Comes A Cropper

Flowery, Like the Idiom

In re H.H., 2020 VT 107

By Elizabeth Kruska

This opinion contains a cheeky British idiom I’d never heard before: “comes a cropper.” It means “to suffer a misfortune or to fail.” An American analogue would be “falls apart” or “goes sideways.” Spoiler alert: the State’s argument did all of that in this case, so the matter gets reversed and remanded to the Human Services Board for further hearing. 

When a child abuse or neglect report gets made to the Department for Children and Families (DCF) hotline, a few different things can happen. It can be accepted, and from there, depending on the seriousness, can be referred to the local office for either an investigation or an assessment. Or it can be declined and nothing happens. Each report has to be evaluated on a case by case basis. If an investigation occurs, it can lead to additional future actions. Sometimes the situation calls for a child in need of care or supervision (CHINS) case to be filed in court. Sometimes the person or persons involved can be substantiated at the administrative level for abuse or neglect. Sometimes both things happen.

That’s what leads us to the H.H. case. H.H. is a parent to two kids. Back in 2015, H.H. was living with the two children, the father of one of the children, and some other adults and kids. A report was made alleging that one of the children was sexually abused by an adult in the house.

That’s serious, so it led to an investigation, which led to both the filing of a CHINS case and a substantiation. H.H. admitted that at the time the petition was filed the children were CHINS, based on a fairly lengthy set of broad facts. The important fact was “someone touched [minor child] in a sexual manner” although the identity of the alleged perpetrator was not indicated or agreed upon. The case progressed forward through the disposition phase, and ultimately the parents’ parental rights were terminated. Put all this aside for a moment.

There was also the matter of the substantiation, which came about also as a result of the 2015 report. A DCF report is substantiated if, after an investigation, it’s “based upon accurate and reliable information that would lead a reasonable person to believe the child has been abused or neglected.” If a report is substantiated, the person about whom the report was made is placed on the Child Protection Registry, which is a confidential registry meant to protect kids. Where this often comes up is if a substantiated person seeks employment in a field that gives direct access to kids, the employer is permitted to ask if the person is on the registry or not. They don’t get details, just a yes or no.

A person facing a substantiation has the right to an administrative review of the intent to place their name on the registry. An independent reviewer with no knowledge of the case looks at it, and determines whether the registry entry was appropriate. If the reviewer also agrees, that decision can be appealed to the Human Services Board.

That’s the path of travel this particular substantiation took.

When H.H. appealed, DCF filed a motion for summary judgment, and argued that H.H. was collaterally estopped from contesting the substantiation because the underlying question had already been resolved via the family court case that ultimately led to the TPR. H.H. opposed the summary judgment motion, arguing that the dispositive issue in the TPR matter was actually whether H.H. (and the other parent, but this case is about H.H.) had progressed in the CHINS disposition case plan and had regained the ability to parent in a reasonable period of time, not the merit to underlying investigation that ultimately led to the TPR filing. H.H. also argued that it was not appropriate for DCF to rely on H.H.’s admission in the CHINS case, because juvenile court case records are confidential. Although there are some limited circumstances when CHINS documents can be viewed, this wasn’t one of them.

Ultimately, the Human Services Board hearing officer viewed the CHINS documents and granted DCF’s summary judgment motion, reasoning that collateral estoppel applied because the issues in the CHINS case and the substantiation matter were the same. The substantiation was upheld. H.H. appeals, and SCOV reverses.

First, SCOV examines whether the Board properly considered the juvenile court documents. This is a legal determination, so SCOV reviews de novo. If a piece of evidence was improperly admitted, the court reverses only if the appellant can show that the admission of that evidence was not a harmless error.

With respect to the CHINS documents, they are available to nonparties on a “need to know” basis. There was no court order designating the Human Services Board usage as “need to know.” SCOV looks at the statute to figure out what the legislature meant, and finds it’s patently clear there is a prohibition on inspection of juvenile records by any person or entity outside some very narrow exceptions. SCOV finds that the Human Services Board only gets to see CHINS records if it has a “need to know” designation issued by the family court.

There is another statute that indicates CHINS and other orders are competent evidence in supporting a substantiation. SCOV says that while that’s true, the Human Services Board doesn’t get to skirt the rules in how to obtain the records. SCOV also says that just because something is competent evidence, doesn’t necessarily mean that it is admissible evidence. Here, since the CHINS records were inspected without having first gotten the appropriate family court clearance, they were not properly considered as a basis for issuing a summary judgment order.

SCOV, theoretically, could stop there and reverse and remand, but it doesn’t. Because it’s a frequent occurrence that two separate actions could arise from a DCF investigation – that being a CHINS case and a substantiation – SCOV thinks it wise to take another step and deal with the collateral estoppel issue because it will very likely come up again.

We’ve examined collateral estoppel before. The basic idea is to preclude issues from being litigated repeatedly. In order to use the defense of collateral estoppel effectively, the party raising it has to prove five factors:

1. The parties have to be the same as 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 subsequent action;
4. There was a full; and fair opportunity to litigate the issue before; and
5. Applying preclusion in the later action is fair.

Here, the parties are the same as in the substantiation proceeding – DCF and H.H. Also, the CHINS proceeding did result in a final judgment on the merits. The third factor is where the court teaches us the fabulous phrase “comes a cropper” because that’s where DCF’s argument on collateral estoppel falls apart, or “comes a cropper.”

The thing is that for collateral estoppel to apply, the earlier issue has to have been determined and disposed of in the earlier case. The court has to do some balancing to figure this out. On one hand, the court isn’t in the business of depriving litigants of their opportunity to have their cases heard. On the other hand, the court can’t entertain repeated cases involving the same issue. The court has to determine if there is “substantial overlap” between the issues, whether there’s new evidence and whether that involves applying a different rule of law, and how close the two claims are to one another. If these things are different, the court can permit the parties to go forward in their case as long as the questions presented are different, as well.

So, in a CHINS case, the question was whether, at the time the petition was filed, the child (or children) in question were without proper parental care necessary for her well-being. The focus is on the well-being of the child, and it may be that one or both parents or guardians are responsible for the lack of care for the child.

On the other hand, the substantiation question is a lot narrower, and requires proof that there was “accurate and reliable information” which would “lead a reasonable person to believe” that the parent placed the child at risk of harm. In this case, the specific harm alleged was by not protecting the particular child from a sexual assault by an adult staying in the home.

In this case, there was a stipulation to the CHINS petition, but because of the facts in the case, the language did not require that the juvenile court find specifically that the child was CHINS because of the alleged sexual assault. Rather, there was a broad statement covering multiple different facts which were sufficient to support a CHINS finding. SCOV finds that it’s inconsistent to try to use the CHINS stipulation language to prove that H.H. didn’t protect the child from “sexual assault by a male” in their home.

Had the situation been different, and the stipulated language mirrored more closely the same question presented in the substantiation matter, then collateral estoppel may have been appropriately applied. But because it just didn’t work here, the court cannot find that summary judgment should have been granted. SCOV reverses back to the Human Services Board for further proceedings.