State v. O'Dell

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State v. O'Dell (2004-411)

2007 VT 34

[Filed 04-May-2006]

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,
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.

2007 VT 34

No. 2004-411

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Bennington Circuit

Patricia O'Dell September Term, 2006

Paul F. Hudson, J. (Ret.), Specially Assigned.

William D. Wright, Bennington County State's Attorney, and Andrew G.
Costello, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

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

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. REIBER, C.J. Defendant appeals her convictions for
attempting to impede a police officer and custodial interference, arguing
that there was insufficient evidence on the first charge and that
conviction under the second charge was legally impossible. We affirm.

¶ 2. On September 13, 2002, the Bennington Family Court issued three
emergency detention orders granting the Department for Children and
Families (DCF) (FN1) custody of defendant's children due to alleged
educational neglect. Two DCF employees and several law enforcement
officers went to defendant's mother's house in an attempt to locate the
children and execute the detention orders. Upon arrival, a DCF employee
attempted to explain the orders to defendant. Defendant refused to release
the children into DCF custody and would not allow anyone into the house
without a warrant. Over the course of approximately two hours, defendant
intermittently came in and out of the house, speaking with police and DCF
workers, but continued to refuse entry. One law enforcement officer left
to obtain a search warrant.

¶ 3. While waiting for the warrant, a police officer noticed one of
defendant's children behind the house. Police officers began to chase the
child, and defendant followed them. Defendant concedes that during this
chase she made contact with an officer and then fell over herself. At this
point, police arrested defendant. She was charged with attempting to
impede a police officer under 13 V.S.A. § 3001, and custodial interference
under 13 V.S.A. § 2451(a). At trial, defendant moved for acquittal
pursuant to Vermont Rule of Criminal Procedure 29(a), arguing that there
was insufficient evidence to demonstrate that she impeded the officer and
that she did not receive proper notice of the detention orders. The
district court denied the motion, and the jury returned a verdict of guilty
on both counts.

¶ 4. On appeal, defendant first argues that the district court
erred in denying her motion for acquittal because there was insufficient
evidence to support the charge of attempting to impede an officer.
Specifically, defendant claims that there was insufficient evidence to
prove that she knowingly and purposefully pushed a police officer to
prevent him from pursuing her child. In reviewing a denial of a motion
based on insufficiency of the evidence, we view the evidence in the light
most favorable to the State, excluding any modifying evidence, and
determine whether it is sufficient to fairly and reasonably convince a
trier of fact that the defendant is guilty beyond a reasonable doubt.
State v. Burnham, 145 Vt. 161, 165, 484 A.2d 918, 921 (1984). Here, the
trooper testified that while he was attempting to pursue the child,
defendant pushed him with her hands, causing him to lose his balance. The
trooper further testified that the push was not a result of defendant
tripping. The jury also heard defendant's version of events and was
instructed on the defense of mistake. From the evidence presented, the
jury could conclude that defendant's actions were purposeful beyond a
reasonable doubt. Thus, the motion for acquittal was properly denied.

¶ 5. Defendant's second argument is that it is legally impossible
for her to be convicted of custodial interference because DCF is not a
"lawful custodian" within the meaning of the statute. Because defendant
did not raise this issue in the district court, we review for plain error.
V.R.Cr.P. 52(b) ("Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the court.").

¶ 6. Custodial interference is defined as "taking, enticing or
keeping a child from the child's lawful custodian, knowingly, without a
legal right to do so, when the person is a relative of the child and the
child is less than eighteen years old." 13 V.S.A. § 2451(a). In addition,
the preceding chapter on kidnapping defines lawful custodian as "a parent,
guardian or other person responsible by authority of law for the care,
custody or control of another." Id. § 2404. Based on this definition,
defendant argues that DCF is not a person, and, thus, not a "lawful
custodian" under the statute. Further, defendant maintains that the
custodial interference statute was enacted to respond to parental abduction
cases and that the Legislature did not intend for the crime to apply in
situations where a parent takes or keeps a child, who is lawfully in DCF
custody.

