NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                           2017 VT 26

                                          No. 2016-248

State of Vermont                                                Supreme Court

                                                                On Appeal from
   v.                                                           Superior Court, Washington Unit,
                                                                Criminal Division

Ashley Nutbrown-Covey                                           January Term, 2017


Kevin W. Griffin, J. (motion to dismiss);
Kirstin K. Schoonover, J. (motion for permission to appeal)

Rory T. Thibault, Washington County Chief Deputy State’s Attorney, Barre, for
 Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   EATON, J.        This case presents the question whether the doctrine of issue

preclusion bars the State from prosecuting defendant for alleged abuse of one child, A.N., after the

family court, in an earlier child-in-need-of-supervision (CHINS) proceeding involving a different

child, J.N., found that there was insufficient evidence to adjudicate J.N. CHINS for being without

proper parental care or subsistence. We hold that, given the facts of this case, the prosecution is

not barred by issue preclusion. Accordingly, we affirm the trial court’s denial of defendant’s

motion to dismiss.

        ¶ 2.   The facts relevant to this criminal case and the related family court proceeding

involve an incident that occurred in the fall of 2011. Defendant is the mother of three children:
J.N., born in 2013; A.N., born in 2008; and A.C., born in 2004. In August 2011, defendant and

A.N.’s father took A.N.—then three years old—to the emergency room for an injury to A.N.’s leg.

A.N. was examined by a physician, whose treating records indicate that although it was obvious

that A.N. was injured, there were no deformities or external bruising to A.N.’s leg. The physician

ordered X-ray examinations, which showed that A.N. was suffering from a spiral fracture of the

left leg, meaning that A.N.’s leg had been subjected to significant torque. Although the physician

was a mandated reporter, he did not notify the Department for Children and Families (DCF) of

A.N.’s injury because nothing indicated that A.N. had been injured by defendant or any other adult.

Neither DCF nor the State took any action until 2014.

       ¶ 3.    On July 9, 2014, the State filed an information against defendant alleging one

felony count (Count 1) of first degree aggravated domestic assault in violation of 13 V.S.A.

§ 1043(a)(1) and three misdemeanor counts (Counts 2 through 4) of child cruelty in violation of

13 V.S.A. § 1304(a). Defendant entered pleas of not guilty to all charges at her July 10, 2014,

arraignment, and the State later dismissed Count 3. Counts 2 and 4 involve alleged abuse of A.C.,

while the factual basis for Count 1 involves the incident from August 2011 in which defendant and

A.N.’s father brought A.N. to the emergency room with a fractured leg. None of the criminal

charges involve alleged abuse of J.N.

       ¶ 4.    On July 16, 2014, when J.N. was ten months old, the State filed a petition in the

family division alleging that J.N. was without proper parental care in violation of 33 V.S.A.

§ 5102(3)(B). According to that statute, a child is CHINS if he or she “is without parental care or

subsistence, education, medical or other care necessary for his or her well-being.” The State’s

theory at the CHINS proceeding was that defendant posed a risk of harm to J.N. for various

reasons, including: her alleged prior abuse of A.N. and A.C.; her behavior towards J.N.’s putative

father during their contentious breakup, which involved, among other things, allegations that

defendant engaged in elaborate schemes to falsely accuse J.N.’s putative father of domestic abuse;

                                                2
allegations that she verbally threatened J.N.’s putative father and the children; and her alleged

propensity to leave J.N. in the care of questionable caregivers.

          ¶ 5.   J.N. was placed in foster care pending the outcome of the CHINS proceeding. The

family court held a merits hearing on the CHINS petition on December 11, 2014, and took

testimony from, among others, two medical doctors, including the emergency room physician who

treated A.N. in August 2011, the investigating detective, A.N.’s father, and a ten-year-old child,

A.B., who was present when A.N.’s leg was injured. After hearing the testimony, the court found

that there was “no evidence at all” related to “[defendant]’s care during [J.N.’s] life that in any

way, shape, or form” suggested that defendant “presented a risk of abuse or neglect.” The court

did not, however, make specific findings about the alleged incidents of abuse of A.C. or A.N.1 The

court dismissed the CHINS petition and returned J.N. to defendant’s custody. The State did not

appeal.

