In re Kerry D.
| Decision Date | 30 August 1999 |
| Docket Number | No. 97–838.,97–838. |
| Citation | 737 A.2d 662,144 N.H. 146 |
| Court | New Hampshire Supreme Court |
| Parties | Petition of KERRY D. (New Hampshire Division for Children, Youth, and Families). |
New Hampshire Legal Assistance, of Manchester (Elliott Berry, on the brief and orally), and Larsen & McNamara, of Lebanon (Marilyn Billings McNamara, on the brief), for the petitioner.
Philip T. McLaughlin, attorney general (Ann F. Larney, assistant attorney general, on the brief and orally), for the State.
Wayne T. Moynihan, of Berlin, guardian ad litem, joined in the State's brief.
In this petition for a writ of habeas corpus, the petitioner, Kerry D. (mother), challenges the loss of legal and physical custody of her son as a result of allegations of abuse against the child's father with whom she was not residing. She argues that the Lancaster District Court (Donovan , J.) denied her due process by depriving her of legal and physical custody of her child (1) without an allegation or finding that she abused, neglected, or otherwise harmed him, and (2) without complying with statutory and constitutional requirements regarding notice of the nature and consequences of the abuse and neglect proceeding. We vacate and remand.
The child was born in August 1995. He moved to Groveton with his natural mother in 1996 and visited with his natural father three times per week. Believing that her son was being abused by his father, the mother called the police who in turn contacted the division of children, youth, and families (DCYF). In late June 1996, DCYF initiated court proceedings pursuant to RSA chapter 169–C (1994 & Supp.1996) (amended 1997, 1998) alleging that the child's father was abusing him, and obtained an ex parte order granting it protective custody and suspending visitation between the child and his father.
In early July, DCYF filed a petition charging the father with physically abusing his son. See RSA 169–C:7. At the preliminary hearing, the court found that the allegations against the father were substantiated and transferred legal custody from the mother to DCYF. See RSA 169–C:15,: 16. The court left physical custody with the mother and required that visits with the father be supervised. The mother, who was indigent, was not represented by counsel.
In August 1996, an adjudicatory hearing was scheduled but did not take place. See RSA 169–C:18. Instead, a consent order was issued by agreement of the parties and with the approval of the court. See RSA 169–C:17. The order provided that the child was "abused ... with the perpetrator unknown." It left legal custody with DCYF, physical custody with the mother, and continued the requirement of supervised visitation with the father. The mother was represented by court-appointed counsel when she signed the consent order.
As a result of the consent order provision that the child was abused, the court was authorized to transfer physical custody of the child or make other decrees based on what it determined to be in the child's best interests. See RSA 169–C:19 ; see also RSA 169–C:2, I. At the dispositional hearing in November 1996, the court left legal custody with DCYF, physical custody with the mother, and eliminated the requirement that visitation with the father be supervised. See RSA 169–C:19. In June 1997, following a review hearing, the court placed the child in foster care based in part on a report and recommendation by DCYF. See RSA 169–C:24. In October 1997, at a further review hearing, the court adopted DCYF's recommendation to transfer placement of the child from foster care to his natural father. The court granted "at least twice monthly" visitation to the mother. The DCYF caseworker did not identify any plan to reunite the child with his mother. This petition for writ of habeas corpus followed.
As a preliminary matter, the State argues that we should dismiss this petition because the mother failed to preserve any issues for appellate review. The mother acknowledges the preservation problem but contends that the circumstances of this case compel consideration of her petition. We agree.
When court action results in the loss of a constitutionally protected liberty interest, it may be collaterally attacked by way of petition for writ of habeas corpus after the time for direct appeal has expired. Bussiere v. Cunningham, Warden , 132 N.H. 747, 750, 571 A.2d 908, 910 (1990) ; see Martel v. Hancock , 115 N.H. 237, 237–38, 339 A.2d 9, 10 (1975) (). Contrary to the State's assertion, a writ of habeas corpus may be brought to determine the custody of a minor child. See, e.g., Sheehy v. Sheehy , 88 N.H. 223, 226, 186 A. 1, 4 (1936).
