In re J.H. ( 2023 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
3rd Circuit Court-Ossipee Family Division
No. 2022-0533
IN RE J.H.
Argued: April 27, 2023
Opinion Issued: November 14, 2023
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Laura E. B. Lombardi, senior assistant attorney general, on the
memorandum of law and orally), for the New Hampshire Division for Children,
Youth and Families.
The Young Law Firm, of Conway (Robert Young on the brief and orally),
for the mother.
BASSETT, J. The respondent, the mother of J.H. (Mother), appeals the
order of the Circuit Court (Boyle, R., approved by Greenhalgh, J.) finding that
she neglected her son, J.H. See RSA 169-C:3, XIX(b) (2022). On appeal,
Mother argues that the trial court erred because, as a matter of law, she could
not be found neglectful when another person was the legal guardian of J.H. In
the alternative, she contends that the evidence in the record is insufficient to
support the neglect finding. We affirm.
The record supports the following facts. J.H. is a fourteen-year-old boy
who has developmental delays and who has suffered significant trauma. In
2016, when J.H. was approximately eight years old, J.H.’s grandmother
petitioned for guardianship over him due to the poor care he was receiving from
his parents. The circuit court granted the guardianship petition, and J.H.
resided with his grandmother (the Guardian) for approximately six years until
May 2022.
On May 2, 2022, J.H. and the Guardian’s live-in boyfriend had an
altercation during which the boyfriend put his hands around J.H.’s neck and
pushed him up against a wall. The next day, J.H. disclosed this incident to a
family service provider, who then reported the incident to the New Hampshire
Division for Children, Youth and Families (DCYF). DCYF investigated the
report and established a safety plan with which the Guardian agreed.
However, the Guardian was ultimately unable to comply with the safety plan.
DCYF contacted J.H.’s father (Father), but he was unable to take custody of
J.H. DCYF attempted to contact Mother but was unsuccessful. DCYF then
requested an emergency ex parte order to remove J.H. from the Guardian’s
home. See RSA 169-C:6-a, I (2022). On May 4, the court granted that request,
giving DCYF protective supervision of J.H. See RSA 169-C:3, XXV (2022)
(defining “[p]rotective supervision”). DCYF then placed J.H. in a residential
treatment facility.
On May 6, DCYF made contact with Mother by phone. A Child Protective
Service Worker (CPSW) explained to Mother what had happened to J.H. and
that DCYF intended to file neglect petitions. Mother responded that she had
not spoken to J.H. in seven years and that her relationship with J.H. was
strained because he had abused one of her other children. Additionally,
Mother had recently had a baby and she worried that taking custody of J.H.
would put her baby at risk of being abused. Mother also reported that, at the
time, she was staying with friends and preparing to move into a homeless
shelter. Mother told the CPSW that she was not “able or willing” to take J.H.
and did not offer any alternative caregivers. DCYF ultimately filed neglect
petitions against Mother, Father, and the Guardian. See RSA 169-C:3, XIX(b).
Following a two-day evidentiary hearing, the circuit court found that
Mother, Father, and the Guardian had neglected J.H. It concluded that neither
of J.H.’s parents was “able or willing to provide proper parental care or control
of the child and . . . the deprivation [was] not due primarily to the lack of
financial means of the parents.” With respect to Mother, the court found that
she “was unable or unwilling to take the child as she did not have stable
housing and had not even spoken to the child in approximately 7 years.” The
court awarded DCYF legal custody of J.H. and later issued a dispositional
order, which outlines the objectives Mother must meet in order to reunify with
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J.H. This appeal followed. Our review of the circuit court’s order is limited to
its neglect finding relative to Mother.
