In re N.T. ( 2022 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
6th Circuit Court-Concord Family Division
No. 2021-0437
IN RE N.T.
Argued: March 17, 2022
Opinion Issued: July 20, 2022
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Laura E. B. Lombardi, senior assistant attorney general, on the brief
and orally), for the New Hampshire Division for Children, Youth and Families.
Belknap Legal Services PLLC, of Lakeport (Peter R. Brunette on the brief
and orally), for Mother.
BASSETT, J. The respondent, the mother of N.T. (Mother), appeals
orders of the Circuit Court (Cooper, M., approved by Kissinger, J.) entered
during abuse and neglect proceedings regarding N.T. initiated by the petitioner,
the New Hampshire Division for Children, Youth and Families (DCYF), under
RSA chapter 169-C (2014 & Supp. 2021). Mother argues that the trial court
erred when it denied her motion to dismiss the abuse and neglect petitions.
She asserts that, because the court failed to issue adjudicatory findings within
sixty days of the filing of the petitions as required by RSA 169-C:15, III(d)
(2014), the court was divested of jurisdiction. She also argues that the court
erred when it found that she had physically abused and neglected N.T. We
affirm.
The following facts are supported by the record. On April 10, 2021, an
incident occurred involving Mother and N.T., who was then thirteen years old,
during which Mother struck N.T. multiple times with a wooden cooking utensil,
“checked” N.T.’s virginity by digitally penetrating her, and doused N.T. with
lighter fluid and threatened to light her on fire. Following the incident, Mother
left the family’s apartment and N.T. stayed in the care of her adult brother.
On April 16, DCYF filed three petitions pursuant to RSA chapter 169-C
regarding N.T., alleging physical abuse, sexual abuse, and neglect by Mother
arising out of the April 10 incident. See RSA 169-C:3, II(d) (Supp. 2021)
(physical abuse); RSA 169-C:3, II(a) (2014) (sexual abuse); RSA 169-C:3, XIX(b)
(Supp. 2021) (neglect). The trial court commenced the adjudicatory hearing on
the petitions on May 17 and heard evidence for approximately ninety minutes.
See RSA 169-C:18 (Supp. 2021). At the end of the time allotted for the hearing,
in consultation with counsel, the court tried to find a time to resume the
proceedings later that week. Because counsel had limited availability, the
court scheduled the hearing to resume for approximately two hours on May 20
and stated that it would find additional time in the schedule to conclude the
hearing on a third day.
On May 20, the hearing resumed as scheduled. Upon adjournment that
day, the court estimated that the parties would need another three hours to
complete the hearing and stated that the court would contact the parties to
schedule the final hearing date. The court notified the parties that the hearing
would resume on June 17 — sixty-two days after the filing of the petitions. See
RSA 21:35 (2020) (providing general rule for computation of time period).
Counsel for one party was unavailable on June 17 and requested a
continuance. On June 21, sixty-six days after the filing of the petitions,
Mother filed a motion to dismiss the petitions, arguing that, because the
adjudicatory hearing had not been completed and written findings issued
within sixty days of the filing of the petitions as required by RSA 169-C:15,
III(d), and because the sixty-day time limitation in the statute is jurisdictional,
the petitions should be dismissed with prejudice. RSA 169-C:15, III(d) provides
that:
Upon a finding of reasonable cause that the child is abused or
neglected, the court shall:
....
(d) Set a date for an adjudicatory hearing. In all cases, the
adjudicatory hearing shall be held and completed and written
findings issued within 60 days from the date that the petition was
filed with the court. If a child is in an out-of-home placement, the
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adjudicatory hearing shall be held and completed within 30 days
from the date the petition was filed with the court, unless the court
makes a written finding of extraordinary circumstances requiring
the time limit to be extended.
RSA 169-C:15, III(d) (emphasis added).
The court deferred ruling on this motion and, on July 16, recommenced
the adjudicatory hearing, which lasted approximately two hours. On July 22,
the court issued its adjudicatory order. It found that Mother had physically
abused and neglected N.T., but dismissed the sexual abuse petition. The court
also denied Mother’s motion to dismiss under RSA 169-C:15, III(d), stating that
“[t]he Clerk’s office provided dates for these matters to be considered in a timely
manner.” Mother filed a motion for clarification and reconsideration, which the
court substantively denied. This appeal followed.
