Getting one’s name on an
abuse registry is easier than you might think.
Getting one’s name off the
registry once it’s on there can get complicated. The usual process is a clandestine operation of
administrative law that plumbs the murky depths of process and agency
discretion.
It begins with a request that leads to an agency investigation and
is followed by a determination letter. If
the letter is unfavorable, you can appeal that determination by asking for an
independent review. At that point, you
receive a redacted copy of the investigation file. The (so-called) independent reviewer then
makes a determination based on what the reviewer had for breakfast that
morning. One can then appeal to the
Human Services Board and get a copy of the unredacted file and a full hearing
if necessary. If this fails, then one
goes to the SCOV.
Now, keep in mind, that’s the usual
course.
Petitioner is the mother and former guardian of a
thirty-five-year-old woman who has significant cognitive and behavioral
delays. Daughter has the “cognitive
abilities of a child around twenty months old.”
She throws tantrums and is self-destructive when agitated.
While she was guardian, petitioner bought a house for daughter
across the street from her own house with funds from daughter’s trust. Petitioner also hired two private nighttime
caregivers.
One of the caregivers made a complaint to the Department of Disabilities,
Aging, and Independent Living (DAIL), alleging that petitioner had been
physically and verbally abusive toward daughter. DAIL investigated the complaint, concluded
there was merit to it, filed an emergency motion, and got the probate court to
temporarily remove petitioner as guardian.
The probate court then held an evidentiary hearing for final
termination of the guardianship, and terminated the guardianship. The primary concerns were that petitioner
hadn’t established services for daughter and didn’t want help from others. The probate court also noted that petitioner
did not refute the claims of harsh physical treatment.
Petitioner filed a motion to amend that order requesting that the
probate court: “(1) clarify whether her conduct meets the statutory definition
of abuse in 33 V.S.A. § 6902; (2) strike the court’s order requiring her to
provide the court and other interested parties with a copy of the trust that
she set up with daughter’s assets; and (3) relieve mother from the court’s
order requiring her to maintain responsibility for the payment of daughter.’s
bills and home care.” DAIL contested the
motion, and the probate court denied the motion in its entirety.
Whilst all this was happening, DAIL had finished its investigation
and substantiated petitioner for abuse of daughter. Petitioner timely requested an administrative
hearing, which went against petitioner, and she was added to the state abuse
registry.
Petitioner appealed to the Human Services Board, which held that
collateral estoppel barred petitioner from revisiting the abuse issue because
it had been addressed in the probate court proceedings. This brings us to the SCOV.
Petitioner’s argument is that the Board screwed up when it applied
collateral estoppel “because she was never given a full and fair opportunity in
the probate court proceeding to challenge the investigator’s allegations” that
she abused her daughter. DAIL argues
that application of collateral estoppel was justified because petitioner was a
party and the probate court’s findings were made after a contested evidentiary
hearing. DAIL also “posits that the
facts of this case, as found by the probate court, corroborate DAIL’s abuse
substantiation.”
The SCOV will not be having the DAIL-y special today.
The SCOV begins by noting that the applicability of judicially
created “doctrines is a question of law outside of the Board’s special
expertise,” and so the SCOV will apply the we-do-what-we-want-on-de-novo
standard.
There are five criteria for application of collateral estoppel to
a party: (1) party must be a party in the prior action; (2) must be resolved by
a final judgment on the merits; (3) must be the same issue; (4) party must’ve
had a full and fair opportunity to litigate the issue; and (5) it has to be
fair.
The SCOV focuses on the third criterion: Was the termination of
the guardianship the same issue as the abuse substantiation review? “Nope,” says the SCOV, “Application of the
doctrine of collateral estoppel was inappropriate in this case because the
issue in the guardianship termination proceeding was separate and
distinguishable from the issue in the abuse substantiation proceeding.” The SCOV notes that the standard applicable
to whether a guardian should be removed (change in the guardian’s ability or
suitability) is different than the standard applicable to whether there has
been abuse of a vulnerable adult (reckless or intentional subjection of
vulnerable adult to bad stuff).
The SCOV also notes that the probate court never made a
determination that there was abuse and that the applicable legal standards and
burdens of proof were different—though the probate court expressed concern over
petitioner’s behavior, it did not consider whether her behavior was “abuse” as defined in the applicable
statute.
DAIL’s argument that the facts found by the probate court were the
same facts that resulted in the substantiation and thus the application of collateral
estoppel was justified does not hold much water with the SCOV. The SCOV discusses a case cited by DAIL for
support, and essentially says, “Yeah, that doesn’t apply here.” And it doesn’t. In the other case, collateral estoppel was
based on facts amounting to a specific finding of neglect and admitted by the
party in the other proceeding.
DAIL makes a last ditch argument that the SCOV should conclude as
a matter of law that the probate court’s findings establish abuse as
statutorily defined. The SCOV is not
about to do so. The Board made no
findings of fact, and simply concluded that collateral estoppel precluded
petitioner from challenging the substantiation.
And so, for better or worse, the SCOV reverses and remands and
petitioner gets her day in (administrative) court. Back to the rabbit hole, Alice.
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