¶ 7. In interpreting statutes, "our goal is to give effect to the
intent of the Legislature, and to do so we first look at the plain,
ordinary meaning of the statute." State v. Eldredge, 2006 VT 80, ¶ 7, ___
Vt. ___, 910 A.2d 516. When the plain language is clear and unambiguous,
we enforce the statute according to its terms. Id.

¶ 8. Upon examination of the statute's language, we conclude that
"lawful custodian" includes state agencies, such as DCF. The statute
broadly defines "lawful custodian" to include parents, guardians, or other
persons responsible by authority of law. We disagree that DCF is excluded
from this definition because it is not an individual. Statutes employ the
term "person" to refer to entities other than individuals; indeed, the
Vermont statutes generally define "person" to include "the state of Vermont
or any department, agency or subdivision of the state." 1 V.S.A. § 128.
Moreover, in numerous decisions we have recognized that DCF serves as the
legal custodian of children, like defendant's children here, who are
ordered into its custody. See, e.g., In re E.L., 171 Vt. 612, 613, 764 A.2d 1245, 1247 (2000) (mem.) (recognizing that SRS, as legal custodian,
has authority to place a child who is in its custody). In addition, we
note that, to the extent other courts have addressed this question, they
have also found that state agencies may act as lawful custodians within the
meaning of a custodial interference statute. See State v. Gambone, 763 P.2d 188, 190 (Or. Ct. App. 1988) (affirming defendant's conviction for
custodial interference where defendant removed children from custody of
Children's Services Division); see also State v. Whiting, 671 P.2d 1158,
1160-61 (N.M. Ct. App. 1983) (concluding that district court is a "person"
that may be vested with legal custody).

¶ 9. Briefly, we address defendant's contention that the
Legislature did not intend for the custodial interference statute to apply
to situations where a parent keeps or removes a child from lawful DCF
custody. As described above, the statute defines legal custodian broadly,
and we refuse to read limitations into the usual and apparent meaning of
the statute that the Legislature has not provided. Furthermore, we
conclude that applying the statute in circumstances where DCF has legal
custody is entirely consistent with the statute's purposes. The purpose of
the custodial interference statute is to protect any custodian from
deprivation of his or her rights, even if such deprivation results from the
actions of a person who has a right to physical custody. State v.
Petruccelli, 170 Vt. 51, 59, 743 A.2d 1062, 1068 (1999). In addition, the
statute is designed to protect children, who are victims in these cases and
suffer detrimental effects from wrongful taking or withholding. See State
v. Wootten, 170 Vt. 485, 491-92, 756 A.2d 1222, 1226 (2000) (explaining
that children are victims in parental abduction cases). Although the more
typical case of custodial interference may involve one parent depriving
another of custody, under this statute the welfare of the children must be
recognized as paramount. There is a risk to children when they are
wrongfully detained, whether unlawfully taken from one parent or unlawfully
kept from DCF executing a judicially approved protective order. See id.
(listing how children suffer from custodial interference); see also
Gambone, 763 P.2d at 188-89 (describing how mother committed custodial
interference by taking children from protective custody).

¶ 10. Here, the family court, in the interests of the children's
welfare, issued an order transferring legal custody of the minor children
to DCF. DCF was the "legal custodian" of the children when defendant
refused to allow DCF workers to take the children into their protection.
Thus, we disagree with defendant that it was legally impossible for her to
commit custodial interference, and we affirm her conviction.

