In re M.V.

CourtUnited States State Supreme Court of Vermont
Citation282 A.3d 941
Docket Number21-AP-249
Parties IN RE Appeal of M.V.
Decision Date08 July 2022

282 A.3d 941

IN RE Appeal of M.V.

No. 21-AP-249

Supreme Court of Vermont.

April Term, 2022
July 8, 2022


Alexander M. Dean of Barr, Sternberg, Moss, Silver & Munson, P.C., Bennington, for Appellant M.V.

Thomas J. Donovan, Jr., Attorney General, and Robert F. McDougall, Assistant Attorney General, Montpelier, for Appellee Department for Children and Families.

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

CARROLL, J.

¶ 1. Petitioner M.V. appeals an order of the Human Services Board granting summary judgment to the Department for Children and Families (DCF) regarding DCF's decision to substantiate him for child abuse. Petitioner argues that the same underlying facts to which he admitted when he pleaded guilty to criminal charges of child-pornography possession cannot substantiate a report of child abuse. He contends that the Board applied the wrong legal standard because it did not require DCF to prove the existence of identifiable child victims or to establish a relationship between himself and each child. We affirm.

I. Factual Background

¶ 2. In November 2019, petitioner pleaded guilty to two counts of possession of child pornography, one for each photograph he downloaded from a social-media platform, in violation of 13 V.S.A. § 2827(a). He signed a plea agreement that imposed consecutive sentences resulting in a total of two-to-four years to serve, all suspended, with ten years of probation. The plea agreement recognized that the convictions would require petitioner to register as a sex offender.1 At his change-of-plea hearing, petitioner admitted to knowingly possessing two photographs, each depicting prepubescent girls in sexually suggestive positions. The photographs focused

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on the children's genitalia.2 The plea judge found that petitioner was not coerced into accepting the plea agreement, voluntarily admitted he understood the elements in the charges and the factual basis underlying each, and waived his right to a jury trial.

¶ 3. Meanwhile, the State reported the underlying evidence to DCF. DCF investigates reports of child abuse and neglect, which may culminate in a substantiated report. 33 V.S.A. §§ 4915, 4915a, 4915b. To substantiate a report of child abuse, DCF must demonstrate that it has obtained "accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected." Id. § 4912(16). If a report is substantiated, DCF places the person's name on the child protection registry. Id. § 4916. Access to the registry is restricted to entities provided for by statute and to specific employers who hire individuals "providing care, custody, treatment, transportation, or supervision of children or vulnerable adults." Id. § 4919.

¶ 4. In August 2019, DCF substantiated petitioner "for sexual abuse by [his] possession of child pornography." Petitioner challenged that determination, and following a November 2020 teleconference, a neutral DCF reviewer affirmed the substantiation. Thereafter, petitioner timely appealed to the Board pursuant to § 4916b(a).

¶ 5. DCF filed a summary-judgment motion claiming that petitioner was collaterally estopped from contesting the facts on which DCF relied to substantiate him. DCF argued that the issue in the criminal proceeding was the same issue before the Board—whether petitioner possessed child pornography. Moreover, DCF asserted, petitioner admitted to the same facts during the plea colloquy that it had relied on to substantiate him.

¶ 6. Petitioner responded that the statutory framework governing substantiation requires an identifiable victim and a caretaking relationship between himself and each victim. According to petitioner, the mere possession of child pornography cannot substantiate a report of child abuse. On the other hand, criminal possession of child pornography does not require the State to prove the existence of an identifiable victim nor that a defendant had a caretaking relationship with the victim. Therefore, petitioner argues, he was not collaterally estopped from contesting the factual basis of his substantiation because the issue of whether he admitted to possessing child pornography of an identifiable child victim and whether he had a caretaking relationship with the children was not raised in the criminal action.

