In re Harwood, 2013 VT 89
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.