Petition of Bagley, 85-248

Decision Date09 July 1986
Docket NumberNo. 85-248,85-248
Citation513 A.2d 331,128 N.H. 275
PartiesPetition of Lana and Leon BAGLEY. (New Hampshire Division for Children and Youth Services)
CourtNew Hampshire Supreme Court

Kahn & Brown, Nashua (Kenneth M. Brown on brief, and Ellen S. Friedman on brief and orally), for petitioners.

Stephen E. Merrill, Atty. Gen. (Susan Saggiotes, Atty., on brief and orally), for Division for Children and Youth Services.

BATCHELDER, Justice.

In this petition for a writ of certiorari, Lana and Leon Bagley challenge a decision of the New Hampshire Division for Children and Youth Services (the "division") upholding a finding by the division's Nashua district office that a report of child neglect in the petitioners' household was "founded." See RSA 169-C:29 to :39 (Supp.1985). We grant the petition, vacate the decision, and remand for proceedings consistent with this opinion.

This case presents important social and constitutional issues. At center stage are our government's laudable efforts to combat one of the great evils of the day: the abuse and neglect of children. In the background, however, looms the image of Big Brother. Our role is to decide whether our constitution permits the government to give its imprimatur to reports of child abuse and neglect--and to store and use those reports--without affording to those accused notice and a meaningful opportunity to be heard.

Lana and Leon Bagley are married and have five children. In October 1984, the ages of these children ranged from two to eleven. At that time Lana Bagley was caring for several children, in addition to her own, in her Nashua home. Leon Bagley, a postal service employee and a Special Forces veteran and reservist, kept a variety of weapons and ammunition in the house, including rifles, shotguns, pistols, and a revolver.

On the afternoon of October 14, 1984, Mrs. Bagley and the children returned home from shopping to find Mr. Bagley asleep. Mr. Bagley had been drinking heavily. Mrs. Bagley roused her husband, who became angry, followed his wife into the kitchen, and pushed her. Mr. Bagley then returned to the master bedroom and began to handle one of his weapons. Hearing this, Mrs. Bagley collected her children and left the house.

Mrs. Bagley sent the children to her mother's house and telephoned the Nashua Police Department. The police arrived, spoke to Mrs. Bagley, and took positions outside the house. One of the officers then telephoned Mr. Bagley. Inside the house, Bagley pointed a semi-automatic rifle at his ringing bedroom telephone and fired two rounds into it. The telephone continued to ring. Bagley picked up the receiver, spoke to the officer, and agreed to leave the house unarmed.

The police interviewed Bagley, who admitted that he had shot the telephone. Bagley then entered the house with the officers and showed them the newly perforated telephone, the rifle, and many of his other weapons. The police, believing that the Bagleys had reconciled their differences, advised Mrs. Bagley of her right to file a domestic violence petition, issued a summons charging Mr. Bagley with discharging a firearm within the city limits, and departed.

On October 18, 1984, the division's Nashua district office received a telephone call regarding the Bagley household. The informant said that Mr. Bagley had allegedly discharged a shotgun in the house, and expressed concern regarding Mrs. Bagley's lack of a daycare license. The following day a division employee telephoned the Nashua Police Department and was provided with the details of the incident. A division social worker, Maureen Ricker, was assigned to investigate the matter.

On October 26, Ricker visited the Bagley home and interviewed Mrs. Bagley. Ricker explained that the agency had received a report "concerning guns in the house and potential violence." Mrs. Bagley admitted that the incident had occurred, but assured Ricker that she and her children were not in danger. She also expressed her concern that Ricker's investigation would affect her eligibility for a daycare license. She agreed to confer with her husband and to meet again with Ricker.

On October 29, both of the Bagleys went to the district office. Mrs. Bagley explained to Ricker that since the incident the guns had been transferred to her mother's house, where they would remain at least until the Bagleys obtained a secure container for them. Mr. Bagley recounted the incident and said that it would not happen again. He agreed to attend counseling sessions with his wife. Mr. Bagley also stated that "he was a gun expert, that he knew how to handle guns, and that he did not feel that the guns being in the house presented a danger to the children."

On November 8, Ricker returned to the Bagley residence and interviewed three of the children. In the following weeks, Ricker twice met with Mrs. Bagley and her attorney.

