In re M.M. ( 2021 )

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers are
requested to notify the Reporter, Supreme Court of New Hampshire, One Charles
Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that
corrections may be made before the opinion goes to press. Errors may be
reported by e-mail at the following address: reporter@courts.state.nh.us.
Opinions are available on the Internet by 9:00 a.m. on the morning of their
release. The direct address of the court’s home page is:
http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
9th Circuit Court-Nashua Family Division
No. 2020-0467
IN RE M.M.
Submitted: March 25, 2021
Opinion Issued: June 2, 2021
Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior
assistant attorney general, on the memorandum of law), for the petitioner.
Amy B. Davidson, of Contoocook, on the brief, for the respondent.
HANTZ MARCONI, J. The respondent, the father of the juvenile (Father),
challenges the superior court’s refusal of his appeal from a final dispositional
order of the Circuit Court (Chabot, J.) on a neglect petition brought by the
petitioner, the New Hampshire Division for Children, Youth and Families
(DCYF). Father argues that the amendment to RSA 169-C:28, effective July 1,
2020, eliminating the right to appeal final dispositional orders in abuse and
neglect proceedings to the superior court for de novo review, does not apply to
his case. See Laws 2020, 37:125 (amending RSA 169-C:28 (2014)). Father
also appeals the circuit court’s final dispositional order directly to this court
pursuant to the amended statute, see id., arguing that the circuit court should
not have considered and issued orders on DCYF’s neglect petition and,
alternatively, that there was insufficient evidence to support a finding of
neglect, see RSA 169-C:3, XIX(b) (Supp. 2020).
We conclude that the July 2020 amendment to RSA 169-C:28 applies to
Father’s case, barring his appeal to the superior court for de novo review.
Conducting our direct review of Father’s appeal from the circuit court’s final
dispositional order, we conclude that the circuit court did not err in
considering and issuing orders on DCYF’s neglect petition. We also affirm the
circuit court’s finding of neglect against Father.
I
The following relevant facts and procedural history either were found by
the circuit court or appear in the record before us. See In re Juvenile 2005-
212, 154 N.H. 763, 764 (2007). Father and Mother are M.M.’s biological
parents. M.M.’s parents are divorced, and he has half-siblings who live in his
parents’ respective homes. M.M. has a history of trauma and mental health
conditions, and has exhibited aggressive behaviors toward himself and others
in the past. In 2015, M.M. went to live with Mother after an incident between
M.M. and Father’s wife. As a result of this incident, a 2015 parenting plan
provision bars Father’s wife from having unsupervised contact with M.M. For
the next approximately two-and-a-half years, M.M. primarily lived with Mother
and her other children, and Father had minimal contact with M.M. Over
roughly this same period, M.M. was admitted to New Hampshire Hospital
(NHH) eight times as a result of involuntary emergency admissions (IEA).
In January 2018, Mother filed a petition alleging that M.M. was a child in
need of services (CHINS). See RSA 169-D:2, II(d) (2014). Following a CHINS
adjudicatory hearing, M.M. was placed at Nashua Children’s Home (NCH), a
residential facility, where he remained for nearly two years, until January
2020. See RSA 169-D:14 (2014). M.M.’s CHINS case remained open
throughout this period, through which M.M. and his parents received services
with the goal of returning M.M. home to live with either Mother or Father.
Father was not officially joined as a party to the CHINS case until October
2018; however, he was tangentially involved as early as April 2018 — having
been approved for off-grounds visitation with M.M., expected to participate in
family therapy at NCH, attending hearings, and providing input for M.M.’s pre-
dispositional investigation. See RSA 169-D:14, III.
M.M.’s CHINS case was scheduled to close on April 17, 2020. In
preparation for the closure of M.M.’s CHINS case, it was planned for him to
transition out of NCH in January of 2020 so that he and his parents would
have the benefit of CHINS services for the first few months after M.M. returned
home. With that goal in mind, there was increased urgency during the fall of
2019 to ensure that Mother and Father had plans in place to facilitate M.M.’s
return to their care, including scheduling after-school activities for M.M. and
securing support from other people to help Mother and Father to look after and
care for M.M. DCYF and M.M.’s Juvenile Justice probation officer made
referrals to multiple services to prepare Father and Mother for M.M.’s exit from
2
his CHINS plan; however, the parents failed to follow through or delayed acting
on the majority of the recommendations. For example, Father did not have
M.M. to his home for overnight visits until November 2019 and did not
consistently participate in court-ordered family therapy until December 2019.
