2012-873, In re G.G.

The respondent, the father of G.G., appeals the order of the

Howard Gross, of Dover, on the brief and orally, for the respondent.

attorney general, orally), for the State. to press. Errors may be reported by E-mail at the following address: attorney general, on the brief, and Suzanne M. Gorman, senior assistant

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as and mother. The court concluded that subpoenaing G.G., “an eleven year old

p. 2 “largely cumulative” of the disclosures G.G. made to her guidance counselor

through whom the interview was admitted; and (3) the recorded interview was G.G. that he could not explore during the testimony of the DCYF worker not identify any areas of cross-examination that he intended to pursue through

proceeding would contradict what she said in the recorded interview; (2) he did

because: (1) he did not argue or demonstrate that G.G.’s testimony in the respondent’s request to subpoena [G.G. was] not necessary for his defense” presence was otherwise “necessary or essential.” The court decided that “the

had “a compelling need” for her to be a witness at the proceeding or that her

G.G. would be eligible for subpoena only if it determined that the respondent right to subpoena [G.G.] and force her to testify.” The court concluded that The court rejected the respondent’s assertion that he had “an absolute

events.”

Cf. RSA 516:25-a (2007) (“In all civil actions, suits or proceedings to recover determine whether it was “reliable, . . . trustworthy, and otherwise admissible.” that the respondent had no “right to subpoena [G.G] to testify about these “introduce [the recorded] interview without having to call [G.G.] to testify” and competent.”). After reviewing the video, the court decided that the State could

The trial court deferred ruling on the matter until it reviewed the video to

trustworthy and that the witness seeking to testify to such statement is issue, see RSA 169-C:11, the State would move to quash it and “bring in a

findings of fact that the statement sought to be admitted is apparently determined that G.G.’s presence was required and that a subpoena should that the trial judge, prior to the admission of such testimony, shall make the victim of such abuse or assault shall not be excluded as hearsay, provided

this particular proceeding.”

examine her.” See RSA 169-C:18, III (Supp. 2013). He also argued that, hearing. He argued that he had “a black-and-white statutory right to crossto have to testify in a criminal case.” The State stated that if the court nothing more than an opportunity to depose this witness because she’s going abuse or sexual assault, any statement of the minor child alleged to have been therapist had raised “concerns about the child testifying,” and argued: “[I]t’s damages on behalf of a minor child for abuse or assault, including sexual

therapist to say why it will be detrimental to this particular child to testify in

attorney objected to the recording’s introduction without G.G. testifying at the interview of G.G. by a Child Advocacy Center worker. The respondent’s

RSA ch. 169-C (2002 & Supp. 2013). The State informed the court that G.G.’s to the purpose of the Child Protection Act, which is to protect the child. See The State disagreed, arguing that requiring G.G. to testify was contrary

statutory right to subpoena her. See RSA 169-C:11 (2002). because G.G.’s presence at the hearing was required for his defense, he had a right to call witnesses on his own behalf.” He contends that the pertinent

p. 3 The respondent argues that those statutes confer upon him an “absolute

opinion of the court, is necessary.

his parents or guardian or any other person whose presence, in the

attendance of any person whose presence is required by the child, court. The court may issue subpoenas requiring . . . the application of a party to the proceedings, or upon the motion of the

A subpoena may be issued pursuant to RSA 516, or upon

pertinent part: evidence which it considers relevant and material.” RSA 169-C:11 provides, in court shall not be bound by the technical rules of evidence and may admit

RSA 169-C:12 provides that “[i]n any hearing under [RSA chapter 169-C], the

determined by RSA 169-C:12. witnesses. The admissibility of all evidence in this hearing shall be

witnesses on their own behalf and to cross-examine adverse

The petitionees shall have the right to present evidence and petition and any other evidence necessary to support the petition. The petitioner shall present witnesses to testify in support of the

to include. Id. at ___, 82 A.3d at 920. We construe all parts of a statute

advanced by the statutory scheme. Id. at ___, 82 A.3d at 920.

interpretation. Our review of the superior court’s decision, therefore, is de Resolving the issues in this appeal requires that we engage in statutory

legislature might have said or add language that the legislature did not see fit (2002), and RSA 169-C:11. RSA 169-C:18, III provides, in pertinent part: The statutes pertinent to this case are RSA 169-C:18, III, RSA 169-C:12

interpret statutory language in light of the policy or purpose sought to be A.3d at 920. This enables us to better discern the legislature’s intent and to isolation, but rather within the context of the statute as a whole. Id. at ___, 82 Id. at ___, 82 A.3d at 920. Moreover, we do not consider words and phrases in together to effectuate its overall purpose and avoid an absurd or unjust result.

