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Bar News - April 16, 2010

NH Supreme Court At-a-Glance - March 2010


Administrative Law

Public Utilities Commission
Appeal of Pennichuck Water Works, Inc & a. No 2009-274
March 25, 2010

  • Whether the Public Utilities Commission erred when it found the utilities failed to rebut the presumption that assumption of the utility was in the public interest, when it dismissed the affiliates from the cityís petition, and by how it set the fair market value of the utilityís assets.
The city of Nashuaís board of alderman and its mayor decided to establish a municipal water system and to acquire all or part of the private water system currently serving city residents. This decision was confirmed by voters. The City then attempted to negotiate purchase of the Utilities. The Utilities filed a declaratory judgment action to limit the Cityís condemnation efforts. The Superior Court granted the Cityís motion to dismiss and said decision was previously upheld by the Court.

Thereafter the City filed a condemnation petition with the PUC under RSA Chapter 38. The PUC dismissed the petitions concerning Pennichuck East and Pittsfield Aqueduct finding those utilities did not serve City residents.

After twelve days of hearings, the PUC issued its ruling with all of the commissioners agreeing that the Utility failed to rebut the presumption of public interest, that the taking of certain property outside the City was necessary to provide consistent rate structure and water quality and quantity, and conditioning approval on the City fulfilling nine conditions. Two of the commissioners found the fair market value to be $203 million while the third would have found the value to be $151 million.

The Court first engaged in a lengthy discussion of the standard of review for such cases noting that hearsay and other rules of evidence donít apply to PUC hearings, that the PUC can rely on its own expertise and need not limit itself to evidence presented by the parties and that PUC orders enjoy a deferential review. While policy choices are given considerable deference, rulings of law are subject to de novo review.

The Court upheld the PUCís dismissal of certain aspects of the condemnation petition. It noted that the statutory language of Chapter 38 taken in context holds only those plants engaged in water production for City residents are subject to the Cityís petition. Since it was undisputed that neither Pennichuck East nor Pittsfield Aqueduct ever served City residents, the PUCís dismissal as to those two entities was appropriate.

The Court then closely analyzed the public interest finding in light of the rebuttable presumption embodied in RSA 38:3. The Court notes the two theories of presumptions. The Thayer theory holds that a presumption only shifts the burden of producing evidence to the other party. Once evidence is produced the presumption disappears. The Morgan theory on the other hand "holds that the strong policy reasons underlying some presumptions may persist despite some evidence" and thus operates to shift the burden of persuasion as well as production. The Court went on to find that the legislature here was enacting a policy goal and thus the Morgan theory should be applied to PUC determinations of public interest. The Court accordingly found the Utility bore the burden of showing by a preponderance of the evidence that the condemnation was NOT in the public interest. It found that the utility failed in this effort.

The Utilities objected to the conditions set by the PUC on the City in its acquisition of the Utility. The Court rejects the Utilities framing of the purported conflict between RSA Chapter 362 and Chapter 38. The Court found that in some circumstances, and particularly when a municipality is taking a public utility by condemnation, it is not improper for the PUC to exercise ongoing jurisdiction over the municipal utility then formed. The Court further rejected the Utilities argument that the PUCís imposition of conditions deprived the Utilities of a fair and impartial decision-maker. The Court stated that the administrative officials are "presumed to be of conscience and capable of reaching a just and fair result." The burden rests on the party alleging bias to produce evidence to that effect. The Court held that since the PUC acted within its powers to impose conditions, that fact is an insufficient basis to rebut the presumption of fairness and impartiality. The Utilities also alleged they lacked notice and opportunity to be heard on the conditions, an argument the Court found lacked merit.

The Court then reviewed the valuation decision made by the PUC in some detail. It notes that each side presented conflicting experts concerning proper valuation methods and details and further noted that the PUC was free to substitute its own expertise on this issue. Finding sufficient evidence in the record to support all of the PUCís findings in its valuation determination the Court upheld it.

Lastly, the Court addressed the PUCís imposition of a $40 million mitigation fund on the City. The PUC found that in order to prevent the Cityís condemnation of the Utility being assumed in the petition having an adverse affect on the customers of the Utilityís affiliates (Pennichuck East and Pittsfield Aqueduct) that those affiliates would need an additional revenue of $3.4 million per year. Since the PUCís determinations on this issue were not devoid of support in the record the Court declined to overrule them again citing the deferential review standard.