Additionally, DCYF and Juvenile Justice stressed the importance of securing
additional family support for M.M. in the event Father and/or Mother needed
assistance, and also stressed the need to amend the parenting plan to permit
Father’s wife to have unsupervised contact with M.M. to assist with M.M.’s
care.
On January 7, 2020, M.M. was conditionally discharged from NCH and
placed with Mother as part of the transition out of his CHINS case. M.M. spent
time with Father at Father’s home, including overnight visits, in January and
early February as part of his conditional release. After a visit with Father on
February 8, M.M. told Mother that Father had hit him, prompting Mother to
call the police. The responding officer determined that no crime occurred and
that Father had not abused or neglected M.M.; however, pursuant to the police
department’s standard procedure, the officer implemented a verbal “safety
plan” whereby M.M. would stay with Mother until the officer notified DCYF
about the incident.
Following an incident of aggression toward Mother and her other children
on February 18, M.M. was admitted to St. Joseph’s Hospital pending the
opening of an available bed at NHH for an involuntary emergency admission.
Consequently, an emergency CHINS hearing was held on February 25. In its
order, the Circuit Court (Leary, J.) stated that since its last hearing on January
7, M.M. “ha[d] been IEA’d and [is] awaiting a bed at NHH” and indicated that
M.M. was to be released to Mother upon his eventual discharge from the
hospital. At the hearing, the court said that the parties could seek emergency
orders if needed, and scheduled a review hearing for March 31, 2020. Though
M.M. was expected to be transferred to NHH, on February 26, the day after the
CHINS hearing, St. Joseph’s Hospital notified DCYF that M.M. had stabilized
and no longer met the criteria for admission to NHH and, consequently, that it
was preparing to discharge M.M.
On February 27, Mother was informed that M.M. was ready to be
discharged. She declined to take custody of M.M. due to her concerns that
bringing M.M. home posed a risk to her safety and the safety of her other
children, and she could not suggest anyone else to care for M.M. At
approximately 9:00 a.m., DCYF called Father, informing him that M.M. was
ready to be discharged, that Mother had already refused to take custody of
M.M., and that Father needed to pick him up. Father responded that there
were several barriers preventing him from picking up M.M., among them that
he was going to be working in Vermont for the next week and could not take
M.M. with him. DCYF asked if he had any relatives or other plans for M.M.,
and Father said he would get back to DCYF. After not hearing back from
3
Father, DCYF reached out again, and a conference call was held later that day
with Father, DCYF, and Juvenile Justice, which had been working with M.M.,
Father, and Mother through M.M.’s CHINS case.
DCYF reiterated that Father needed to pick M.M. up from St. Joseph’s
Hospital because M.M. was ready for release. Father said that the police
officer’s “safety plan” and the CHINS placement with Mother precluded him
from taking custody of M.M. Father was told that he needed to pick M.M. up in
the next two hours or DCYF would file a neglect petition against him. Father’s
wife was still not permitted to have unsupervised contact with M.M., so Father
said that the only way he could take custody of M.M. would be to bring M.M.
with him to work in Vermont, which would leave M.M. unsupervised while
Father was working. Father could not identify anyone else who could pick up
or care for M.M.
Ultimately, neither Mother nor Father took custody of M.M. on February
27. DCYF obtained an ex parte order to assume custody of M.M. and placed
him in shelter care. On March 2, 2020, DCYF filed petitions of neglect against
both Father and Mother. Mother did not contest the petition against her, and
she is not a party to this appeal.
The adjudicatory hearing on the petition against Father was held over
five days in June and July of 2020. See RSA 169-C:18 (Supp. 2020). The
circuit court issued its adjudicatory order on August 3, in which it found that
Father neglected M.M. for failing to take custody of him on February 27. See
RSA 169-C:3, XIX(b), :18. Father filed a motion to reconsider, to which DCYF
objected. The circuit court denied Father’s motion. A telephonic dispositional
hearing was held on August 31, and the circuit court issued its final
dispositional order on September 13. See RSA 169-C:19 (2014), :21 (2014).
On September 17, Father attempted to file an appeal in the superior
court in accordance with the language of RSA 169-C:28 as it existed when
DCYF filed its neglect petition against him. However, on July 29, 2020, RSA
169-C:28 had been amended to eliminate de novo review of final dispositional
orders in the superior court, effective July 1, 2020. See Laws 2020, 37:125.
The superior court returned Father’s appeal via a compliance notice instructing
him to file his appeal with this court, citing the recent amendment to RSA 169-
C:28. See id. This appeal followed.
