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Bar News - January 21, 2005 NH Supreme Court 3JX Orders 2003-0610 In re Juvenile 2003-0610-A; The court on November 16, 2004, issued the following order: The appellant, the mother of Juveniles 2003-0610-A, 2003-0610-B, and 2003-0610-C, appeals an order of the probate court terminating her parental rights. She contends that the probate court: (1) erred in calculating the time within which she could correct the conditions which led to the findings of neglect; (2) erred in finding that the State had proved beyond a reasonable doubt that it had made reasonable efforts toward reunification within the requisite time period; (3) was required to make separate findings against each of the parents of the juveniles; and (4) erred in finding that it was in the best interests of the twins to be adopted. We affirm. "Before a court may order the termination of a parent's rights, the petitioning party must prove a statutory ground for termination beyond a reasonable doubt." In re Antonio W., 147 N.H. 408, 412 (2002). RSA 170-C:5 (2002) provides that a petition for termination of the parent-child relationship may be granted when the court finds that "[t]he parents, subsequent to a finding of child neglect or abuse under RSA 169-C, have failed to correct the conditions leading to such a finding within 12 months of the finding despite reasonable efforts under the direction of the district court to rectify the conditions." The mother concedes that she entered into a consent agreement in May 2000 in which she admitted that she had neglected the three children who are the subject of this appeal. She argues, however, that RSA 169-C:24-a (2002) is applicable to this case and requires that the children be "in an out-of-home placement pursuant to a finding of child neglect . . . for 12 of the most recent 22 months." RSA 169-C:24-a. As the final arbiter of the legislature's intent, we decline to construe the statute so narrowly. See State v. Kidder, 150 N.H. 600, 602 (2004) (goal of statutory interpretation is to apply statutes in light of legislature's intent in enacting them and policy sought to be advanced by entire statutory scheme). RSA 169-C:24-a, a section of the Child Protection Act, requires that the State file a petition to terminate parental rights when a child has been in an out-of-home placement pursuant to a finding of neglect "under the responsibility of the State" for twelve of the most recent twenty-two months. In a separate chapter concerning the termination of parental rights, RSA 170-C:5 provides that the probate court may grant a petition if it finds that one of several conditions exists. Neither statute contains any indication that they must be read together. Moreover, one is discretionary and the other mandatory. That the State must file a petition in certain neglect cases if a child is in placement for twelve out of twenty-two months does not limit the trial court's authority to grant termination petitions to cases where the out-of-home placement is of such duration. In this case, the finding of neglect was entered in May 2000; the petitions for termination were filed in December 2002. We therefore conclude that the time standards of RSA 170-C:5, III were met. The mother also argues that protocols developed by the judicial branch required that her children must have been in placement for twelve of the last twenty-two months before a permanency hearing could be held and therefore the termination petition was premature. We disagree. The protocols do not limit the statutory authority of the probate court. See In re Craig T., 147 N.H. 739, 744-45 (2002). The mother next argues that because the probate court did not make a specific finding as to the period in which she failed to correct the conditions of neglect, the State failed to prove beyond a reasonable doubt that DCYF made reasonable efforts toward reunification. We will assume without deciding that this issue has been adequately briefed. Having already concluded that the twelve-month period within which the mother was required to correct the conditions of neglect began in May 2000, we find this argument unpersuasive. The mother also argues that the trial court was required to make separate findings against each parent. The probate court order incorporated the report of the guardian ad litem (GAL) and granted the petitioner's thirty-two requests for findings of fact and rulings of law. The record before us does not contain the thirty-two requests for findings of fact and rulings of law. See Bean v. Red Oak Property Management, Inc., 151 N.H. ___, ___, 855 A.2d 564, 565 (2004) (burden on appealing party to provide adequate record for appellate review). Moreover, we have previously held that in the absence of specific findings, the trial court is presumed to have made all the findings necessary to support its decree. See In re Lisa H., 134 N.H. 188, 195 (1991). Finally, we note that the evidence presented included the efforts by DCYF to provide the mother with crisis-level intervention services with a home-based counselor, assistance with grocery shopping, getting to appointments, advice on dealing with the children's behaviors, and relationship counseling. Team meetings took place at least every other week between DCYF and service providers to coordinate family services. Finally, the mother argues that because the court found that there was a significant bond between the twins and an older brother who elected to remain with her, it was not in the twins' best interests to be adopted. We will assume without deciding that the mother has adequately briefed this issue. While we agree that the bond between siblings is a factor that may be considered in assessing the children's best interests, in this case, the probate court found that the mother's instability prevented her from correcting the conditions leading to the finding of abuse and neglect. The GAL reported that the mother had failed to comply with the consent order of May 2000 and the dispositional order of March 2002, in that she continued to consume alcohol and failed to fully engage in anger management or alcohol counseling. Because the trial court's finding that it was in the twins' best interests that their mother's parental rights be terminated is supported by the record, we find no error. Affirmed.