I. Motion to Dismiss Under RSA 169-C:15, III(d)
We first address Mother’s argument that the trial court erred when it
denied her motion to dismiss the petitions for failure to comply with RSA 169-
C:15, III(d). DCYF and Mother agree that the sixty-day deadline in RSA 169-
C:15, III(d) applies in this case, that the trial court did not complete the hearing
or issue written findings within the sixty-day period, and that the time limit is
mandatory rather than discretionary. The parties disagree, however, as to
whether that sixty-day period is jurisdictional. Accordingly, the narrow issue
before us is whether the failure of a trial court to hold the adjudicatory hearing
and make written findings within sixty days of the filing of the petition divests
the court of jurisdiction, requiring dismissal of the case.
Mother argues that the statute’s plain language and its legislative history
demonstrate that the time limit is intended to protect the due process rights of
parents and children by guaranteeing a swift resolution of the proceedings,
and, therefore, the statute must be construed as jurisdictional. She asserts
that, because the trial court failed to comply with the sixty-day limitation, the
court forfeited jurisdiction and should have dismissed the petitions. DCYF
counters that the goals of the statutory scheme and the legislative history of
RSA 169-C:15, III(d) show that the time limit was enacted “not to protect
parents’ liberty interests,” but to “hasten adjudicative dispositions for the
benefit of children,” and that construing the time limit as jurisdictional would
defeat that purpose. We hold that RSA chapter 169-C has multiple purposes
that are advanced by the time limit in RSA 169-C:15, III(d): to protect the life,
health, and welfare of the child, and to protect the rights of all parties involved
in the abuse and neglect proceeding. Because construing the time limit as
jurisdictional would undermine all of these important objectives, we conclude
that the legislature did not intend that the court be divested of jurisdiction as a
consequence of its non-compliance with the deadline.
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Resolving this issue requires us to engage in statutory interpretation,
and, accordingly, our review is de novo. See State v. Fournier, 158 N.H. 441,
445 (2009). In matters of statutory interpretation, we first look to the language
of the statute itself, and, if possible, construe that language according to its
plain and ordinary meaning. Petition of Carrier, 165 N.H. 719, 721 (2013). We
interpret 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. We consider words and phrases, not in
isolation, but in the context of the statute as a whole in order to better discern
the legislature’s intent and to interpret statutory language in light of the policy
or purpose sought to be advanced by the statutory scheme. Id.As an initial matter, we agree with the parties that RSA 169-C:15, III(d)
establishes a mandatory time limit. The statute provides that the adjudicatory
hearing “shall be held and completed and written findings issued within 60
days from the date that the petition was filed with the court,” RSA 169-C:15,
III(d) (emphasis added), and we regard the use of “shall” as “a command which
requires mandatory enforcement,” In re Christopher K., 155 N.H. 219, 229
(2007) (quotation omitted). However, as the parties recognize, this conclusion
does not end our inquiry. “[W]e must next determine the appropriate mode of
enforcement of the mandate.” Id. (quotation omitted). When, as here, the
statute itself does not provide a remedy for the court’s failure to act within sixty
days, see RSA 169-C:15, III(d), we look to the goals of the overall statutory
scheme, and of RSA 169-C:15, III(d) in particular, to determine whether the
legislature intended that the sixty-day deadline be enforced through a forfeiture
of the court’s jurisdiction. See Fournier, 158 N.H. at 447-49 (looking to
statutory scheme’s express purpose, as well as the language of the entire
chapter, to discern legislative intent).
“Where the legislature, out of liberty interest concerns, has mandated
time limits for holding hearings, we have held that personal jurisdiction over a
[respondent] is lost, absent waiver, if the case is not heard within the statutory
period.” Id. at 447 (quotation omitted). For example, in In re Russell C., 120
N.H. 260 (1980), we observed that the mandatory time limits for holding
adjudicatory hearings under RSA chapter 169-B (Supp. 1979) and RSA chapter
169-D (Supp. 1979) were “legislative pronouncement[s] of a child’s right to the
expeditious resolution of his alleged delinquency or ‘need for services’ rooted in
his right to due process,” and were intended to protect the child’s liberty
interest. Russell C., 120 N.H. at 266-68. We therefore held that the trial
court’s failure to act within those time limits divested it of personal jurisdiction
over the child. Id. at 268; see also Fournier, 158 N.H. at 447-48 (concluding
that mandatory time limits for holding hearing on petition for involuntary
commitment were jurisdictional because statutory scheme evinced the
legislature’s intent to limit “unnecessary infringement on a person’s liberty”).