is designed to protect her best interests.” legislative intent from the statute as written and will not consider what the child,” would only subject her “to the drama of testifying in a proceeding which to its plain and ordinary meaning. Id. at ___, 82 A.3d at 920. We interpret language of the statute itself, and, if possible, construe that language according Carrier, 165 N.H. ___, ___, 82 A.3d 917, 920 (2013). We first look to the expressed in the words of the statute considered as a whole. Petition of interpretation, we are the final arbiter of the intent of the legislature as novo. In re Cierra L., 161 N.H. 185, 188 (2010). In matters of statutory in every abuse and neglect proceeding. That would be contrary to the primary

p. 4 respondent would allow an accused parent to compel the testimony of the child

whether any witness, including the child, should be compelled to testify.

material” information. Construing the pertinent statutes as does the proceeding before it.” State v. Fecteau, 140 N.H. 498, 504 (1995). “For this

trial courts have the discretion in abuse and neglect proceedings to determine

neglect proceeding. Such a child necessarily will always have “relevant and Moreover, “[t]he trial court has inherent power to control every aspect of the particularly when applied to the child who is the subject of an abuse and The respondent’s interpretation would lead to an illogical result,

statutes and the court’s inherent authority to control the proceedings before it, Therefore, we conclude that given the plain language of the pertinent 169-C:12 constitutes the only limitation upon an accused parent’s ability to We disagree with the respondent to the extent that he contends that RSA

that witness’s presence “is required by the child, his parents or guardian.” the proceeding, RSA 169-C:11 expressly allows the court to consider whether proceedings. With regard to the right to compel the presence of a witness at

whose life, health or welfare is endangered.” RSA 169-C:2, I(a) (2002); see In re

welfare of an allegedly abused or neglected child is of paramount importance.”) Janette P., 153 N.H. 200, 204 (2006) (“Under [the Child Protection Act], the court erred when it refused to allow him to compel G.G.’s testimony. other grounds by In re C.M., 163 N.H. 768 (2012); In the Matter of Jeffrey G. & been both relevant and material. children, which often trumps other competing goals of the Act”), overruled on RSA 169-C:11 and the court’s inherent authority to control its own Shelby R., 148 N.H. 237, 241 (2002) (“the Act’s primary interest is protecting that the trial court, in this case, had no discretion to decide whether to allow purpose of the Child Protection Act, which is to “provide protection to children

and admissible under RSA 169-C:12. Accordingly, he argues, the superior the alleged assault.” Her testimony, he contends, is thus, relevant, material, the respondent to call G.G. as a witness even though her testimony would have one – according to the hearsay testimony taken – who has direct knowledge of examine adverse witnesses” is qualified, not only by RSA 169-C:12, but also by C:18, III to “present evidence and witnesses on [his] own behalf and to cross- appeal do not abrogate that inherent authority. Thus, we reject the assertion establishes that whatever right an accused parent may have under RSA 169- constitutional fiat.” Id. (quotation omitted). The statutes pertinent to this by which a case will be tried, except where limited by statute, court rule, or reason, a trial judge has the authority to determine the manner and procedure

or neglect.” He further argues that, in this particular case, G.G. “is the only statutes neither “limit [n]or exempt the child from testifying in cases of abuse

present witnesses on his own behalf. The structure of the statutory scheme they rely so as to facilitate appellate review. See In the Matter of Rupa & Rupa, whether any presumption should apply. p. 5 we decline to now decide whether the respondent bears such a burden or has an absolute right to examine the child – as well as the state of the record,

see Maryland v. Craig, 497 U.S. 836, 855 (1990) (noting that special

courts to make express findings of fact with regard to the factors upon which

is unwarranted. Given the nature of the respondent’s position here – that he

meaningful examination of the child without jeopardizing the child’s well-being,

consider all of the factors or to give them equal weight. We also encourage trial we stress that our list is not exhaustive and that trial courts are not required to Although we encourage trial courts to consider these enumerated factors, of the child will, to some degree, challenge the child’s credibility. That concern suggesting that a respondent must make a threshold showing that examination 5 consider when deciding whether to compel the child’s testimony, we are for courts to consider when deciding whether to compel such testimony. See

whether there are alternatives to in-court testimony that would enable incremental probative value of the child’s potential in-court testimony; and (6) the child’s and responding parent’s accounts, or evidence of prior injury; (5) the

we do not address them. See State v. Chick, 141 N.H. 503, 504 (1996)

