In re Juvenile 2002–209

• Decision Date: 09 June 2003
• Docket Number: No. 2002–209.,2002–209.
• Court: New Hampshire Supreme Court
• Parties: In re JUVENILE 2002–209.

149 N.H. 559

825 A.2d 476

In re JUVENILE 2002–209.

No. 2002–209.

Supreme Court of New Hampshire.

Argued: March 5, 2003.

Opinion Issued: June 9, 2003.

Judy T. Constantian, of Merrimack, by brief and orally, for petitioner.

Gottesman and Hollis, P.A., of Nashua (Paul M. DeCarolis, on the brief and orally), for respondent.

BRODERICK, J.

The petitioner, Colleen M., appeals the decision of the Superior Court (Hampsey , J.) dismissing a petition filed by the New Hampshire Division for Children, Youth and Families (DCYF) against the respondent, Thomas L., alleging that he physically abused their three-year-old daughter. We affirm.

The petitioner and the respondent were married in May 1995, and their child was born in February 1996. In October 1998, they were divorced. The divorce decree contained a restriction prohibiting either party from moving more than thirty miles from Nashua due to custody arrangements. In March 1999, the petitioner sought the respondent's consent to her proposed relocation beyond the thirty-mile radius and alternatively suggested that he consider relocating. The respondent refused.

In early April 1999, DCYF filed a petition for abuse and neglect against the respondent after the petitioner complained that he had slapped their child, causing facial bruises. See RSA 169–C:3, II(b), (d) (2002). The respondent denied the allegations and asserted that the petitioner fabricated her claims of abuse as a tactic aimed at removing the geographic restrictions imposed on her by the divorce decree.

In February 2000, the trial court conducted a pretrial hearing during which it granted the respondent's motion to compel discovery of the child's counseling and medical records. The trial court subsequently dismissed the case in July 2000, and the petitioner filed an appeal with this court in which DCYF elected not to participate. Following a remand in December 2001, a trial was scheduled for March 6, 2002. In mid-February, almost three weeks prior to the trial, the respondent filed a motion in limine seeking to exclude the medical and counseling records and the testimony of one of the child's therapists because DCYF had failed to comply with the trial court's earlier discovery order. The court granted the motion. At trial, the petitioner, a DCYF social worker and the investigating police officer testified. At the conclusion of the trial, the respondent moved to dismiss the petition, which the trial court granted. This appeal, in which DCYF has not joined, followed.

The petitioner argues, among other things, that the trial court erred by: (1) excluding the child's medical and counseling records and the testimony of one of the child's therapists; (2) requiring expert testimony to prove that the child's purported regressive emotional behavior was causally related to the claimed abuse; and (3) dismissing the petition.

Initially, the petitioner argues that the trial court erred by excluding the records and the therapist's testimony because, under RSA 169–C:12–b (2002), the records had to be provided only five days prior to trial, which they were. The respondent argues that the statute merely provides for a minimum disclosure requirement and that the trial court was free to order earlier discovery. We agree. Proceedings under RSA chapter 169–C are civil in nature and, therefore, we look to the standards guiding such proceedings. See In re Samantha L., 145 N.H. 408, 411, 761 A.2d 1093 (2000). The trial court has broad discretion in the management of discovery and admissibility of evidence. Id. We will not reverse a trial court's ruling unless it represents an unsustainable exercise of discretion that was clearly untenable or unreasonable to the prejudice of the petitioner's case. Id.; In re Brittany S., 147 N.H. 489, 494, 792 A.2d 384 (2002).

RSA 169–C:12–b states, in pertinent part, that:

All reports, evaluations and other records from the department of health and human services [and] counselors ... in proceedings under this chapter shall be filed with the court and all other parties at least 5 days prior to any hearing.... Failure to comply with the provisions of this section shall not be grounds for dismissal of the petition.

The statute mandates when records must be filed with the trial court and made available to the parties. It does not preclude the trial court from granting a discovery motion seeking an earlier disclosure. In this case, the respondent filed a motion to compel discovery. DCYF failed to supply the records in a timely manner and the respondent moved to prohibit their introduction and to preclude any testimony about them. The court concluded that its discovery order had not been complied with and granted the requested relief.

DCYF stipulated that the therapist would be testifying only as a fact witness concerning statements the child allegedly made about the claimed abuse, statements which were apparently contained in the excluded records. There were, however, other witnesses who testified about similar statements from the child. In excluding admission of the challenged records and the related testimony of the therapist because of discovery violations, the trial court acted well within its discretion.

The petitioner next argues that the trial court erred by requiring expert testimony to prove that the alleged regressive emotional behavior displayed by the child was causally related to the claimed abuse. During the hearing, the trial court heard testimony from the mother that after she observed the bruises on her child's face

, the child's behavior regressed from "a potty-trained three-year-old to a baby back in diapers." When the petitioner attempted to testify that her child's regressive behavior was caused by the alleged physical abuse, the trial court did not permit it.

The petitioner contends that In re Gina D., 138 N.H. 697, 645 A.2d 61 (1994), "specifically prohibits an expert [from expressing an] opinion that certain behaviors are indicative of abuse." In re Gina D . does not stand for the proposition that the petitioner advances. In that case, we disallowed opinion testimony from the child's therapist because she relied upon principles and techniques of diagnosing sexual abuse that had not been generally accepted by behavioral scientists. Id. at 701–04, 645 A.2d 61. We explicitly cautioned, however, that the exclusion of the expert's testimony as unreliable should not be interpreted to "preclude all opinion testimony from psychologists or therapists in abuse and neglect proceedings." Id. at 704, 645 A.2d 61.

The petitioner also argues that by requiring expert testimony, the trial court ignored our holding in In re Craig T., 144 N.H. 584, 587–88, 744 A.2d 621 (1999), where lay eyewitness testimony was accepted to demonstrate the effects that physical abuse, suffered by one young sibling in the presence of another, had on their mental and emotional health. The facts of that case are quite different from those before us.

There, the father was observed shaking and violently hitting his three-year-old son in the head while the child's mother and five-year-old sister, as well as a number of bystanders, watched the assault. Id. at 585–88, 744 A.2d 621. Several adult witnesses were so upset that they felt compelled to call the police. Id. at 588, 744 A.2d 621. The children's mother did nothing to stop the abuse nor did she try to shield her daughter from witnessing it. Id. Under those circumstances, we held that testimony from a social worker that the son was hit by his father "all the time" and that the mother essentially denied the abuse and was unwilling to protect her children was sufficient evidence to show, without the need for expert testimony, that there would be a serious impact on the children's physical, mental and emotional health. Id. at 587–88, 744 A.2d 621.

In this case, the claimed abuse was not witnessed and the...