          ¶ 6.   On September 29, 2015, defendant filed a motion to dismiss the criminal charges

against her for lack of a prima facie case pursuant to Vermont Rule of Criminal Procedure 12(d)

and on the ground that collateral estoppel barred the State from relitigating the question of whether

she abused A.N or A.C. The court held a hearing on May 2, 2015, where the State dismissed

Count 3—a misdemeanor child abuse charge involving A.C.—and defendant withdrew her Rule

12(d) motions on Count 1, the assault charge concerning A.N, and Counts 2 and 4, the abuse

charges concerning A.C. After hearing argument on the collateral estoppel issue, the trial court

issued a written decision on June 15, 2016, finding that collateral estoppel did not bar the State

from trying defendant for aggravated domestic assault of A.N. and criminal child abuse of A.C.,




          1
         For the sake of clarity, we refer throughout this opinion to the criminal allegations against
defendant collectively as child abuse, although defendant is accused of child cruelty against A.C.
and aggravated domestic assault of A.N.
                                                  3
despite the family court’s dismissal of the CHINS petition that included the same factual

allegations. We granted an interlocutory appeal of that decision.

       ¶ 7.    The question before this Court is whether collateral estoppel bars the State from

pursuing criminal charges against defendant for child abuse of A.N. and A.C. after the family court

dismissed the CHINS petition concerning J.N. that included the same allegations. Because we

conclude that the question of defendant’s alleged abuse of A.N. and A.C. was never fully resolved

in the CHINS proceeding and because the State did not have a fair opportunity to fully litigate that

issue, we hold that the doctrine of collateral estoppel does not apply and the State is not barred

from pursuing criminal charges against defendant.

       ¶ 8.    The elements of collateral estoppel, also known as issue preclusion are:

               (1) preclusion is asserted against one who was a party or in privity
               with 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.

Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990). As we have

noted before, cases of cross-over estoppel—where a party to a civil action claims that an issue

decided in the civil case is preclusive in a subsequent criminal case—are rare, but so long as the

elements of issue preclusion are satisfied, we see no barrier to the application of the doctrine in

cross-over cases. Cf. State v. Stearns, 159 Vt. 266, 268, 617 A.2d 140, 141 (1992) (holding that

issue preclusion did not apply in case in which defendant sought to bar prosecution in criminal

driving under the influence (DUI) refusal case following finding in civil suspension hearing that

defendant had not refused); State v. Pollander, 167 Vt. 301, 306, 706 A.2d 1359, 1361 (1997)

(holding that issue preclusion did not apply in civil license suspension case following defendant’s

acquittal in criminal DUI case because “defendant has not established that determination of his




                                                  4
BAC was necessary and essential to the criminal verdict, as required under the second Trepanier

factor”).

        ¶ 9.    The State here concedes that the first factor—preclusion is asserted against one who

was a party or in privity with a party in the earlier action—is satisfied because defendant is

attempting to assert preclusion against the State in both cases. In light of the State’s concession,

we do not address this factor further.

        ¶ 10.   The second factor asks whether the issue in the present action was resolved by a

final judgment on the merits in the earlier proceeding, Pollander, 167 Vt. at 305, 706 A.2d at 1361,

while the third factor asks whether the issue is the same in both proceedings. We address these

factors together.