¶ 11. Finally, we respond to the dissent's argument that it was
impossible as a matter of law for defendant to form the requisite intent
for custodial interference because she was extremely emotional and upset.
We disagree that there was insufficient evidence to submit the question of
intent to the jury. See State v. Hanson, 141 Vt. 228, 233, 446 A.2d 372, 375 (1982) (explaining that standard for sufficiency of the evidence is "
whether the evidence, viewed in the light most favorable to the State, is
sufficient to convince a reasonable trier of fact that the defendant is
guilty beyond a reasonable doubt."). There was evidence presented to the
trial court to demonstrate that defendant was aware that DCF was the lawful
custodian of her children. Both DCF employees and police officers
testified that they showed defendant the judge's order and explained to
defendant that the court had granted DCF lawful custody of the children.
In response, defendant admitted that many people spoke to her about the
order and that she remembered receiving a copy of the order, but countered
that she was too upset to look at it. Thus, the question of defendant's
intent "was properly a matter for the jury to decide, based on all the
evidence before it." Id. at 233, 446 A.2d at 375. Although presented as a
legal deficiency, the dissent's position that defendant had "neither the
time nor the circumstances" to understand the significance of the
protective order, is a disagreement with the jury's factual findings.
Post, ¶ 19. The jury, as the finder of fact, must resolve contradictions
and decide who to believe. State v. Riley, 141 Vt. 29, 33, 442 A.2d 1297, 1299 (1982). In this case, the jury heard all the testimony, was properly
instructed on the elements of the charge, and, based on the evidence, found
defendant guilty. We find no basis to disturb that result.

Affirmed.

FOR THE COURT:

_____________________________________
Chief Justice

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Dissenting

¶ 12. JOHNSON, J., dissenting. On the afternoon of Friday,
September 13, 2002, case workers from the Department for Children and
Families (DCF) appeared at mother's home accompanied by six to eight police
officers and told mother they were going to take her children. She had
received no prior notice that DCF had been granted temporary custody of the
children or that DCF planned to pick them up that day. Rather, mother
learned that DCF intended to take her children at the very moment the case
workers and police showed up at her home. There are valid reasons for DCF
to choose to pursue an ex parte emergency detention order in particular
cases. The question here, however, is whether a parent under such
circumstances can formulate the requisite intent-to knowingly keep the
children from a lawful custodian (here, DCF)-such that she may be found
guilty of custodial interference as defined by 13 V.S.A. § 2451(a). I
believe that, under the precipitous and chaotic circumstances presented by
this case, it was impossible as a matter of law for mother to form the
culpable state of mind associated with the crime of custodial interference.
Because an element of the offense was not supported by the evidence, mother
should have been acquitted on this charge. (FN2) Accordingly, I dissent from
the portion of the majority affirming her conviction for custodial
interference.

¶ 13. It is important to note at the outset that there was no
allegation that the children in this case were threatened by imminent harm.
Rather, the emergency detention orders were issued on the basis of alleged
educational neglect (namely, the contention that mother refused to enroll
the children in public school and was not qualified to home-school them).
A hearing on these allegations was scheduled for Monday, September 16,
2002; DCF sought emergency detention orders the Friday before.
Significantly, the orders were obtained through an ex parte proceeding. In
other words, mother did not receive notice of the proceeding, did not
participate in it, and had no way of knowing that DCF had been granted
custody of the children by a judge-that is, until the moment DCF case
workers arrived at her home.

¶ 14. When they arrived, the case workers brought with them Vermont
state troopers as well as Bennington police officers. The case workers
attempted to explain to mother that DCF had been granted temporary custody
of the children pending the hearing, and that she would see them again at
the hearing. Understandably, mother became extremely upset when told that
DCF was there to take her children. She brought her children inside the
house and refused to hand them over to DCF or the police. She insisted
that the police obtain a warrant before she would allow them inside. In
general, mother was very emotional from the moment the case workers and
police arrived at the home.

¶ 15. It was in this charged and chaotic atmosphere that DCF case
workers and the police attempted to explain to mother why they were there
and the reason her children were bing taken. The case workers conceded in
their testimony that they were not able to communicate calmly and
effectively with mother under the circumstances. Similarly, one of the
state troopers testified that when he attempted to show mother the
detention order, she refused to look at it. The trooper explained that,
"it wasn't a situation where I could calmly read someone an order and I
could . . . get good communication going with that person. It just didn't
work."

¶ 16. Given the difficulty that the DCF case workers and police
officers had in attempting to communicate with mother, and the fact that
she had no notice of DCF's custody prior to that Friday afternoon, the
critical question is whether she even had the opportunity to form the
intent necessary to commit the crime of custodial interference. "[O]ne of
criminal law's most basic principles is that a person is not criminally
liable for causing a bad result if he or she did not have some culpable
mental state with respect to that result." State v. Trombley, 174 Vt. 459,
460, 807 A.2d 400, 403 (2002) (mem.) (quotations omitted). The culpable
mental state for purposes of the crime of custodial interference is that
the defendant acted "knowingly":

A person commits custodial interference by taking, enticing or
keeping a child from the child's lawful custodian, knowingly,
without a legal right to do so, when the person is a relative of
the child and the child is less that eighteen years old.