Upton & Hatfield, LLP, of North Conway (Robert Upton, II and Justin C. Richardson on the brief and orally), and James M. McNamee, of Nashua, by brief, for the petitioner. McLane, Graf, Raulerson & Middleton, P.A., of Concord (Thomas J. Donovan & a. on the brief, and Mr. Donovan orally), and Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., of Chattanooga, Tennessee (Joe A. Conner and Misty Smith Kelley on the brief, and Mr. Conner orally), for the respondents. Ransmeier & Spellman, P.C., of Concord (John T. Alexander and Daniel J. Mullen on the brief), for intervenor Anheuser-Busch. Barbara A. M. Maloney, PLLC, of Auburn (Richard J. Maloney on the brief), for intervenor Business & Industry Association of New Hampshire. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Stephen J. Judge and Pierre A. Chabot on the brief, and Mr. Judge orally), for intervenor Merrimack Valley Regional Water District. Boutin & Altieri, P.L.L.C., of Londonderry (Edmund J. Boutin on the brief), for intervenor Town of Merrimack. Mitchell Municipal Group, P.A., of Laconia (Laura A. Spector on the memorandum of law), for intervenor Town of Pittsfield.

Agency Law

Release of Liability
Kimberly Balamotis v H. Dexter Hyland, II d/b/a State Farm Agent, No 2009-169
March 10, 2010
Reversed and remanded

  • Whether insurance agent was covered by release signed by plaintiff with insurance company and whether submission of a proof of loss for less than total amount of available coverage precludes recovering additional damages against the agent
The Plaintiff had a homeownerís policy through State Farm. She submitted a proof of claim form for roughly twice the facial value of the policy. She later sued State Farm and in settlement signed a release and submitted a new proof of claim consistent with the terms of the release (which was still about $100K more than the face value of the policy.)

After that matter was concluded she initiated a suit against the defendant for failure to procure the requested amount of coverage. The defendant argued in summary judgment that the suit was prohibited both by the release and the submission of a proof of loss for an amount less than the available coverage. The trial court found both grounds "meritorious."

The Court first made clear that a claim against an insurance agent for failure to procure insurance as instructed is separate from a claim on the policy against the insurer. It then pointed out that this means the two cannot be considered to be joint tortfeasors. The Court specifically disclaimed making any ruling as to whether the insurer would have to pay if damages were rendered against the defendant and noted that whether or not the insurer was ultimately liable was immaterial to the analysis of whether a separate cause of action existed against the defendant. Since the release did not cover the defendant specifically, or even agents of the insurer generally, it was insufficient to bar the suit. The Court then explained that since the two defendants were not joint tortfeasors, the release of one was not a release of the other.

Having found the release an insufficient basis for a grant of summary judgment the Court then considered the effect of the "proof of loss." The Court agreed with the plaintiff that the proof of loss was not a binding admission and should be open to explanation. The Court noted that the purpose of the "proof of loss" recitations was to inform the insurer and allow investigation for coverage purposes. The Court went on to conclude that estoppel did not hold against the plaintiff explaining the proof of loss statements since the defendant (or the insurer) had not asserted any way in which he relied on those representations to their detriment.

Thomas Morgan, of Salem, on the brief and orally, for the plaintiff. Bouchard, Kleinman & Wright, P.A., of Hampton (Sabin R. Maxwell and Kenneth G. Bouchard on the brief, and Mr. Maxwell orally), for the defendant.

Criminal Law

Jury Issues
State v. Andrew Santiago, No 2008-441 and 2008-814
March 10, 2010

  • Whether the court erred in denying a voir dire question and whether the court erred in denying a motion to reconvene the jury post verdict
The defendant was convicted of one count of accomplice to robbery. He appealed on the basis that his requested voir dire question regarding racial bias deprived him of an impartial jury and that the court erred by not reconvening the jury when potential racial bias was identified in a post verdict questionnaire.

The Court first concluded that the defendant was obligated to put his objection on the voir dire issue on the record after the unrecorded chambers conference in order to preserve the issue.

The Court next analyzed the trial judgeís decision not to reconvene the jury. After noting that the appellant must establish that the court unsustainably exercised its discretion, the Court went on to find the defendant failed to meet that burden. The court analyzed the particular questionnaire at issue and agreed with the trial judge that since the race of the perpetrator was used to help identify the defendant it is not unreasonable that a juror found race to be important.