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We will not, however, construe a time limit as jurisdictional when its purpose is
to advance a “general interest in hastening adjudicative dispositions for the
benefit of all parties involved.” Appeal of Martino, 138 N.H. 612, 616 (1994)
(concluding that time limit was non-jurisdictional, in part, because statute’s
purpose was to “speed the resolution of workers’ compensation cases for the
benefit of all parties involved”). Nor will we construe a time limit as
jurisdictional when doing so would thwart the primary purpose of the statute.
See In re Robyn W., 124 N.H. 377, 380-81 (1983) (declining to treat deadline
for issuing order on petition to terminate parental rights as jurisdictional
because doing so would defeat statutory objectives by penalizing the child’s
interest).1
Here, RSA chapter 169-C, also called the Child Protection Act (Act),
states that “[i]t is the primary purpose of this chapter . . . to provide protection
to children whose life, health or welfare is endangered.” RSA 169-C:2, I (Supp.
2021); see RSA 169-C:1 (2014) (providing short title). A “further purpose” of
the Act is “to establish a judicial framework to protect the rights of all parties
involved in the adjudication of child abuse or neglect cases.” RSA 169-C:2, II
(Supp. 2021). Thus, the Act protects the child’s life, health, and welfare, while
also protecting the rights of all parties involved in abuse and neglect
proceedings. See RSA 169-C:2 (Supp. 2021); In re D.O., 173 N.H. 48, 56
(2020).
Mother argues that we should construe RSA 169-C:15, III(d) as
jurisdictional because the statutory purpose of protecting “the rights of all
parties involved” demonstrates that the legislature’s intent in enacting the
statute was to protect: (1) the child’s liberty interest as identified in Russell C.;
and (2) the parents’ liberty interests in raising and caring for their children.
We disagree. First, Mother argues that Russell C. demonstrates that the
legislature intended the sixty-day limit to protect children’s constitutional due
process rights. In Russell C., we emphasized that our conclusion — that the
time limits for adjudicatory hearings in juvenile delinquency and children in
need of services (CHINS) proceedings were jurisdictional — was premised upon
the “juvenile’s liberty interest,” which triggered the need for due process
safeguards. Russell C., 120 N.H. at 268. We also observed that one of the
1 As we have previously observed, “[c]haracterizing mandatory time limits as ‘jurisdictional,’
though frequently done by courts, may often be more misleading than illuminating.” Ruel v. N.H.
Real Estate Appraiser Bd., 163 N.H. 34, 42 n.2 (2011); see also Arbaugh v. Y & H Corp., 546 U.S.
500, 510 (2006) (noting that, although the Court has referred to nonextendable time limits as
“mandatory and jurisdictional,” such time prescriptions “are not properly typed ‘jurisdictional’”
(quotation omitted)). We emphasize that, regardless of the terminology we use, the dispositive
inquiry is one of legislative intent: whether the legislature intended that the court’s failure to
comply with the sixty-day limit would prevent the court from addressing the merits of the abuse
or neglect petition at issue. See Ruel, 163 N.H. at 42 n.2.
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original purposes of the 1979 enactment of RSA chapters 169-B, 169-C, and
169-D was to “address the due process rights of the juvenile.” Id. at 265-66
(quotation and emphasis omitted).
As we explained in Russell C., the child’s role and constitutional interest
in juvenile delinquency and CHINS proceedings are different than they are in
abuse and neglect proceedings. Id. at 268. Indeed, Mother acknowledges that
the proceedings are fundamentally different: in abuse and neglect proceedings,
the child is “the victim,” and, in CHINS and delinquency cases, the child is “the
perpetrator, and must be accorded most of the same constitutional protections
extended to adult perpetrators in criminal proceedings.” We are, therefore,
unpersuaded that one of the legislative purposes of RSA chapter 169-C
generally — and RSA 169-C:15, III(d) in particular — is protection of the child’s
liberty interest in avoiding physical restraint at issue in Russell C.2
As for parents’ liberty interests, we have often recognized that parents
have the “right to raise and care for [their] children,” which is a “fundamental
liberty interest protected by the State Constitution.” In re C.M., 163 N.H. 768,
772 (2012). We agree with Mother that one of the purposes of RSA chapter
169-C is to protect this liberty interest. See RSA 169-C:2, II; see also RSA 169-
C:2, III(c) (purposes of the Act should be carried out in a way that “recognize[s]
and enforce[s] the constitutional and other rights of the parties and assures
them a fair hearing”). We do not, however, agree with Mother that this means
that the sixty-day limit is jurisdictional.
