In re M.M.

• Decision Date: 02 June 2021
• Docket Number: No. 2020-0467,2020-0467
• Citation: 174 N.H. 281,262 A.3d 343
• Parties: IN RE M.M.
• Court: New Hampshire Supreme Court

174 N.H. 281

262 A.3d 343

IN RE M.M.

No. 2020-0467

Supreme Court of New Hampshire.

Submitted: March 25, 2021

Opinion Issued: June 2, 2021

Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior assistant attorney general, on the memorandum of law), for the petitioner.

Amy B. Davidson, of Contoocook, on the brief, for the respondent.

HANTZ MARCONI, J.

The respondent, the father of the juvenile (Father), challenges the superior court's refusal of his appeal from a final dispositional order of the Circuit Court (Chabot, J.) on a neglect petition brought by the petitioner, the New Hampshire Division for Children, Youth and Families (DCYF). Father argues that the amendment to RSA 169-C:28, effective July 1, 2020, eliminating the right to appeal final dispositional orders in abuse and neglect proceedings to the superior court for de novo review, does not apply to his case. See Laws 2020, 37:125 (amending RSA 169-C:28 (2014)). Father also appeals the circuit court's final dispositional order directly to this court pursuant to the amended statute, see id., arguing that the circuit court should not have considered and issued orders on DCYF's neglect petition and, alternatively, that there was insufficient evidence to support a finding of neglect, see RSA 169-C:3, XIX(b) (Supp. 2020).

We conclude that the July 2020 amendment to RSA 169-C:28 applies to Father's case, barring his appeal to the superior court for de novo review. Conducting our direct review of Father's appeal from the circuit court's final dispositional order, we conclude that the circuit court did not err in considering and issuing orders on DCYF's neglect petition. We also affirm the circuit court's finding of neglect against Father.

I

The following relevant facts and procedural history either were found by the circuit court or appear in the record before us. See In re Juvenile 2005-212, 154 N.H. 763, 764, 917 A.2d 703 (2007). Father and Mother are M.M.’s biological parents. M.M.’s parents are divorced, and he has half-siblings who live in his parents’ respective homes. M.M. has a history of trauma and mental health conditions, and has exhibited aggressive behaviors toward himself and others in the past. In 2015, M.M. went to live with Mother after an incident between M.M. and Father's wife. As a result of this incident, a 2015 parenting plan provision bars Father's wife from having unsupervised contact with M.M. For the next approximately two-and-a-half years, M.M. primarily lived with Mother and her other children, and Father had minimal contact with M.M. Over roughly this same period, M.M. was admitted to New Hampshire Hospital (NHH) eight times as a result of involuntary emergency admissions (IEA).

In January 2018, Mother filed a petition alleging that M.M. was a child in need of services (CHINS). See RSA 169-D:2, II(d) (2014). Following a CHINS adjudicatory hearing, M.M. was placed at Nashua Children's Home (NCH), a residential facility, where he remained for nearly two years, until January 2020. See RSA 169-D:14 (2014). M.M.’s CHINS case remained open throughout this period, through which M.M. and his parents received services with the goal of returning M.M. home to live with either Mother or Father. Father was not officially joined as a party to the CHINS case until October 2018; however, he was tangentially involved as early as April 2018 — having been approved for off-grounds visitation with M.M., expected to participate in family therapy at NCH, attending hearings, and providing input for M.M.’s pre-dispositional investigation. See RSA 169-D:14, III.

M.M.’s CHINS case was scheduled to close on April 17, 2020. In preparation for the closure of M.M.’s CHINS case, it was planned for him to transition

out of NCH in January of 2020 so that he and his parents would have the benefit of CHINS services for the first few months after M.M. returned home. With that goal in mind, there was increased urgency during the fall of 2019 to ensure that Mother and Father had plans in place to facilitate M.M.’s return to their care, including scheduling after-school activities for M.M. and securing support from other people to help Mother and Father to look after and care for M.M. DCYF and M.M.’s Juvenile Justice probation officer made referrals to multiple services to prepare Father and Mother for M.M.’s exit from his CHINS plan; however, the parents failed to follow through or delayed acting on the majority of the recommendations. For example, Father did not have M.M. to his home for overnight visits until November 2019 and did not consistently participate in court-ordered family therapy until December 2019. Additionally, DCYF and Juvenile Justice stressed the importance of securing additional family support for M.M. in the event Father and/or Mother needed assistance, and also stressed the need to amend the parenting plan to permit Father's wife to have unsupervised contact with M.M. to assist with M.M.’s care.