Paul Borchardt of Concord for the defendant. Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general) for the State.

Police Interrogations
State v. Brian Bilodeau, No 2008-443
March 10, 2010

  • Whether the trial court erred in refusing to suppress statements he made to the police.
The defendant was convicted of one count of assault by a prisoner. The defendant was being held in a secure psychiatric facility at the time of the assault and all times relevant to the case. Subsequent to the stabbing, the defendant sent two notes requesting a status update and two months later was interviewed by the police. He was read Miranda warnings and signed a written waiver. He subsequently signed a summary of his confession prepared by one of the detectives.

The defendant contended that due to his mental conditions and the medications being used to treat them, his confession should be considered involuntary. After a review of the totality of the circumstances; which included the short duration of the interview, the separation in time between the incident and the interview, the multiple requests by the defendant for information, and the defendantís responses on the Miranda form, the Court concluded that the trial courtís judgment that voluntariness was proven beyond a reasonable doubt was sustainable.

Chief Justice Broderick wrote a detailed dissenting opinion.

William J. Schultz, of Manchester, for the defendant. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general) for the State.

State v Gurrie Fandozzi, Jr., No 2008-475
March 10, 2010

  • Multiple errors asserted regarding trial courtís refusal to grant motions in limine, a motion to dismiss, motion for a mistrial, motion to set aside the verdict or for a new trial, and a motion to conduct juror voir dire.
The defendant and his wife took their six-month old child to the pediatrician and the child was diagnosed with a viral cold. Later that evening, when the childís symptoms got worse, the defendant performed CPR on the child under the directions of the 911 dispatcher. At the hospital the child was found to be suffering from several broken ribs. The defendant was indicted on 26 counts of first-degree assault by recklessly inflicting 26 rib fractures and convicted of seven counts. There was expert testimony during the trial that six of the breaks were one to six weeks old and two others were aged at zero to six weeks.

The defendant tried to exclude the testimony of a pediatrician via a motion in limine arguing that she lacked radiological training and relied on the opinion of another doctor to reach her conclusions and was therefore ill qualified to give expert testimony. The Court, finding sufficient evidence in the record to support the judgeís conclusions as to the pediatricianís expertise, upheld the trial court dismissal of the motion in limine.

The defendant also moved to exclude certain background evidence including marital conflict evidence, evidence relating to his relationship with his in-laws, and evidence that DCYF brought abuse and neglect petitions against him and his wife. The trial court found the first two issues admissible as probative of the defendantís state of mind and the Court concluded that such a ruling was not unreasonable. The trial court found the latter factor relevant to certain witnessesí motivation to lie in the trial, reasoning that the mother and in-laws knew that testimony in this proceeding could be used against the mother at a later proceeding by DCYF. The Court concluded the trial court did not err in reaching such a conclusion. The defendant argued that even if relevant, the above evidence was unfairly prejudicial and should have been excluded on that basis. Finding that any danger of unfair prejudice did not outweigh the evidenceís probative value the Court upheld the decision to admit it.

The trial court also admitted certain statements from a mechanic that tended to show disparate treatment of the defendant toward his two children. Agreeing with the trial court that the evidence was probative of the defendantís motivation and state of mind and not merely impermissible propensity evidence, the Court upheld its admission.

The defendant also contested the trial courtís ruling on his motion to dismiss and motion to set aside the verdict. He argued that no evidence was adduced to show that the injuries occurred in NH and that the circumstantial case did not rule out all other possible causes of the injuries. The Court found support in the record for the juryís conclusion that the injuries occurred in NH. The Court further noted that the test for circumstantial cases is "whether the State presented evidence sufficient to exclude all rational conclusions except the defendantís guilt." In reviewing the evidence in the light most favorable to the State, including the expert testimony and certain testimony about the defendantís demeanor, the Court concluded the State had met that burden.

The Court then turned to the admission, by the State, of certain hearsay evidence to impeach one of the Stateís witnesses on re-direct examination. The defendant had successfully moved pre-trial to preclude his sister-in-law from testifying that the defendantís wife told the sister-in-law that when she heard the child had been hurt she suspected "that bastard did something to that baby." During direct and then cross the sister-in-law gave testimony very favorable to the defendant and stated he was "wonderfulÖwith the children." Finding the testimony implied she had "no concerns" regarding the defendantís parenting ability, the trial court then allowed the State to impeach with the statement the witness had given to the detective regarding what the defendantís wife told her. The trial court gave the jury a limiting instruction that the statement was only to be considered to assess credibility of the witness. Finding the defendant had "opened the door" to this "specific contradiction" evidence the Court upheld the trial courtís admission of the evidence as not being an unsustainable exercise of discretion.

