J.R., In re

• Decision Date: 20 October 1995
• Docket Number: No. 94-038,94-038
• Court: Vermont Supreme Court
• Parties: In re J.R., Juvenile.

Page 670

668 A.2d 670

164 Vt. 267

In re J.R., Juvenile.

No. 94-038.

Supreme Court of Vermont.

Oct. 20, 1995.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Harrison B. Lebowitz, Assistant Attorney General, and James R. Willmuth, Law Clerk (on the brief), Waterbury, for appellee Vermont Department of Social and Rehabilitation Services.

Charles S. Martin of Martin & Paolini, Barre, for appellee juvenile.

Robert Appel, Defender General, and Anna Saxman, Appellate Defender, Montpelier, for appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

J.R.'s mother appeals an order of the Chittenden Family Court terminating her parental rights. Mother claims the court erred (1) by not hearing and deciding a 33 V.S.A § 5532(a) motion to vacate a disposition order removing J.R. from the parental home, and (2) by excluding all of mother's witnesses at a termination of parental rights (TPR) hearing. We decide that findings of fact in a CHINS (child in need of care or supervision) proceeding founded on a preponderance of the evidence do not preclude relitigation of issues required to be decided on clear and convincing evidence in a TPR proceeding. We therefore reverse.

J.R. was removed from her mother and stepfather's home in February 1991 based on allegations that her stepfather had sexually abused her. At a contested merits hearing, the court determined that J.R. was a child in need of care or supervision, explicitly stating that its factual findings--the critical one being that father had sexually abused J.R.--were based on a preponderance of the evidence. Legal custody, including guardianship of J.R., was transferred to the Commissioner of the Department of Social and Rehabilitation Services (SRS).

In April 1992, mother and stepfather filed a motion under 33 V.S.A. § 5532(a) to vacate the disposition order, alleging that the court had based its decision to remove J.R. from the home on fraudulent evidence. Although the motion challenged the disposition order, no new evidence was admitted at the disposition proceeding. Thus, it is evident that mother took issue with evidence admitted in the CHINS proceeding that subsequently became the basis for the disposition order.

In support of her motion, mother offered three letters and an affidavit. She claimed her exhibits showed that J.R.'s maternal grandmother had fabricated the sexual abuse allegations against J.R.'s stepfather. SRS opposed the motion to vacate, claiming that the letters submitted by the parents themselves were fraudulent. SRS submitted an affidavit of mother's sister in which she denied writing one of the letters J.R.'s parents attributed to her. At the suggestion of SRS, the parties stipulated to the taking of handwriting exemplars to be analyzed by a handwriting expert.

In August 1992, SRS petitioned for termination of mother's parental rights. After the parties skirmished over procedure, the family court determined that "regardless of the outcome of any hearing required by 33 V.S.A. § 5532 based upon an allegation of fraud, the Court would still be required to respond to the Petition to Terminate Parental Rights...." The court bypassed the motion to vacate and heard the TPR petition.

At the TPR hearing, mother produced the letters on the issue of fraud, as well as witnesses who would verify the handwriting in the letters. She claimed that J.R. had not been abused, that J.R.'s maternal grandmother had fabricated the child abuse claims, and that mother had faced a confrontational atmosphere during the original police investigation. SRS objected to introduction of this evidence, claiming that mother was attempting to relitigate the issue of child abuse. SRS argued, as it argues on appeal, that these issues were fully and fairly litigated at the CHINS proceeding, and that issue preclusion barred the mother from submitting the evidence at a TPR proceeding. The court agreed with SRS on issue preclusion and did not admit testimony challenging the allegations of abuse.

I.

We first consider whether the court erred in failing to hold an evidentiary hearing to decide mother's motion to vacate. Section 5532(a) of Title 33 provides that "[a]n order of the court may be set aside by a subsequent order of that court ... when it appears that the initial order was obtained by fraud or mistake sufficient therefor in a civil action."

We have affirmed the denial of similar post-trial motions without evidentiary hearings where the court had considered the proffered evidence and found that evidence other than that challenged in the motion sufficiently supported the initial order. See, e.g., In re D.M., 162 Vt. 33, 36-37, 641 A.2d 774, 776-77 (1994) (upholding denial of V.R.C.P. 60(b) motion based on allegation that child had been manipulated into fabricating stories of abuse); cf. West v. West, 139 Vt. 334, 335, 428 A.2d 1116, 1117 (1981) (court should hold hearing where Rule 60 motion neither frivolous nor totally lacking in merit). Whether to hold an evidentiary hearing before deciding a motion to vacate is within the family court's discretion. In re D.M., 162 Vt. at 37, 641 A.2d at 777. Nevertheless, the family court must decide the motion. 33 V.S.A. § 5532(b) ("the court shall deny or grant such relief") (emphasis added).

II.

Because the issue is likely to resurface on remand, we next consider whether the court erred by not deciding anew the issue of abuse at the TPR hearing. Issue preclusion bars a party from relitigating an issue decided in a previous action. Berisha v. Hardy, 144 Vt. 136, 138, 474 A.2d 90, 91 (1984). Issue preclusion is appropriate when:

(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).

A factor to consider when assessing the fairness of applying preclusion under elements (4) and (5) is the degree of proof required in each action. Id. Our cases as far back as 1862 hold that verdicts resting on a lower burden of proof should not be conclusive in subsequent actions requiring a more stringent burden of proof. See, e.g., Riker v. Hooper, 35 Vt. 457, 461-62 (1862) (issue decided by preponderance of evidence in action for trover did not bar litigation of same issue in suit to recover forfeiture requiring proof beyond reasonable doubt); Grogan v. Garner, 498 U.S. 279, 284-85, 111 S.Ct. 654, 657-59, 112 L.Ed.2d 755 (1991) (considering that if clear-and-convincing-evidence standard were to apply to nondischargeability in bankruptcy, prior state judgments based on preponderance of evidence could not be given preclusive effect); cf. People v. Gates, 434 Mich. 146, 452 N.W.2d 627, 632-34 (decision in less formal child protection proceeding does not have preclusive effect in criminal trial), cert. denied, 497 U.S. 1004, 110 S.Ct. 3238, 111 L.Ed.2d 749 (1990).

At a CHINS merits hearing, the burden is on the State to show, by a...