A parent’s right to raise and care for her child is but one of the important
rights protected by RSA chapter 169-C. We reiterate that the stated primary
purpose of the statutory scheme is to protect the life, health, and welfare of
endangered children. RSA 169-C:2, I (“The best interest of the child shall be
the primary consideration of the court in all proceedings under this chapter.”).
A “further purpose” is to “establish a judicial framework to protect the rights of
all parties involved” in the proceeding. RSA 169-C:2, II. The rights of “all
parties” include the parents’ liberty interests in raising and caring for their
child, see RSA 169-C:2, III(c), as well as the child’s interest in staying with, or
being reunited with, her family unit, see RSA 169-C:2, III(b) (providing that,
“whenever it is in the best interest of the child,” a child should be kept “in
contact with his or her home community and in a family environment by
preserving the unity of the family”). The State likewise has an interest in
“maintaining the parent-child relationship,” D.O., 173 N.H. at 57, and is
2Because Mother’s argument is limited to the liberty interest at issue in Russell C., we do not
have occasion to decide whether the child has any liberty interest that is implicated in an abuse
and neglect proceeding. Mother does not argue that, under either the State or Federal
Constitution, a child has a liberty interest in being in the care and custody of her parents. See
Suboh v. District Attorney’s Office of Suffolk, 298 F.3d 81, 91 (1st Cir. 2002) (collecting cases
supporting proposition that a child has a “liberty interest in being in the care and custody of her
parents”).
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obligated to “[p]rovide assistance to parents to deal with and correct problems
in order to avoid removal of children from the family,” RSA 169-C:2, II(e). The
State, the parents, and the child all also share an interest in proceedings
designed to produce a “fair” and “correct” result. See C.M., 163 N.H. at 777.
Although these interests may, at times, be in tension, they are all
advanced by the swift resolution of the adjudicatory phase of the proceedings.
See In re Melissa M., 127 N.H. 710, 712 (1986) (noting “RSA [chapter] 169-C’s
emphasis on avoiding delay in child protection cases”); cf. In re Cierra L., 161
N.H. 185, 191 (2010) (“A quick disposition bears great importance . . . to
ensure stability and resolution for all parties involved.”). We therefore construe
the statutory scheme as reflecting a legislative intent that the sixty-day limit
protect the child’s life, health, and welfare and the rights of all parties involved
in an abuse and neglect proceeding, which encompass the interests discussed
above. RSA 169-C:15, III(d) furthers these purposes by ensuring that abuse
and neglect proceedings progress promptly with a view toward establishing a
permanent placement that is in the best interest of the child while, at the same
time, limiting undue interruption of, or restrictions upon, the parent-child
relationship. See RSA 169-C:15, III(d). Because the statutory language is clear
and unambiguous as to the purposes of the statutory scheme and RSA 169-
C:15, III(d), we need not look further for indicia of legislative intent. See
O’Donnell v. Allstate Indem. Co., 173 N.H. 295, 303 (2020). We therefore
decline Mother’s invitation to examine the legislative history of
RSA 169-C:15, III(d).
Construing the sixty-day limit as jurisdictional would frustrate not only
the statute’s primary purpose of providing protection to children whose life,
health, or welfare is endangered, see RSA 169-C:2, I, but also all of the
aforementioned interests protected by the statutory scheme. If, as Mother
argues in her brief, the failure of a court to comply with the sixty-day deadline
were to result in dismissal of the abuse or neglect petition with prejudice, the
child might well return to a situation that endangers her life, health, or welfare.