        ¶ 11.   As we have previously noted, “preclusion appl[ies] only to issues necessarily and

essentially determined in a prior action.” Id. (quotation omitted); see also Am. Trucking Ass’ns

v. Conway, 152 Vt. 363, 369, 566 A.2d 1323, 1327 (1989) (explaining that issue preclusion is

appropriate only “where that issue was necessary to the resolution of the [earlier] action”); People

v. Gates, 452 N.W.2d 627, 631 (Mich. 1990) (reasoning, in case where defendant asserted issue

preclusion in criminal case based on prior child-protective proceeding in probate court, that “[i]n

order for collateral estoppel to operate as a bar to a subsequent prosecution, the jury in the earlier

probate proceeding must necessarily have determined that defendant was not guilty of the criminal

sexual conduct charged in the prosecutor’s complaint”). Ascertaining whether two issues are the

same and whether one issue was necessarily determined “involves a balancing of important

interests: on the one hand, a desire not to deprive a litigant of an adequate day in court; on the other

hand, a desire to prevent repetitious litigation of what is essentially the same dispute.” Restatement

(Second) of Judgments § 27 cmt. c. (1982); see also Berlin Convalescent Center, Inc. v. Stoneman,

159 Vt. 53, 60, 615 A.2d 141, 146 (1992) (citing § 27 of Restatement of Judgments). Accordingly,

several considerations come into play for a court weighing the second and third Trepanier factors,

                                                   5
including: whether there is substantial overlap in evidence between the two issues; whether any

new evidence involves application of a different rule of law; whether pretrial preparation and

discovery related to the first matter could have reasonably been expected to embrace the matter at

issue in the second; and how closely related the two claims are to each other. Restatement (Second)

of Judgments § 27 cmt. c.

       ¶ 12.   Defendant contends that the evidence the State presented at the CHINS proceeding

for J.N., which included testimony about alleged abuse of A.N. and A.C., is the same evidence that

forms the basis for the State’s criminal case against her for aggravated domestic assault of A.N.

and child cruelty of A.C. Additionally, defendant argues that because the family court found that

there was insufficient evidence to adjudicate J.N. CHINS for neglect under the preponderance-of-

the-evidence standard, and because the State attempted to present overlapping evidence in the

CHINS proceeding and the subsequent criminal case, the issues in the two proceedings are the

same. Citing language from State v. Dann, 167 Vt. 119, 125, 702 A.2d 105, 109 (1997),2 defendant

then argues that because the factual allegations in the two cases are similar, and because the family




       2
           The passage in Dann that defendant cites—“For the purposes of claim preclusion, two
causes of action are the same if they can be supported by the same evidence.”—involves claim
preclusion, not issue preclusion. 167 Vt. at 125, 702 A.2d at 109. While issue preclusion and
claim preclusion are related concepts, they are not identical, and different factors determine when
an issue, rather than a complete claim, has preclusive effect. See id. at 124, 702 A.2d at 109.
Specifically, claim preclusion, also called res judicata, applies only when “there is a final judgment
in former litigation in which the parties, subject matter and causes of action are identical or
substantially identical to those before the court in this case. It bars claims that were litigated and
those which should have been raised in the prior litigation.” Longariello v. Windham Southwest
Supervisory Union, 165 Vt. 573, 574, 679 A.2d 337, 338 (1996) (mem.) (citation omitted); see
also New Hampshire v. Maine, 532 U.S. 742, 748 (2001) (“Claim preclusion generally refers to
the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether
or not relitigation of the claim raises the same issues as the earlier suit.”). Issue preclusion, also
known as collateral estoppel, “prevents a party from relitigating an issue that has necessarily been
decided in a previous action,” and therefore serves to bar relitigation of specific questions of fact
or law that were essential to the prior judgment, whether those issues arise in the same or a different
claim. Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 468, 661 A.2d 89, 91 (1995); see also
New Hampshire v. Maine, 532 U.S. at 748.
                                                   6
court reached a final decision on the merits in the CHINS proceeding, the second factor and third

factors are satisfied.

