In re Alexis O.

• Decision Date: 29 October 2008
• Docket Number: No. 2008–133.,2008–133.
• Citation: 157 N.H. 781,959 A.2d 176
• Court: New Hampshire Supreme Court
• Parties: In re ALEXIS O.

157 N.H. 781

959 A.2d 176

In re ALEXIS O.

No. 2008–133.

Supreme Court of New Hampshire.

Argued: Sept. 11, 2008.

Opinion Issued: Oct. 29, 2008.

Kelly A. Ayotte, attorney general (Karen A. Schlitzer, assistant attorney general, on the memorandum of law and orally), for the New Hampshire Division for Children, Youth and Families.

Moir and Associates, P.C., of Concord (Jeffrey A. Rabinowitz on the brief and orally), for the mother.

DALIANIS, J.

The natural mother, J.M., appeals the ruling of the Plymouth Family Division (Rappa, J.) that the Interstate Compact on the Placement of Children (ICPC), see RSA ch. 170–A (2002), applied to its decision allowing her to retrieve her daughter, Alexis O., from New Hampshire and return with her to Arizona, after having determined that the New Hampshire Division for Children, Youth and Families (DCYF) failed to prove that the mother had neglected her. The trial court ruled that because the ICPC applied, it could not allow the mother to take her daughter to Arizona until Arizona authorities had notified DCYF that this placement did not appear to be contrary to the child's interests. See RSA 170–A:1, Article III(d). We reverse and remand.

I

The trial court found the following facts. The child, born on February 27, 2007, lived with her natural parents in Arizona. In September 2007, the parents agreed that the father would relocate with her to New Hampshire. The father arrived in Concord with one baby bottle, a car seat and some baby clothes; he had neither money nor food. The Concord Police Department contacted DCYF, which determined that the child was healthy. DCYF directed the father to a homeless shelter and called the mother to confirm that she knew that the child was in New Hampshire with her father. The mother acknowledged that she had allowed the father to take the child to New Hampshire, but expressed concerns about his ability to care for her.

The father and child lived at a homeless shelter in Plymouth from September 26, 2007, through November 30, 2007. As time went on, the father would leave the child alone without notifying anyone. This led to a second referral to DCYF, which determined that the referral was unfounded.

Eventually, the father was asked to leave the Plymouth shelter and was relocated to a shelter in Concord. Rather than take his daughter with him, he left her with an acquaintance and made no provision for her long term care. After several days, the acquaintance called DCYF. DCYF subsequently brought neglect petitions against both parents.

Following an adjudicatory hearing, the trial court found that the father, but not the mother, had neglected the daughter. With regard to the father, the trial court found that he neglected his daughter when, instead of taking her with him to the shelter in Concord, he left her with his acquaintance.

With respect to the mother, the court found that, contrary to DCYF's allegations, when first contacted by DCYF, she immediately offered to retrieve the child; however, DCYF elected not to pursue this option. The court further found that the mother's failure to return DCYF's later calls did not constitute neglect. The trial court ruled that "[u]nless DCYF can confirm that there is an order from a court of competent jurisdiction prohibiting her from doing so, [the mother] may retrieve the child as soon as possible." The court set the matter for a dispositional hearing, but stated that if the mother "retrieves the child and returns to Arizona, this case shall be closed without further hearing." In the meantime, the court awarded DCYF legal custody of the child, and DCYF placed the child in foster care.

DCYF moved for reconsideration, asserting for the first time that the ICPC applied. Following a hearing, the trial court granted the motion, ruling that pursuant to the ICPC, it could not allow the mother to retrieve her daughter until DCYF had requested, and Arizona authorities had completed, a home study and reported that allowing the daughter to live with her did not appear to be contrary to the daughter's interests. This appeal followed.

The mother argues that the ICPC does not apply because allowing her to care for her child in Arizona is not a "placement." See RSA 170–A:1, Article II(d). The State counters that because the trial court assumed jurisdiction over the child and gave DCYF legal custody over her, the ICPC applies to its decision to place the child with her mother in Arizona.