Disposing of the abuse or neglect petition by dismissing it with prejudice on a
technicality rather than resolving it on the merits would also frustrate the
interests of the parents, the child, and the State in a proceeding that produces
a fair and correct result. Such a disposition would be counterproductive: not
only would it fail to vindicate “innocent” parents, because they would not
obtain a finding of no abuse or neglect, but it would also leave abusive or
neglectful parents and their children without the services and assistance they
need from DCYF. See RSA 169-C:2, II(e). Given that RSA chapter 169-C is to
be “liberally construed” to effectuate its purposes, RSA 169-C:2, III, we
conclude that the legislature did not intend such a result, see RSA 169-C:2,
III(c).
Alternatively, if, as Mother posited at oral argument, a case were to be
dismissed without prejudice because the court missed the sixty-day deadline, a
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similarly anomalous and perilous outcome would follow. In that circumstance,
after dismissal, DCYF could immediately refile the abuse or neglect petition,
which would, in effect, delay resolution of the proceedings by sixty days. This
result would directly undermine the legislature’s objective of hastening the
resolution of abuse and neglect proceedings to achieve a permanent placement
that is in the child’s best interest. See Appeal of Martino, 138 N.H. at 616
(concluding that mandatory thirty-day deadline for Compensation Appeals
Board to render decision was not jurisdictional, in part, because the outcome
of vacating and remanding for a new hearing would undermine goal of
hastening final resolution). Further, it would burden the interests of the
parents, the child, and the State in maintaining the parent-child relationship
by prolonging the time in which that relationship remains in limbo. See
McCarthy v. Wheeler, 152 N.H. 643, 652 (2005) (Broderick, C.J., dissenting)
(observing that dismissal and refiling of domestic violence petition would “tread
even further on the interests of both the victim and the accused” by subjecting
them to an additional thirty-day waiting period). Accordingly, because
construing the time limit as jurisdictional would undermine the interests of all
parties and thereby thwart the purposes of the statutory scheme — including
the statute’s primary purpose of protecting children whose life, health, or
welfare is endangered — we conclude that the sixty-day mandatory limit in
RSA 169-C:15, III(d) is not jurisdictional. See RSA 169-C:2; Robyn W., 124
N.H. at 381; cf. D.O., 173 N.H. at 58 (concluding that legislature did not intend
a thirty-day statutory appeals period to be jurisdictional because “the primary
purposes of the chapter would be thwarted if [that] were the case”). The trial
court therefore retains jurisdiction over the abuse and neglect proceedings in
this case.
This conclusion does not end our analysis. Mother may still be entitled
to relief for the court’s non-compliance with the deadline — but only if she
demonstrates that she was prejudiced by the court’s delay. See, e.g., Smith v.
N.H. Bd. of Psychologists, 138 N.H. 548, 551 (1994) (“In order to warrant a
dismissal of the complaints, the plaintiffs, at a minimum, have the burden of
showing prejudice due to the delay of the scheduled hearings.”); Robyn W., 124
N.H. at 381 (holding that we will enforce the mandatory time limit applicable to
termination of parental rights proceedings by entertaining complaints against
non-compliant trial courts unless “non-compliance is de minimis”). Here,
Mother argues that she was prejudiced in that she suffered prolonged
“emotional distress,” was prohibited from “seeing or even talking with her
daughter,” and had to pay for a second apartment because she could not have
contact with N.T. We are not persuaded.
As Mother acknowledges, she was criminally charged based on the same
April 10, 2021 incident that gives rise to DCYF’s abuse and neglect petitions.
Pursuant to bail orders related to those criminal charges, she was prohibited
from having contact with N.T. until the bail orders were modified in September
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2021. Because the trial court issued its adjudicatory findings on July 22, 2021
— well before the criminal no-contact order was lifted in September — Mother
would not have been able to have contact with N.T. notwithstanding the delay
in the abuse and neglect proceedings. Mother has therefore failed to carry her
burden of proving prejudice and is not entitled to relief for the court’s delay.
Accordingly, we conclude that the court did not err when it denied her motion
to dismiss.
Although we conclude that the sixty-day limit is not jurisdictional and
that Mother has not shown prejudice, our holding should not be construed to
diminish the significance of the sixty-day deadline. We are mindful that there
are important and fundamental interests at stake in an abuse and neglect
proceeding and that all parties — especially the child — benefit from the
punctual administration of justice. Accordingly, if an appellant can show
prejudice caused by a trial court’s delay in completing the adjudicatory hearing
or issuing findings, we will not hesitate to employ an appropriate enforcement
mechanism, which may include exercise of our supervisory power under RSA
490:4 (2010). See Robyn W., 124 N.H. at 381.
