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Bar News - January 6, 2006 NH Supreme Court 3JX Orders
In re Juvenile 2004-0172 The court on October 7, 2005, issued the following order: The father appeals an order of the family division terminating his parental rights over Juvenile 2004-0172. He contends that the family division erred because: (1) the State made no effort to reunify him with his child; (2) there was insufficient evidence of abandonment; (3) the petition’s allegations concerning abandonment in 1997 and 1998 were barred by the statute of limitations; (4) his request for testimonial immunity was denied; and (5) the court failed to hold the State to a stipulation by which it agreed to keep him informed about his child. We affirm. We will uphold the findings and rulings of the trial court unless unsupported by the evidence or tainted by error of law. In re Adam M., 148 N.H. 83, 84 (2002). A parent-child relationship may be terminated when the court finds that the parent has abandoned the child. RSA 170-C:5, I (2002). The father first argues that the family division erred in allowing the State to seek termination of his parental rights without first attempting reunification. In this case, the father is serving a life sentence without parole for the first-degree murder of the mother of Juvenile 2004-0172. A review of RSA chapter 169-C indicates that although preservation of family unity is an important goal, see RSA 169-C:2, I (b) (2002), the legislature contemplated that reunification efforts might not be reasonable in certain cases, see RSA 169-C:24-a, IV. We find no merit in this claim of error. The father next contends that the record contains insufficient evidence of abandonment. Abandonment is a factual issue to be determined by the trial court; we will not disturb that determination unless unsupported by the evidence or plainly erroneous as a matter of law. In re Shannon M., 146 N.H. 22, 25 (2001). The father did not seek visitation for more than six months after his conviction; by that time he had had no contact with his child for twenty-one months. He also made no effort to contact his child by mail or telephone until July 2002. Based upon the record before us, we find no error in the trial court’s ruling. The father also argues that allegations of abandonment that dated from 1997 and 1998 were barred by the statute of limitations. The Child Protection Act does not include a statute of limitations; the father argues that by default an action to terminate parental rights must be brought within three years. See RSA 508:4 (1997) (action may be brought within three years of act or omis sion complained of). Even if we assume, without deciding, that RSA 508:4 is applicable, we conclude that this would not bar evidence of a continuing course of abandonment. In this case, the act was abandonment. See RSA 170-C:5, I. The trial court found that “[f]rom May 1998 to the present (and certainly from January 1999 . . . .)” the father had indicated interest in contacting his child “only a few times.” Based upon this finding, the trial court ruled that he had “at best, show[n] only a mere flicker of interest in [his child].” See In re Shannon M., 146 N.H. 22, 25 (2001). Based upon the record before us, we find no error in either the trial court’s ruling or the admission of the contested evidence. The father next argues that the trial court erred in denying his request for testimonial immunity. The trial court advised the father that he could assert his privilege against self-incrimination on a question-by-question basis. The father rejected this option and chose not to testify. On appeal, he contends that the denial of his request for immunity violated due process. We will assume, without deciding, that the failure to immunize a witness in a termination of parental rights proceeding may have due process implications. The father argues that, if granted immunity, he would have testified about his devotion to his children. Because this statement would not have rebutted the allegations of abandonment, we sustain the trial court’s ruling. See McIntire v. Woodall, 140 N.H. 228, 230 (1995) (claimant will not prevail on due process claim absent showing of actual prejudice). The father also argues that the trial court erred in failing to hold the State to a stipulation that it would keep him informed about his child’s social, educational and medical issues. In essence, the father seeks to appeal an order of the family division entered in the underlying neglect proceeding. Contrary to the father’s contention, the June 2, 2002 order of this court did not preserve his right to raise this issue in the termination proceeding. Because an appeal addressing the agreement entered in the underlying neglect proceeding is untimely, see RSA 169-C:28 (2002); In re Diane R., 146 N.H. 676, 678-79 (2001), we decline to consider this issue. The respondent’s motion to remand to family court or for additional briefing is denied. Affirmed. NADEAU, DALIANIS and DUGGAN, JJ., concurred. Eileen Fox, Clerk 2004-0562 State of New Hampshire v. Dennis Lacasse The court on October 11, 2005, issued the following order: The defendant, Dennis Lacasse, appeals his conviction for aggravated felonious sexual assault. We reverse and remand. The sexual assault allegedly occurred when the victim was six years old. At trial, the victim testified that she disclosed the assault to her aunt in the spring or summer of 2002, when she was sixteen, and that her family called the police in the spring or summer of 2002. The victim’s mother also testified that after she was told about the assault, the police were called the same evening. On cross-examination, however, the victim testified that she first spoke to the police in December 2002. Thereafter, Detective Dunham testified that the assault was not reported to the police until December 2002, and that he interviewed the victim on December 16, 2002. He also testified that during his investigation, he learned that the victim had informed her aunt about the assault during the summer of 2002. Upon redirect examination by the State, Dunham was allowed, over objection, to testify that the victim told him that there had been a delay in reporting the assault to the police