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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
4th Circuit Court-Laconia Family Division
No. 2021-0327
IN RE C.C.
Argued: December 14, 2021
Opinion Issued: January 25, 2022
John M. Formella, attorney general (Laura E. B. Lombardi, senior assistant
attorney general, on the brief and orally), for the New Hampshire Division for
Children, Youth and Families.
Friedman & Bresaw, PLLC, of Meredith (Jesse Friedman on the joint brief
and orally), and Lothstein Guerriero, PLLC, of Concord (Kaylee Doty on the joint
brief), for the respondent.
Walker & Varney P.C., of Wolfeboro (James P. Cowles on the joint brief), for
the child’s mother.
DONOVAN, J. The New Hampshire Division for Children, Youth and
Families (DCYF) appeals an order of the Circuit Court (Carroll, R., approved by
Garner, J.) dismissing a neglect petition brought against the respondent. See
RSA 169-C:3, XIX(b) (Supp. 2021). On appeal, DCYF argues that the circuit
court erred by: (1) relying upon criminal definitions of sexual assault and
grooming; and (2) disregarding conduct that the child did not personally
observe. Further, DCYF argues that the evidence compelled a finding of neglect
by the circuit court. We conclude that the circuit court committed legal error
by basing its neglect determination, in part, upon whether the respondent’s
conduct was criminal. Accordingly, we vacate and remand. In addition,
because the issue is likely to arise on remand, we also clarify that RSA chapter
169-C does not require that a child personally observe conduct in order for a
court to consider that conduct when determining neglect.
I. Facts
The following facts are undisputed or supported by the record. The
respondent is the child’s adoptive father. In January 2021, DCYF received two
reports that, among other things, the respondent sexually abused the child’s
friend. At the time, the child was fifteen years old and her friend was sixteen
years old. In response, a DCYF social worker investigated the reports and
interviewed the child’s family. Because the respondent was present at the
initial interview, the parties did not discuss the sexual abuse allegations.
Shortly thereafter, the child contacted the social worker and expressed her
desire to speak further. In her next interview with the social worker, the child
disclosed that the respondent made sexual advances towards and
inappropriately touched her friend.
Thereafter, the Child Advocacy Center (CAC) separately interviewed the
child and her friend. Each child detailed three separate incidents of alleged
sexual abuse. During the first incident, the child sat on her bed, while the
friend lay on the floor near the foot of the bed. The respondent entered the
room, lay down next to the friend, and began to massage her back under her
shirt. Eventually, the respondent slid his hands down her back and grabbed
her buttocks. Although the child’s position on the bed obstructed her view of
the respondent’s conduct, the friend texted the child about the respondent’s
touching as it occurred, asking her to intervene. The incident concluded when
the friend left the room. During the second and third incidents, the respondent
approached the friend in the child’s home, professed his sexual attraction to
her, and proceeded to kiss her body. The friend told the child about the second
incident, and the third incident occurred while the child listened nearby.
When the child discussed the second incident with her friend, the child
stated that what happened was “not okay” and that they should leave the
house because the child could not “sleep here knowing that [he is] like that.”
Afterwards, to prevent further sexual advances by the respondent, the child
attempted to remain with her friend when her friend was at her house. On one
occasion, the child sat in between her friend and the respondent on the couch
in order to prevent the respondent from touching her friend. The child also
stated during her CAC interview that the respondent was “super touchy”
towards her and had made her feel “uncomfortable” in the past. In light of his
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recent actions, she felt it would be “difficult” and “awkward” if the respondent
returned to the home. Further, both the child and her friend stated that the
respondent’s behavior stressed them out and led them to report the conduct to
trusted adults.
In March 2021, DCYF filed a petition alleging that the respondent
neglected the child pursuant to RSA 169-C:3, XIX(b), “by exposing her to the
sexual abuse of one of [her] minor female friends, exposing her to the sexual
grooming of one of [her] minor female friends, and sexually grooming the child.”
At the adjudicatory hearing, DCYF introduced the child’s CAC interview, the
friend’s CAC interview, and the testimony of the social worker.
In May 2021, the court dismissed the neglect petition. In its written
order, the court credited the veracity of both the child and her friend in their
CAC interviews. It stated that the respondent’s actions “exceeded personal
boundaries of safe touching” and described his conduct as “reprehensible to
our civilized values and moral consciences.” Nonetheless, the court noted that
DCYF alleged “exposure” of the child to sexual abuse and grooming and
determined that the child did not personally observe any of the respondent’s
conduct. (Bolding omitted). The court further determined that the incidents
alleged in the CAC interviews “were not sexual assaults” as defined by RSA
chapter 632-A, nor did the respondent’s conduct constitute “grooming” of the
friend because it did not involve, based upon the criminal definition of
grooming, “an under-age person.” (Bolding omitted) (citing RSA 632-A:2-:3,
applying criminal grooming to “a person . . . under 16 years of age”).
