Estoppel Denied

State v. Nutbrown-Covey

2017 VT 26

By Elizabeth Kruska

If you went to law school, you likely remember that hazy, confusing time during the first semester when nothing makes sense and when it feels like you’re trying to study and learn a new language all at once. This is around the time first year students learn about claim preclusion and issue preclusion. Your brain probably fogged over and you thought, "wha?" Luckily, it's one of those things that in practice makes perfect sense. 

This is an issue preclusion case. Issue preclusion, or collateral estoppel, is part of the legal doctrine that allows a party to litigate a matter once. This generally pops up in civil cases, but sometimes there’s cross-over into criminal cases, as you’ll see here. The point is that a party doesn’t get to keep litigating the same thing over and over if generally all the moving pieces to the matter are the same.

This case starts back in 2011. Defendant was the mom of 2 kids at that point: A.C. and A.N. That August, A.N., who was 3, suffered a broken leg. His dad took him to the hospital. The doctor discovered the break was a spiral fracture, meaning some amount of torque would have been necessary to create the break. But there wasn’t any evidence of child abuse by either parent or any other adult, so the doctor didn’t make a DCF report.

A third child, J.N., was born to Mom in 2013.

In July of 2014, the State filed criminal charges against Mom alleging abuse relating back to the time of A.N.’s fracture. None of the charges had anything to do with J.N. Now we’ll start referring to Mom as Defendant.

A couple days later the State also filed a child in need of care and supervision (CHINS) petition alleging that J.N. was without proper parental care. This was based on several factors relative to J.N.’s overall well-being, including leaving him with unsafe caregivers. The petition also reflected alleged prior abuse of A.C. and A.N. but none on J.N.

In December of 2014, which was before the criminal trial for child abuse, the family court held a merits hearing with respect to the CHINS petition on J.N. There was lots of testimony, including testimony from doctors who treated A.N. in 2011. The family court dismissed the CHINS petition because there was no testimony or evidence to suggest that J.N. was ever without proper parental care and supervision. J.N. was sent home with Mom/Defendant. The State could have appealed the CHINS finding, but did not.

So, this leaves Defendant with the pending criminal case. Defendant moved to dismiss it, saying that the criminal charges were actually precluded by the dismissal of the CHINS case. Her rationale was that the adverse parties (her and the State) were the same parties as in the criminal case, and that the matter having to do with the abuse of A.N. was already litigated in the family case when the State called the witnesses relative to A.N.’s injury to testify. Defendant was charged with four counts; in response to her motion the State dismissed one count, but the other three remained active. The court held a hearing and issued a written decision denying the motion.

Defendant sought permission for interlocutory appeal, which was granted. SCOV agreed to hear the matter and affirmed the trial court.

A quick word about interlocutory appeals. They happen rarely, and can happen only with permission. Appellate courts don’t want to hear cases piece-wise and so generally a party can only appeal when there is a final or other appealable judgment. But, if there’s a situation where there’s a ruling that would be dispositive in a case – that is, would end the case – there may be times when this can be appealed before getting all the way to the end.

There are several elements to be met to prove that a case is barred by issue preclusion. First, the parties have to be the same. Second, the issue was already resolved by a final judgment on the merits. Third, the issue from before is the same as the issue now. Fourth, that there was a full and fair opportunity to litigate the issue in an earlier action, and that precluding the later action is fair.

There’s no disagreement here that the relevant parties are Defendant and the State. Let’s move on.

SCOV looked at the second and third factors together because they sort of go together. Defendant’s position is that the issue was resolved with a final judgment on the merits when the court held the merits hearing in J.N.’s CHINS case. Her position also is that the issue is the same in both cases.

SCOV disagrees, and explains. There is a lot to weigh here. On one hand, there has already been a contested hearing with testimony. There is some overlap in what the testimony would be between the criminal case and what was presented in the CHINS case. On the other hand, just because the pieces of evidence are the same doesn’t mean they mean the same thing in the different cases. Because the CHINS case and the criminal case ask different questions and get to different issues, the preparation for the cases and discovery is going to be a little different.

A criminal case is the state accusing a person of somehow running afoul of a criminal law. If the person is found guilty, he or she is sentenced. A CHINS case is a little different. The focus of the CHINS case is the well-being of the child, and whether or not the child was in need of care and supervision at the time the petition was filed. I always explain CHINS filings as less like an accusation of wrongdoing (even though a lot of times it feels that way), and more like a description of a situation. The goal in a CHINS case is to get stability and permanency for a child, which isn’t the same as the goal of a criminal case.

Defendant argued that she’s charged criminally with child abuse for allegedly breaking A.N.’s leg (among other things, I think – there were several counts). The evidence the State would need to use to prove that is exactly the same testimony it brought out from the doctors who testified at J.N.’s merits hearing. The burden of proof in a CHINS case is a preponderance of the evidence standard, which is much lower than beyond a reasonable doubt in a criminal case. Since the CHINS case got dismissed, Defendant reasons that the State can’t prove the allegations again but with a higher standard. It’s like how in track and field events if a high jumper can only jump over the bar at 4 feet they don’t also get to try to jump over the bar at 5 feet.

SCOV disagreed. The CHINS case was based on Defendant’s inability to provide proper parental care, not on abuse. And the family court judge didn’t make any findings at all in the CHINS case regarding abuse. Since it was a parental care petition and not an abuse petition, SCOV reasons that the parties wouldn’t have prepared a case about abuse, and discovery would have been different in the CHINS and criminal cases. Even though the State brought out lots of evidence about abuse on the older kids, the theory was that based on Defendant’s prior inability to keep them safe, she could not reasonably keep J.N. safe. This is different than proving that Defendant abused child, which is the question in the criminal case.

SCOV went on to say that even if the second and third factors matched up, that the State didn’t have a full and fair opportunity to litigate the issue of the abuse of A.N. through the J.N. CHINS petition. Sure, there was some overlap, but the issues, procedures, and litigation in the two are different enough that a related CHINS case does not preclude the criminal case.

Criminal and Juvenile cases have different standards of proof, vastly different timelines (juvie cases are supposed to go quickly so the kids can get stabilized and move forward), and CHINS cases are closed bench trials, whereas criminal cases are open and can have juries.

All this said, it doesn’t mean that there couldn’t be a situation where a CHINS case precludes a criminal case. If, suppose, the State had sought a CHINS petition based on abuse with respect to A.N. back when the injury happened and the case was dismissed, then maybe a subsequent criminal case having to do with that same act could be precluded. But, since the questions were just different enough, SCOV finds that the trial court was correct in saying the criminal case could go forward.