In re J.H. In re A.H.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit Court-Manchester Family Division
No. 2017-0086

IN RE J.H.;

IN RE A.H.

Argued: February 1, 2018
Opinion Issued: June 8, 2018

Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior
assistant attorney general, on the brief and orally), for New Hampshire Division
for Children, Youth and Families.

Kurdek Law Office, PLLC, of Merrimack (Dennis J. Kurdek on the brief
and orally), for Father.

Nixon Peabody LLP, of Manchester (Mark Tyler Knights on the brief and
orally), for CASA of New Hampshire.

HANTZ MARCONI, J. Father challenges the Circuit Court’s (Carbon, J.)
authority to hold a hearing to determine his parental fitness to regain custody
of his children, J.H. and A.H., following the dismissal of the neglect petitions
filed by the New Hampshire Division for Children, Youth and Families (DCYF)
against him. See RSA 169-C:19-e (2014). Father also appeals the trial court’s
dispositional order imposing conditions on him before his children could be
returned to his custody, after finding that the children were neglected by
Mother but not by Father. See RSA 169-C:18 (Supp. 2017), :19 (2014), :21
(2014), :23 (2014). We affirm.

I

The record supports the following facts. Mother, who is not a party to
this appeal, and Father are the parents of J.H. and A.H.; the parents and the
children shared the same home. In November 2016, DCYF filed petitions for
neglect under RSA chapter 169-C (2014 & Supp. 2017) against Mother and
Father alleging neglect of both children. See RSA 169-C:6-a, VI (Supp. 2017),
:7 (2014). The affidavit of the child protective service worker attached to the
petitions alleged that Mother “has used heroin and likely requires treatment”
and that Father was aware of Mother’s heroin use and was unable or unwilling
to address it. At the preliminary hearing, the court found reasonable cause to
believe that the children were neglected by both Mother and Father. See RSA
169-C:15, I, III (2014). The court ordered an out-of-home placement because
continuation of the children in the home “present[ed] imminent danger to” the
children’s health until substance abuse issues were addressed. See RSA 169-
C:16, I(c) (2014). The court appointed Court Appointed Special Advocates for
Children of New Hampshire (CASA) to serve as the children’s guardian ad litem.
See RSA 169-C:15, III(a).

Following the adjudicatory hearing, the court dismissed the petitions
against Father because there was “insufficient evidence that he was aware of
Mother’s drug usage.” See RSA 169-C:18, IV. However, the court entered a
finding of neglect against Mother because of her opioid use and overdose. See
RSA 169-C:3, XIX(b) (Supp. 2017) (defining “[n]eglected child,” in part, as one
whose “health has suffered or is likely to suffer serious impairment”); RSA 169-
C:12-e (Supp. 2017) (providing that “[e]vidence of a custodial parent’s opioid
drug abuse . . . shall create a rebuttable presumption that the child’s health
has suffered or is very likely to suffer serious impairment”). In its adjudicatory
order, the court continued the out-of-home placement, finding that returning
the children to the home remained contrary to their welfare “[u]ntil such time
as all substance abuse and/or mental health issues are addressed.” See RSA
169-C:18, V-c. The court also ordered a social study and case plan from
DCYF. See RSA 169-C:18, V.

At the dispositional hearing, Father argued that he should be presumed
fit and requested immediate reunification with the children. Father objected to
the introduction of information concerning his mental health and domestic
violence issues recounted in reports submitted by DCYF and CASA. DCYF’s
and CASA’s reports alleged that Father had a history of mental health issues,
alcohol misuse, and domestic violence. Additionally, Father objected to the

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imposition of case plan conditions requiring him to participate in anything
other than supporting Mother in her sobriety.

In its final dispositional order, the court continued the out-of-home
placement based upon its finding that returning the children to the home
remained contrary to their welfare. See RSA 169-C:19, III, :21. The court
determined that the children could be returned home provided that the parents
meaningfully completed the dispositional case plan, demonstrated their “ability
to provide proper parental care,” and demonstrated that the children “will not
be neglected in the manner adjudicated on the initial petition.” See RSA 169-
C:23.