Accordingly, the court concluded that DCYF did not satisfy its burden of
proving that the respondent neglected the child. The court further concluded
that DCYF presented “no evidence” that the child “suffered or is likely to suffer
serious impairment.” (Quoting RSA 169-C:3, XIX(b)). DCYF moved for
reconsideration, which the circuit court denied. This appeal followed.
II. Standard of Review
When reviewing final orders in abuse and neglect cases, we will uphold
the findings and rulings of the circuit court unless they are unsupported by the
evidence or tainted by error of law. In re Craig T., 144 N.H. 584, 585 (1999);
see RSA 490-D:2, IV (2010) (granting the former family division jurisdiction
over “[a]ctions under RSA 169-C, relating to abused and neglected children”);
RSA 490-F:3 (Supp. 2021) (granting the circuit court jurisdiction that was
previously conferred upon the former family division and probate courts). As
the trier of fact, the circuit court is in the best position to assess and weigh the
evidence before it. In re Craig T., 144 N.H. at 585. Thus, our task is not to
determine whether we would have found differently, but, rather, whether a
reasonable person could have found as the circuit court did. Id.
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III. Analysis
On appeal, DCYF argues that the circuit court erred as a matter of law
by basing its neglect determination, in part, upon whether the respondent
sexually assaulted or criminally groomed the child’s friend. We agree. RSA
169-C:3, XIX(b) defines a “neglected child” as one “[w]ho is without proper
parental 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). Critically,
“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.” In re J.H., 171 N.H. 40,
49 (2018) (quotation omitted); see also RSA 169-C:3, XXVII-a (Supp. 2021)
(“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.” (quotation omitted)).
We conclude that, in dismissing the neglect petition, the circuit court
relied, in part, upon its findings that the respondent’s conduct did not satisfy
the criminal definitions of “grooming” and “sexual assault.” See State v.
Surrell, 171 N.H. 82, 88 (2018) (“The interpretation of a trial court order
presents a question of law for us to decide.”). By doing so, the court
misconstrued the standard of neglect set forth in RSA 169-C:3, XIX(b). Nothing
in the plain language of RSA 169-C:3, XIX(b) requires DCYF to prove that the
parent’s conduct was criminal. Rather, the relevant inquiry is whether the
parent has deprived the child of proper parental care or control and whether,
as a result, the child has suffered, or is likely to suffer, serious impairment.
See RSA 169-C:3, XIX(b); see also In re J.H., 171 N.H. at 49. Contrary to the
circuit court’s reasoning, whether the respondent’s conduct was criminal is not
determinative of whether he failed to provide “proper parental care or control”
to the child, as required by RSA 169-C:3, XIX(b). Accordingly, the circuit court
erred as a matter of law by relying, in part, upon the criminal definitions of
sexual assault and grooming when determining whether DCYF presented
sufficient evidence to establish a finding of neglect. We therefore vacate the
circuit court’s decision and remand for further proceedings consistent with this
opinion.
DCYF also argues that the circuit court erred as a matter of law by
disregarding the respondent’s conduct that the child did not personally
observe. The respondent counters that the circuit court did consider the
respondent’s conduct and determined that the child’s “second-hand exposure”
did not meet the statute’s requirement of “serious impairment.” See RSA 169-
C:3, XIX(b). Because it is likely to arise on remand, see State v. Williams, 173
N.H. 540, 543 (2020), we address this issue only to clarify that, based upon the
Child Protection Act and our case law interpreting that statute, no bright-line
rule exists requiring that a child must personally observe conduct for a court to
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consider that conduct when determining neglect. See RSA 169-C:3, XIX(b).
Here, although the child did not personally observe the respondent’s conduct,
she was a percipient witness to that conduct in that she heard the respondent
make sexual advances toward the friend. The friend also informed the child of
the respondent’s kisses and inappropriate touching. On remand, rather than
disregarding this evidence, the circuit court should consider whether the
child’s exposure to, and knowledge of, the respondent’s conduct has caused, or
is likely to cause, the child to suffer serious impairment. In light of our
holding, we decline to address DCYF’s remaining argument.
Vacated and remanded.
MACDONALD, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.
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