Sometime after the verdict one of the defendants contacted the county attorneyís office and offered to explain the juryís rationale in convicting the defendant of 7 of the 26 charges. In a subsequent interview with an investigator for the county attorney the juror indicated to him that the jury had struggled with the circumstantial case and their feeling that the State had not presented any evidence showing the defendantís wife had not actually caused the injuries. The juror further characterized the guilty verdict on seven of the counts as a compromise between the jurors which left the other charges on the table in case the State ever wanted to prosecute the wife. The juror then said, "If he [the defendant] didnít do it, then heís covering up for her and that at least they got one of them." The investigator went on to speak to five other jurors who uniformly described the "compromise" as finding the defendant guilty only of those seven breaks for which they felt unanimously only he could have been responsible.

The trial court took the unusual step of reconvening the jury and questioned the jury in the presence of the defendant and his counsel. After this review the trial court refused to set aside the verdict reasoning that the jurorís common use of the word "compromise" in this instance did not mean that there was an improperly compromised verdict in the legally technical sense. The Court agreed with the judgeís rationale in upholding the decision.

The defendant finally argues that the court should have asked his voir dire questions of the jury when it was reconvened. The Court found the examination by the court to be sufficient. The decision not to inquire further was therefore not an abuse of discretion.

Mark L. Sisti of Chichester, for the defendant. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general) for the State.

Post-Miranda silence
State v. Jay Neeper, No 2008-834
March 25, 2010

  • Whether the trial court erred in not declaring a mistrial after the prosecution improperly elicited the fact of post-Miranda silence and commented on that testimony during closing
Neeper was convicted of aggravated felonious sexual assault for the unconsented touching of the genitalia of his daughterís friend who was in the apartment for a sleep-over with the defendantís daughter. The friend awoke during the incident and the daughter confronted the defendant and he professed ignorance and left the bedroom. The daughter and friend then left the apartment without objection by the defendant despite it being around 2:00a.m. The police went to the defendantís apartment and spoke briefly with him and he told them that the girls had left after arguing with him about going to sleep and had "accused me ofÖ" and then he stopped talking.

At trial a police Lieutenant testified that he informed the defendant of the charges against him and the defendant responded by saying he did not understand. The prosecutor then elicited that no further questions were asked of him and the Lieutenant responded by indicating that the defendant invoked his rights to an attorney. After a hearing outside the presence of the jury the judge issued a curative instruction to the jury and asked for a show of hands that the jury could ignore the Lieutenantís last answer.

The defendant took the stand and testified that he had gone into his daughterís bedroom to check her diabetes monitor and had trouble locating it in the room and left when someone started moving because he fought with his daughter over her management of her diabetes.

The court analyzed both the Lieutenantís statement and the prosecutorís closing arguments.

First it held that there was no misconduct by the prosecutor when asking the question that led to the Lieutenantís comment that the defendant requested a lawyer since the prosecutor had asked for a yes or no answer and the Lieutenantís answer was merely non-responsive. Noting the burden on the defendant was to show the trial court unsustainably exercised its discretion the Court upheld the trial courtís ruling.

The Court then turned to the closing statements. The Court found that in the context of the entire closing the prosecutorís comments relating to the defendantís silence were references to his silence on the date of the incident, not an impermissible reference to his post-Miranda silence.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general), for the State. Stephanie Hausman, assistant appellate defender, of Concord, for the defendant.

Search and Seizure
State v. Sheila LaBarre, No 2008-494
March 25, 2010

  • Whether the trial court erred in denying the motion to suppress certain evidence related to a search of her home.
The Defendant was convicted of the first degree murder of two persons. Some of the evidence admitted at trial consisted of observations by police officers prior to their obtaining a warrant to search the premises. The defendant had called the police at 1 a.m. on the day of the search and played a tape of a conversation she had with one of the victims in which he replied "yes" to several questions she asked about his raping children. Near the end of the tape the police could hear a heaving sound and the defendant declared that the victim was "faking throwing up." The victim could also be heard saying "why, why, why" and crying hysterically. The defendant reported to the police at that time that the victim had left her property.