II
We begin with Father’s argument that he was erroneously deprived of his
right to a de novo appeal to the superior court. At the time DCYF filed its
petition of neglect against Father, RSA 169-C:28 read as follows:
4
I. An appeal under this chapter may be taken to the superior court
by the child or the child’s authorized representative or any party
having an interest, including the state, or any person subject to
any administrative decision pursuant to this chapter, within 30
days of the final dispositional order; but an appeal shall not
suspend the order or decision of the court unless the court so
orders. The superior court shall hear the matter de novo, and
shall give an appeal under this chapter priority on the court
calendar. For purposes of this chapter, a “final dispositional order”
includes a dismissal of a petition for abuse and neglect by the
district court. “Final dispositional order” shall also include any
ruling or order arising from an administrative hearing held or
initiated by any administrative agency, including the department,
in which a finding of child abuse or neglect is made.
II. This section shall apply to all appeals under this chapter,
including appeals in proceedings before the family division of the
courts.
RSA 169-C:28 (prior version) (emphases added). See generally RSA 490-F:18
(Supp. 2020) (explaining that statutes which reference the jurisdiction of the
district court or judicial branch family division are deemed to refer to the
circuit court). As previously noted, on July 29, 2020, the emphasized language
was amended, eliminating de novo review of a final dispositional order in the
superior court, and instead directing appeals to this court. See Laws 2020,
37:125. The effective date of the amendment was specified as July 1, 2020.
See id.On appeal, Father asserts that this amendment should not apply to his
case. He argues that his right to a de novo appeal in the superior court “vested
as of the filing of the petition,” that he was apprised of this right “at each stage
of the proceedings,” and that “this right informed trial strategy and attorney-
client decision making.” He further argues that the amendment affects
substantive rights that are not “merely ‘procedural’ in nature” because a de
novo appeal to the superior court “essentially provide[s] a respondent parent
with a second opportunity to be heard, which is particularly important where
parental rights are impacted.”
Father’s challenge presents a question of constitutional law and
statutory interpretation, which we review de novo. Polonsky v. Town of
Bedford, 173 N.H. 226, 230 (2020); see State v. Lamarche, 157 N.H. 337, 340
(2008) (the constitutionality of a statute as applied is a question of law). In
matters of statutory interpretation, this court is the final arbiter of the intent of
the legislature as expressed in the words of the statute considered as a whole.
In re D.O., 173 N.H. 48, 52 (2020). We first look to the language of the statute
itself, and, if possible, construe that language according to its plain and
5
ordinary meaning. Id. We interpret legislative intent from the statute as
written and will not consider what the legislature might have said or add
language that the legislature did not see fit to include. Id. We construe all
parts of a statute together to effectuate its overall purpose and avoid an absurd
or unjust result. Id. Moreover, we do not consider words and phrases in
isolation, but rather within the context of the statute as a whole, which enables
us to better discern the legislature’s intent and interpret statutory language in
light of the policy or purpose sought to be advanced by the statutory scheme.
Id.RSA 169-C:28 provides the statutory right of appeal from a final
dispositional order in an abuse or neglect proceeding. Id.; see Laws 2020,
37:125. The term “final dispositional order” is a term of art referring to the
order of the circuit court following its dispositional hearing. In re J.H., 171
N.H. 40, 46 (2018); see RSA 169-C:21; RSA 490-F:18. The statute is triggered
by the issuance of a final dispositional order and prescribes the method for
taking an appeal from such an order. Laws 2020, 37:125; see In re D.O., 173
N.H. at 52 (“[T]he word [‘may’] . . . refers to the discretion of the party who,
having received a final dispositional order from the district court, may then
decide whether or not to appeal it.”).
In July 2020, the legislature amended the method of taking an appeal
from a final dispositional order by replacing “superior court” with “supreme
court” in the first sentence of paragraph I, beginning, “An appeal under this
chapter may be taken to the,” and removing the following sentence: “The
superior court shall hear the matter de novo, and shall give an appeal under
this chapter priority on the court calendar.” Laws 2020, 37:125. Thus, RSA
169-C:28 now states, in pertinent part: “An appeal under this chapter may be
taken to the supreme court by the child or the child’s authorized representative
or any party having an interest, including the state, or any person subject to
any administrative decision pursuant to this chapter, within 30 days of the
final dispositional order . . . .” Id.
When the legislature enacted the amendment to RSA 169-C:28, it
specified an effective date of July 1, 2020, but the legislature was otherwise
silent as to whether the statute should apply prospectively or retrospectively.
