In re J.R.; In re S.R.; In re B.R. ( 2023 )

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
6th Circuit Court-Concord Family Division
Nos. 2022-0329
2022-0356
IN RE J.R.; IN RE S.R.; IN RE B.R.
Argued: February 23, 2023
Opinion Issued: April 25, 2023
Pearlman Legal Enterprises, of Boston, Massachusetts (David A.
Pearlman on the brief and orally), for father.
Sommers Law, PLLC, of Concord (Eric M. Sommers on the brief and
orally), for mother.
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.
DONOVAN, J. The appellants, father and mother, challenge multiple
orders of the Circuit Court (Luneau, J.) (McIntyre, J.) finding that both parents
neglected their children and ordering the children’s removal from their home.
On appeal, mother and father argue that both findings were unsupported by
the evidence. Father also argues that the court’s orders failed to provide
specific written findings as required by RSA 169-C:6-b, III (2022). We affirm.
I. Facts
The following facts were found by the trial court or are supported by the
record. The appellants are the parents of B.R., S.R., and J.R. Both parents
have a significant history with the New Hampshire Division for Children, Youth
and Families (DCYF), including reports of concern in both 2015 and 2019 due
to allegations that one or both parents were manufacturing or selling
methamphetamines in the home with the children present. The 2019 report of
concern resulted in the children’s removal from the home and neglect findings
against both mother and father. In March 2020, the parents and the children
were reunified and the case closed.
In October 2020, December 2020, and March 2021, DCYF received three
separate reports of concern from the children’s school district regarding
absences at school. In each case, the school district informed DCYF that it had
difficulties contacting the parents to address the attendance issues.
Ultimately, DCYF closed each report as either incomplete or unfounded
because either it could not investigate the school district’s concerns or the
mother agreed to engage in services with a third party. Nevertheless, on
December 8, 2021, DCYF received another report of concern from the school
district regarding each of the children’s lack of attendance at school. In the
ensuing investigation, DCYF discovered that all three children had been absent
or tardy for a significant portion of the 2021-2022 school year. Specifically, by
December 8, 2021, B.R. had already missed 43 out of 62 days of the school
year.
A child protective services worker (CPSW) contacted the mother and
arranged to visit the home on December 13, 2021. Mother informed the CPSW
that on November 30, she had enrolled B.R. in six courses through the Virtual
Learning Academy Charter School (VLACS) for the purpose of homeschooling
the child. She shared a letter of intent to homeschool B.R. with the CPSW and
represented that she had mailed it to the school district. On January 20, after
the school district refuted mother’s homeschooling representation, the CPSW
conducted an unannounced home visit. Mother again stated that B.R. was
being homeschooled through VLACS courses, but admitted that B.R. was
currently only participating in two courses. When asked about her other two
children’s lack of attendance at school, mother acknowledged that S.R. and
J.R. had frequently been absent from or tardy to school and were not engaged
in homeschooling.
Between December and February, the CPSW also made repeated
attempts to contact father by phone and mail. Despite mother confirming
father’s phone number and his receipt of the CPSW’s letter, father did not
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respond to the CPSW. Father was not present for the first home visit and,
during the second home visit, mother stated that father was sick and could not
speak with the CPSW.
On January 21, the school district — which had access to B.R.’s VLACS
account — informed the CPSW that B.R. was not participating in any VLACS
courses. The assistant superintendent responsible for the homeschool
registration process also informed the CPSW that she had not received a letter
of intent from mother to homeschool B.R. On February 4, 2022, DCYF filed
neglect petitions against both mother and father alleging educational neglect of
all three children. Thereafter, the school district informed the CPSW that on
February 5 it had received from the mother a letter of intent to homeschool
B.R. On February 9, the trial court held a preliminary hearing on the neglect
petition and found that B.R., S.R., and J.R. were “neglected children pursuant
to RSA 169-C:3, XIX(b).” The court granted DCYF legal supervision of the
children and permitted the children to continue to reside with mother and
father with certain conditions, including cooperation with DCYF.
