. Specifically, DCF alleged that both S.H. and T.H. were without proper parental care or subsistence, education, medical, or other care necessary for their well-being (CHINS-B), under 33 V.S.A. § 5102(3)(B), and that S.H. was CHINS on grounds of abandonment or abuse (CHINS-A), under 33 V.S.A. § 5102(3)(A).¹

¶ 4. The family court later granted the parents’ motion to dismiss the CHINS-A allegation, concluding the petition did not demonstrate that S.H. was a child abused by her parent, guardian, or custodian, as required under § 5102(3)(A). Subsequently, both parents stipulated that the court could find S.H. and T.H. were CHINS-B on the basis of a set of agreed facts.

¶ 5. Specifically, the parties to the CHINS proceeding agreed as follows: At the time DCF filed the petitions, "[i]n addition to the family living in the home, [Individual 1], [Individual 2] and her two minor children, and [Individual 3] were living in the home. [Individual 4] stayed overnight at the home on one occasion just prior to the petitions being filed."² DCF—which had been working with the family for several months on an open case—was aware that Individual 1 had resided in the home for years. The parents, both of whom received support services for developmental disabilities, had "significant" historical involvement with DCF around issues such as "allegations of risk of harm, physical abuse, risk of sexual abuse, drug use, lack of good hygiene, and failure by the parents to provide adequate supervision or prevent inappropriate or unsafe people to be around their children." Over the years, DCF sought to engage the parents in different support services relative to these concerns, and they were "at times ... resistant, and at other times cooperative." The parties agreed that T.H. "had a significant history of wetting himself, and began acting out sexually in the past few years."

¶ 6. The stipulation further provided that both parents were aware through their past work with DCF "that they were supposed to ensure ‘safe’ people were within their home when the children were present." However, they at times unknowingly "allowed inappropriate individuals who have been substantiated for sexual abuse [and] had mental health and substance abuse issues, and individuals with criminal records into their home and ... allowed these people to reside with them." On some occasions, the parents "provided insufficient supervision" of the children, including during an incident where the father taped T.H.’s hands and feet together while playing, causing T.H. to fall and hit his head on a table. This insufficient supervision also resulted in "the children either being touched, or propositioned, inappropriately in a sexual manner by other minors who were in the home." Finally, the stipulation described a recent witness report—presumably, the October 2015 report—that "someone touched [S.H.] in a sexual manner," and explained that this allegation resulted in the State filing the CHINS action. There was no stipulation as to the identity of the alleged perpetrator, although the parties agreed that the parents "were unhappy at suggestions that [Individual 1] leave the home." The court adopted these stipulations as its findings, concluding on this basis that both S.H. and T.H. were CHINS because they were "without proper parental care or subsistence, education, medical, or other care necessary for their well-being."

¶ 7. The family court later terminated the rights of both parents to S.H. and T.H. following a contested hearing. It concluded that, after the CHINS adjudications, each parent had stagnated in progressing toward the case-plan goals, and it was in the children's best interests that the parents’ rights be terminated. Both parents appealed; we affirmed. In re S.H., No. 2017-430, 2018 WL 1750566 (Vt. Apr. 6, 2018) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo17-430.pdf [https://perma.cc/HYZ8-CSXU].

¶ 8. The instant proceeding arose when, during the pendency of the family-court action, DCF substantiated the October 2015 report, concluding that petitioner had placed S.H. at risk of harm from sexual abuse. A report is "substantiated" where DCF determines, following an investigation, that it "is based upon accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected." 33 V.S.A. § 4912(16) ; see also In re R.H., 2010 VT 95, ¶ 3, 189 Vt. 15, 14 A.3d 267. Substantiated reports are placed in the Child Protection Registry, the purpose of which is to safeguard children by allowing certain individuals working in fields involving contact with children to access a list of persons substantiated for child abuse or neglect. 33 V.S.A. §§ 4911(5), 4916(a)(1), 4919.

¶ 9. Petitioner contested DCF's substantiation decision. See id. § 4916a(c)(1) (allowing person alleged to have abused or neglected child to seek administrative review of DCF's intention to place name on Registry). However, a registry reviewer concluded that a reasonable person would find the legal and policy standards for substantiation had been met and determined that it was appropriate for petitioner's name to be placed on the Registry. Petitioner exercised her right to appeal this decision to the Human Services Board. See id. § 4916b(a).

¶ 10. The appeal from the substantiation determination proceeded first before a hearing officer appointed by the Board.³ DCF moved for summary judgment, arguing that petitioner was collaterally estopped from contesting her substantiation because the legal question presented had been resolved in the family-court findings that resulted in termination of the parents’ rights (TPR). Petitioner opposed DCF's summary-judgment motion, arguing that the TPR decision did not answer the question posed in the substantiation proceeding because the dispositive issues in a TPR proceeding are whether the parents have made progress in addressing the problems identified in the disposition order, and the best interests of the children involved—not the merits of the allegation which gave rise to the proceeding. Petitioner also contended that the Board could not rely upon the copy of the CHINS decision appended to its motion for summary judgment because the limited circumstances allowing for inspection of confidential juvenile case records, see 33 V.S.A. § 5117(b), were not present.

¶ 11. At a subsequent status conference, before any hearing on DCF's summary judgment motion, the hearing officer indicated an intent to issue a final written recommendation that the Board grant the motion. However, the hearing officer did not communicate the basis for her decision to the parties at that time. The next month, a Board employee informed the parties that, in order to complete the recommendation, "it w[ould] be necessary to obtain and review a final copy of the Order and Decision in the CHINS matter" that had been referenced in the TPR order. DCF furnished this and other documents. The hearing officer then emailed the parties, noting that the documents did not provide sufficient detail about the CHINS proceeding to support a ruling on the motion for summary judgment. She requested the original CHINS petition and supporting affidavit, as well as documentation of the report of sexual abuse described in the CHINS stipulation.

¶ 12. At a later status conference, petitioner was directed to file a statement of disputed facts addressing the information in these documents. Petitioner did so, renewing her opposition to the summary-judgment motion on the grounds that the CHINS records were inadmissible. She also objected to the procedure followed in the appeal as a violation of her due process rights, arguing that the request that she file a statement of disputed facts with respect to facts not alleged by DCF in its initial motion had improperly shifted DCF's burden of proof to her.

¶ 13. As forecasted, the hearing officer recommended that the Board grant summary judgment to DCF on collateral-estoppel grounds, concluding that the issue decided in the CHINS adjudication was the same as the question on appeal. The Board heard...