II. Physical Abuse Finding
Mother next argues that the trial court erred when it concluded she
physically abused N.T. She contends that, although there was evidence that
she struck N.T., there was insufficient evidence that N.T. was harmed by that
conduct; she therefore argues that the conduct did not constitute “abuse.” See
RSA 169-C:3, II(d). In the alternative, she contends that, even if her conduct
constituted “abuse,” it was justified under RSA 627:6, I, which provides a
justification defense allowing the use of force by a parent against a minor in
certain circumstances. See RSA 627:6, I (2016). Neither argument finds
support in the record.
When reviewing a finding of abuse or neglect, we will sustain the findings
and rulings of the trial court unless they are unsupported by the evidence or
tainted by error of law. In re Tracy M., 137 N.H. 119, 125 (1993). We defer to
the court’s assessment of the evidence, see id., and view the facts in the light
most favorable to the court’s decision, see In re Ethan H., 135 N.H. 681, 687
(1992).
Mother first contends that the abuse petition “was based solely upon
allegations that [Mother] had struck the child with a wooden . . . cooking
utensil” and that this conduct was inadequate to support a finding of “abuse.”
To the contrary, the abuse petition, when read in conjunction with the attached
affidavit, alleges that N.T. was physically abused as defined by RSA 169-C:3,
II(d) based on all of Mother’s conduct on April 10, including repeatedly striking
N.T. with the cooking utensil, digitally penetrating her, “slash[ing]” at her with
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a knife, dousing her with lighter fluid, and threatening to light her on fire. We
consider evidence as to all of these allegations in assessing whether the record
supports the court’s abuse finding.
RSA 169-C:3, II(d) provides that an “[a]bused child” means “any child
who has been . . . [p]hysically injured by other than accidental means.” We
have interpreted this provision as requiring proof that “the alleged abusive act
was committed under circumstances indicating harm or threatened harm to
the child’s life, health, or welfare.” Petition of Jane Doe, 132 N.H. 270, 277
(1989). DCYF had the burden to prove its allegations of abuse by a
preponderance of the evidence. RSA 169-C:13 (2014).
Here, there is ample evidence in the record that Mother’s abusive acts
were “committed under circumstances indicating harm or threatened harm to
[N.T.’s] life, health, or welfare.” Doe, 132 N.H. at 277. The record
demonstrates that Mother’s conduct of striking N.T. resulted in physical
injuries to N.T.: swollen knuckles, a small cut on her knuckles, “indentations”
on her legs, and bruising on her thighs and shoulders. Mother’s behavior of
striking N.T., which led to these injuries, was part of an ongoing course of
conduct designed to “scare the truth out of” N.T. Mother rapped N.T.’s
knuckles and hit N.T.’s shoulder at the beginning of their interaction. Then,
after digitally penetrating N.T. to “check[] her virginity,” Mother struck N.T.
with the cooking utensil, then poured lighter fluid on N.T., held a burning hair
bonnet over N.T., and threatened to set her on fire. Additionally, at some
point, Mother wielded “a large knife . . . as if she was going to cut” N.T. This
conduct constituted a direct threat of harm to N.T.’s life and health. There was
also evidence before the court that Mother’s conduct harmed N.T.’s welfare:
during the April 10 incident, N.T. was crying, shaking, and visibly scared. And,
as a result of the incident, N.T. engaged in self-harm and suicidal thoughts.
Arguing in favor of a contrary result, Mother relies on Ethan H. and
Petition of Jane Doe, in which we reversed findings of abuse. That reliance is
misplaced. Those cases are distinguishable in part because the physical
injuries Mother caused N.T. and the circumstances under which she
perpetrated them extend well beyond the injuries inflicted and the
circumstances of those cases. For example, in Ethan H., the child resumed
play immediately after his mother struck and bruised him with a belt, Ethan
H., 135 N.H. at 682, 687, and in Doe, the mother on two occasions struck her
child and caused only “minor” bruising and a cut, Doe, 132 N.H. at 278. Here,
the record amply supports the trial court’s finding of abuse under RSA 169-
C:3, II(d).