On March 4, DCYF learned from law enforcement that mother had been
arrested on February 17 for possession and conspiracy to sell
methamphetamine. Mother’s arrest resulted from an investigation by state and
federal agencies that targeted thirteen individuals in a multi-month, cross-
border drug trafficking ring. The CPSW spoke with mother about the arrest.
Mother confirmed that she had been pulled over and that law enforcement
searched her car, but denied any methamphetamine possession or knowledge
of the other twelve individuals identified in the drug trafficking investigation.
Thereafter, law enforcement provided the CPSW with the underlying facts
surrounding the mother’s arrest, and the CPSW had the opportunity to view a
video of mother’s post-arrest interview with law enforcement. In the interview,
mother admitted that on three occasions between November 2021 and
February 2022 she purchased an ounce of methamphetamine from a dealer
she believed to be associated with a drug cartel. Mother stated that on at least
two occasions after she purchased the methamphetamine, she either
transported the drugs to her home or had been on her way home prior to being
detained by law enforcement. Mother also stated that when she had friends
over to her house, they would take the methamphetamine together.
On March 10, the CPSW conducted an unannounced home visit. The
CPSW spoke with father, who denied having any knowledge of mother’s arrest.
Father also assured the CPSW that neither he nor mother used illegal drugs or
interacted with anyone involved in the drug trafficking investigation. Mother
again denied any involvement in drug trafficking and disavowed her post-arrest
admissions to the police. On March 11, based upon the criminal allegations
against mother, DCYF filed a motion for ex parte removal of the children from
the home. The trial court granted the motion and found that mother’s
continued involvement in drug trafficking beginning in 2015, and her risk-
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taking behavior related thereto, “demonstrate that the children’s health or life
are in imminent danger if they are allowed to remain in the parents’ home.”
The court awarded DCYF protective supervision of the children.
On March 29 and 31, the court held an adjudicatory hearing at which
DCYF presented testimony from two counselors from the children’s school
district and the two CPSWs involved in the investigation. Father testified, but
mother did not. At the conclusion of the adjudicatory hearing, the court issued
an order finding that both mother and father neglected the children. The court
further found that DCYF had made reasonable efforts to prevent the children’s
removal from the home and that return of the children to the home would be
contrary to their welfare. In support of its findings, the court relied upon “the
facts and circumstances set forth” in the court’s prior ex parte order, DCYF’s
motion for removal, and the CPSW’s affidavit. Accordingly, the court awarded
DCYF legal custody of the children with continued out-of-home placement.
In May 2022, following a dispositional hearing, the court found that
return of the children to their home would be contrary to their welfare because
neither parent had corrected the behavior that led to the children’s initial
removal. Father and mother each appealed separately. We accepted the two
appeals and consolidated them.
II. Standard of Review
When reviewing final orders in abuse and neglect cases, we will uphold
the findings and rulings of the trial court unless they are unsupported by the
evidence or tainted by error of law. In re Craig T., 144 N.H. 584, 585 (1999).
As the trier of fact, the trial court is in the best position to assess and weigh
the evidence before it. Id. Thus, our task is not to determine whether we
would have found differently, but, rather, whether a reasonable person could
have found as the trial court did. Id.III. Analysis
On appeal, both mother and father challenge the sufficiency of the
evidence supporting the trial court’s findings of neglect. As an initial matter,
based upon DCYF’s initial petitions for neglect, we construe the court’s
adjudicatory order as finding, in part, that B.R., S.R., and J.R. were neglected
children because they were without proper “education as required by law.”
RSA 169-C:3, XIX(b) (2022); see State v. Kay, 162 N.H. 237, 242 (2011) (“Our
interpretation of a trial court order is a question of law, which we review de
novo.”). DCYF bears the burden of proving neglect by a preponderance of the
evidence. See RSA 169-C:13 (2022). RSA 169-C:3, XIX(b) provides that a
“Neglected child” means a child:
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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 serious impairment; and
the deprivation is not due primarily to the lack of financial means of the
parents, guardian, or custodian . . . .
(Emphasis added.) See also RSA 169-C:3, XXVII-a (2022) (defining “serious
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”). As relevant here, when determining the likelihood that a child may
suffer serious impairment, the trial court must consider, among other things:
(1) “[t]he age and development level of the child”; (2) “[s]chool attendance and
performance”; and (3) “[f]indings in other proceedings.” RSA 169-C:3, XXVII-a.