The concurrence expresses concern that by listing factors for the court to supervisory authority, we set forth the following non-exhaustive list of factors abuse and neglect proceeding presents unique issues, in the exercise of our Because compelling the testimony of a child who is the subject of an

lend credibility to the allegations of abuse or neglect, such as consistency of

sufficiently developed his constitutional arguments for our review. Accordingly,

appropriate).

visitation). 161 N.H. 311, 318 (2010) (regarding factors to determine award of grandparent

of-court statements describing the child’s allegations; (4) evidence that may

Although the respondent asserts constitutional claims, he has not

procedures for child testimony in criminal abuse proceedings may be would have been relevant and material, the trial court did not err.

‘due process’”).

child from testifying; (3) the indicia of reliability surrounding any admitted outcourts to consider: (1) the child’s age; (2) the specific potential harm to the N.H. CONST. pt. II, art. 73-a. In those circumstances, we encourage trial

not have an “absolute right” to subpoena G.G., even though her testimony Consequently, to the extent that the trial court decided that the respondent did

(declining to address constitutional argument based upon “passing reference to that is relevant and material. Cf. N.H. R. Ev. 403. p. 6 cumulative and/or a waste of time even though each witness has information that calling ten witnesses to establish this same fact is unnecessarily

circumstances, the court can sustainably exercise its discretion to determine

fact “X” through the testimony of one witness, then, absent highly unusual call a particular witness. To cite an obvious example, if a party can establish measure of discretion to determine whether a party has a legitimate reason to

inherent authority to control the proceeding before it grant the court some

right” to call any witness he chooses; both RSA 169-C:11 (2002) and the court’s does not give the respondent – or any other party for that matter – an “absolute RSA 169-C:18, III (Supp. 2013). Second, I also agree that RSA 169-C:18, III

“adverse witnesses” whom the respondent is entitled to cross-examine under

videotaped interview of G.G., and that doing so does not make the declarants

statements of the allegedly abused child such as those contained in the (2002) permits the petitioner to introduce reliable hearsay evidence, including am in complete agreement with the majority. First, I agree that RSA 169-C:12

At the outset, I believe it important to emphasize the points on which I

adjudicatory hearing. child who is the subject of the alleged abuse or neglect as a witness at the Affirmed in part; vacated in

discretion to deny a person accused of abuse or neglect the right to call the

criminal proceeding would suffice for the instant proceeding.

does the majority as to when a trial court may sustainably exercise its majority opinion, but write separately because I have a narrower view than LYNN, J., concurring specially. I agree in large measure with the at the respondent’s criminal trial and, if so, whether her testimony in the G.G. to testify in this case, the court may wish to consider whether she testified consistent with this opinion. When the court is considering whether to compel

above. Accordingly, we vacate its decision and remand for further proceedings

the trial court have the benefit of the non-exhaustive list of factors enumerated the competing interests of the respondent and the child. Of course, neither did child, the record is unclear as to whether the trial court adequately considered

concurred specially. DALIANIS, C.J., and HICKS, and CONBOY, JJ., concurred; LYNN, J.,

part; and remanded. not the only limits on the respondent’s right to compel the testimony of the Although we agree with the trial court that relevance and materiality are the allegations p. 7 is (1) any legitimate question concerning the child’s credibility or the validity of

exercise of discretion for a court to require any such threshold showing if there

that it is not in the best interest of the child to testify is not equivalent to emotional or mental harm” if forced to testify; and “emphasiz[ing] that a finding

given the terms of RSA 169-C:18, III, it would constitute an unsustainable some kind of threshold showing that doing so will be productive. In my view, incrimination. See N.H. R. Ev. 512(d); see also In re Quinn, 763 N.E.2d 573, 578 (Mass. App. Ct. purpose of challenging his or her credibility unless the respondent can make

