Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.


                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-394

                                         APRIL TERM, 2012

 In re M.V.                                            }    APPEALED FROM:
                                                       }
                                                       }    Human Services Board
                                                       }
                                                       }    DOCKET NO. M-11/10-600


                          In the above-entitled cause, the Clerk will enter:

        Petitioner M.V. appeals pro se from a Human Services Board order that upheld a decision
by the Department for Children and Families (DCF) to substantiate petitioner for medical neglect
of her daughter M.A.V. and include her name in the child protection registry. We affirm.

       DCF substantiated mother for medical neglect of her minor daughter following a
February 2010 incident at the child’s school.* As a result of this incident, DCF also sought an
emergency care order, alleging that M.A.V. was a child in need of care or supervision (CHINS).
The family court later found that M.A.V. was CHINS due to petitioner’s failure to provide
adequate medical care. The family court’s decision became final in August 2011, when this
Court dismissed petitioner’s appeal as untimely filed.

        Petitioner appealed DCF’s substantiation decision to the Board, and DCF moved for
summary judgment on collateral estoppel grounds. The Board granted DCF’s request. In
reaching its conclusion, it adopted the family court’s findings and thus found as follows. On the
day in question, M.A.V. expressed suicidal thoughts to guidance personnel at school. She stated
that she was very upset, very depressed, and that she wanted to step out in front of a truck. The
guidance counselor believed that M.A.V.’s statements presented a credible threat to M.A.V.’s
safety and reported the matter to Washington County Mental Health Services (WCMH).
Petitioner gave permission for M.A.V. to meet with a WCMH crisis screener. The screener, who
had extensive experience in evaluating the mental health of individuals in crisis, determined that
M.A.V. was at risk of self harm and that she was in immediate need of further evaluation and
treatment. She recommended that M.A.V. go to a secure short-term facility (Home Intervention
(HI)) where she could stay for further assessment and a treatment plan. The screener informed
petitioner of her recommendation but petitioner refused to allow M.A.V. to go the HI bed. Out
of concern for M.A.V., the screener contacted DCF. The screener believed that petitioner was

        *
           DCF is required by statute to investigate reports of child abuse and neglect and
maintain a record of all investigations that have resulted in a “substantiated report.” 33 V.S.A.
§ 4916(a)(1). A substantiated report is one that DCF determines, after investigation, is “based
upon accurate and reliable information that would lead a reasonable person to believe that the
child has been abused or neglected.” Id. § 4912(10).
downplaying the seriousness of M.A.V.’s mental health issues. The family court found the
screener credible, and concluded by a preponderance of the evidence that M.A.V. was CHINS
because she lacked proper medical care due to petitioner’s failure to allow treatment in
accordance with the screener’s recommendations.

       The Board noted that petitioner continued to disagree with the screener’s
recommendations and with the findings and conclusions of the family court, but concluded that
the only issue before it was whether it was bound by the family court’s decision. As discussed in
more detail below, the Board concluded that the elements of collateral estoppel were satisfied
here and it thus affirmed DCF’s decision to substantiate petitioner for medical neglect. This
appeal followed.

        We review the Board’s application of the doctrine of collateral estoppel de novo.
In re P.J., 2009 VT 5, ¶ 7, 185 Vt. 606 (mem.). Collateral estoppel is appropriate where:

               (1) preclusion is asserted against one who was 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.

Id. ¶ 8 (citation omitted). “Collateral estoppel applies to issues of both fact and law.” Id.

        We agree with the Board that all of these factors are satisfied. First, petitioner was a
party to the CHINS action and the CHINS case was resolved by a final judgment on the merits.
Additionally, the issue before the family court was the same as the one before the Board. As the
Board explained, the issue in the substantiation proceedings was whether there were reliable and
accurate facts that would lead a reasonable person to believe that petitioner’s actions led to
medical neglect of M.A.V. In other words, DCF needed to establish facts that would lead a
reasonable person to believe that M.A.V.’s “physical health, psychological growth and
development or welfare [was] harmed or [was] at substantial risk of harm by the acts or
omissions of” petitioner. 33 V.S.A. § 4912(2). “Risk of harm” means a “significant danger that
a child will suffer serious harm other than by accidental means, which harm would be likely to
cause physical injury, neglect, emotional maltreatment or sexual abuse.” Id. § 4912(4).

        The family court adjudicated the facts underlying the resolution of this issue. As that
court recounted, M.A.V. expressed suicidal thoughts, and an experienced mental health
professional determined that she was at risk of self-harm and was in immediate need of further
evaluation and treatment. The family court found that M.A.V. presented a credible threat to her
own safety and that petitioner failed to allow the child to be treated in accordance with the advice
of mental health professionals. It concluded that M.A.V. was CHINS because she lacked proper
parental care or subsistence, education, medical or other necessary care for her well-being. See
id. § 5102(3)(b). The family court’s ruling necessarily establishes the facts underlying DCF’s
substantiation decision. The issue of whether petitioner put the child at risk of harm by failing to
secure medical treatment has been decided. See In re P.J., 2009 VT 5, ¶ 12 (similarly applying
collateral estoppel to bar a petitioner from challenging DCF’s substantiation decision based on
the nutritional neglect of her child where child had been adjudicated CHINS based on mother’s


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nutritional neglect of child, explaining that the family court’s findings that the allegations in the
CHINS petition were established “necessarily meant that the facts establishing that mother
neglected [the child’s] nutritional needs were determined to be true”).

       The fourth and fifth elements of collateral estoppel are satisfied as well. Petitioner was
represented by counsel in the family court proceedings and she had the opportunity to litigate the
issues before that court. It is fair to preclude petitioner from relitigating the case before the
Board.

        We are not persuaded by petitioner’s arguments on appeal. As noted by the Board,
petitioner continues to disagree with the screener’s assessment of risk of harm and with the
family court’s findings and conclusions. She asserts that DCF’s evidence in the CHINS case was
inaccurate. She complains that her lawyer in the CHINS proceeding ignored many of her
arguments. She also notes that she represented herself during the proceedings before the Board.

        None of these arguments undermines our conclusion. The purpose of the doctrine of
collateral estoppel is “to conserve the resources of courts and litigants by protecting them against
repetitive litigation, to promote the finality of judgments, to encourage reliance on judicial
decisions, and to decrease the chances of inconsistent adjudication.” Id. Petitioner had the
opportunity to litigate the medical neglect issues before the family court. She also had the
opportunity to raise any complaints about the CHINS proceeding through an appeal to this Court,
but she failed to file a timely appeal. We do not find it relevant, for purposes of collateral
estoppel, that petitioner represented herself before the Board. To allow petitioner to again
challenge the medical neglect issue would not promote the conservation of judicial resources and
could lead to inconsistent results. Her dissatisfaction with the outcome of the CHINS proceeding
does not preclude the application of the doctrine of collateral estoppel here. We have considered
all of petitioner’s arguments and find them all without merit.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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