The case plan required Mother to “demonstrate an ability to maintain her
sobriety and address any mental health and/or domestic violence issues, while
simultaneously parenting her children in a safe, consistent, and age
appropriate manner,” and similarly required Father to “demonstrate an ability
to meaningfully identify and address the mother’s substance abuse issues,”
“demonstrate an ability to address any mental health and/or domestic violence
issues,” and “do these things while simultaneously parenting his children in a
safe and age-appropriate manner.” See RSA 169-C:21, II. In addition, the
parents were required to attend and participate meaningfully in counseling and
treatment, see RSA 169-C:19, IV (“The court may order any parent, guardian,
relative, custodian, household member, or child to undergo individual or family
therapy, or medical treatment.”), learn parenting skills from the parent aide
during supervised visits with the children, and “[o]btain and retain a home
reasonably free from untreated (or insufficiently treated) substance abuse,
domestic violence, and/or mental health issues.” See RSA 169-C:21, II. The
court’s narrative order noted the concern that Father’s mental health be
“properly addressed” as he plans to resume care and custody of the children.
The court stated that Father “must actively participate in a Case Plan to
address his abuse of alcohol, his anger, his mental health, and his lack of
observation of [Mother’s] use of illicit drugs.” Father appealed the court’s final
dispositional order to this court. But see RSA 169-C:28, I (2014) (providing for
appeal of “the final dispositional order” to the superior court for de novo
review).

Subsequently, the circuit court held a three-month review hearing. See
RSA 169-C:24, I (2014); see also RSA 169-C:28, I (providing that an appeal
does not suspend the order being appealed unless the court so orders). At the
hearing, Father again requested custody of the children based on his presumed
fitness. In its subsequent order, the court stated that it did not believe that a
failure to prove a petition of neglect makes a parent “fit” and scheduled a
parental fitness hearing to evaluate his request for custody. See RSA 169-
C:19-e. Father moved for reconsideration, arguing that because the State
failed to prove its neglect petitions against him, it failed to rebut the
presumption that he is a fit parent, and that RSA 169-C:19-e does not apply to

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him as a formerly accused but exonerated household parent. We stayed
Father’s appeal of the dispositional order pending the outcome of the fitness
hearing.

Following a three-day hearing, the court denied Father’s request for
custody. The court’s order reiterated many of the domestic violence, mental
health, and alcohol abuse incidents mentioned in the reports previously
submitted by DCYF and CASA and testified to during the fitness hearing. The
court’s order concluded by stating:

Incidents of this nature reflect significant instability which
leads the Court to question whether [Father] is emotionally capable
of caring for young children. Between his self-admitted anxiety
attacks and erratic driving while with the children, and his
willingness to open a can of beer while driving with the children,
coupled with his domestic violence and anger toward third parties,
the Court is of the opinion that DCYF has met its burden of proof,
by a preponderance of the evidence, that [Father] is not presently
fit to care for his children.

Father subsequently amended his notice of appeal to include a challenge to the
circuit court’s authority to hold a parental fitness hearing to determine his
ability to regain custody of his children. Father does not challenge the court’s
determination that he is “not presently fit to care for his children.”

On appeal, Father argues that, after dismissing the neglect petitions
against him, the trial court erred by: (1) requiring him to comply with case plan
conditions before reunifying him with his children; (2) ordering him to
participate in case plan conditions unrelated to supporting Mother in her
sobriety; and (3) holding a parental fitness hearing before reuniting him with
his children. These issues raise questions of statutory interpretation, which we
review de novo. See In re S.T., 169 N.H. 441, 448 (2016). Father also contends
that the trial court violated his constitutional rights by: (1) considering facts
not alleged in the petitions, nor proved during the adjudicatory hearing, in
crafting its dispositional order; (2) conditioning reunification with his children
on compliance with the case plan; and (3) holding a parental fitness hearing to
determine his ability to regain custody of his children. These issues raise
questions of constitutional law, which we also review de novo. See In re N.B.,
169 N.H. 265, 269 (2016).

II

We first address whether Father’s appeal is properly before us. RSA 169-
C:28 provides that an appeal under RSA chapter 169-C “may be taken to the
superior court by . . . any party having an interest . . . within 30 days of the
final dispositional order” and that the “superior court shall hear the matter de

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novo.” RSA 169-C:28, I. “The term ‘final dispositional order’ is a term of art
referring to the order of the district court following its dispositional hearing.”
In re Thomas M., 141 N.H. 55, 60 (1996). By virtue of the fact that a “final
dispositional order” is issued after a dispositional hearing, it necessarily
follows, and includes, adjudication. See RSA 169-C:19 (providing for a
dispositional hearing if the court adjudicates a child to be abused or neglected).
Adjudication includes a written “finding that the child has been abused or
neglected,” RSA 169-C:21, I, or a dismissal of the petition because of
insufficient evidence of abuse or neglect, see RSA 169-C:18, IV. Disposition
includes “the conditions the parents shall meet before the child is returned
home” and the specific plan describing the services that the child placing
agency will provide to the child and family. RSA 169-C:21, II.