because the victim’s mother “didn’t want her to go forward to the cops.” The defendant argues, among other things, that Dunham’s testimony on redirect constituted inadmissible hearsay. The State contends that the defendant opened the door to the admission of this hearsay, and that in any event, the hearsay testimony was admissible pursuant to New Hampshire Rule of Evidence 803(24). On appeal, the defendant has the burden of demonstrating that the trial court’s discretionary ruling was clearly untenable or unreasonable to the prejudice of his case. See State v. Trempe, 140 N.H. 95, 98 (1995); State v. Johnson, 145 N.H. 647, 648 (2000). “Opening the door’ is often used to describe situations in which a misleading advantage may be countered with previously suppressed or otherwise inadmissible evidence.” Trempe, 140 N.H. at 98. In this case, the State presented evidence that the victim’s family reported the alleged assault to the police the same day that the victim disclosed it to them. The defendant presented evidence to the contrary, showing that the disclosure preceded the report to the police by several months. It appears that if any of this evidence was “misleading,” it was the evidence presented by the State, not the defendant. While we do not doubt that the State was entitled to present evidence to explain this delay, we cannot conclude that the defendant “opened the door” to the use of otherwise inadmissible evidence to do so. The State also argues that Dunham’s testimony was admissible under the residual exception to the hearsay rule, which permits the admission of hearsay that is not covered by any of the other exceptions in Rule 803, but that has equivalent circumstantial guarantees of trustworthiness. N.H. R. Ev. 803(24). To be admissible, the statement must also be more probative on the point for which it is offered than any other evidence which the proponent may procure through reasonable efforts. Id. While we have serious doubts as to whether the victim’s unsworn statement to the police had the required equivalent circumstantial guarantees of trustworthiness, see State v. Johnson, 145 N.H. 647, 649 (2000), we need not decide that issue because we conclude that the trial court erred in finding that the statement was more probative than any other evidence which the State could have procured through reasonable efforts. As the prosecutor himself noted at trial, the State could have recalled the victim to address the delay in reporting the alleged assault to the police, but he argued that admitting Dunham’s testimony “just keeps it cleaner and simpler.” The court indicated that it would allow the State to recall the victim, but also ruled that the statement satisfied the requirements of Rule 803(24). That admission of the hearsay may have been “cleaner and simpler” does not demonstrate that the State could not have procured evidence at least equally as probative from the victim through reasonable efforts. Cf. Simpkins v. Snow, 139 N.H. 735, 739 (1995) (testimony of actual participants to conversation was more probative than third party’s testimony of participant’s recounting of conversation). Finally, we disagree with the State’s argument that the defendant waived his objection to the admission of this hearsay because he also argued against allowing the victim to be recalled as a witness. The State was not prevented from recalling the victim simply because the defendant objected – indeed, the trial court’s ruling after the defendant objected indicated that it would have allowed the State to recall the victim over that objection. Had the trial court sustained the defendant’s objection to recalling the victim, the State’s argument that it could not have procured other probative evidence might well be stronger, but we see no reason to conclude that the defendant’s unsuccessful objection to recalling a witness should result in waiver of his objection to the admission of hearsay. Because we conclude that the defendant has demonstrated that the admission of this testimony was clearly unreasonable to the prejudice of his case, we reverse and remand. Reversed and remanded. NADEAU, DALIANIS and DUGGAN, JJ., concurred. Eileen Fox, Clerk 2004-0222 In re Juvenile 2004-0222 The court on October 14, 2005, issued the following order: The respondent, mother of Juvenile 2004-0222, appeals an order of the probate court terminating her parental rights. She contends that she did not have twelve months to correct the conditions that led to the finding of neglect, that DCYF did not use reasonable efforts to reunify the family and that termination of her rights was not in the best interests of the child. 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; one such ground is the failure to correct conditions leading to a finding of neglect under RSA chapter 169-C. In re Juvenile 2003-195, 150 N.H. 644, 648 (2004); RSA 170-C:5, III (2002). We will not disturb the probate court’s decree in a termination of parental rights case unless it is unsupported by the evidence or plainly erroneous as a matter of law. In re Antonio W., 147 N.H. 408, 412 (2002). The probate court is in the best position to assess and weigh the evidence because it has the benefit of observing the parties and their witnesses; we therefore do not consider whether we would have found differently but rather whether a reasonable person could have found as the probate court did. See In re Craig T., 144 N.H. 584, 585 (1999). The mother first argues that she was not given the statutorily required twelve months to correct the conditions leading to the finding of neglect. The probate court received evidence that DCYF advised the mother in June 2001 of the pending hearing on the neglect petition. At the July 2001 hearing, a finding of neglect was entered. The twelve-month period began to run at that time. See RSA 170-C:5, III. That the mother was not named as a respondent on the neglect petition did not absolve her of the obligation to correct the conditions of neglect within the twelve-month period. See In re Tricia H., 126 N.H. 418, 422-423 (1985). The mother also argues that DCYF did not make reasonable efforts to allow her to correct the conditions leading to the neglect finding. Based upon the record before us, we