Later that day the police went to the defendantís residence to check on the victim. Theyíd had past dealings with the defendant where she had lied about the whereabouts of a person after a domestic violence incident, the police had recently seen the victim in an injured state in the company of the defendant, and the victimís family had, in the recent past, reported the victim as a missing person.

The defendant lives on a property which has a gate at the beginning of the driveway. When the police arrived on the date in question, the gate was closed but not locked. Two officers climbed through the rungs of the gate and approached the house noting on the way a burn pile with a 3Ĺ inch bone in it with fleshy material still attached. All the defendantís vehicles were parked in the yard but no lights were on and no one answered the door.

The police called the county attorneyís office who advised them to proceed with a well-being check. A third officer was called to assist, who pulled out a rifle and was carrying it in an administrative carry with the barrel pointed at the ground. The police again approached the house and after getting no response at the door, kicked it in.

Prior to [their] entering the house, the defendant emerged from the area of the driveway. She told the officers that the defendant was not there. She then invited the officers in to check and gave them a room-by-room tour of the house. Upon encountering a pair of sneakers owned by the victim inside the house, the officers were refused permission to take them and they left without them. When the officers were leaving they asked about the bone in the yard. After first declaring it to be a rabbit bone and having that disputed by the officer, she then said it was from "either a rabbit or a pedophile."

The police then left the property and obtained a search warrant.

The defendant challenged the trial courtís ruling that the entry on the property fell under the community caretaking or emergency aid exceptions to the warrant requirement. The Court, in reciting the above facts, agreed with the trial court that the police justifiably entered the property without a warrant in order to check on the welfare of the victim.

The defendant also argued that the search of her home that day was non-consensual given the circumstances then present (three officers, one with a rifle, who had just kicked her door open). The Court noted that the officer carrying the rifle did so while pointing the weapon at the ground. The Court further noted in an interview conducted three days later the defendant described the officer holding the gun as quiet and told the interviewing officers that she let the searching officers into her home. Additionally, the Court remarked that the defendant was familiar with the officers involved and was assertive with them in the past, and that the officers obeyed the defendantís instructions to not remove the sneakers and to leave the property. The Court found no error in the trial courtís finding that the defendant knowingly and voluntarily consented to the search.

Michael A. Delaney, attorney general (Ann M. Rice, associate attorney general), for the State. David M. Rothstein, deputy chief appellate defender, of Concord, for the defendant.

Land Use

Zoning Enforcement
Rita Sutton v. Town of Gilford & a., No 2008-674
March 30, 2010
Reversed in part, Affirmed in part

  • Whether the Town of Gilfordís settlement agreement with Respondent Aichinger prevented Plaintiff neighborís suit on Aichingerís non-conforming use of her land
Respondent Aichinger owned what once was referred to as two parcels of lake front property. Each of the lots is less than one acre in size. When Aichinger bought the property in 2002, one of the lots had a residence on it and the other lot had a garage and guest house on it. The lots were in an area of town that (since prior to Aichingerís purchase) requires lots to be one acre in size. In the 1980ís the town merged the two lots and though they are described separately on her deed, at the time of Aichingerís purchase of the property they appeared jointly as "lot 7" on the tax maps and were taxed jointly.

In 2006 Aichinger sought clarification of this "merged" status with the town. After getting permission to treat the two lots as separate, the (permitted) demolition of the existing structures, and blasting foundation holes for the two new homes to be installed on the separate lots, the Town reversed its position. Aichinger appealed the reversal to the zoning board and simultaneously began negotiating a resolution with the selectmen. In June, 2007 the Town agreed to allow Aichinger to treat the lots as separate.

The following month the Plaintiff, an abutting landowner, sued to enjoin any further development of the property in violation of the Townís zoning ordinance, for a declaratory judgment preventing Aichinger from litigating the merger due to estoppel and that the Town is not estopped from enforcing the merger, for a mandamus to force the Town to enforce the zoning ordinance, and for attorneyís fees against the Town. The trial court granted summary judgment against the Plaintiff for the mandamus issue but denied it on all other counts.

The same month as the trial courtís ruling, Aichinger obtained a building permit allowing a replacement structure on the lot abutting Plaintiffís property. Aichinger sent a copy of this permit to the Plaintiff, who did not appeal its issuance to the zoning board.