On January 7, 2020, M.M. was conditionally discharged from NCH and placed with Mother as part of the transition out of his CHINS case. M.M. spent time with Father at Father's home, including overnight visits, in January and early February as part of his conditional release. After a visit with Father on February 8, M.M. told Mother that Father had hit him, prompting Mother to call the police. The responding officer determined that no crime occurred and that Father had not abused or neglected M.M.; however, pursuant to the police department's standard procedure, the officer implemented a verbal "safety plan" whereby M.M. would stay with Mother until the officer notified DCYF about the incident.

Following an incident of aggression toward Mother and her other children on February 18, M.M. was admitted to St. Joseph's Hospital pending the opening of an available bed at NHH for an involuntary emergency admission. Consequently, an emergency CHINS hearing was held on February 25. In its order, the Circuit Court (Leary, J.) stated that since its last hearing on January 7, M.M. "ha[d] been IEA'd and [is] awaiting a bed at NHH" and indicated that M.M. was to be released to Mother upon his eventual discharge from the hospital. At the hearing, the court said that the parties could seek emergency orders if needed, and scheduled a review hearing for March 31, 2020. Though M.M. was expected to be transferred to NHH, on February 26, the day after the CHINS hearing, St. Joseph's Hospital notified DCYF that M.M. had stabilized and no longer met the criteria for admission to NHH and, consequently, that it was preparing to discharge M.M.

On February 27, Mother was informed that M.M. was ready to be discharged. She declined to take custody of M.M. due to her concerns that bringing M.M. home posed a risk to her safety and the safety of her other children, and she could not suggest anyone else to care for M.M. At approximately 9:00 a.m., DCYF called Father, informing him that M.M. was ready to be discharged, that Mother had already refused to take custody of M.M., and that Father needed to pick him up. Father responded that there were several barriers preventing him from picking up M.M., among them that he was going to be working in Vermont for the next week and could not take M.M. with him. DCYF asked if he had any relatives or other plans for M.M., and Father said he would get back to DCYF. After not hearing back from Father, DCYF reached out again, and a conference call was held later that day with Father, DCYF, and Juvenile Justice, which had been working with M.M., Father, and Mother through M.M.’s CHINS case.

DCYF reiterated that Father needed to pick M.M. up from St. Joseph's Hospital because M.M. was ready for release. Father said that the police officer's "safety plan" and the CHINS placement with Mother precluded him from taking custody of M.M. Father was told that he needed to pick M.M. up in the next two hours or DCYF would file a neglect petition against him. Father's wife was still not permitted to have unsupervised contact with M.M., so Father said that the only way he could take custody of M.M. would be to bring M.M. with him to work in Vermont, which would leave M.M. unsupervised while Father was working. Father could not identify anyone else who could pick up or care for M.M.

Ultimately, neither Mother nor Father took custody of M.M. on February 27. DCYF obtained an ex parte order to assume custody of M.M. and placed him in shelter care. On March 2, 2020, DCYF filed petitions of neglect against both Father and Mother. Mother did not contest the petition against her, and she is not a party to this appeal.

The adjudicatory hearing on the petition against Father was held over five days in June and July of 2020. See RSA 169-C:18 (Supp. 2020). The circuit court issued its adjudicatory order on August 3, in which it found that Father neglected M.M. for failing to take custody of him on February 27. See RSA 169-C:3, XIX(b), :18. Father filed a motion to reconsider, to which DCYF objected. The circuit court denied Father's motion. A telephonic dispositional hearing was held on August 31, and the circuit court issued its final dispositional order on September 13. See RSA 169-C:19 (2014), :21 (2014).

On September 17, Father attempted to file an appeal in the superior court in accordance with the language of RSA 169-C:28 as it existed when DCYF filed its neglect petition against him. However, on July 29, 2020, RSA 169-C:28 had been amended to eliminate de novo review of final dispositional orders in the superior court, effective July 1, 2020. See Laws 2020, 37:125. The superior court returned Father's appeal via a compliance notice instructing him to file his appeal with this court, citing the recent amendment to RSA 169-C:28. See id. This appeal followed.

II

We begin with Father's argument that he was erroneously deprived of his right to a de novo appeal to the superior court. At the time DCYF filed its petition of neglect against Father, RSA 169-C:28 read as follows:

I. An

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