13 V.S.A. § 2451(a). A person acts "knowingly" when:

(i) if the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is of that
nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware
that it is practically certain that his conduct will cause such a
result.

Model Penal Code § 2.02(2)(b); see Trombley, 174 Vt. at 460 n.1, 807 A.2d
at 403 n.1 (referring to Model Penal Code definition of "knowingly" in
context of crime of assault). In this case, the critical inquiry is
whether mother was aware of "the attendant circumstances" that would make
her behavior criminal-namely, that DCF was a "lawful custodian" of the
children.

¶ 17. The statute defines "lawful custodian" as "a parent, guardian
or other person responsible by authority of law for the care, custody or
control of another." 13 V.S.A. § 2404. A key component of this definition
is that the custodian is "responsible [for the child] by authority of law."
Id. (emphasis added). Thus, in State v. Petruccelli we concluded that the
defendant-who held his five-week-old daughter hostage at gunpoint and
refused to surrender her to either the girl's mother or police-was not
guilty of custodial interference because he "neither failed to comply with
a court-ordered custody arrangement nor absconded with the child." (FN3)
170 Vt. 51, 60, 743 A.2d 1062, 1069 (1999) (affirming his conviction for
the separate crime of kidnapping). In the absence of such evidence, "[t]he
State . . . did not prove [the] defendant intentionally kept [the child] to
unlawfully deprive [the girlfriend] of custody within the meaning of the
custodial interference statute." Id. at 61, 743 A.2d at 1069. In the
instant case, while there was a valid court order in place, the question is
whether mother had a meaningful understanding of this fact such that she
could be said to have "knowingly" deprived DCF of custody. If not, this
defeats the charge.

¶ 18. On that point, it is instructive to compare the facts
presented to us here with those in State v. Wootten, 170 Vt. 485, 756 A.2d 1222 (2000). There, the mother had established visitation rights by court
order, but when she went to pick the children up, the father had fled the
state with them. Id. at 487, 756 A.2d at 1223. The father subsequently
evaded service of the court's custody order for years on end by repeatedly
moving with the children to different states and adopting a false identity.
Id. When he was eventually located and charged with custodial
interference, father argued that he could not have "knowingly" deprived the
mother of custody because he was never officially served with the court
order. The trial court concluded that there was substantial evidence that
the father was nonetheless aware of the court order, and we agreed that
"knowledge" for purposes of the crime of custodial interference could be
either actual or constructive. (FN4) Id. at 495, 756 A.2d at 1228-29.

¶ 19. Here, although there were undeniably numerous attempts to get
mother to recognize that the State had been granted legal custody of her
children, (FN5) there is no direct evidence that mother knew that the State
was a "lawful custodian" and the circumstances surrounding the incident do
not support such an inference. To begin with, it is undisputed that,
because the emergency detention orders were issued ex parte, mother was not
aware that DCF had been granted custody of her children before the case
workers showed up at her home and attempted to explain this to her. Mother
acknowledged in her testimony that one of the DCF case workers told her
that "she had a judge's order or something to pick up my kids." Even
assuming, however, that mother on some level understood that a court had
issued an order allowing DCF to "pick up [her] kids," this is different
from understanding the full import of the concept of legal custody. While
it is true that a valid court order was waved in her face, neither the time
nor the circumstances existed for mother to understand the significance of
that order and make a meaningful choice about whether to comply with it.

¶ 20. The scenario faced by mother in this case stands in marked
contrast to the typical circumstances present in cases of custodial
interference. In fact, all of our decisions interpreting the statute
address situations where one parent has denied custody to another in
violation of a family court custody order. See, e.g., Wootten, 170 Vt. at
486-87, 756 A.2d at 1223 (father fled state with children to avoid
court-ordered visitation with mother); State v. Doyen, 165 Vt. 43, 45, 676 A.2d 345, 345 (1996) (father failed to return daughter to mother, who was
custodial parent, at end of court-ordered visitation period and traveled
with daughter to several other states). (FN6) And indeed, this is
precisely the scenario the statute was intended to address.