Moreover, “statutory 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
re J.H., 171 N.H. 40, 49 (2018) (quotation omitted).
Here, mother argues that “[t]he trial court erred in finding that [B.R.] was
educationally neglected” based upon a lack of attendance at public school. She
maintains that beginning on December 1, 2021, B.R. received home education
pursuant to RSA chapter 193-A (2018), and thus was “exempt from compulsory
attendance under RSA 193:1.” In support, mother relies upon her email to the
school district containing a letter of intent to homeschool B.R., which was
dated December 1, 2021, but received by the school district on February 5,
2022. Therefore, she argues, it is “axiomatic that a claim for neglect cannot be
based on not attending a school where a child is not a student.” (Emphasis
omitted.) In her view, the petition should have been dismissed because the
school district acknowledged that B.R. commenced a home education program
as of December 1, 2021, and the record supports that mother remedied any
issue of educational neglect through B.R.’s participation in homeschooling
courses thereafter. We are unpersuaded.
Even if we credit mother’s argument that B.R. commenced a home
education program as of December 1, 2021, the trial court considered B.R.’s
truancy from public school for the entirety of the 2021-2022 school year. The
record supports that prior to December 1, 2021, B.R. missed 37 out of 56
school days with unexcused absences while still enrolled in public school.
Indeed, B.R. did not attend public school at all in the month of November,
which mother attributed to concerns over “other children’s behaviors at
school.” Moreover, the record demonstrates that, once he was allegedly
enrolled in homeschooling after December 1, 2021, B.R. did not consistently
participate in the VLACS courses. Specifically, when DCYF filed its neglect
petition, B.R. was not participating in any VLACS courses because B.R.
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dropped four courses, had yet to begin another, and was suspended from the
remaining course due to non-participation. Therefore, the evidence before the
trial court for the period alleged in DCYF’s neglect petition was that B.R.: (1)
had been absent for the majority of school days while enrolled in public school;
and (2) had not consistently participated in any of the required courses while
homeschooled. We conclude that the record supports the trial court’s finding
that mother neglected B.R. by failing to provide an education as required by
law.
Father also argues that the evidence was insufficient to support the trial
court’s finding that he neglected the children. Specifically, he maintains that
his failure to cooperate with DCYF during the educational neglect assessment
was the sole basis for the court’s decision. Therefore, father argues, the court
erred by focusing upon his own actions, as opposed to the likelihood of or
actual serious impairment of the children’s physical, emotional, and mental
well-being. We disagree. As previously discussed, the court found, in part,
that B.R., S.R., and J.R. were neglected children because they were without
proper “education as required by law.” RSA 169-C:3, XIX(b). In support, the
court referred to its prior finding in its ex parte order of March 11, 2022, that
based upon the testimony of the CPSW, all three children had been absent or
tardy for a significant portion of the 2021-2022 school year.
As a custodial parent, father shared with mother equal responsibility to
provide his children with an education as required by law. See RSA 169-C:3,
XVII(d) (2022) (defining legal custody as including “[t]he responsibility to
provide the child with . . . education”); RSA 169-C:3, XIX(b). Contrary to
father’s argument, the court’s reference to father’s failure to engage with DCYF
during the educational neglect assessment was not the sole finding supporting
the court’s order. Rather, the court found that father, as a custodial parent,
failed to fulfill his duty to provide the children with an education as required by
law, and that his lack of engagement with DCYF to correct his children’s
truancy constituted an additional factor supporting that determination. See
RSA 169-C, XIX(b). Accordingly, we conclude that the record supports the
court’s finding of neglect as to father.1
Mother and father further contend that the trial court erred in finding
educational neglect as to B.R. because DCYF admitted that it did not follow its
own internal policy before conducting its educational neglect assessment.