        ¶ 13.   However, commonality of evidence alone is insufficient for issue preclusion; the

actual factual or legal question presented in the first action must be the same as the question

presented in the second. Cf. Dann, 167 Vt. at 127, 702 A.2d at 110. Additionally, while the

evidence that the State proffered in the CHINS proceeding may be similar to the evidence that it

intends to use in the criminal case, the family court never made a specific finding about child abuse

in the CHINS proceeding. The reason the court did not make a specific finding about child abuse

likely flows from the fact that the State’s CHINS case for J.N. was premised on neglect (CHINS-

B), not on abuse (CHINS-A). As a result, pretrial preparation and discovery related to neglect of

J.N. could not have been reasonably expected to embrace the question of abuse of A.N. or A.C.

because J.N. was born in 2013, and the alleged abuse that is the subject of the criminal charges

against defendant took place in 2011 and 2012. Most of the pretrial investigation that the State

might have conducted for the CHINS proceeding would have related to defendant’s relationship

with J.N. from 2013 onward rather than with defendant’s other children in the years prior to J.N.’s

birth. Thus, even if the CHINS court had found, for example, that defendant abused A.N. or A.C.

before J.N. was born, it might still have found that J.N. was not CHINS-B for lack of proper

parental care. That fact demonstrates that while there was a final determination on the merits of

the CHINS-B petition, the question of defendant’s abuse of A.N. and A.C. was not necessary to

the CHINS neglect petition concerning J.N. See Pollander, 167 Vt. at 305, 706 A.2d at 1361.

        ¶ 14.   In a similar vein, the kinds of proceedings at issue here—a CHINS proceeding in

the family division and a criminal case—require the courts to consider and apply different rules of

law. See Restatement (Second) of Judgments § 27 cmt. c. (explaining that determining whether

issue was necessary to first judgment requires court to consider whether any new evidence involves

application of different rule of law). A criminal case is concerned with a defendant’s conduct in

                                                 7
some specified instance and therefore requires the State to prove particular elements of a crime at

the time and place alleged, while a CHINS case is concerned with the wellbeing of the child in

question and therefore considers the course of the parent-child relationship. See In re J.J.P., 168

Vt. 143, 147, 719 A.2d 394, 397 (1998) (“[W]e conclude that a CHINS order, where the child’s

interests are paramount, is not analogous to a criminal conviction.”). Put differently, a criminal

case seeks to identify any misconduct on the part of a defendant; a CHINS case seeks to identify

how to best protect the child, regardless of whether or not the child’s parent has engaged in

misconduct.

       ¶ 15.   For example, in this case the question before the CHINS court was whether the

State presented sufficient evidence to establish that J.N. was “without proper parental care or

subsistence, education, medical, or other care necessary for his or her well-being,” 33 V.S.A.

§ 5102(3)(B), whereas the questions before the criminal court in this case are whether the State

can establish that defendant “attempt[ed] to cause or willfully or recklessly cause[d] serious bodily

injury to [A.N.],” 13 V.S.A. § 1043(a)(1), and whether the State can establish that defendant

“willfully assault[ed], ill treat[ed], neglect[ed] or abandon[ed] or expose[d] [A.C.], or cause[d] or

procure[d] [A.C.] to be assaulted, ill-treated, neglected, abandoned or exposed.” Id. § 1304(a).

Thus, in the CHINS proceeding involving J.N., the fact of A.N.’s broken leg was relevant,

regardless of how the leg was broken, because the State’s theory of the CHINS case was that

defendant was not capable of providing proper parental care. In the criminal case, however, the

fact of A.N.’s broken leg is relevant only if the State can establish that defendant recklessly caused

the broken leg. 13 V.S.A. § 1043(a)(1). The issues before the two courts were not the same and

the question of defendant abusing A.N. and A.C. was never finally litigated in the CHINS court.

See Restatement (Second) of Judgments § 27 cmt. c.