With respect to the circuit court’s final dispositional order, Father does
not appeal the circuit court’s adjudication — its dismissal of the neglect
petitions filed against him. Rather, he appeals only its disposition — the case
plan and the conditions therein. Father argues that, pursuant to RSA 169-
C:28, he could not appeal the case plan without also subjecting the circuit
court’s dismissal of the neglect petitions against him to de novo review by the
superior court.

We have previously held that RSA 169-C:28 requires the superior court
to hear both the adjudicatory and dispositional aspects of a neglect case de
novo when both orders are appealed. Thomas M., 141 N.H. at 56, 60. We have
yet to determine whether a party may limit the scope of an appeal to the
superior court when seeking de novo review of the dispositional order only,
and, without sufficient briefing on this issue, we decline to resolve it. See In re
Juvenile 2003-604-A, 151 N.H. 719, 721 (2005) (declining to review
inadequately briefed argument).

In any event, Father could not have appealed to the superior court the
trial court’s post-dispositional order denying his request to regain custody of
his children. See In re Diane R., 146 N.H. 676, 678 (2001) (explaining that
RSA 169-C:28 “does not allow for de novo review of post-final dispositional
review orders”). In the instant case, where the questions that Father raises in
his appeal of both the final dispositional order and the trial court’s post-
dispositional order are related and constitute questions of law only, in the
interests of judicial efficiency and economy, we exercise our superintendent
jurisdiction over the circuit court and treat Father’s combined appeal as a
petition for a writ of certiorari. See In re Bill F., 145 N.H. 267, 271 (2000); see
also RSA 490:4 (2010). Our review of a court decision on a petition for a writ of
certiorari entails examining whether the court “acted illegally with respect to
jurisdiction, authority or observance of the law, or unsustainably exercised its
discretion or acted arbitrarily, unreasonably, or capriciously.” In re Juvenile
2006-833, 156 N.H. 482, 485 (2007) (quotation omitted).

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 III

We begin by addressing Father’s statutory arguments. Father first
challenges the trial court’s statutory authority to require compliance with case
plan conditions as a prerequisite for reunifying him with his children. Father
contends that once the neglect petitions against him were dismissed, the
children should have been immediately returned to his care and custody.

RSA 169-C:18 provides in relevant 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. RSA 169-C:21,
II states that, once the court finds that the child has been abused or neglected,
the court’s final dispositional order “shall include conditions the parents shall
meet before the child is returned home.” RSA 169-C:21, II (emphasis added).
The plain language of these provisions requires the court to order the parent or
parents to comply with conditions before the child can be returned to the
home. These provisions do not limit the imposition of conditions to parents
who have been adjudicated abusive or neglectful, nor do they prohibit the
imposition of conditions upon parents who have not been accused or who have
been exonerated. See RSA 169-C:3, XXI (Supp. 2017) (defining “[p]arent” to
mean “mother, father, adoptive parent”).

Here, an out-of-home placement was ordered in the preliminary order.
In both the adjudicatory and dispositional orders, the court found that the
children’s presence in the parents’ home remained contrary to their welfare and
ordered that they remain in an out-of-home placement. Therefore, RSA 169-
C:18, V-c prohibited the court from returning the children to the home, and,
thus, to Mother or Father’s custody, unless the court found that there was no
threat of imminent harm to the children and that Mother and Father were
actively engaged in remedial efforts to address the circumstances leading to the
neglect petitions. See RSA 169-C:18, V-c.

Father next argues that the trial court exceeded its authority by ordering
him to participate in case plan conditions unrelated to the fact that led to the
court’s finding that the children were neglected: Mother’s drug use. Father
argues that, although the trial court may have the authority to order him to
comply with case plan conditions, his compliance may not be a prerequisite for
reunification with his children. He also argues that such conditions are limited
to those “aimed at addressing the factors that led to the finding of [n]eglect
against Mother.” (Emphasis omitted.)