¶ 7. After holding a hearing on DCF's motion, the Board granted summary judgment in DCF's favor. It first addressed petitioner's claim that mere possession of child pornography without identifiable victims cannot substantiate a report of child abuse under Title 33. The Board explained that 33 V.S.A. § 4912(1) defines an "abused or neglected child" in part as "a child who is sexually abused or at substantial risk of sexual abuse by any person." In turn, § 4912(15)(G) defines sexual abuse as "any act or acts by any person involving the sexual molestation or exploitation of a child, including ... viewing, possessing, or transmitting child pornography ...." The Board cited a DCF policy affirming that "any person" who possesses child pornography

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"can be substantiated for sexual abuse." The policy expressly excludes the requirement that a person needs to be a parent or other person responsible for the child's welfare for DCF to substantiate that person for sexual abuse. On these bases, the Board concluded that Title 33 does not require DCF to prove that petitioner had a relationship with the children in the two photographs, nor does it require DCF to identify the child victims. The Board determined that "the legal standard regarding substantiation is whether petitioner engaged in sexual abuse by possessing two photos of child pornography on his computer." Based on the record evidence, the Board concluded that DCF had met its burden demonstrating petitioner possessed child pornography.

¶ 8. Turning to collateral estoppel, the Board analyzed each of the elements this Court announced in Trepanier v. Getting Organized, Inc. that govern the application of the doctrine. 155 Vt. 259, 583 A.2d 583 (1990). It found that each was satisfied and concluded that DCF was entitled to summary judgment as a matter of law.

¶ 9. Petitioner renews his arguments on appeal. He argues that DCF cannot substantiate him for child abuse based on his guilty plea to child-pornography possession depicting unidentified victims because Title 33 requires DCF to identify the child victims and demonstrate a caretaking relationship. He maintains the issue in the criminal prosecution is therefore different than the issue in the substantiation proceeding. Because the issues are distinct, petitioner argues, he is not collaterally estopped from relitigating the factual basis underlying the criminal convictions, and the Board deprived him of an opportunity to do so in a fair hearing.

¶ 10. We hold that Title 33 provides that the mere possession of child pornography constitutes sexual abuse, which in turn is sufficient to substantiate petitioner for child abuse. We also hold that petitioner is collaterally estopped from contesting whether his guilty pleas to criminal possession of child pornography can form the basis to substantiate him for child abuse and placement on the child protection registry.

II. Substantiation

A. Standard of Review

¶ 11. "[W]e defer to the Board's decision regarding substantiation on appeal." In re R.H., 2010 VT 95, ¶ 21, 189 Vt. 15, 14 A.3d 267. "Our review is thus limited to determining whether the Board applied the proper legal standard, whether the evidence before the Board reasonably supports its findings, and whether the Board's findings reasonably support its conclusions." In re E.C., 2010 VT 50, ¶ 6, 188 Vt. 546, 1 A.3d 1007 (mem.).

B. Legal Standard

¶ 12. The question presented is whether the statutes governing substantiation require DCF to identify child victims of pornography and the existence of a caretaking relationship between petitioner and each child. Chapter 49 of Title 33 is divided into two subchapters: the first sets out "General Provisions"; the second governs "Reporting Abuse of Children." 33 V.S.A. ch. 49. Subchapter 2 provides two definitions of what constitutes "an abused or neglected child":

[An] "abused or neglected child" means a child whose physical health, psychological growth and development, or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent or other person responsible for the child's welfare. An "abused or neglected child" also means a child who is sexually abused or at substantial risk of sexual abuse by any person and a
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child who has died as a result of abuse or neglect.

33 V.S.A. § 4912(1). The Legislature subsequently defines sexual abuse as consisting "of any act or acts by any person involving sexual molestation or exploitation of a child, including ... viewing, possessing, or transmitting child pornography ...." Id. § 4912(15)(G).

¶ 13. Separately, § 4916a lays out the process by which persons alleged to have abused or neglected a child can challenge their placement on the registry, including providing for an administrative-review conference conducted by "a neutral and independent arbiter who has no...

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