Mother argues, in the alternative, that even if her conduct constituted
abuse, it was justified under RSA 627:6, I. That statute provides that: “A
parent, guardian or other person responsible for the general care and welfare of
a minor is justified in using force against such minor when and to the extent
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that he reasonably believes it necessary to prevent or punish such minor’s
misconduct.” RSA 627:6, I. DCYF counters that this statute does not apply to
abuse and neglect proceedings, and even if it does, the facts do not support
application of the justification defense in this case. We need not decide
whether RSA 627:6, I, applies to RSA chapter 169-C proceedings, because we
agree with DCYF that Mother’s conduct did not fall within the scope of
behaviors protected by the statute.
In order for the justification defense to apply, Mother must have
reasonably believed her conduct necessary to prevent or punish N.T.’s
misconduct. Id.; State v. Leaf, 137 N.H. 97, 99 (1993). “The operative word is
‘reasonable,’ which is determined by an objective standard.” Leaf, 137 N.H. at
99. A belief that, although honest, is unreasonable, will not support the
defense. Id.
Assuming, in Mother’s favor, that N.T. actually engaged in misconduct,
Mother points to no evidence in the record, and we have found none, that she
reasonably believed that the force she used was necessary to prevent or punish
that misconduct. And there was evidence from which the court could have
concluded that Mother did not reasonably believe that the force she used was
necessary. In fact, the record shows that Mother took steps to prevent others
from learning that her conduct resulted in severe distress to N.T.: she locked
her husband out of the apartment, closed an open window so that no one could
hear N.T. screaming and crying, and urged N.T. to return to the apartment
after the incident so that no one would hear N.T. crying and call the police.
Thus, Mother’s own behavior demonstrates that she was aware that the force
she used was greater than reasonably necessary. See id. Additionally, there
was evidence that other individuals viewed the force Mother used as greater
than reasonably necessary. At the beginning of the incident, before Mother
locked her husband out of the apartment, he intervened to stop Mother from
continuing to strike N.T. with the cooking utensil. And, following the incident,
N.T.’s adult brother told a DCYF worker that “the things that happened were
not normal to his culture.” For all these reasons, we conclude that the record
supports the trial court’s determination that Mother’s conduct was not justified
under RSA 627:6, I.
III. Neglect Finding
Finally, we address Mother’s argument that the trial court erred in
finding neglect because there was insufficient evidence that N.T.’s health
suffered or is likely to suffer serious impairment. A “[n]eglected child” is
defined, 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,
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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, guardian,
or custodian[.]
RSA 169-C:3, XIX(b); see also RSA 169-C:13 (providing that the petitioner, here
DCYF, bears the burden of proving neglect allegations by a preponderance of
the evidence). “‘Serious impairment’ means 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. 2021). “Statutory
neglect is not the actions taken or not taken by the parent or parents”; rather,
“it is the likelihood of or actual serious impairment of the child’s physical,
emotional, and mental well being,” which are the conditions of neglect that
must be repaired and corrected in the circuit court process. In re G.B., 174
N.H. 575, 581 (2021) (quotation and brackets omitted).
We will sustain the findings and rulings of the trial court unless they are
unsupported by the evidence or tainted by error of law. Tracy M., 137 N.H. at
125. Contrary to Mother’s argument that there was inadequate evidence that
N.T.’s health suffered a serious impairment, the record reveals that, during the
April 10 incident, N.T. was crying, shaking, and visibly scared. And, as a
result of Mother’s conduct, N.T. was “emotional and upset,” engaged in self-
harm, and was “feeling suicidal.” This evidence is sufficient to show that a lack
of proper parental care or control caused a “substantial weakening” of N.T.’s
emotional and mental health, constituting a “serious impairment” to her
health. RSA 169-C:3, XXVII-a. Accordingly, we conclude that the record
supports the trial court’s finding of neglect.
IV. Conclusion
In sum, we conclude that the trial court did not err when it denied the
Mother’s motion to dismiss the abuse and neglect petitions. Nor did it err
when it made adjudicatory findings of physical abuse and neglect. Any issues
Mother raised in her notice of appeal, but did not brief, are deemed waived.
See State v. Blackmer, 149 N.H. 47, 49 (2003).
Affirmed.
MACDONALD, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.
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