Supreme Court At-a-Glance Contributor Ryan M. Borden, Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth, NH with a focus on bankruptcy representation of trustees, creditors and debtors, corporate law and commercial litigation.

No. 2021-0327

January 25, 2022

Vacated and remanded

 

  • Whether the trial court erred in relying on the criminal definition of sexual assault and grooming in a neglect petition brought by DCYF against the respondent.
  • Whether the trial court erred in disregarding conduct of the respondent that the child did not personally observe.
  • Whether respondent’s actions compelled a finding of neglect.

 

Respondent is the adoptive father of C.C.  DCYF received two reports in January 2021 that, among other things, respondent had sexually abused C.C.’s sixteen-year-old friend.  A DCYF social worker investigated and interviewed C.C.’s family. Respondent was present during the interview. After the interview, C.C. contacted the social worker to discuss the matter further.  During the subsequent interview, C.C. disclosed that respondent made sexual advances towards and inappropriately touched the friend.  During further interviews, each child detailed three separate incidents of alleged sexual abuse.  C.C. was present during the first incident, heard the third incident, and the friend told C.C. about the second incident.

In March 2021, DCYF filed a petition of neglect against respondent pursuant to RSA 169-C:3, XIX(b) alleging that he exposed C.C. “to sexual abuse of one of [her] minor female friends, expos[ed][C.C.] to the sexual grooming of one of [C.C’s] minor female friends, and sexual groom[ed][C.C].”  DCYF introduced C.C.’s CAC interview, the friend’s CAC interview, and the social worker’s testimony at the adjudicatory hearing.  The trial court dismissed the neglect petition in May 2021. The trial court credited the veracity of the children’s interview statements but found that because C.C. did not personally observe any of the conduct, the exposure charge should be dismissed.  The trial court ruled that because respondent’s actions did not rise to the level of criminal sexual assault or criminal grooming of an under-aged person, the charges should be dismissed.  DCYF moved for reconsideration, which the trial court denied. DCYF appealed.

The Court agreed with DCYF that the trial court erred in basing its neglect determination, in part, upon whether respondent’s actions were criminal in nature.  The Court found that the trial court misconstrued the standard of neglect set forth in RSA 169-C:3, XIX(b), which does not contain any requirement that a parent’s conduct must be criminal in nature.  The Court stated that 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.”  The Court vacated the trial court’s decision and remanded for proceedings consistent with its opinion.

Finding that the issue was likely to arise on remand, the Court stated that based upon the Child Protection Act and precedent, no bright-line rule exists requiring a child to have personally observed conduct for a court to consider the conduct when determining neglect.  Although C.C. did not personally observe respondent’s conduct, she was a percipient witness to the conduct in that she heard the respondent make sexual advances towards her friend, and the friend told C.C about respondent’s inappropriate touching.  The Court directed the trial court to, rather than disregarding the evidence, consider whether C.C.’s exposure to, and knowledge of, respondent’s conduct “has caused, or is likely to cause, [C.C.] to suffer serious impairment.”  In light of the Court’s ruling, the Court declined to address DCYF’s remaining argument.

 

John M. Formella, attorney general (Laura E.B. Lombardi, senior assistant attorney general, on the brief and orally), for DCYF. Friedman & Besaw, Meredith (Jessie Friedman on the joint brief and orally) and Lothstein Guerriero, Concord (Kaylee Doty on the joint brief), for the respondent.  Walker & Varney, Wolfeboro (James P. Cowles on the joint brief), for the child’s mother.