On or about November 21, 1984, the district office telephoned the Bagleys. The Bagleys allegedly were told that the office had found that "(1) the children were in hazardous living conditions, and (2) Mr. Bagley was a danger to others, in conflict with the community and had used defective judgment." The record does not contain any reference to this call. The Bagleys did not receive written notice of the division's findings.

On December 14, 1984, the Bagleys' lawyer wrote Raymond Barrett, administrator of the bureau of children, and requested a hearing. Barrett replied by letter. He notified the Bagleys that an administrative review panel consisting of three disinterested social workers would hear the case, specified the date, time, and location of the hearing, and explained its format. He also stated that before the date of the panel review the Bagleys could ask to review their record at the district office. In a second letter to the Bagleys, dated March 12, 1985, Barrett stated, "[S]ince Mr. Bagley has been listed as the alleged perpetrator in our records, a review of the findings can not take place unless he is present, since the purpose of the panel review is to examine the circumstances of the finding regarding Mr. Bagley."

The hearing occurred on March 26, 1985. Both the Bagleys and their attorney attended. At the beginning of the hearing the panel chairperson stated that the division had made a finding of neglect based on "hazardous living conditions." The panel members heard testimony from Ricker and her supervisor, and much of the police report of the shooting incident was read into the record. The Bagleys' attorney was not permitted to cross-examine the division employees, but was allowed to ask them questions via the panel chairperson. The Bagleys then testified, and were questioned by the panel members. The Bagleys' attorney made a final statement, and the panel adjourned.

On April 1, 1985, the panel, in an inter-department communication to Barrett, recommended that the decision of the district office be upheld. Barrett, in an April 5, 1985, letter to the Bagleys, accepted this recommendation and upheld the district office's decision. He gave no reasons for his determination.

The Bagleys next requested a "fair hearing." Dagny Fecht, administrator of the office of fair hearings, reviewed the record, the tape recording of the hearing before the panel, the panel's recommendation to Barrett, and Barrett's decision. On May 7, 1985, Fecht upheld the decision in a written determination that included factual findings. This petition followed.

The Bagleys raise three arguments on appeal. They contend that the division erred in deciding that the report of neglect was founded, in that (1) there was no evidence that the children's health had suffered or had been very likely to suffer "serious impairment," RSA 169-C:3, XIX(b) (Supp.1985), and (2) one parent was at all times exercising proper parental control over the children. They also argue that the division has abridged their constitutional rights to due process of law. Because we agree with the last of these arguments, we do not consider the first two.

This case involves the Reporting Law, a subdivision of the Child Protection Act. RSA 169-C:29 to :39 (Supp.1985). The reporting law requires "any ... person having reason to suspect that a child has been abused or neglected" to make a report to the division. RSA 169-C:29, :30 (Supp.1985). Anyone making such a report in good faith enjoys immunity from liability. RSA 169-C:31 (Supp.1985); see State v. Howland, 125 N.H. 497, 484 A.2d 1076 (1984).

When the division receives a report of abuse or neglect, it must begin a child protective investigation within seventy-two hours of receipt of the report. RSA 169-C:34, I (Supp.1985). In the course of its investigation the division determines the composition of the family or household, the risk to each child posed by the existing home environment, and the protective treatment and ameliorative services necessary to prevent further abuse or neglect and improve the home environment. RSA 169-C:34, II (Supp.1985). The division also determines whether the report is "founded"--whether there is "probable cause" to believe that any child in the family or household is abused or neglected. RSA 169-C:34, II(ii) (Supp.1985). This determination includes identification of the "harm or threatened harm to each child, the nature and extent of present or prior injuries, abuse or neglect, and any evidence thereof, and ... the person or persons apparently responsible for the abuse or neglect." Id. "Probable cause," as used in the Child Protection Act, means "facts and circumstances based upon accurate and reliable information, including hearsay, that would justify a reasonable person to believe that a child subject to a report ... is abused or neglected." RSA 169-C:3, XXIII (Supp.1985).

Once it completes an investigation the division may refer the case to law enforcement authorities for possible criminal prosecution, and must do so if the abuse or neglect causes serious bodily injury to a...

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