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 N.T., 175 N.H. 300, 311 (2022). We defer to the
court’s assessment of the evidence and view the facts in the light most
favorable to the court’s decision. Id.We turn first to Mother’s argument that the court’s neglect finding was
tainted by error of law because she could not, as a matter of law, be found
neglectful while the guardianship remained in effect. Relying on RSA 463:12
(2018), Mother asserts that the Guardian stood in her stead as the person
responsible for J.H.’s well-being and, therefore, she was not required by law to
care for J.H. In essence, Mother contends that the guardianship “absolved” her
of her parental responsibilities. DCYF counters, relying on RSA 463:13 (2018)
and RSA 169-C:3, XXVII (2022), that a guardianship does not relieve a parent
of all parental rights and obligations and that Mother retained a parental duty
to provide safe shelter to J.H. when the Guardian failed to do so. We agree
with DCYF.
Resolving the parties’ dispute requires that we engage in statutory
interpretation. Statutory interpretation presents a question of law, which we
review de novo. In re Guardianship of B.C., 174 N.H. 628, 631 (2021). When
construing a statute, we first examine the language of the statute, and, if
possible, construe that language according to its plain and 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. When interpreting two statutes that deal with a similar subject matter, we
construe them so that they do not contradict each other, and so that they will
lead to reasonable results and effectuate the legislative purpose of the statutes.
In the Matter of Chrestensen & Pearson, 172 N.H. 40, 43 (2019).
Under RSA 463:12, I, except as otherwise expanded or limited by statute
or court order, “a guardian of the person of a minor has the powers and
responsibilities of a parent regarding the minor’s support, care and education.”
These responsibilities may include taking custody of the minor and
establishing where the minor lives. See RSA 463:12, III(b). However,
notwithstanding the existence of a guardianship over the child, the parents
retain certain residual rights and duties to the child, which are recognized in
both the guardianship statute, see RSA ch. 463 (2018 & Supp. 2022), and the
Child Protection Act, see RSA ch. 169-C (2022 & Supp. 2022). Both statutory
schemes recognize the residual parental right of visitation with the child and
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the parental responsibility of support during a guardianship. See RSA 463:13,
I, III; RSA 169-C:3, XXVII. The Child Protection Act sets forth additional
residual parental rights and responsibilities. See RSA 169-C:3, XXVII.
Accordingly, the grant of a guardianship of a minor to a person other than a
parent does not extinguish all parental rights and duties. See In re
Guardianship of Nicholas P., 162 N.H. 199, 205 (2011) (observing that the
appointment of a guardian does not “remove[] the entire bundle of parental
rights” (quotation omitted)).
Parental responsibilities come in many forms, including providing for the
child’s physical and emotional needs. In re Adam M., 148 N.H. 83, 84 (2002).
Some parental duties may be discharged by delegation. Id. The relevant
parental responsibility here is the duty to provide the child with safe shelter.
See In re M.M., 174 N.H. 281, 296 (2021). We have held that, when a parent is
informed that her or his child lacks safe shelter, the parent’s unwillingness or
inability to provide the child with shelter, or to delegate that duty to another,
constitutes neglect. See id. at 296-97 (affirming neglect finding when, after
father was notified that child was ready to be discharged from hospital, he
refused to take custody of child or arrange a safe place for the child to go); In re
G.B., 174 N.H. 575, 581-82 (2021) (similar). Here, the parties disagree as to
whether Mother continued to have a parental duty to provide safe shelter
notwithstanding the existence of the guardianship.
We look to the language and purpose of both the Child Protection Act
and the guardianship statute to resolve this question. See Chrestensen, 172
N.H. at 43. The Child Protection Act defines “[r]esidual parental rights and
responsibilities” as “those rights and responsibilities remaining with the parent
after the transfer of legal custody or guardianship except guardianship
pursuant to termination of parental rights, including, but not limited to, right
of visitation, consent to adoption, right to determine religious affiliation and
responsibilities for support.” RSA 169-C:3, XXVII (emphases added).
Ordinarily, when the legislature uses the phrase “including, but not limited to”
in a statute, we apply the statutory interpretation principle of ejusdem generis.
