564 A.2d 433 (N.H. 1989), 88-260, Petition of Doe

Docket Nº:88-260.
Citation:564 A.2d 433, 132 N.H. 270
Opinion Judge:BATCHELDER, J.
Party Name:Petition of Jane DOE (New Hampshire Division for Children and Youth Services).
Attorney:New Hampshire Legal Assistance, Manchester (Ronald B. Eskin, on the brief and orally), for petitioner., John P. Arnold, Atty. Gen. (Charles T. Putnam, Asst. Atty. Gen., on the brief and orally), for Div. for Children and Youth Services. New Hampshire Legal Assistance, of Manchester (Ronald B. Es...
Judge Panel:All concurred.
Case Date:October 06, 1989
Court:Supreme Court of New Hampshire

Page 433

564 A.2d 433 (N.H. 1989)

132 N.H. 270

Petition of Jane DOE (New Hampshire Division for Children and Youth Services).

No. 88-260.

Supreme Court of New Hampshire.

October 6, 1989

Page 434

New Hampshire Legal Assistance, Manchester (Ronald B. Eskin, on the brief and orally), for petitioner.

John P. Arnold, Atty. Gen. (Charles T. Putnam, Asst. Atty. Gen., on the brief and orally), for Div. for Children and Youth Services.

BATCHELDER, Justice.

Jane Doe petitions this court for a writ of certiorari to reverse a "fair hearing" decision by the New Hampshire Department of Health and Human Services, Division for Children and Youth Services (DCYS), finding that she abused [132 N.H. 271] her young son on two separate occasions. On the facts and record of this case, we reverse the decision of the DCYS.

This case requires us to determine whether DCYS proved that Jane Doe committed child abuse, as that term is defined by RSA chapter 169-C, the Child Protection Act and Reporting Law. A brief review of the statute provides the backdrop for this case. The overall purposes of this law are to provide protection to children whose life, health, or welfare may be endangered and to assist parents to contend with, and to correct, family problems in order to avoid having children removed from the family. RSA 169-C:2, I (Supp.1988). To effect the law's purposes, RSA 169-C:29 (Supp.1988) requires that physicians, psychological therapists and teachers, among others, "having reason to suspect that a child has been abused or neglected" report such circumstances to the bureau of child and family services (bureau) within DCYS. Once the DCYS bureau receives a report of abuse or neglect, it must undertake an investigation within seventy-two hours, RSA 169-C:34, I (Supp.1988), to determine: (1) the composition of the child's family or household; (2) whether probable cause exists to believe that any child in the family is abused or neglected, "including a determination of harm or threatened harm to each child, the nature and extent of present or prior injuries, abuse or neglect, and any evidence thereof," as well as a determination of the persons responsible for the abuse; (3) the immediate and long-term risk to the child if he or she remains in the existing home environment; and (4) the protective treatment and ameliorative services necessary to prevent further abuse or neglect, and to improve the home environment and the parents' ability to care for the children, RSA 169-C:34, II (Supp.1988).

One aspect of the bureau's investigation, as noted above, is to decide whether probable cause exists to believe that a child is being abused. The bureau may find probable cause when it possesses knowledge of such "facts and circumstances based upon accurate and reliable information, including hearsay, that would justify a reasonable person to believe that a child ... is abused

Page 435

or neglected." RSA 169-C:3, XXIII (Supp.1988). The statute expansively defines an abused child as one who has been: "(a) Sexually abused; (b) Intentionally physically injured; (c) Psychologically injured ...; or (d) Physically injured by other than accidental means." RSA 169-C:3, II (Supp.1988). Upon finding probable cause that the child has been abused, DCYS may petition the district court, RSA 169-C:7 (Supp.1988), to obtain protective orders for the child, including an order removing the child from the home, RSA 169-C:16, 169-C:19 [132 N.H. 272] (Supp.1988). Whether or not probable cause is found, each instance of reported abuse is entered into a central registry. RSA 169-C:35 (Supp.1988). Unfounded reports, those for which probable cause does not exist, RSA 169-C:3, XXVIII (Supp.1988), are kept in the registry for three years. Founded reports are retained for seven years. RSA 169-C:35 (Supp.1988). According to one national study, only forty percent of all child abuse reports are substantiated; the rest are investigated and dismissed. Besharov, Child Abuse and Neglect Reporting and Investigation: Policy Guidelines for Decision Making, 22 Family L.Q. 1, 12 (1988).

When the DCYS finds probable cause to believe abuse has occurred, the alleged child abuser has a due process right to notice of that finding and a hearing to challenge that determination. Petition of Bagley, 128 N.H. 275, 287, 513 A.2d 331, 339-40 (1986). It is from the decision after such a hearing, called a fair hearing by the department of health and human services, that Jane Doe petitions this court. With this statutory and procedural background in mind, we analyze the facts of this case.

Jane Doe is a single, working mother. Her son John was born on March 15, 1984. When John was about twenty-one months old, in December, 1985, his mother hit him in the area of the mouth because, during mealtime, John persisted in throwing...

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