Lead Opinion
J.R.’s mоther appeals an order of the Chittenden Family Court terminating her parental rights. Mother claims the court erred (1) by not hearing and deciding a 33 V.S.A. § 5532(a) motion to vacate
J.R. was removed from her mother and stepfather’s home in February 1991 based on allegations that her stepfathеr had sexually abused her. At a contested merits hearing, the court determined that J.R. was a child in need of care or supervision, explicitly stating that its factual findings — the critical one being thаt father had sexually abused J.R. — were based on a preponderance of the evidence. Legal custody, including guardianship of J.R., was transferred to the Commissioner of the Department of Social and Rehabilitation Services (SRS).
In April 1992, mother and stepfather filed a motion under 33 V.S.A. § 5532(a) to vacate the disposition order, alleging that the court had based its decisiоn to remove J.R. from the home on fraudulent evidence. Although the motion challenged the disposition order, no new evidence was admitted at the disposition proceeding. Thus, it is evident that mother took issue with evidence admitted in the CHINS proceeding that subsequently became the basis for the disposition order.
In support of her motion, mother offered three letters and an affidavit. She claimed her exhibits showed that J.R.’s maternal grandmother had fabricated the sexual abuse allegations against J.R.’s stepfather. SRS opposed the motion to vacate, claiming that the letters submitted by the parents themselves were fraudulent. SRS submitted an affidavit of mother’s sister in which she denied writing one of the letters J.R.’s parents attributed to her. At the suggestion of SRS, thе parties stipulated to the taking of handwriting exemplars to be analyzed by a handwriting expert.
In August 1992, SRS petitioned for termination of mother’s parental rights. After the parties skirmished over prоcedure, the family court determined that “regardless of the outcome of any hearing required by 33 V.S.A. § 5532 based upon an allegation of fraud, the Court would still be required to respond to the Petition to Terminate Parental Rights. . . .” The court bypassed the motion to vacate and heard the TPR petition.
At the TPR hearing, mother produced the letters on the issue of fraud, as well as witnesses who would verify the handwriting in the
I.
We first consider whether the court erred in failing to hold an evidentiary hearing to decide mother’s motion to vacate. Section 5532(a) of Title 33 provides that “[a]n order of the court may be set aside by a subsequent order of that court. . . when it appеars that the initial order was obtained by fraud or mistake sufficient therefor in a civil action.”
We have affirmed the denial of similar post-trial motions without evidentiary hearings where the court had considered the proffered evidence and found that evidence other than that challenged in the motion sufficiently supported the initial order. See, e.g., In re D.M.,
II.
Becausе the issue is likely to resurface on remand, we next consider whether the court erred by not deciding anew the issue of abuse at the TPR hearing. Issue preclusion bars a party from relitigating аn issue decided in a previous action. Berisha v. Hardy,
(1) preclusion is asserted against one who was a party or in privity with a party in the earlier action; (2) the issue was*270 resolved by a final judgment on thе 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 lаter action is fair.
Trepanier v. Getting Organized, Inc.,
A factor to consider when assessing the fairness of applying preclusion under elements (4) and (5) is the degree of proof required in each action. Id. Our cases as far back as 1862 hold that verdicts resting on a lower burden of proof should not be conclusive in subsequent actions requiring a more stringent burden of proof. See, e.g., Riker v. Hooper,
At a CHINS merits hearing, the burdеn is on the State to show, by a preponderance of the evidence, that a child is in need of care or supervision. In re R.B.,
In a proceeding to terminate parental rights under 33 V.S.A. §§ 5532 and 5540, a higher burden of proof must be met. The State must prove by clear and convincing evidence that there has been a materiаl change in circumstances and that the best interest of the child requires termination of parental rights and responsibilities. 33 V.S.A. § 5532(b); In re J.R.,
In this case, the family court based its finding of a substantial change in material circumstances on stagnation. See In re S.R.,
[0]ver two years have passed with no positive changе in [mother’s] behavior towards her daughter J.R. She has not taken any steps to remedy the problems that led to the need to take her daughter into SRS custody nor the risks that remain in her home. She continues to disbelieve her daughter and to offer her support and comfort to her daughter’s abuser .... Both she and her husband have failed to pursue services recommended by SRS, including sex offender therapy, family counseling, and parent education. She has been unresponsive to the needs and concerns of J.R.
The best interests of the child were determined on similar findings. Thеse findings are premised on findings from the merits hearing that J.R.’s stepfather abused J.R. The determination that the abuse occurred, however, was made upon a mere preponderance of the evidence. Consequently, all the findings of continued risk to the child, mother’s disbelief of the child, failure to protect the child, the need to pursue sex offender therapy, family сounselling and parent education are based on a preponderance of the evidence. The State may not “bootstrap” its proof, satisfying a higher burden by previously meeting a lower burden. Consequently, mother is not precluded from relitigating issues of abuse and subordination of J.R.’s safety interests at the termination hearing.
It is not necessary to decide here what burden of proof must be met at a disposition hearing because no findings were made at disposition; all the initial findings on the underlying allegations were made at the merits hearing, explicitly by рreponderance of the evidence.
Reversed and remanded for a hearing on the motion to vacate the disposition order and, if necessary, a rehearing of the motion to terminate mother’s parental rights.
Concurrence Opinion
concurring. I agree that the case must be reversed and remanded for the reasons stated in Part I.