¶ 21. As we emphasized in Petruccelli, "[m]odern custodial
interference statutes were intended to respond to the increasing occurrence
of parental abduction of children as a means to settle a custody dispute or
to permanently alter custody." 170 Vt. at 59, 743 A.2d at 1068. In
particular, Vermont's custodial interference statute was enacted "to create
criminal liability for parental abductions of children that were evading
prosecution under the kidnapping statute." Id. at 60, 743 A.2d at 1069.
We noted that in contrast to the crime of kidnapping, "[c]ustodial
interference . . . generally occurs when a parent takes his or her child,
or fails to return the child following a court-ordered visitation period,
in a manner that prevents the other custodial parent from having contact
with the child." Id.

¶ 22. Accordingly, the elements of the crime focus not on the legal
status of the defendant "but rather focus[] on the defendant's actions, the
effect of defendant's actions, and the intent with which those actions were
performed." Id. at 59, 743 A.2d at 1068 (quoting Strother v. State, 891 P.2d 214, 221 (Alaska Ct. App. 1995)). If we analyze these factors with
respect to the facts of the instant case, it is apparent that mother's
actions fall outside the ambit of custodial interference. In terms of her
actions, mother took her children protectively inside her home-she did not
attempt to abscond with them. In terms of the effect of her actions, she
at most delayed DCF taking custody-there was no real threat that DCF would
be thwarted altogether. Finally, in terms of her intent, all of the
testimony from the witnesses to the incident indicates that mother was
reacting hastily and defensively to the sudden appearance of DCF case
workers and police officers, rather than being motivated by an affirmative
intent to defy a court order.

¶ 23. The precipitous circumstances of a state agency showing up at
a parent's home with a court order is quite different from the scenario of
parental kidnapping that inspired the enactment of custodial interference
statutes and that is the subject of our decisions interpreting the offense.
In cases of parental kidnapping, the court order is typically issued in the
context of ongoing divorce or custody proceedings so that even if a parent
evades service of a specific order, there are circumstances from which we
can infer knowledge of the existence of court-ordered custody arrangements,
and further infer that defiance of such an order is done "knowingly."
These circumstances simply do not exist in this case. I would reverse the
conviction for custodial interference.

¶ 24. I am authorized to state that Justice Skoglund joins this
dissent.

_______________________________________
Associate Justice

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Footnotes

FN1. At the time, the agency was called Social and Rehabilitation Services.

FN2. While mother did not present this argument on appeal (other than to
contend that application of the custodial interference statute to the facts
of this case exceeded the purpose of the statute), it was the centerpiece
of her defense at trial. Further, as an issue of law that goes to the
heart of whether criminal liability exists in this case, failure to
consider the argument would not serve the interests of justice. State v.
Mears, 170 Vt. 336, 341, 749 A.2d 600, 604-05 (2000) (plain error exists
where failure to recognize error would result in miscarriage of justice).

FN3. Similarly, in the instant case mother did not attempt to abscond with
the children. Rather, she retreated into her home and insisted that police
obtain a warrant to enter.

FN4. We did not rule on the merits of this issue as the trial court had
dismissed the action on other grounds, which we reversed.

FN5. The State emphasized at trial that service is not required for an
emergency detention order to take effect. Nonetheless, the fact that
mother was not formally served with the order is further evidence that
mother did not have the opportunity to fully understand the situation. It
is true that the child comes into custody of the State as soon as the judge
signs the detention order, but it is not necessarily the case that the
parent becomes aware of this fact at the same time-quite the opposite when
the order is issued ex parte, as it was here.

FN6. In addition, when enacting the statute, the Legislature discussed only
cases of parental kidnapping as examples of instances where the statute
would be applied. DCF was not mentioned or considered as a "lawful
custodian" in connection with the offense.

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