Petition of Doe

• Decision Date: 06 October 1989
• Docket Number: No. 88-260,88-260
• Citation: 132 N.H. 270,564 A.2d 433
• Parties: Petition of Jane DOE (New Hampshire Division for Children and Youth Services).
• Court: New Hampshire Supreme Court

Page 433

564 A.2d 433

132 N.H. 270

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

No. 88-260.

Supreme Court of New Hampshire.

Oct. 6, 1989.

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 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 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 (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 food. This punishment cut John's lip, causing it to bleed and swell. The swelling subsided within an hour, according to Jane. Concerned about her actions, Jane told the therapist she was seeing at the time, Sheila Renaud-Finnegan, about the incident. Renaud-Finnegan told Jane that she would have to report the incident to DCYS, and the therapist did so on December 23, 1985. In January, 1986, a DCYS investigating social worker, Judy Malcolm, spoke with Jane about the event. Jane described the circumstances to Malcolm and told her she was working with a counselor. Malcolm determined that the child abuse report was "founded, problem resolved," a designation which resulted in Doe's name being entered into the central registry, but requiring no further intervention by the DCYS because the problem "has been resolved to the Division's satisfaction or a satisfactory referral to another community resource has been made." N.H.Admin.Rules, He-C 6426.01(n).

On May 18, 1987, about seventeen months after the first incident, Jane again hit her son. This time, she and John had returned from grocery shopping at 9:00 p.m., after Jane had put in a day's work. Upon being told he had to go to bed, John had a temper tantrum. When Jane instructed him to stop, he swore at her. Jane then slapped John with the back of her hand, hitting him in the temple area. The slap left a bruise on John's temple, which lasted approximately two and one-half days. Jane was wearing a ring at the time, a factor which may have contributed to the bruise.

At John's day-care center the next day, a worker noticed the bruise on his temple. The worker called Jane to discuss the bruise, and Jane admitted striking John. The day-care center notified DCYS's Malcolm of the incident on May 20. That same day, Malcolm interviewed John at the day-care center and photographed his bruise. Malcolm left a message at the day-care center, requesting Jane to call her. Sheryl Fair, Malcolm's supervisor, reviewed notes of the reported abuse and wrote a note to Malcolm. In the note, Fair listed several factors--John's age, the location of the injury, Jane's denial of previous abuse, the failure of "prior safety factors," an "uncontrollable" mother--leading her to conclude that the situation "looks very serious" and instructing Malcolm to "consider placement here."

On May 21, Jane telephoned Malcolm and discussed the incident. In their conversation, Jane claimed it was the first time she had hit John, until Malcolm refreshed her memory about the December, 1985 incident. Jane also said that John was not a behavior problem at home, a fact which contradicted Malcolm's information about John's aggressive behavior at the day-care center. At Malcolm's suggestion, Jane agreed to renew counselling, which she had ended more than a year earlier.

On May 28, 1987, Malcolm met with Jane and told her that she needed counselling to help her deal with her son. On June 12, 1987, Malcolm wrote to Jane, reiterating her concern and offering to help Jane find a therapist. On June 23, 1987, Malcolm again wrote to Jane about obtaining counselling and threatened to take legal action if Jane had not given her the name of her chosen therapist. At some point, Jane contacted a mental health center about its services but was told that weekly sessions would cost forty dollars more than her insurance would cover. Given her weekly net salary of $150, she could not afford such counselling.

On July 8, 1987, Malcolm was informed of another red mark on John's body, this time on his neck. John gave conflicting explanations of how he got the red mark, including that his mother had caused the mark. Jane strongly denied causing the mark on her son's neck. On August 21, 1987, Malcolm designated Jane's case as "opened for protective services," a term which, according to DCYS regulations, is used to refer to all of the social services that can be provided to prevent or remedy, inter alia, child abuse. N.H.Admin.Rules, He-C 6426.01(z). By letter dated September 8, 1987, DCYS sent Jane notice that they had found reason to believe that she had abused her son on both May 18 and on July 7, 1987. The notice also referred to the case of founded abuse involving the December, 1985 incident.

Jane timely requested a fair hearing, see N.Y.Admin.Rules, He-C 6201.01(i) (fair hearing is an administrative forum in which impartial decision-maker hears evidence on DCYS action or inaction), on the findings of abuse. The fair hearing was conducted by Dagny Fecht, the hearing officer, and Elizabeth Linsky, the panel expert, on March 24, 1988. In addition to the testimony of Jane Doe and Judy Malcolm, from which the facts recited above were elicited, the hearing officer received a letter from Dr. Thomas C. Bisett, John's pediatrician, describing his October 9, 1987 examination of the boy. Dr. Bisett's letter noted that John's medical record did not indicate a pattern of repeated office visits because of injury, and that regularly scheduled appointments had been kept. In addition, the letter noted that no visible evidence disclosed recent injury, that a series of long bone films ruled out recent and old bone injury, and that John's blood tests, taken...