See State v. Moore, 173 N.H. 386, 391-92 (2020). Under this principle, when
specific words in a statute follow general ones, the general words are construed
to embrace only persons or things similar in nature to those enumerated by the
specific words. See id. at 392. When applying this principle, we are often able
to discern a common theme or character of the specific enumerated words,
which aids our interpretation of the more general word or words. See, e.g., id.(enumerated list of services compensable under restitution statute were all
healthcare services); In the Matter of Clark & Clark, 154 N.H. 420, 423 (2006)
(explaining that the enumerated sources of “gross income” for child support
purposes share two characteristics).
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Here, however, we are unable to discern a unifying characteristic shared
by the residual parental rights and responsibilities listed in RSA 169-C:3,
XXVII. We therefore find the principle of ejusdem generis unhelpful in this
instance. See State v. Small, 99 N.H. 349, 351 (1955) (observing that the rule
of ejusdem generis “is neither final nor exclusive” and serves only as a tool —
not an edict — in ascertaining legislative intent). We instead look to the
purposes of both of the statutory schemes at issue and construe the statutory
language in light of those purposes. See Chrestensen, 172 N.H. at 43; see also
Small, 99 N.H. at 351 (explaining that ejusdem generis “is always subject to the
qualification that general words will not be used in a restricted sense if the act
as a whole indicates a different legislative purpose in view of the objectives to
be attained”).
Both statutes express legislative intent to prioritize the best interests of
the child. See RSA 169-C:2, I (2022); RSA 463:1 (2018). Moreover, both
statutes express legislative intent that a child should, when possible, remain in
his “own home” or “home community.” RSA 169-C:2, II, III(b) (2022); RSA
463:1. In other words, the statutes express legislative preference for in-home
placements over out-of-home placements — placements “with someone other
than the child’s biological parent or parents, adoptive parent or parents, or
legal guardian.” RSA 169-C:3, XX-a (2022). Recognizing a residual parental
duty to provide for the minor’s basic shelter in the event that a legal guardian
fails to do so furthers the statutory purposes by providing the child an
opportunity for a “home” placement. See RSA 169-C:2, II, III(b); RSA 463:1; cf.
RSA 169-C:6-a, I (requiring, before emergency removal of child and placement
in foster care, that DCYF inform court of efforts to locate non-custodial parent
or other relatives for temporary placement).
Recognizing such a residual parental duty is also consistent with the
plain language of the guardianship statute. The statute requires a guardian to
“[b]ecome or remain personally acquainted with” and “maintain sufficient
contact with the minor,” RSA 463:12, II(a), and permits, but does not require,
the guardian to take custody of the minor and establish where the minor will
live, RSA 463:12, III(b). The statute thus contemplates that someone other
than the guardian may have physical custody of the minor, which could
include the parent or parents. See RSA 463:12, II-III; RSA 463:1 (recognizing
that interests of a minor are “generally best promoted in the minor’s own
home”); cf. B.C., 174 N.H. at 632 (concluding that a “guardianship may, in
some instances, exist concurrently with an award of legal custody to another
individual or entity”). The fact that a guardian appointed under RSA chapter
463 does not automatically receive physical custody of the minor supports the
notion that a parent retains a residual parental responsibility to provide the
child safe shelter if and when the guardian is unable or unwilling to do so. In
light of the language of RSA 169-C:3, XXVII, RSA 463:12, and RSA 463:13 and
the shared purposes of both statutory schemes, we conclude that the
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legislature intended that parents retain a residual parental responsibility —
after receiving actual notice that the child’s guardian is unable or unwilling to
provide the child basic shelter — to take physical custody of the child or
otherwise ensure that the child has a safe place to go.