2003-0096 State of NH v. Otis Daniels The court on November 24, 2004, issued the following order: Following a jury trial, the defendant, Otis Daniels, was convicted on two counts of felonious sexual assault. See RSA 632-A:3, II (1996). On appeal, he contends that the trial court erred in denying his motion to suppress out-of-court photo identifications by the juvenile victims. We affirm. Having claimed that his rights to due process under the State and Federal Constitutions were violated, the defendant bears the burden of proving that the out-of-court procedure was unnecessarily suggestive. State v. Rezk, 135 N.H. 599, 601 (1992). We will not overturn the trial court's ruling unless it is contrary to the weight of the evidence. See id. The defendant argues that his photograph is unnecessarily suggestive because the background of his picture is lighter than the seven others in the array, he is the only male with braided hair and he is one of only two who are directly facing the camera. We have previously held that variation in appearance among persons or photographs does not invalidate a pretrial identification. See State v. Duff, 129 N.H. 731, 735 (1987). To require reversal on such grounds, the "procedure must have been so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. (quotations omitted). The trial court concluded that the array was not unfairly suggestive, finding that the difference in backgrounds was not marked, that a variety of hairstyles were represented and that the photos were presented to each victim separately. Having reviewed the record before us, we conclude that the defendant has failed to establish that the photo array created a very substantial likelihood of irreparable misidentification. Affirmed.
2003-0613 State of NH v. Ruth Retzke The court on December 1, 2004, issued the following order: Following a jury trial, the defendant, Ruth Retzke, was convicted on two counts of second degree assault. See RSA 631:2 (1996). On appeal, she contests the sufficiency of the evidence. See State v. Pittera, 139 N.H. 257, 260 (1994) (when defendant contests sufficiency of the evidence both at close of State's case and at close of all evidence test on appeal is the same). We affirm. The defendant contends that the State failed to prove two elements of the charges: the identity of the perpetrator of the fifteen-month-old victim's injuries and the cause of the injury. The evidence included that the victim was uninjured when she arrived at the defendant's home, the location of the injury, and that the other two adults who later had access to the victim at the defendant's home did not inflict the injury. The defendant gave several conflicting statements during the course of the investigation including that she had not seen any bleeding; some of these statements were contradicted by the examining physician and the victim's parents. All of this evidence combined with the physical evidence and the defendant's subsequent, inadvertent admission that she had observed the victim bleeding provided sufficient evidence of the identity of the perpetrator and the cause of the injury. Even if we assume without deciding that the evidence was only circumstantial, we find no error in the trial court's rulings. After considering the evidence in the light most favorable to the State and examining each evidentiary item in the context of all the evidence, we conclude there was sufficient evidence to exclude all rational conclusions except guilt. See State v. Cobb, 143 N.H. 638, 658 (1999) (correct analysis is not whether all possible conclusions have been excluded but rather whether all rational conclusions based on the evidence have been excluded). Affirmed.