See id. Therefore, our interpretation turns on whether the statute affects the
parties’ substantive or procedural rights. State v. Fuller, 169 N.H. 154, 160
(2016). In general, when a law affects substantive rights and liabilities, it is
presumed to apply only prospectively. Id. This presumption, however, reverses
when the statute is determined to affect only the procedural or remedial rights
of a party. Id. Unlike statutes affecting substantive rights, those affecting
procedural or remedial rights are presumed to apply retrospectively to cases
that, on the effective date of the statute, have not yet gone beyond the
procedural stage to which the statute pertains. See id. The final decision on a
statute’s prospective or retrospective application “rests on a determination of
6
fundamental fairness.” Id. (quotation omitted). Such application does not
offend the constitutional prohibition on retrospective laws. Petition of N.H.
Sec’y of State, 171 N.H. 728, 735 (2019); see N.H. CONST. pt. I, art. 23.
“While there is no precise definition of either substantive or procedural
law, it is generally agreed that a substantive law creates, defines and regulates
rights while a procedural law prescribes the methods of enforcing such rights
or obtaining redress.” Petition of N.H. Sec’y of State, 171 N.H. at 736
(quotation omitted). Compare id. at 734-36 (holding right to discover voting
database was procedural where trial court’s decision granting plaintiffs’
discovery request was a non-final discovery order and post-order amendment
to the relevant law “addresse[d] the issue of discovery, a quintessentially
procedural matter”), with Appeal of Silk, 156 N.H. 539, 542-43 (2007) (holding
amendment to our Workers’ Compensation Law regulating awards of attorney’s
fees and costs affected substantive rights because “attorney’s fees and costs are
inextricably intertwined with other substantive benefits in the workers’
compensation setting”). Put another way, “the purpose of procedural law is to
facilitate decision of the case on the merits.” Petition of N.H. Sec’y of State, 171
N.H. at 736 (quotation omitted).
We disagree with Father that the amendment affects his substantive
rights. One of the stated purposes of RSA chapter 169-C is to “provide effective
judicial procedures through which the provisions of th[e] chapter are executed
and enforced and which recognize and enforce the constitutional and other
rights of the parties and assures them a fair hearing,” RSA 169-C:2, III(c)
(Supp. 2020), and RSA 169-C:28 serves this purpose, see Laws 2020, 37:125.
See generally In re C.O., 171 N.H. 748, 755 (2019) (“Parental rights are
‘natural, essential, and inherent’ within the meaning of Part I, Article 2 of the
New Hampshire Constitution.”). RSA 169-C:28 establishes the procedure by
which parties’ respective rights are adjudicated in abuse and neglect
proceedings on appeal from final dispositional orders. See Laws 2020, 37:125;
see also Workplace Systems v. CIGNA Prop. & Cas. Ins. Co., 143 N.H. 322,
324-26 (1999) (explaining that statutory amendment permitting superior court
to entertain declaratory judgment actions pertained to procedures by which
parties’ rights are adjudicated). The statute provides a means of facilitating
decisions on the merits in abuse and neglect cases by prescribing the method
of enforcing the substantive rights implicated by such proceedings and
obtaining redress through an appellate process. See Laws 2020, 37:125;
Petition of N.H. Sec’y of State, 171 N.H. at 736.
Father points to our decision in In re C.M. to support his argument that
the loss of a de novo appeal to the superior court affects his substantive rights,
emphasizing that the availability of de novo review “is particularly important
where parental rights are impacted.” In that case, we defined a de novo
hearing as: “1. A reviewing court’s decision of a matter anew, giving no
deference to a lower court’s findings. 2. A new hearing of a matter, conducted
7
as if the original hearing had not taken place.” In re C.M., 166 N.H. 764, 774
(2014) (quotation omitted). We further described the de novo appeal that was
afforded under the prior version of RSA 169-C:28 as giving an aggrieved party
“an opportunity for a fresh look at the case by a different judge, who will
consider the matter anew, unconstrained by the decision of the first judge.” Id.
at 775. However, we did so in the context of explaining why we disagreed with
the parent-respondents’ argument that such an appeal should always restart
the twelve-month clock to correct the conditions of abuse or neglect. See id.While our reasoning in In re C.M. may highlight the form of review that the
legislature eliminated from RSA 169-C:28 in July 2020, see id., we do not agree
that our decision in that case supports Father’s assertion that the loss of a de
novo appeal to the superior court from a final dispositional order affects his
substantive rights.
Nor are we persuaded that the legislature’s change to the review available
for a final dispositional order on appeal supports the argument that the
amendment to RSA 169-C:28 affects substantive rights. See Laws 2020,
37:125. Under the amended statute, appeals from final dispositional orders
under RSA chapter 169-C must be taken directly to this court. See id. Our
established standard of review for final dispositional orders in abuse and
neglect proceedings, which the legislature did not modify as part of the July
2020 amendment, see id., is as follows:
“Our practice is to sustain the findings and rulings of the trial
court unless they are unsupported by the evidence or tainted by
error of law. The court, which is the trier of fact, is in the best
position to assess and weigh the evidence before it because it has
the benefit of observing the parties and their witnesses.