We are not persuaded by Mother’s arguments to the contrary. First,
Mother argues that In re Faith T., 165 N.H. 346 (2013), supports the
proposition that the guardianship relieved her of her parental duty to provide
J.H. basic shelter. Faith T. did not involve an appeal of a neglect finding;
rather, it concerned the interpretation of one statutory basis for the
termination of parental rights. See Faith T., 165 N.H. at 348-49; RSA 170-C:5,
II (Supp. 2022). In Faith T., we explained that, under RSA 170-C:5, II, “‘when
legal custody [of the child] is lodged with others,’” a parent can have her
parental rights terminated if, although financially able, she neglects to pay for
the child’s “‘subsistence, education or other care necessary for [the child’s]
mental, emotional, or physical health.’” Faith T., 165 N.H. at 348 (quoting RSA
170-C:5, II (2002)) (emphasis omitted). We observed that, on the other hand, a
parent cannot have her parental rights terminated under RSA 170-C:5, II
based upon a failure to provide for or manage the “care necessary for the
child[]’s ‘mental, emotional, or physical health’” because such care “is the
province of those in whom legal custody is lodged.” Id. In Faith T., however,
we had no occasion to consider whether a parent’s failure to provide necessary
care — when the person with legal custody of the child has failed to provide
necessary care — constitutes neglect under RSA chapter 169-C. See id. at
348-49; see also In re C.M., 163 N.H. 768, 774 (2012) (discussing the
differences between abuse and neglect proceedings and proceedings to
terminate parental rights). Accordingly, we disagree with Mother’s contention
that Faith T. controls here.
Mother next asserts that reunification with J.H. “under RSA 169-C:23
cannot even happen because the RSA 463 guardianship is still in place.” Even
if we assume that the guardianship is a barrier to future reunification with
Mother, that does not undermine the residual parental responsibility
recognized herein: when contacted by DCYF about the Guardian’s inability to
provide shelter, Mother had a duty to take custody of J.H. or otherwise ensure
he had safe shelter. Additionally, we note that J.H.’s reunification with Mother
is not the only possible outcome of this neglect proceeding, see RSA 169-C:24-
a, III(a) (2022); RSA 169-C:24-b, II(a) (2022), and that, if Mother wishes to
reunify with J.H., there are avenues by which the guardianship can be
terminated, see RSA 463:15, IV (2018) (termination of guardianship); see also
In re O.D., 171 N.H. 437, 438-39 (2018) (observing that, after children were
found to be neglected, court terminated grandmother’s guardianship over the
children “at DCYF’s request”).
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In sum, we conclude that, notwithstanding the existence of a
guardianship over a child, parents retain certain residual parental rights and
responsibilities as a matter of law. Those residual responsibilities include the
duty to take physical custody of the child or otherwise ensure that the child
has a safe place to go after the parent receives actual notice that the child’s
guardian is unable or unwilling to provide the child basic shelter. Because, as
a matter of law, Mother owed that residual parental duty to J.H., we conclude
that the trial court did not err when, notwithstanding the existence of the
guardianship, it found that Mother had neglected J.H.
Mother next asserts that the court’s neglect finding was unsupported by
the evidence, see N.T., 175 N.H. at 311, for two reasons: DCYF did not offer the
final guardianship order into evidence; and DCYF failed to prove that the
neglect was not due primarily to her lack of financial means. Turning to
Mother’s first sufficiency argument, she posits that it is possible that the
guardianship order prevents her from having contact with J.H., which would
have posed a legal and practical barrier to her ability to fulfill her residual
parental duty. Accordingly, she asserts that DCYF could not meet its burden
of proving she neglected J.H. without providing the final guardianship order
and demonstrating that she could have contact with J.H.