       ¶ 16.   Consistent with the decisions of other courts that have considered this question, we

conclude that this case does not satisfy the second or third Trepanier factor and hold that the civil

                                                  8
CHINS case, in this instance, has no preclusive effect in defendant’s pending criminal case. See,

e.g., Gregory v. Commonwealth, 610 S.W.2d 598 (Ky. 1980) (no issue preclusion in child sexual

abuse case where prior family court decision found that “best interests of these children would

[not] be served by committing them to the Department for Human Resources” because family

court’s findings “were not essential to its decision”); People v. Roselle, 193 A.D.2d 56 (N.Y. App.

Div. 1993) (no issue preclusive effect in criminal child abuse case where prior family court

decision found that defendant abused but did not neglect subject child). However, even assuming

arguendo that this case would satisfy the second and third Trepanier factors, we would still hold

that issue preclusion does not apply because under the facts of this case, the State did not have a

full and fair opportunity to litigate the issues of aggravated domestic assault of A.N. and child

cruelty of A.C. in the CHINS proceeding. Thus, in order to clarify Trepanier’s application in

cross-over estoppel cases, we address the fourth factor.

       ¶ 17.   The fourth Trepanier factor asks whether there was a full and fair opportunity to

litigate the issue in the earlier action. Courts applying this factor must take into account, among

other considerations: the parties’ incentives to litigate; the foreseeability of future litigation; the

legal standards and burdens involved in the two actions; the procedural tools available in each

forum; and the possibility of inconsistent determinations of the same issue in separate prior cases.

See Dunn, 167 Vt. at 127, 702 A.2d at 110 (quoting Trepanier, 155 Vt. at 266, 583 A.2d at 587)).

       ¶ 18.   There are significant procedural differences between the CHINS and criminal

proceedings at issue here. Section 5313(b) of Title 33, which governs the timing for CHINS

proceedings, provides that “a merits hearing shall be held and merits adjudicated no later than 60

days from the date the temporary care order is issued,” while the statute of limitations for all of

the criminal charges the State alleges against defendant is three years. 13 V.S.A. § 4501(e).

Although the timeline goals for adjudicating the merits of a CHINS petition are not always met,

the need to achieve permanency without undue delay for a child is paramount in our juvenile

                                                  9
system.   See 33 V.S.A. § 5101(a)(4) (“The juvenile judicial proceedings chapters shall be

construed . . . to ensure that safety and timely permanency for children are the paramount

concerns.”); In re A.S. & K.S., 2016 VT 76, __ Vt. __, ¶¶ 9-10,150 A.3d 197 (emphasizing

importance of timely adjudication in CHINS cases). The short time to hold a merits hearing after

the filing of the CHINS petition—which stems from the necessity for prompt resolution in a

situation where a child’s custody is potentially being litigated—means that in a CHINS

proceeding, the State may have a more limited opportunity, compared to a criminal case, to conduct

discovery, to prepare witnesses, and to otherwise ready the case for a merits hearing. The

difference is especially important in a case such as this one, where at least one issue that is likely

to predominate in the criminal trial—how A.N.’s leg was broken—will depend on the testimony

of competing expert witnesses.

       ¶ 19.   To give preclusive effect to a CHINS proceeding in a later criminal proceeding

might result in CHINS cases being delayed pre-merits while the State develops evidence in an

attempt to avoid the possibility that an adverse CHINS result would foreclose any related criminal

charges. A delay in reaching the merits of a CHINS petition would necessarily further delay the

adjudication of a child’s custody, and “[w]hen abuse is claimed . . . any consequent delays are

likely to be disruptive to the child and the child’s stability.” In re A.S. & K.S., 2016 VT 76, ¶ 10.

Such a result would further undermine the goal in the juvenile docket of “efficient and timely

resolution of cases.” Id. ¶ 12.