These issues present questions of first impression for this court. Courts in other jurisdictions considering similar questions are divided. Compare McComb v. Wambaugh, 934 F.2d 474, 482 (3d Cir.1991) (ICPC does not apply to out-of-state placement of child with natural parent), with Arizona Dept. of Economic Sec. v. Leonardo, 200 Ariz. 74, 22 P.3d 513, 522 (App.2001) (ICPC applies to out-of-state placement of child with natural parent). Resolving these issues requires that we interpret the ICPC. The interpretation of a statute is a question of law, which we review de novo . N.H. Dep't of Envtl. Servs. v. Marino, 155 N.H. 709, 713, 928 A.2d 818 (2007).

II

A

Interstate compacts, like the ICPC, "are formal agreements among and between states that have the characteristics of both statutory law and contractual agreements. They are enacted by state legislatures that adopt reciprocal laws that substantively mirror one another." American Public Human Services Association, Understanding Interstate Compacts, available at http:// www.aphsa.org/Policy/ICPC-REWRITE/Understanding% 20Interstate% 20 Compacts/UNDERSTANDING% 20INTRSTATE% 20COMPACTS.pdf. The ICPC has been enacted in all fifty states, the District of Columbia and the U.S. Virgin Islands. Annotation, Construction and Application of the Interstate Compact on the Placement of Children, 5 A.L.R.6th 193, 208 (2005). New Hampshire enacted it in 1965. See Laws 1965, 366:1.

"Since compacts are a statute in each of the jurisdictions that are party to it, the entire body of legal principles applicable to the interpretation of statutes also applies to the interpretation of compacts." American Public Human Services Association, Understanding Interstate Compacts, supra. Further, although interstate compacts for which Congressional consent is required are deemed to be federal laws subject to federal construction, see State v. Brown, 157 N.H. 555, 557, 953 A.2d 1174, 1176 (2008), no such consent is required for or has been given to the ICPC. McComb, 934 F.2d at 479. The ICPC, thus, is construed as state law. Id. We, therefore, apply our ordinary rules of statutory construction to its interpretation.

In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Tonnesen v. Town of Gilmanton, 156 N.H. 813, 814, 943 A.2d 782 (2008). We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We will review legislative history, however, to aid our analysis where the statutory language is ambiguous or subject to more than one reasonable interpretation. Franklin v. Town of Newport, 151 N.H. 508, 510, 861 A.2d 777 (2004). We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole. Grand China v. United Nat'l Ins. Co., 156 N.H. 429, 431, 938 A.2d 905 (2007). This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id.

B

"The ICPC ... governs the relations between states when decisions are made as to where to place a dependent child." In re D.N., 858 So.2d 1087, 1093 (Fla.Dist.Ct.App.2003). It consists of ten articles, identical in all member states, see Hartfield, The Role of the Interstate Compact on the Placement of Children in Interstate Adoption, 68 Neb. L. Rev. 292, 297 (1989), "that define the types of placements subject to [it], the procedures to be followed in making an interstate placement, and [its] specific protections, services and requirements," Annotation, supra at 208–09. "The Compact Administrator in each member state coordinates ICPC matters within that state." Eiseman, Recent Decisions: The Maryland Court of Appeals, 58 Md. L.Rev. 604, 929 (1999); see RSA 170–A:1, Article VII.

Under the ICPC, the "compact administrator in the ‘sending state’ recommends a placement and provides the ‘receiving state’ with information concerning the proposed placement. The ICPC compact administrator in the ‘receiving state’ then determines whether, in his or her opinion, the placement is appropriate." In re D.N., 858 So.2d at 1093 (citation omitted). "In essence, the ICPC requires that its procedures be followed in order to obtain the receiving state's permission for placement before the child is sent to the receiving state for purposes of foster care or adoption." Hartfield, supra at 298 (emphasis omitted); see In re Larry B., 125 N.H. 376, 379, 480 A.2d 166 (1984).

To determine whether the ICPC applies to the mother's situation, we begin by construing its plain language. The stated purposes of the ICPC are to foster cooperation and information sharing among the member states so as to ensure that children requiring placement "receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care." RSA 170–A:1, Article I. The ICPC's provisions are to "be liberally construed to effectuate the purposes thereof." RSA 170–A:1, Article...