This extraordinary remedy is "reserved for those questions which involve fundamental freedoms and occasions of pressing necessity where other remedies are inadequate or ineffective." Springer v. Hungerford , 100 N.H. 503, 506, 130 A.2d 538, 540 (1957). The mother argues that she lost legal and physical custody of her child and was granted restrictive visitation rights without due process in violation of Part I, Article 2 of the State Constitution and the Fourteenth Amendment of the Federal Constitution.
We first consider whether the mother alleged the deprivation of a constitutionally protected liberty interest. See Bussiere , 132 N.H. at 751, 571 A.2d at 910. We analyze her State claim first. See State v.
, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983). We have long recognized the right to raise and care for one's children as a fundamental liberty interest protected by Part I, Article 2 of the New Hampshire Constitution. See
State v. Robert H. , 118 N.H. 713, 716, 393 A.2d 1387, 1389 (1978), disavowed on other grounds by
In re Tricia H. , 126 N.H. 418, 424, 493 A.2d 1146, 1151 (1985). Because the State Constitution is at least as protective of individual liberties as the Federal Constitution, we need not conduct a separate federal inquiry. Cf.
In re Tracy M. , 137 N.H. 119, 122, 624 A.2d 963, 965 (1993).
We next consider whether an adequate statutory remedy is presently available in this case. See Springer , 100 N.H. at 506–07, 130 A.2d at 540. RSA 169–C:4, III provides that a custody "order shall not be modified or changed nor shall another order affecting the status of the child be issued by the superior court except on appeal under RSA 169–C:28." The habeas corpus relief sought by the mother would constitute an order affecting the status of the child within the meaning of RSA 169–C:4, III. The appeal authorized by RSA 169–C:28, however, requires that it be filed in the superior court within thirty days of the order. It is undisputed that the mother did not appeal the consent order within thirty days, and therefore cannot seek relief under RSA 169–C:28.
The mother contends that she did not comply with the statutory appeal requirements because she was not informed of the consequences of agreeing to a finding that her son was abused when she signed the August 1996 consent order. She asserts that she did not become aware of the deprivation of her constitutionally protected interest in raising and caring for her son until several months later when he was removed from her home in June 1997, long after the appeal period provided in RSA 169–C:28 had expired, and the consent order had become final.
Although the State argues that the mother could have asked the district court to review the consent order at any time, see RSA 169–C:24, the mother would have had to demonstrate that returning custody to her was in the child's best interests, see RSA 169–C:23, III; In re Tammy S. , 126 N.H. 734, 738, 495 A.2d 1303, 1306 (1985). Moreover, although the State argues that the mother could have asked the district court to review its custody determination, the mother would have been required to allege a sufficient change in circumstances warranting a different disposition. See RSA 169–C:22. Thus, under these statutory provisions, the district court would have presumed the consent order was valid and then considered whether present circumstances merited a different disposition. By contrast, the superior court would have reviewed the consent order de novo . See RSA 169–C:28. Finally, although the State contends that this petition should be construed as a petition for a writ of certiorari, such relief is generally available only when there is no statutory right to appeal. See In re Doe , 126 N.H. 719, 722, 495 A.2d 1293, 1296 (1985). Because this case involves a constitutionally protected liberty interest and the mother, at present, has no adequate statutory appeal right, we conclude that her petition for writ of habeas corpus is properly before us and proceed to a consideration of its merits.
We need only address the mother's argument that the district court failed to make the determination required by RSA 169–C:17, II that she understood the consequences of the consent order, and that she voluntarily and intelligently consented to the order's terms providing that her son was abused and giving legal custody to DCYF. The State argues that the mother cannot support this allegation because she failed to produce a record that establishes the court's failure to comply with the informed consent requirements of the statute.
As a matter of first impression, we must decide whether the parent or the State has the burden to prove compliance with the informed consent requirements of RSA 169–C:17, II, and what proof is necessary. The State urges us to apply the general rule that the moving party, in this case the mother, is responsible for presenting a record sufficient to...
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