find no merit in this argument. The trial court found that the mother refused to comply with requirements imposed upon her in the orders entered in the neglect proceeding and that she failed to cooperate with the DCYF social worker. Testimony was presented that she received group counseling and individual counseling and that she failed to attend many sessions of a support group recommended by her counselor. She was also ordered to undergo a psychological evaluation, including a parenting and anger management component, but she admitted that she failed to do so. Finally, the mother argues that termination of her parental rights is not in the best interests of the child. The probate court found that termination was in the best interests of the child because the child was afraid of the mother and that the mother’s failure to address her alcoholism prevented her from addressing the needs of her child. The court also found that, at the time of the termination hearing, the mother had not visited with her child for a period in excess of one year. Based upon the record before us, we find no error in the probate court’s ruling. NADEAU, DUGGAN and GALWAY, JJ., concurred. Affirmed. Eileen Fox, Clerk 2004-0531 State of New Hampshire v. Jon Wolfgram The court on October 18, 2005, issued the following order: Following a bench trial, the defendant, Jon Wolfgram, was found guilty of operating a motor vehicle with a suspended registration. See RSA 261:178 (2004). On appeal, he contests the sufficiency of the evidence and also contends that the trial court erred in denying his request for a continuance. We affirm. We will not reverse a conviction unless we find, after reviewing the evidence in the light most favorable to the State, that no rational trier of fact could have found guilt beyond a reasonable doubt. State v. Wiggin, 151 N.H. 305, 308 (2004). RSA 261:178 provides: The director, upon evidence satisfactory to him that the owner of a vehicle is permitting or has permitted the same to be driven in violation of any of the provisions of this title, or has made any false statement in the application for registration, may suspend the registration of such vehicle until he is satisfied that the offense will not be repeated or the owner has been acquitted, and any person who shall drive or permit to be driven a vehicle owned or controlled by him upon any way after his registration has been suspended or revoked shall be guilty of a misdemeanor. The defendant argues that the vehicle was registered to both him and JAW Contracting, LLC, and that because the State produced no evidence that the registration of JAW Contracting, LLC was suspended on the date of his arrest, the State failed to prove that he had violated RSA 261:178. The issue before us is one of statutory interpretation, an issue of law which we review de novo. Adams v. Woodlands of Nashua, 151 N.H. 640, 641 (2005). RSA 261:178 authorizes the director of motor vehicles to suspend the registration of a vehicle that is either being driven in violation of the motor vehicle code or has been the subject of a false statement in the application for its registration. The driving restriction imposed upon the owner of such a vehicle, however, applies to more than just the offending vehicle. The statute specifically prohibits the owner from driving any vehicle owned or controlled by him after his registration has been suspended. In addition to referring to the registration of the owner as opposed to the vehicle, the statute also extends the prohibition against driving to any vehicle owned or controlled by him. The defendant concedes that evidence was introduced at trial that he had suspended registrations. He also testified at trial, “My registrations - - - every vehicle that I own are registrated [sic] in JAW Contracting, LLC, which is a corporation and company that I own.” Viewing the evidence in the light most favorable to the State, the trial court could have found that the defendant drove a vehicle controlled by him after his registration had been suspended. The defendant also argues that the trial court’s denial of his request for a continuance was an unsustainable exercise of discretion. To prevail on this claim, he must demonstrate that the ruling resulted in prejudice to his case. State v. Lambert, 147 N.H. 295, 296 (2001). The defendant has failed to set forth any prejudice that resulted from the trial court’s ruling. Accordingly, his claim of error must fail. Affirmed. NADEAU, DALIANIS and DUGGAN, JJ., concurred. Eileen Fox, Clerk 2004-0892 Kimberly Balamotis v. Town of Plaistow Board of Adjustment The court on October 19, 2005, issued the following order: The defendant, the Plaistow Zoning Board of Adjustment (ZBA), appeals an order of the superior court reversing the ZBA’s denial of a variance requested by the plaintiff, Kimberly Balamotis. The ZBA argues that the court erred in ruling that the plaintiff did not need to establish hardship and in substituting its judgment for that of the ZBA. We vacate and remand. We will uphold the superior court’s decision unless it is unsupported by the evidence or legally erroneous. Boccia v. City of Portsmouth, 151 N.H. 85, 89 (2004). The superior court shall not set aside or vacate the ZBA’s decision except for errors of law, unless the court is persuaded by the balance of the probabilities, on the evidence before it, that the decision is unreasonable. Id. The requirements for a variance are statutory in origin. See RSA 674:33, I(b) (1996). To obtain a variance, a petitioner must show: (1) the variance will not be contrary to the public interest; (2) special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship; (3) the variance is consistent with the spirit of the ordinance; (4) substantial justice is done; and (5) the variance will not diminish the value of surrounding properties. Id. In its order, the superior court stated: “Under the law, the plaintiff is not required to show a hardship.” Read in isolation, this statement conflicts with the requirements imposed by statute. We therefore vacate the superior court’s order and remand the case for further consideration.
NADEAU, DALIANIS and DUGGAN, JJ., concurred. Eileen Fox, Clerk |
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