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 Once a child is adjudicated to be abused or neglected, the court “must
enter a final order in writing” that “shall include conditions the parents shall
meet before the child is returned home. The order shall also include a specific
plan which shall include, but not be limited to, the services the child placing
agency will provide to the child and family.” RSA 169-C:21, I, II. Nothing in
this provision limits the type of conditions that may be imposed.

However, RSA 169-C:18 provides, in relevant part, that an abused or
neglected child may not be returned to the home unless the court finds that
the “parents are actively engaged in remedial efforts to address the
circumstances surrounding the underlying petition.” RSA 169-C:18, V-c; see
also RSA 169-C:23, II (providing that child in out-of-home placement may not
be returned to the custody of his or her parents unless “child will not be
endangered in the manner adjudicated on the initial petition, if returned
home”). Father’s argument suggests that the language “in the manner
adjudicated on the initial petition” and “circumstances surrounding the
underlying petition” limits the conditions imposed to those addressing Mother’s
drug use.

A petition must “set forth the facts alleged to constitute abuse or neglect,
and the statutory grounds upon which the petition is based.” RSA 169-C:7, III.
Here, the petitions alleged neglect. A “[n]eglected child” is statutorily 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, when it is established that
the child’s health has suffered or is likely to suffer serious impairment.” RSA
169-C:3, XIX(b). In In re Juvenile 2006-674, we agreed with the trial court’s
interpretation of RSA 169-C:3, XIX(b) (2002) that 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 district court process.” In re Juvenile 2006-674, 156 N.H.
1, 5 (2007) (quotation omitted). Thus, the “circumstances surrounding the
underlying [neglect] petition,” RSA 169-C:18, V-c, that the parents must
remedy include the circumstances that threaten or actually cause “serious
impairment” to the child’s “physical, mental, or emotional health,” RSA 169-
C:3, XIX(b). Here, the circuit court properly applied the statutes when it
imposed conditions on both parents to remedy the circumstances that
threatened or actually caused harm to the children’s health.

Finally, Father argues that the trial court lacked statutory authority to
hold a parental fitness hearing pursuant to RSA 169-C:19-e. He contends that,
after a finding that his or her child has been abused or neglected, RSA 169-
C:19-e is only triggered when a non-accused, non-household parent requests
custody.

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 RSA 169-C:19-e, which codified the parental fitness hearing procedure
outlined in Bill F., provides:

A parent who has not been charged with abuse or neglect
shall be afforded, upon request, a full hearing in the district or
family court regarding his or her ability to obtain custody. At the
hearing, the parent shall be provided the opportunity to present
evidence pertaining to his or her ability to provide care for the child
and shall be awarded custody unless the state demonstrates, by a
preponderance of the evidence, that he or she has abused or
neglected the child or is otherwise unfit to perform his or her
parental duties.

RSA 169-C:19-e, I; see also Bill F., 145 N.H. at 274. At the time Father
requested custody of his children and the parental fitness hearing was held,
his children had been found to be neglected, but the neglect petitions against
him had been dismissed. The dismissal of the neglect petitions against Father,
the parent of neglected children, placed him in the same position as “[a] parent
who has not been charged with abuse or neglect.” RSA 169-C:19-e, I.
Therefore, pursuant to RSA 169-C:19-e, the court did not err in holding a
parental fitness hearing upon Father’s request for custody of the children.

IV

We now consider Father’s constitutional challenges. Father first argues
that, by considering facts that were not alleged in the neglect petitions, nor
raised at the adjudicatory hearing, the trial court violated his procedural due
process rights. Father did not make this argument in the circuit court.
Therefore, his argument is not preserved for our review, and we decline to
consider it in the first instance. See State v. Edic, 169 N.H. 580, 583 (2017).

Father next asserts that the trial court impermissibly burdened and
infringed upon his fundamental right to parent his children when, following
dismissal of the neglect petitions against him, it (1) conditioned reunification
with the children on his compliance with the case plan, and (2) held a parental
fitness hearing to determine his ability to regain custody of his children. He
raises these arguments under Part I, Article 2 of the New Hampshire
Constitution and the Fourteenth Amendment to the United States
Constitution. Father does not argue that either of these alleged errors violated
his procedural due process rights. Therefore, our analysis addresses his
arguments only in regard to his substantive due process rights. We first
address his claims under the State Constitution and rely upon federal law only
to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

“We have long recognized the right to raise and care for one’s children as
a fundamental liberty interest protected by Part I, Article 2 of the New

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Hampshire Constitution.” Bill F., 145 N.H. at 272 (quotation omitted).
“Similarly, the Due Process Clause of the Fourteenth Amendment to the United
States Constitution protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their children.” In the
Matter of Jeffrey G. & Janette P., 153 N.H. 200, 203 (2006) (citing Troxel v.
Granville, 530 U.S. 57, 66 (2000) (plurality opinion)). “This fundamental right
is not absolute, but is subordinate to the State’s competing parens patriae
power to intervene if a child’s welfare is at stake.” Id.