Consequently, our task is not to determine whether we would have
found differently; rather, we determine whether a reasonable
person could have found as the trial judge did.”
In re Thomas M., 141 N.H. 55, 57 (1996) (quoting In re Tracy M., 137 N.H. 119,
125 (1993)); accord In re Craig T., 144 N.H. 584, 585 (1999).
Although the amendment eliminates the ability to seek de novo review of
a final dispositional order by intermediate appeal to the superior court, the
legislature has changed only the procedure of enforcing the substantive rights
implicated by abuse and neglect proceedings and of obtaining redress on
appeal. See Laws 2020, 37:125; Petition of N.H. Sec’y of State, 171 N.H. at
736. The amendment does not “fundamentally change[] the relationship
between the parties . . . in a fashion that significantly bears on the ultimate
determination of their rights.” Liberty Mut. Ins. Co. v. Home Ins. Indem. Co.,
117 N.H. 269, 271 (1977) (describing the court’s opinion in Merchants Mutual
Insurance Co. v. Transformer Service Inc., 112 N.H. 360, 365 (1972), in which
we held that a statutory amendment that shifted “the burden of establishing
8
coverage from the insured to his insurer” in the underlying declaratory
judgment action affected substantive rights); see Laws 2020, 37:125. Compare
Liberty Mut., 117 N.H. at 271, with In re Fay G., 120 N.H. 153, 155, 156 (1980)
(holding that procedural change allowing probate court to order psychiatric
evaluations in termination of parental rights cases properly applied
retrospectively even though amendment could potentially affect State’s ability
to meet its burden).
For the reasons discussed, we conclude that RSA 169-C:28 is a
procedural law and that the July 2020 amendment to it affects only procedural
rights. See Laws 2020, 37:125; Smith v. Sampson, 114 N.H. 638, 641 (1974)
(holding amendment did not affect substantive rights where “[w]hat is in issue
and governed by the amended statute is the procedure to be followed by the
plaintiff to appeal to the superior court the decision made of her possessory
rights by the district court”); cf. Reisenberg v. State, 115 N.H. 12, 13 (1975)
(“Statutes governing court review of the decisions of administrative bodies are
generally regarded as procedural.”); 16B Am. Jur. 2d Constitutional Law § 745,
Westlaw (database updated Feb. 2021) (“[T]he general rule [is] that no ex post
facto violation occurs because the state has enacted a different method of
taking an appeal or other proceeding for a review.”).
Accordingly, we conclude that the amendment to RSA 169-C:28
presumptively applies to cases that, as of its effective date of July 1, 2020, were
pending but had not yet gone beyond the procedural stage to which RSA 169-
C:28 pertains. See Laws 2020, 37:125; Fuller, 169 N.H. at 160 (statutes
affecting procedural or remedial rights are presumed to apply retrospectively).
The adjudicatory hearing was still being conducted in Father’s case as of July
1, and the final dispositional order, which would trigger the statute, was not
issued until September 13. See Laws 2020, 37:125; cf. Fuller, 169 N.H. at 160
(case must not have “gone beyond” the pertinent procedural stage). Therefore,
the amendment presumptively applies to Father’s case.
Father has not presented sufficient justification to rebut this
presumption. See Fuller, 169 N.H. at 160; Eldridge v. Eldridge, 136 N.H. 611,
615 (1993) (our final decision rests on fundamental fairness). Although Father
asserts that he was apprised of his rights under RSA 169-C:28 as it existed
during the pre-amendment pendency of his case and that he relied upon that
law as it then existed to inform his case preparations and strategy, we are not
persuaded that these considerations make the application of the amended
statute to his case fundamentally unfair; nor do these considerations change
our conclusion that the amendment affects only procedural rights. See Petition
of N.H. Sec’y of State, 171 N.H. at 735 (“Such application does not offend the
constitutional prohibition on retrospective laws.”); Eldridge, 136 N.H. at 614
(amendment opening new channel of inquiry into propriety of modifying child
support orders applied to support obligation that preceded amendment’s
effective date); see also Workplace Systems, 143 N.H. at 325 (“In many
9
instances we have found proper the retroactive application of procedural or
remedial statutes that may have altered the outcome of the controversy or
subjected parties to criminal or civil actions which otherwise would have been
barred.”).