judge shares the child’s answers with the parties. harmful,” and that the court must find that the child will suffer “serious then ask the child in chambers with a record but without the parties present, after which the time the child testifies; and (5) having the parties submit written questions, which the judge can including, if the circumstances warrant, precluding the respondent from being present during the proceeding who chooses not to testify based on the exercise of the privilege against self- courtroom; (4) limiting the persons permitted to be present during the child’s testimony, the rule that permits the fact finder to draw an adverse inference against a litigant in a civil examination take place in the more informal setting of the judge’s chambers rather than in the proceedings related to the alleged abuse or neglect. This statute provides additional impetus for non-accused parent) to be close to or to stand by the child while testifying; (3) ordering that the (2002) makes testimony given by the parent in such proceedings inadmissible in criminal by respondent’s counsel; (2) allowing the child’s guardian (or, in appropriate circumstances, a RSA chapter 169-C proceeding is particularly significant on this point, since RSA 169-C:12-a required to testify are the following: (1) prohibiting overly aggressive or overtly hostile questioning can decline to permit the respondent to call the alleged child victim for the 2 Among the actions the trial court may take to ameliorate the impact on the child of being testify that cannot otherwise be ameliorated by the court. 2002).

circumstances, not a generalized presumption that testifying is per se exception “must be based . . . on evidence specific to the child and the to allow admission of child’s out-of-court statements under residual hearsay refutes the allegations of abuse or neglect. The absence of testimony by an accused parent in the to consider is whether the respondent has offered testimony at the hearing or elsewhere that warrant permitting the respondent to call the child as a witness, a significant factor for the court 1 In determining whether there is a legitimate question as to the child’s credibility that may majority opinion insofar as it can be interpreted to suggest that the trial court at the adjudicatory hearing. However, I am troubled by the implications of the likely concrete harm to the child that would result from being required to respondent to call an alleged child victim as a witness in the respondent’s case

determination that child is “unavailable” to testify in a neglect proceeding so as Tayler F., 995 A.2d 611, 626, 628 (Conn. 2010) (holding that court’s likely benefit to the respondent from obtaining the child’s testimony. Cf. In re showing is made would I then permit the court to balance the harm against the

child’s credibility, unless (3) a specific showing is made by the petitioner of court encourages trial courts to consider in determining whether to permit a I am also in basic agreement with the non-exclusive list of factors the 1 and (2) the respondent has had no prior opportunity to test the testimony given by the child at the criminal trial. p. 8 court for reconsideration in light of the factors it identifies, including any credibility, I concur with the majority’s decision to remand this case to the trial

case, and therefore whether there was a legitimate question as to the child’s

because the record is unclear as to whether the respondent testified in this Despite my unease for the reasons stated in the preceding paragraph,

occasions – i.e., in both this abuse and neglect case and at the criminal trial – danger of harm to the child increases if she is required to testify on multiple

test the child’s credibility.

While in some circumstances one possible explanation might be that the

possible concern about insuring that the respondent had the opportunity to as the majority seems to recognize – would have sufficed to address any transcript of the same could have been provided to the judge in this case and –

seeming contradiction, but if so, it is not obvious from the record before us.

testified at the criminal trial and been subject to cross-examination, the

criminal trial before a jury. Perhaps there is a meritorious explanation for this case before the criminal case went to trial. Compare In re Quinn, 763 N.E.2d testifying in a presumably much more contentious, open-to-the-public felony 8 and neglect proceeding are not of sufficient magnitude to prevent her from

proceeding concluded). Had the State chosen to wait, and had the child

circumstances, one might reasonably ask why the rush to proceed with this

the child that might result from her testifying in this closed-to-the-public abuse

superior court refused to proceed with criminal case until care and protection

established, and the State quite obviously has no legitimate interest in

in the criminal case is that he have no contact with the child. Given these is not accused of any wrongdoing, and that a condition of the respondent’s bail criminal case against the respondent. Apparently, any “concerns” of harm to criminal trial. The record indicates that the child resides with her mother, who the next breath it announced that the child would be testifying in the related trial court of its “concerns” about having the child testify in this case, when in

at 576-77 & n.4 (child’s mother also had been adjudged unfit parent and

determination of whether a child has been abused or neglected is to be adversary process, albeit a relaxed one, as the basis through which the purpose of RSA chapter 169-C. However, the statute also establishes an

legitimate need for the State to move forward with this case prior to the the record here raises a serious question as to whether there was any What I find particularly troubling here is the State’s representation to the

victims to testify). I recognize that protection of children is the primary divided on question of whether it is per se harmful for alleged child abuse

neglect. protecting a child from the exposure of false or inaccurate claims of abuse or