Some months later Aichinger filed a motion to dismiss the injunction, arguing that the amended permit reflected a determination that the construction was in compliance with the Town zoning ordinances and that as a result, the Plaintiff could not have suffered special damages as a matter of law. The trial court found that whether construction on a nonconforming use would specially damage the Plaintiff, was a substantive issue and further found the Plaintiff was not required to exhaust her administrative remedies by appealing to the zoning board under the circumstances of this case. The trial court subsequently held a hearing on the merits and ruled that the two lots had been legally merged for twenty years, that the Town could so treat it, and that for Aichinger to treat it as two lots, she had to subdivide it. The court further ruled that the replacement of the existing garage and guest cottage on one of the lots was permissible and therefore denied the injunction. The trial court also denied the request for attorneyís fees.

The Court held that the Plaintiff was required to appeal the building permit to the zoning board and reversed the trial courtís ruling on the motion to dismiss the injunction. However, the Court agreed with the trial court that [that] fact alone would not put an end to the suit, since the permit was unaffected by whether Aichinger owned one lot or two.

The Court upheld the trial courtís determination that Aichinger owned one lot. The townís automatic merger provision has an exception for commonly owned lots which have a preexisting principal use at the time ownership of both lots occurs. The Court found a garage and guest house is not a principal use.

The Court ruled that Aichinger failed to prove municipal estoppel barred the lotsí treatment as one lot. The Court noted that in order to prevail on municipal estoppel the person asserting the claim must show among other things that she relied on a misrepresentation reasonably. Since the trial court found that Aichinger knew of the Courtís 1983 decision involving the same piece of property and its then treatment as one lot prior to her obtaining the permits relevant to this case, her reliance on the Townís misstatements of fact was unreasonable. The Court also noted that the trial court was not determining Aichingerís rights as against the Town, but Suttonís statutorily protected rights as against abutting landowners.

McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Scott H. Harris on the brief and orally), for the petitioner. Mitchell Municipal Group, P.A., of Laconia (Walter L. Mitchell and Laura A. Spector on the brief, and Ms. Spector orally), for respondent Town of Gilford. Patrick Wood Law Office, PLLC, of Laconia (Patrick H. Wood on the brief and orally) for respondent Barbara Aichinger. Wiggin & Nourie, P.A., of Manchester (Thomas J. Pappas and Mary Ann Dempsey on the brief), for Bank of America, N.A., as amicus curiae.

Family Law

Termination of Parental Rights
In Re Adam R., No 2008-900
March 10, 2010

  • Multiple errors cited concerning the probate courtís termination of parental rights
Termination proceedings were brought by maternal grandparents of Adam R. alleging that because of their daughterís mental deficiency she was an unfit parent for Adam. The grandparents had already obtained consent to TPR and to the grandparentsí adoption of Adam from the father.

The Court first pointed out that the factual findings of the court could only be overturned if they were clearly erroneous as a matter of law or unsupported by the evidence. The Court then further pointed out that this action was not subject to the same rules of reunification as those brought by DCYF under Abuse and Neglect proceedings under RSA Chapter 169-C.

The mother argued that the probate court failed to make explicit findings that her mental issues had a detrimental effect on the child. The Court noted the trial courtís order granted the parties requested findings of fact consistent with its overall order. Since the mother failed to provide the requested findings in the record, the Court assumed the necessary findings were included, and that even if they were not the evidence in the case would have compelled the trial court to come to the same findings.

The mother asserted the court erred in considering the opinion of the psychologist because one of them did not meet her and neither of them observed her with the child. The Court rejected this claim noting that nothing in the statute requires such direct observations.

The mother next asserted that it was error to terminate her parental rights because she was never given an opportunity to parent the child. The Court rejected this argument, noting that the best interest of the child is the relevant standard and under the facts that were before the probate court, it was reasonable for the judge to conclude that the danger to the child outweighed the motherís fundamental rights as a parent.

Smith-Weiss, Shepard & Durmer, P.C., of Nashua (Robert M. Shepard), for the respondent. Law Offices of Randall E. Wilbert, PLLC, of Nashua (Lucinda Hopkins), for the petitioners. Kelly A. Ayotte, attorney general (Naomi N. Butterfield, assistant attorney general), for the State, as amicus curiae.

James Shepard

James Shepard (Jim) was admitted to NH in 2006 and since then has mostly practiced administrative law in the employ of the State Banking Department and subsequently as a hearings examiner for the Department of Safety. He currently lives in Weare with his wife, two boys, two dogs and an antique cape in constant need of maintenance.

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