We also disagree with Father that he had a “vested” right to a de novo
appeal in superior court as of DCYF’s filing of its neglect petition against him,
because:
the individual citizen, with all his rights . . . , has no vested
interest in the existing laws of the State as precludes their
amendment or repeal by the legislature; nor is there any implied
obligation on the part of the State to protect its citizens against
incidental injury occasioned by change in the law.
In the Matter of Goldman & Elliott, 151 N.H. 770, 773 (2005) (quotation
omitted); cf. 16B Am. Jur. 2d Constitutional Law § 745 (“There is no vested
right in particular rules of evidence or in rules relating to jurisdiction of the
court over parties to a lawsuit.”). Citizens have no general right to the
continuance of prior laws even when such laws are substantive. See Goldman,
151 N.H. at 774. “[A]t most, [Father] had a mere expectation based on an
anticipation of the continuance of existing law that” he would be able to appeal
a final dispositional order to the superior court for de novo review. Petition of
N.H. Sec’y of State, 171 N.H. at 735 (quotation omitted). “Such expectancy is
not sufficient to establish a vested right.” Id. The fact that Father was
apprised of and relied upon the prior version of RSA 169-C:28 does not change
this conclusion. See Goldman, 151 N.H. at 773; see also Petition of N.H. Sec’y
of State, 171 N.H. at 734-35.
The application of RSA 169-C:28 as amended in July 2020 to Father’s
case does not violate the constitutional prohibition on retrospective laws, see
N.H. CONST. pt. I, art. 23, and, therefore, we hold that he was not erroneously
deprived of the right to appeal to the superior court for de novo review. To the
extent that Father challenges the application of the amended statute to his
case on additional grounds, including that its application violated his
constitutional rights to due process and equal protection, we conclude that any
such arguments are insufficiently developed, see State v. Blackmer, 149 N.H.
47, 49 (2003), and otherwise do not warrant further discussion, see Vogel v.
Vogel, 137 N.H. 321, 322 (1993).
III
We now turn to our review of Father’s appeal from the final dispositional
order on DCYF’s neglect petition against him. See Laws 2020, 37:125. Father
first contends that the circuit court “should have declined to make orders [on
DCYF’s neglect petition] in the first instance in light of the ongoing CHINS
10
matter, which could have addressed placement and other issues.”
(Capitalization and bolding omitted.) See generally RSA ch. 169-C (2014 &
Supp. 2020) (the Child Protection Act — the statutory framework for abuse and
neglect proceedings); RSA ch. 169-D (2014 & Supp. 2020) (CHINS statutory
framework).
Father has not identified, nor have we found, any provision of either the
Child Protection Act or the CHINS statutory framework that supports his
position that the existence of an ongoing CHINS case does or should preclude
the filing and/or evaluation of a petition alleging abuse or neglect. See, e.g.,
RSA 169-C:7 (2014) (setting forth the requirements for filing an abuse or
neglect petition); RSA 169-C:2, I (Supp. 2020) (contemplating “the mandatory
reporting of suspected instances of child abuse or neglect”); see also RSA 169-
D:9, IX (Supp. 2020) (providing that statements made by the child during
discussions or conferences incident to CHINS voluntary family services plan
“may be reported as the basis for a referral to the department pursuant to RSA
[chapter] 169-C, if there is reasonable basis to believe that a child’s physical or
mental health or welfare is endangered by abuse or neglect”). Although Father
claims that “it would have been far more beneficial, reasonable, and
appropriate to seek emergency orders in the CHINS case,” he provides no legal
authority or argument establishing that the circuit court, or DCYF, erred. See
Blackmer, 149 N.H. at 49 (stating that complaints regarding adverse rulings
without developed legal argument do not warrant judicial review).
Father alternatively argues that, even if DCYF’s neglect petition was
properly before the circuit court, there was insufficient evidence to support the
circuit court’s finding of neglect against him. We disagree.
DCYF must prove neglect by a preponderance of the evidence. See RSA
169-C:13 (2014). A “neglected child” is defined by statute, in relevant part, as
a child
[w]ho is without proper parental care or control, subsistence,
education as required by law, or other care or control necessary for
the child’s physical, mental, or emotional health, when it is
established that the child’s health has suffered or is likely to suffer
serious impairment; and the deprivation is not due primarily to the
lack of financial means of the parents . . . .