2004-0123 Francis P. Feeney & a. v. The court on December 1, 2004, issued the following order: The plaintiffs, Francis P. Feeney and Stacy L. Feeney, appeal an order of the superior court granting summary judgment to the defendants, Jean Murphy and Ann Furbush. They contend that the superior court erred in finding that no contract was formed for the sale of land. We affirm. "In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party." Godbout v. Lloyd's Ins. Syndicates, 150 N.H. 103, 105 (2003). "Summary judgment is proper only if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Cricklewood on the Bellamy Condo. Assoc. v. Cricklewood on the Bellamy Trust, 147 N.H. 733, 736 (2002). RSA 506:1 (1997) provides: "No action shall be maintained upon a contract for the sale of land unless the agreement upon which it is brought, or some memorandum thereof, is in writing and signed by the party to be charged or by some person authorized by him in writing." In this case, each of the defendants owns a one-third undivided interest in real estate; their sister owns the remaining one-third undivided interest. The contract was for the sale of the property in its entirety rather than for one-third or two-thirds undivided interest. The sellers were listed as all three owners. The trial court found that there was no writing that satisfied the statute of frauds with respect to the third sister. We find no error in the trial court's finding. Moreover, because the contract called for the conveyance of the property in its entirety, absent agreement by the third sister, there was no enforceable contract. Cf. Pearson v. Baldwin, 81 N.H. 247, 251 (1924). Affirmed. Eileen Fox, Clerk
2004-0185 State of NH v. L. Hamlin Greene & a.; The court on December 1, 2004, issued the following order: The respondents appeal a decision of the trial court granting summary judgment to the State of New Hampshire. They contend that the trial court erred in denying them a hearing pursuant to RSA 498-A:9-b (1997) and granting summary judgment where material issues of fact existed. We affirm. The State filed a declaration of taking and deposit of damages for the respondents' properties with the board of tax and land appeals (BTLA). The properties were to be acquired for Phase 5A of a nine-phase highway project in accordance with the findings of a special committee established pursuant to RSA 230:45 (1993). The respondents then filed preliminary objections. See RSA 498-A:9-a, I (1997). The respondents first contend that RSA 498-A:9-b entitles them to a hearing on necessity, public benefit and public purpose because they offered credible evidence to demonstrate that the State could not meet its burden on those issues. Because RSA 498-A:9-b, II, provides that the superior court "may conduct an evidentiary hearing before it rules on [a] preliminary objection [concerning necessity, public purpose and net-public benefit]," the decision to hold a hearing is discretionary, see Duffy v. City of Dover, 149 N.H. 178, 181 (2003) (as general rule of statutory construction "may" is permissive). In this case, as we review the trial court's grant of summary judgment, "we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party." Godbout v. Lloyd's Ins. Syndicates, 150 N.H. 103, 105 (2003). "Summary judgment is proper only if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Cricklewood on the Bellamy Condo. Assoc. v. Cricklewood on the Bellamy Trust, 147 N.H. 733, 736 (2002). The respondents argue that the State's admission that the widening and curb cut consolidations of Phase 5A will not work constitutes a judicial admission they are unnecessary, do not provide a net-public benefit and therefore do not serve a public purpose. While the respondents cite a standard of review set forth in RSA 498-A:9-b, the correct standard is that set forth in RSA 230:45 (1993). See RSA 498-A:1 (1997); City of Keene v. Armento, 139 N.H. 228, 231-35 (1994) (RSA chapter 498-A is comprehensive eminent domain procedure act that must be read in conjunction with previously enacted eminent domain statutes). In the absence of fraud or gross mistake, the special committee's findings on the laying out of the highway are not subject to appeal. See RSA 230:45; RSA 230:19 (1993). Even if we assume without deciding that the respondents are entitled to seek review of the committee's findings almost ten years after submission of its report, the January 2003 report submitted by their expert and the alleged admissions by the State do not raise an issue of material fact under the applicable standard. See RSA 230:19. In light of our conclusion that the trial court properly granted the State's motion for summary judgment, we need not address the respondents' argument that they were denied due process and equal protection when the trial court declined to hold an evidentiary hearing on their preliminary objections. See Verizon New England v. City of Rochester, 151 N.H. ____, ____, 855 A.2d 497, 503 (2004) (setting forth discussion of equal protection analysis). Affirmed.
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