Father’s arguments are based, primarily, upon the presumption of
parental fitness. Biological and adoptive parents are presumed fit until they
are found to be abusive, neglectful, or otherwise unfit to perform their parental
duties. See id. at 204; Bill F., 145 N.H. at 274. “The fundamental liberty
interest of biological and adoptive parents in the care, custody and
management of their children does not evaporate simply because they have not
been model parents.” Jeffrey G., 153 N.H. at 204 (quotation omitted). “Absent
a showing of specific harm to the children, growing up in a so-called
disadvantaged home is not a sufficient basis for coercive intervention.” Id.
(quotation omitted).

Father asserts that, upon the dismissal of the neglect petitions against
him, he was presumed to be a fit parent. Because he was not found to have
abused or neglected his children in the adjudicatory phase of the RSA chapter
169-C proceedings, we agree that Father was a presumptively fit parent at that
stage of the proceedings. See id.

Father argues that the circuit court erred by imposing conditions that
must be met before the children could be returned to his care and custody,
instead of immediately returning the children upon the dismissal of the neglect
petitions against him. We agree that requiring Father, a non-neglectful and
presumptively fit parent, to demonstrate his compliance with conditions before
the children can be returned to his custody violates his fundamental right to
parent. See Bill F., 145 N.H. at 273 (holding application of RSA 169-C:23 to
non-accused parent “would subject him to an undue burden and violate his
due process rights”). RSA 169-C:23 places the burden on the parent to
demonstrate compliance with certain enumerated conditions before a child in
an out-of-home placement may be returned to his or her custody. Requiring a
presumptively fit parent to prove his or her compliance with conditions before
reinstating custody essentially requires the parent to affirmatively prove his or
her fitness, which is inconsistent with a presumption of fitness.

We disagree, however, that the court was required to immediately return
the children to Father’s custody. Instead, we conclude that holding an
additional hearing to determine Father’s parental fitness did not violate his
constitutionally protected fundamental right to parent. Although Father
regained his presumption of fitness once the neglect petitions against him were

9
dismissed, “parental rights are not absolute, but are subordinate to the State’s
parens patriae power, and must yield to the welfare of the child.” Preston v.
Mercieri, 133 N.H. 36, 40 (1990); accord In re Noah W., 148 N.H. 632, 639
(2002). Here, the neglect finding against Mother and the fact that Father and
Mother lived together constituted “unusual and serious” circumstances that
justified the court’s continued intervention in the relationship between Father
and his children. In re Guardianship of Reena D., 163 N.H. 107, 112 (2011)
(quotation omitted).

The purpose of RSA chapter 169-C is not limited to “provid[ing]
protection to children whose life, health or welfare is endangered,” RSA 169-
C:2, I (Supp. 2017), but also includes “establish[ing] 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. 2017). In this case, the court was faced
with the difficult task of balancing a presumptively fit parent’s fundamental
right to parent with the State’s interest in protecting abused or neglected
children from harm. To do so, the court maintained the out-of-home
placement until it held a parental fitness hearing at which the State bore the
burden of rebutting Father’s presumed fitness and proving, by a
preponderance of the evidence, that he was “unfit to exercise custody of the
child[ren]” at that time. Bill F., 145 N.H. at 276. We conclude that this
process struck the proper balance between Father’s fundamental right to raise
and care for his children and the State’s interest in protecting the children’s
welfare. Accordingly, holding a parental fitness hearing, upon Father’s request
for custody after the dismissal of the neglect petitions against him, did not
impermissibly burden his constitutional right to raise and care for his children.
Because the State Constitution is at least as protective of individual liberty
interests in these circumstances as the Federal Constitution, see Jeffrey G.,
153 N.H. at 205, we reach the same result under the Federal Constitution.

Affirmed.

LYNN, C.J., and HICKS and BASSETT, JJ., concurred.

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