RSA 169-C:3, XIX(b). The statute defines “[s]erious impairment” as “a
substantial weakening or diminishment of a child’s emotional, physical, or
mental health or of a child’s safety and general well-being.” RSA 169-C:3,
XXVII-a (Supp. 2020). As discussed, we will sustain the circuit court’s findings
and rulings unless they are unsupported by the evidence or tainted by error of
law. In re Thomas M., 141 N.H. at 57. The circuit court, as the trier of fact, is
in the best position to assess and weigh the evidence before it because it has
11
the benefit of observing the parties and their witnesses. Id. Consequently, our
task is not to determine whether we would have found differently; rather, we
determine whether a reasonable person could have found as the trial judge did.
Id.
There was sufficient evidence to support the circuit court’s finding that
DCYF proved by a preponderance of the evidence that Father neglected M.M.1
Father appears not to dispute on appeal that M.M. is “seriously impaired”
pursuant to the statute, see RSA 169-C:3, XIX(b), but argues that “M.M.’s
impairments” do not result from any failure of his as M.M.’s parent. He
contends that his failure to pick up M.M. on February 27 was not neglect
because there was “no clear connection established between [him] not picking
up [M.M.] from St. Joseph[’s] Hospital and M.M.’s impairments.” In making
this argument, we believe Father may have conflated the fact that M.M. has
underlying mental health and behavioral conditions with the statutory concept
of “serious impairment” that is at issue here in the context of M.M. having no
one to care for him upon being ready for discharge from the hospital. See RSA
169-C:3, XIX(b), XXVII-a.
We acknowledge that Father may not have, for example, caused M.M.’s
underlying conditions, been involved in the incident at Mother’s home that
directly led to M.M.’s admission to St. Joseph’s Hospital on February 18, or
caused Mother to refuse to take custody of M.M. on February 27. However,
such facts are not dispositive of whether Father neglected M.M. by declining to
take M.M. home or otherwise ensuring that M.M. had somewhere safe to go
when he was ready to be discharged from the hospital. See RSA 169-C:3,
XIX(b); In re J.H., 171 N.H. at 49; see also In re Samantha L., 145 N.H. 408,
413 (2003) (concluding that removing child, found to be abused and neglected,
from mother’s custody was not error even though mother did not cause abuse
because mother “shirk[ed] the responsibility to assist [her] child in coping with
abuse” and was “unwilling to take steps to remedy the consequences of the
abuse”); In re Craig T., 144 N.H. at 557-58 (concluding there was sufficient
evidence that mother neglected both son and daughter when she failed to
intervene when father physically abused son and she “did nothing to protect
[daughter] from witnessing the assault” of son).
“[S]tatutory neglect is not the actions taken or not taken by the parent or
parents, but rather ‘it is the likelihood of or actual serious impairment of the
child’s physical, emotional, and mental well being that are the conditions of
neglect that must be repaired and corrected in the [circuit] court process.’” In
1 Father states on appeal that the circuit court should have stricken certain paragraphs from
DCYF’s petition as irrelevant because they contained information about two reports against Father
from 2013, involving M.M., both of which DCYF determined to be unfounded. He offers no further
argument on this point, and we decline to address arguments that are insufficiently developed.
See State v. Blackmer, 149 N.H. 47, 49 (2003).
12
re J.H., 171 N.H. at 49 (quoting In re Juvenile 2006-674, 156 N.H. 1, 5 (2007));
see RSA 490-F:18. “Thus, the circumstances surrounding the underlying
neglect petition that the parents must remedy include the circumstances that
threaten or actually cause serious impairment to the child’s physical, mental,
or emotional health.” In re J.H., 171 N.H. at 49 (brackets, citations, and
quotations omitted).
Regardless of the fact that the circumstances leading up to and
surrounding M.M.’s admission to St. Joseph’s Hospital and M.M.’s readiness
for discharge on February 27 were due, in part, to conditions beyond Father’s
immediate control, M.M. was in basic need of a safe shelter when he was ready
to be discharged from the hospital. See Clarke v. Clarke, 128 N.H. 550, 551
(1986) (per curiam) (explaining food and shelter are among “the basic
necessities of [a] child’s survival”). Children are dependent on their parents for
physical and emotional health and safety, In re Craig T., 144 N.H. at 587,
including their need for a safe shelter, see Clarke, 128 N.H. at 551. See also In
re O.D., 171 N.H. 437, 438-39 (2018) (stating that neglect petition was filed for,
inter alia, failing “to secure safe and appropriate housing for the children,” that
the children were found to be neglected, and that “the first objective [of DCYF’s
post-dispositional-order case plan] included that the parents will locate and
secure appropriate housing for the children”); In re C.M., 166 N.H. at 768-70
(stating that the children were found to be neglected, in part due to an unsafe
and unsanitary home environment, and that the dispositional order required
parents to demonstrate, inter alia, “the ability to obtain and maintain a safe
and sanitary home”); cf. RSA 169-C:3, XVII(d) (Supp. 2020) (defining “[l]egal
custody,” in part, as “[t]he responsibility to provide the child with food,
clothing, shelter, education, emotional security and ordinary medical care”).