Specifically, both parents rely upon DCYF internal policies that require DCYF
intake staff to first initiate a voluntary children in need of services (CHINS) case
before beginning an educational neglect assessment when screening cases of
1 We also note that DCYF’s neglect petition alleged that the children’s truancy occurred during the
2021-2022 school year, when the school district had returned to in-person instruction. We
therefore reject father’s argument that the children’s truancy can be attributed to the difficulties of
tracking student attendance during the remote learning period of the COVID-19 pandemic.
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educational neglect “for youth 14 years of age and older.” In mother’s view,
because DCYF admitted that it did not follow this policy in this instance, “[i]t is
not reasonable for a court to find educational neglect” based upon facts from
the ensuing educational neglect assessment.
However, neither parent cites persuasive authority for the position that
DCYF’s failure to follow its own internal policy in conducting an educational
neglect assessment precludes the circuit court from finding educational neglect
based upon evidence gathered during the assessment. Gallo v. Traina, 166
N.H. 737, 740 (2014) (the appealing party has the burden of demonstrating
reversible error). Instead, we agree with DCYF that a court’s determination of
neglect is defined exclusively by statute in RSA chapter 169-C and our case law
interpreting that chapter. Indeed, crediting this argument that a court must
deny a petition for neglect when DCYF does not follow its own internal policies
would, in effect, add language to the statute that the legislature did not see fit
to include. State v. Pinault, 168 N.H. 28, 31 (2015) (“[W]e interpret legislative
intent from the statute as written and will not consider what the legislature
might have said or add language it did not see fit to include.”).
Mother and father also argue that the trial court erred in finding neglect
and ordering the removal of the children based upon the criminal charges
against mother. The relevant statutory framework provides that, if the court
finds that a child is abused or neglected, the court may order that legal custody
be transferred to a child placing agency. RSA 169-C:19, III(a). The primary
purpose of RSA chapter 169-C is “to provide protection to children whose life,
health or welfare is endangered.” RSA 169-C:2, I. Moreover, “[t]he best
interest of the child shall be the primary consideration of the court in all
proceedings under this chapter.” Id. As relevant here, RSA 169-C:18 provides,
in part:
If a preliminary order provided for an out-of-home placement of the child,
the child shall not be returned to the home unless the court finds that
there is no threat of imminent harm to the child and the parent or
parents are actively engaged in remedial efforts to address
the circumstances surrounding the underlying petition.
RSA 169-C:18, V-c (emphasis added); see also RSA 169-C:23.
Here, the court granted DCYF’s initial motion for ex parte removal of the
children. The court found that both parents’ “extensive history with DCYF,”
related to “continued involvement in drug trafficking,” supported the
conclusion that the children’s health or life would be in imminent danger if
they were allowed to remain in the parents’ home. Thereafter, the court found
in both its adjudicatory and dispositional orders that returning the children to
their parents’ home would be contrary to their welfare. Specifically, the court
determined that neither parent had engaged in remedial efforts to address the
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circumstances that led to the children’s initial removal from the home. The
court reasoned that mother “still has not acknowledged the admissions she
made to police” concerning her arrest for drug trafficking and “maintains that
even if true, this conduct has nothing to do with her children.” Likewise, the
court found that father’s “behavior also remains unchanged in that he
continues to ignore DCYF’s attempts to contact him . . . instead choosing to
remain uncooperative and disengaged.” The court further found that father
“has not put forth any effort to address the conditions that led to the children’s
removal from [the] home.”
Mother and father both argue that the court erred in ordering removal of
the children because the evidence was insufficient to demonstrate “that the
children had suffered or were likely to suffer serious impairment if left in the
home.” Specifically, mother argues that DCYF presented no evidence that the
“children had any contact with drugs, that there was a pervasiveness of drugs
in the home (or any for that matter), or that those conditions were continuing
an[d] ongoing.” (Emphasis omitted.) Instead, mother argues, based upon the
criminal charges against her, “DCYF asked the court to infer” that mother was
currently using or selling drugs and that they were in her home. Likewise,
father argues that “there was no evidence that [mother’s] criminal charges
adversely affected the children or placed them at risk, nor any evidence
whatsoever that [father] posed any risk, present or future.” We disagree.
