Supreme Court At-a-Glance Contributor Stacie Ayn Murphy Corcoran, 2011 graduate of Suffolk University Law School, practicing in Mass. and NH

June 2, 2021

Affirmed

 

  • Whether the Court erred in finding that the July 2020 amendment to RSA 169-C:28 does apply to the case and bars the respondent’s appeal to the superior court for de novo review.
  • Whether the circuit court erred in finding neglect.

 

M.M. had a history of trauma and mental health conditions. A CHINS petition was filed and M.M. was placed in residential care, during which time M.M. and his divorced parents received services. Upon discharge, M.M. became aggressive, resulting in M.M. being admitted to the hospital. M.M. stabilized, but neither the Father nor the Mother was able or willing to take custody of M.M. when they were discharged and DCYF filed a petition of neglect and obtained an ex-parte order to assume custody of M.M. The circuit court denied the Father’s motion to reconsider and the Father attempted to file a motion to reconsider with the superior court for de novo review, but was presented with a compliance notice for filing based on the amended RSA 169-C:28.

The Father argues that he was erroneously deprived his right to a de novo review in superior court. He argues that his right “vested” at the filing of the petition and that the amendment affects substantive rights not “merely procedural” rights. The court disagrees. Because this is a question of constitutional law and statutory interpretation the Court looks at the language of the statute, affording its plain and ordinary meaning, giving intent from the statute in the context of the whole. In a neglect proceeding the right of appeal is from a final dispositional order, but the statute is silent on whether it applies prospectively or retrospectively. This interpretation turns on whether substantive or procedural rights are affected and the Court finds that procedural rights are involved because RSA 169-C establishes procedures on how the provisions are executed, enforced and procedures on how to enforce substantive rights through the appellate process. The Court found that the amendment changed only the procedure for enforcing the substantive rights, not “the relationship between the parties.” Because the proceedings had not yet gone the procedural stage the Court found that RSA 169-C:28 presumptively applies and the Father had not presented sufficient justification to rebut this presumption.

Finally, the Father argues that the circuit court “should have declined to make orders… in light of the ongoing CHINS matter” or alternatively that there was insufficient evidence to support the circuit court’s finding of neglect. The Court found that there is no provision of CHINS that supports this position and that the Father didn’t present authority or evidence to show DCYF or circuit erred or alternatively was “tainted by error of law.” Based on the preponderance of evidence, the Court found a reasonable person could have found a “likelihood of or actual serious impairment of the child’s physical, emotional and mental well being” that the Father was required to remedy by finding M.M. shelter, following up on  DCYF recommendations, and  reopening the parenting plan to adjust his wife’s contact with M.M.

 

Gordon J. MacDonald, attorney general  (Laura E.B. Lombardi, senior assistant attorney general, on the memorandum of law) for the petitioners. Amy B. Davidson, of Contoocook, on the brief for the respondent.