The circuit court acknowledged and appreciated the challenging
circumstances facing the families in this case; however, it could not, nor can
we, ignore that Father had and has a responsibility to provide M.M. with safe
shelter as his parent. See, e.g., Matter of Jaheem M., 174 A.D.3d 610, 611
(N.Y. App. Div. 2019) (“The father’s failure to provide adequate shelter, by itself,
is sufficient to support the finding of neglect.”); In Interest of M.K., 649 N.E.2d
74, 79 (Ill. App. Ct. 1995) (“Parents have the duty to protect their children from
harm, and their refusal to provide their children with safe and nurturing
shelter clearly falls within the concept of statutory neglect.”); see also In re
Samantha L., 145 N.H. at 413 (“Parental responsibilities come in many forms,
some requiring the active involvement of the child’s parent.” (quotation
omitted)).
The circuit court found that M.M. and his parents had received services
through M.M.’s CHINS case, “with the goal of returning [M.M.] home to live
with either Mother or Father,” and that the CHINS case was, after
approximately two years, “coming to a close” when M.M. was ready to be
discharged. Although Father argues on appeal that he was “actively involved”
13
in M.M.’s CHINS case, the circuit court found that Father “failed to follow
through or delayed acting on the majority of [DCYF’s] recommendations.”
Father maintains that it was “entirely reasonable and appropriate” for him to
decline to take custody of M.M. given the existing CHINS orders and the police
officer’s safety plan; however, the circuit court found that these perceived
barriers did not obviate Father’s parental responsibilities to M.M. when M.M.
was ready to be discharged from the hospital without anywhere else to go.
Furthermore, as the circuit court explained, Father also asserted that the 2015
parenting plan restriction preventing his wife from having unsupervised
contact with M.M. was “a barrier to [M.M.] being placed in his care and
custody,” and he argues on appeal that he “made a good faith attempt to
modify the parenting plan.” Yet, the circuit court found that Father did not
“reopen[] the parenting case to revisit and/or modify the 2015 parenting orders
which imposed these restrictions” on his wife having unsupervised contact with
M.M. The circuit court’s findings are supported by the record. See In re
Thomas M., 141 N.H. at 57 (having the benefit of observing the parties and
other witnesses, the circuit court is in the best position to assess and weigh the
evidence); see also In re J.H., 171 N.H. at 49 (parents must remedy
circumstances surrounding the underlying neglect petition that threaten or
actually cause serious impairment to the child’s physical, mental, or emotional
health); In re Craig T., 144 N.H. at 587; Clarke, 128 N.H. at 551.
M.M. was in basic need of a safe shelter when he was ready to be
discharged from St. Joseph’s Hospital on February 27. The record supports
the circuit court’s findings that DCYF proved by a preponderance of the
evidence that Father’s refusal to take custody of M.M., or to otherwise arrange
a safe place for his son to go, demonstrated a lack of proper parental care or
control necessary for M.M.’s physical, mental, or emotional health, established
that M.M.’s health had suffered or was likely to suffer serious impairment, and
that the deprivation was not due primarily to the lack of Father’s financial
means. RSA 169-C:3, XIX(b); see In re J.H., 171 N.H. at 49; see also In re
Samantha L., 145 N.H. at 413. Therefore, we hold that the circuit court did
not err in finding that Father neglected M.M. See In re Thomas M., 141 N.H. at
57 (we will sustain the circuit court’s findings and rulings unless they are
unsupported by the evidence or tainted by error of law).
IV
In sum, we conclude that the legislature’s 2020 amendment to RSA 169-
C:28, eliminating de novo review of final dispositional orders in superior court
and instead directing appeals here, applies to Father’s case which was pending
but had not yet gone beyond the procedural stage to which the statute pertains
when the amendment became effective on July 1, 2020. See Laws 2020,
37:125; Fuller, 169 N.H. at 160. Additionally, we conclude that the circuit
14
court did not err in considering and issuing orders on DCYF’s neglect petition
despite M.M.’s open CHINS case and that there was sufficient evidence to
support the circuit court’s finding of neglect against Father.
All issues raised in Father’s notice of appeal, but not briefed, are deemed
waived. In re K.H., 167 N.H. 766, 774 (2015).
Affirmed.
HICKS, BASSETT, and DONOVAN, JJ., concurred.
15