Based upon mother’s post-arrest interview with law enforcement,
concurrent with the children’s truancy, mother purchased an ounce of
methamphetamine on three occasions between November 2021 and February
2022. The CPSW testified that on one occasion mother transported the
methamphetamine back to her home and, on another occasion, she was on her
way home with the drug prior to being detained by the police. Mother also
admitted that her drug source was associated with a “cartel” and had
previously approached her about taking over distribution. Further, during her
interview mother stated that she used the drug with friends when they came to
her home. The court, when considering the ongoing risk of harm to the
children, also referenced both parents’ prior history of manufacturing and
selling drugs. See RSA 169-C:3, XXVII-a (requiring court to consider prior
neglect findings in determining the likelihood that a child may suffer serious
impairment). This history included a prior neglect and removal order against
both parents based upon substantially similar conduct involving drug
trafficking in 2019, as well as, in the instant case, mother purchasing an ounce
of methamphetamine from the same supplier despite law enforcement
previously confronting her with being involved in a drug ring.
Moreover, after the court granted DCYF’s motion for ex parte removal of
the children, neither mother nor father engaged in necessary remedial efforts to
address the circumstances that led to the children’s removal. See RSA 169-
C:18, V-c. Throughout the proceedings, the court found that mother refused to
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acknowledge her admissions to law enforcement concerning drug trafficking
and disputed how those actions related to her children. With respect to father,
the court found that, after he ignored DCYF’s efforts to contact him during the
educational neglect assessment, he denied any knowledge of mother’s criminal
activity or of any involvement with illegal drugs. Ultimately, although mother
did submit to drug testing, with a negative result, neither parent engaged with
DCYF to ensure that the children resided in a home free from the presence of
drugs, but, rather, continued to deny that any such conduct had occurred.
Accordingly, we conclude that the dangers associated with mother’s
continued involvement in drug trafficking, in addition to the court’s prior
finding of educational neglect, supported the court’s determination of imminent
harm to the children and their removal from the home. Although we recognize
that the basis of the imminent harm to the children stemmed from the criminal
allegations against mother, father, as a custodial parent, shared equal
responsibility and failed to protect the children from that imminent harm. See
RSA 169-C:3, XVII (c) (defining legal custody as including “[t]he right and the
duty to protect” the child). Moreover, both parents’ failure to engage in
remedial efforts to correct the conditions that caused the children’s initial
removal support the court’s findings in its subsequent orders that the
children’s return to the home would be contrary to their welfare. See RSA 169-
C:18, V-c.
Father next challenges the court’s removal order by asserting that the
court erred “when it failed to provide specific written findings for the neglect
and out-of-home placement determinations” against him. Father concedes that
he failed to preserve this issue for appeal, but argues that the trial court
committed plain error. See Sup. Ct. R. 16-A. To find plain error: (1) there
must be error; (2) the error must be plain; (3) the error must affect substantial
rights; and (4) the error must seriously affect the fairness, integrity, or public
reputation of judicial proceedings. State v. Hanes, 171 N.H. 173, 182 (2018).
The plain error rule is used sparingly, however, and is limited to those
circumstances in which a miscarriage of justice would otherwise result. Id.We conclude that father has failed to establish that the trial court committed
plain error.
RSA 169-C:6-b, III provides that if the court orders a child’s removal
from his or her home, “the court order for removal shall include specific written
findings regarding the need for the out-of-home placement.” In addition, “[t]he
order shall briefly state the facts the court found to exist that justify ordering
the placement.” RSA 169-C:6-b, III. Here, father argues that the court’s
adjudicatory and dispositional orders did not provide specific written findings
about his own conduct and instead “merely alluded to broad, non-specific
concerns” of his lack of engagement with DCYF. Specifically, father appears to
argue that the court’s adjudicatory order, incorporating by reference its prior
findings in its ex parte removal order, did not constitute specific written
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findings as required by RSA 169-C:6-b, III.2 In his view, the court erred in this
regard because “[r]eferencing other documents in a vague, wholistic manner
does not constitute a specific written finding by the court.”