We decline to address the merits of this argument because Mother did
not adequately preserve it for our review. Parties generally may not have
judicial review of matters not raised in the trial forum. Dukette v. Brazas, 166
N.H. 252, 255 (2014). It is Mother’s burden, as the appealing party, to
demonstrate that she specifically raised before the trial court the arguments
articulated in her brief. Id. Although Mother’s counsel questioned the CPSW
at the hearing about her knowledge, or lack thereof, of the final guardianship
order, counsel did not raise any argument in closing based upon the absence of
the final guardianship order from the record. Nor does the appellate record
contain a motion for reconsideration. Accordingly, Mother has failed to
demonstrate that she preserved this argument. See id.Finally, we turn to Mother’s argument that the record contains
insufficient evidence that the neglect was not due primarily to her lack of
financial means. She asserts that, because DCYF did not investigate her
financial status, it could not meet its burden of proof. We disagree.
As relevant here, a “[n]eglected child” is defined as a child:
(b) Who 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
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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) (emphasis added). “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 that are the conditions of neglect that must be repaired and corrected in
the circuit court process.” G.B., 174 N.H. at 581 (quotation and brackets
omitted). DCYF bears the burden of proving neglect allegations by a
preponderance of the evidence. See RSA 169-C:13 (2022).
Under RSA 169-C:3, XIX(b), DCYF must satisfy this burden by showing,
by a preponderance of the evidence, that any deprivation of parental care or
control was “not due primarily to the lack of financial means of the parents,
guardian, or custodian.” RSA 169-C:3, XIX(b); see also In re H.B., 175 N.H.
592, 595 (2023). In other words, DCYF must prove that a lack of financial
means was not the “primary cause” of the neglect. H.B., 175 N.H. at 595
(emphasis omitted). In H.B., we rejected the proposition that DCYF must
always put on evidence of the parents’ financial status in order to meet this
burden. Id. Instead, we explained, DCYF can meet its burden of proving that a
lack of financial means was not the primary cause of neglect by “[p]roviding
evidence that the parents do not lack financial means” or “by proving that
something else, unrelated to the parents’ financial means, was the primary
cause.” Id.
The record here demonstrates that DCYF proved, by a preponderance of
the evidence, that “something else, unrelated to [Mother’s] financial means,”
id., was the primary cause of the neglect. The CPSW testified that she spoke
with Mother on the phone for approximately twenty to thirty minutes. During
that conversation, Mother indicated that she was currently living with friends
and would soon be moving into a homeless shelter, but Mother “did not say she
was not financially able to take” J.H. In fact, the CPSW testified that, if the
only barrier to Mother taking custody of J.H. had been her lack of stable
housing or her financial means, the CPSW “would have had a conversation
[with Mother] and talked about how that could happen.” Instead, the barriers
that Mother identified as preventing her from taking custody of J.H. were her
strained and distant relationship with J.H. and his past abuse of other
children. Mother’s testimony was, to some extent, consistent with the
testimony of the CPSW. Mother testified that when the CPSW asked her if she
could take J.H., she declined because of her “rough relationship” with J.H.,
which was based on his history of victimizing other children. Mother also
testified that she and the CPSW talked more about her relationship with J.H.
and the fact that she had a newborn in her care than they discussed her living
situation.
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This evidence is sufficient to establish, by a preponderance of the
evidence, that Mother’s relationship with J.H. and J.H.’s past behavior — not
Mother’s financial status — were the primary reasons that Mother declined to
take J.H. into her care and J.H. was thereby neglected. We therefore conclude
that the record supports the trial court’s finding that Mother’s failure to provide
proper parental care or control of J.H. was “not due primarily to” Mother’s “lack
of financial means.” RSA 169-C:3, XIX(b); see also N.T., 175 N.H. at 311.
In sum, we hold that, despite the existence of a guardianship over the
child, a parent retains a residual responsibility to provide safe shelter for the
child when informed that the guardian is unable or unwilling to do so. We also
determine that there was sufficient evidence to support the court’s finding that
the neglect was not due primarily to Mother’s lack of financial means.
Accordingly, we conclude that the trial court did not err when it found that
Mother neglected J.H.
Affirmed.
MACDONALD, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.
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