       ¶ 20.   Additionally, the State has an interest in having a jury rather than a judge make

determinations about the credibility of witnesses, the factual basis for the criminal prosecution,

and the weight to give to proffered evidence. See Singer v. United States, 380 U.S. 24, 36 (1965)

(concluding that Government has legitimate interest as litigant in trial by jury, except where

defendant would be prejudiced by jury trial).         Because CHINS proceedings are statutorily

conducted by a judge, not a jury, giving preclusive effect to findings of the CHINS court would

                                                 10
prevent the government from having a jury decide important issues in the criminal case. This

procedural difference weighs in favor of not giving preclusive effect to the CHINS court’s

findings.3

        ¶ 21.   Second, the State has different incentives to litigate a CHINS proceeding and a

criminal prosecution. The nature of a CHINS proceeding, which is fundamentally concerned with

the child’s welfare and with ensuring that the judicial process identifies the custody circumstances

that are in the child’s best interests, means that the State’s incentive is to focus on issues that bear

on the child’s best interests and not solely on the behavior of the custodial parent. Third, there is

no possibility of inconsistent verdicts in this case because it is possible that J.N. was not lacking

sufficient parental care for CHINS purposes, even if J.N.’s siblings were criminally abused before

J.N. was born. This conclusion is consistent with the reasoning of other courts that have considered

this issue. See, e.g., People v. Percifull, 12 Cal. Rptr. 2d 331, 334-35 (Ct. App. Cal. 1992) (“One

critically important element of the criminal trial process is the exercise of the district attorney’s

sound discretion as to whether prosecution is or is not warranted in any particular case.”); People

v. Moreno, 744 N.E.2d 906, 911 (Ill. 2001) (collecting cases and endorsing conclusion in Percifull

that there would be no issue preclusion in child abuse case following juvenile abuse and neglect


        3
          Public access is an additional procedural difference between a CHINS proceeding and a
criminal proceeding, and although that difference may not prejudice either the State or defendant
in this case, it is worth noting because it implicates important interests of third parties.
Specifically, the public and the press have a protected First Amendment right of access to most
stages of a criminal trial, but public access to CHINS proceedings is statutorily restricted.
Compare State v. Tallman, 148 Vt. 465, 469-71, 537 A.2d 422, 425-26 (1987) (describing First
Amendment right of press and public to access criminal proceedings where proceeding was
historically open and where public access played significant positive role in function of process in
question), with V.R.F.P. 2(f)(1) (“When the court determines that a person is a proper or necessary
party pursuant to 33 V.S.A. § 5102(22)(F), but is not a party specifically listed in that section, the
court may place limits on that person’s participation . . . .”). When, as happened in this case, a
party uses confidential information from a CHINS proceeding in a criminal case, that sensitive
information about a juvenile—in this case, a child who would not have otherwise been involved
in the criminal proceedings—may become a part of the public record. On the other hand, if that
information is not made part of the public record, the public and the press are not able to play their
protected role in ensuring just and orderly judicial proceedings.
                                                 11
proceeding in which every factual finding was identical to those at issue in criminal case because

“policy considerations required that prosecution be allowed,” and in particular because “the

criminal trial process [i]s the exclusive forum for determining guilt or innocence”); State v.

Hameed, No. M2009-00152-CCA-R9-CD, 2010 WL 3582485, at *11 (Ct. App. Tenn. Sept. 15,

2010) (no issue preclusion in child abuse case where prior family court ruling found that there was

no clear and convincing evidence that defendant committed acts of abuse against child); State v.

Cleveland, 794 P.2d 546, 551 (Wash. 1990) (no issue preclusion in statutory rape and indecent

liberties criminal case following finding by family court that State had not shown by

preponderance of evidence that sexual abuse had occurred because dependency proceedings are

expedited, dependency is not decided by jury, and State might be incentivized to initiate

dependency proceedings only after criminal trial if issue preclusion applied). We hold that the

fourth Trepanier factor is also not satisfied here and that the State is therefore not precluded from

prosecuting defendant for abusing A.N. and A.C.

       Affirmed.

                                                FOR THE COURT:



                                                Associate Justice




                                                 12