To the contrary, the court’s ex parte order of March 11, 2022, which
ordered the children’s initial removal from the home, included multiple written
findings, including: (1) the children’s truancy; (2) both parents’ history of
involvement with DCYF for prior instances of drug trafficking; (3) mother’s
admissions to law enforcement and the facts underlying her most recent arrest
for drug trafficking; and (4) both parents’ similar denials of any knowledge of
the circumstances underlying mother’s arrest. The court then found that these
findings “demonstrate that the children’s health or life are in imminent danger
if they are allowed to remain in the parents’ home.” (Emphasis added.)
Therefore, the court did not rely solely upon father’s lack of engagement with
DCYF. Rather, the court found that, as a custodial parent, father failed to
protect the children from imminent harm in the collective “parents’ home.” See
RSA 169-C:3, XVII(c) (defining legal custody as including “[t]he right and the
duty to protect” the child). We conclude that when properly considering the
trial court’s reference to father’s failure to fulfill his duties as a custodial
parent, the court’s initial ex parte removal order included specific written
findings as required by RSA 169-C:6-b, III.
In the court’s subsequent adjudicatory order that same month, in
support of its removal finding, the court incorporated by reference the same
findings articulated in its ex parte order. Based upon its incorporation by
reference of its prior ex parte order, we conclude that the court’s adjudicatory
order made “specific written findings regarding the need for the out-of-home
placement” and stated sufficient facts to justify ordering that placement. RSA
169-C:6-b, III. Father appears to argue that based upon our holding in In re
G.B., 174 N.H. 575 (2021), the court’s incorporation by reference of its prior ex
parte order was insufficient. Nothing stated in In re G.B. precludes a court
from incorporating by reference a prior order to satisfy the requirement that it
provide specific written findings pursuant to RSA 169-C:6-b, III. See In re
G.B., 174 N.H. at 582-83.
Father further argues that the trial court committed plain error in its
dispositional order by failing to include sufficient written findings as required
by RSA 169-C:6-b, because it only “alleged lack of engagement and cooperation
with DCYF.” We need not decide whether RSA 169-C:6-b requires specific
written findings in the initial “court order for removal” or, as father argues, in
2 To the extent that father argues that the court’s neglect findings in the adjudicatory order are
not specific written findings, RSA 169-C:6-b, III requires specific written findings regarding only
the need for out-of-home placement, not regarding whether the child has been neglected. To the
extent that father challenges whether the evidence itself is sufficient to support a finding of
neglect, we address these arguments elsewhere in our opinion.
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any subsequent orders that continue an out-of-home placement. Crediting
father’s argument would, arguably, render superfluous the requirement in RSA
169-C:18, V-c, that a court order that continues an out-of-home placement
“shall include the facts supporting the placement.” See Pinault, 168 N.H. at
916 (“[W]e interpret a statute in the context of the overall statutory scheme and
not in isolation.”). Given our prior conclusion that the trial court’s initial
removal order contained specific written findings, we conclude that father has
failed to demonstrate that any error the trial court may have committed in its
dispositional order constitutes a “plain error.”
Finally, mother argues that the trial court erred in finding that DCYF
made reasonable efforts to prevent the children’s removal. RSA 169-C:6-b, II
provides that “[t]he court shall within 60 days of a child’s removal from the
home, determine and issue written findings as to whether reasonable efforts
were made or were not required to prevent the child’s removal.” When
“determining whether reasonable efforts were made to prevent the child’s
removal, the court shall consider whether services to the family have been
accessible, available, and appropriate.” RSA 169-C:6-b, II. Here, mother
complains that DCYF did not perform a search of the home prior to filing its ex
parte motion for removal of the children. Regardless, DCYF engaged with law
enforcement and obtained all of the information relating to the circumstances
surrounding mother’s arrest, which included the probable cause statement by
the officer who seized mother’s car, a redacted copy of the police report, and her
post-arrest interview. DCYF then spoke to each parent about the underlying
allegations and, contrary to mother’s previous admissions to law enforcement,
each parent denied the allegations. Based upon the parents’ refusal to even
acknowledge the existence of the drug trafficking investigation or the risks
posed to the children by mother’s alleged conduct, we conclude that the record
supports the trial court’s determination that reasonable efforts were made by
DCYF to prevent the children’s removal from the parents’ home.
Affirmed.
MACDONALD, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.
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