2017-0086, In re J.H.; In re A.H.

against him. See RSA 169 - C:19 - e (2014). Father also appeals the trial court’s filed by the New Hampshire Division for Children, Youth and Families (DCYF) of his children, J.H. and A.H., following the dismissal of the neglect petitions authority to hold a hearing to determine his parental fitness to regain custody HANTZ MARCONI, J. Father challenges the Circuit Court’s (Carbon, J.)

orally), for CASA of New Hampshire. Nixon Peabody LLP, of Manchester (Mark Tyler Knights on the brief and

and orally), for F ather. Kurdek Law Office, PLLC, of Merrimack (Dennis J. Kurdek on the brief

for Children, Youth and Families. assistant attorney general, on the brief and orally), f or New Hampshire Division Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior

No. 2017 - 0086 9th Circuit C ourt - Manchester Family Division

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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 p. 2 22 as 2

alcohol misuse, and domestic vi olence. Additionally, Father objected to the and CASA’s reports alleged that Father had a history of mental health issues, violence issues recounted in reports submitted by DCYF and CASA. DCYF ’s the introduction of information concerning his mental health and domestic fit and requested immediate reunification with the children. Father objected to At the dispositional hearing, Father argued that he should be presumed

DCYF. See RSA 169 - C:18, V. 169 - C:18, V - c. T he court also ordered a social study and case plan from as all substance abuse and/or mental health issues are addressed.” See RSA the children to the home remained contrary to the ir welfare “[u]ntil such time order, the court continued the out - of - home placement, finding that returning has suffered or is very likely to suffer serious impairment”). In its adjud icatory drug abuse . . . shall create a rebuttable presumption that the child’s health C:1 p. 2 2 - e (Supp. 2017) (providing that “[e]vidence of a custodial parent’s opioid whose “health has suffered or is likely to suffer serious impairment”); RSA 169 - RSA 169 - C:3, XIX(b) (Supp. 2017) (defining “[n] eglected child,” in part, as one finding of neglect against Mother because of her opioid use and overdose. See Mother’s drug usage.” See RSA 169 - C:18, I V. However, t he court entered a against Father because there was “insufficient evidence that he was aware of Following the adjudicatory hearing, t he court dismissed the petitions

See RSA 169 - C:15, III(a). Children of New Hampshire (CASA) to serve as the children’s guardian ad litem. C:16, I(c) ( p. 2 2014). The court appointed Court Appointed Special Advocate s for children’s health until substance abuse issues were addressed. See RSA 169 continuation of the children in the home “present[ed] imminent danger to” the 169 - C:15, I, III (2014). The court ordered an out - of - home placement because believe that the children were neglected by both Mother and Father. See RSA to address it. At the preliminary hearing, the court found reasonable cause to and that Father was aware of Mother’s heroin use and was unable or unwilling petitions alleged that Mother “has used heroin and likely requires treatment” :7 (2014). The affidavit of the child protective service worker attached to the Father alleging neglect of both children. See RSA 169 - C:6 - a, VI (Supp. 2017), neglect under RSA chapter 169 - C (2014 & Supp. 2017) against Mother and children shared the same home. In November 2016, DCYF filed petitions for this appeal, and Father are th e parents of J.H. and A.H.; the parents and the The record supports the following facts. Mother, who is not a party to

( p. 2 2014), :2 p. 3 3 (2014). We affirm. Mother but not by Father. See RSA 169 - C:18 (Supp. 2017),:19 (2014),:21 returned to his custody, after finding that the children were neglected by dispositional order imposing conditions on him before his children could be 3

presumption that he is a fit parent, and that RSA 169 - C:19 - e does not apply to failed to prove its neglect petition s against him, it failed to rebut the C:19 - e. Father moved for r econsideration, arguing that be cause the State parental fitness hearing to evaluate his request for custody. See RSA 169 failure to prove a petition of neglect make s a parent “fit” and scheduled a fitness. In its subsequent order, t he court stated that it did not believe that a hearing, Father again requested custody of the children based on his presumed does not suspend the order being appealed unless the court so orders). At the RSA 169 - C:24, I (2014); see also RSA 169 - C:28, I (providing that an appeal Subsequently, the circuit court held a three - month review hearing. See

review). appeal of “the final dispositional order” to the superior court for de novo disp ositional order to this court. But see RSA 169 - C:28, I (2014) (providing for observation of [Mother’s] use of illicit drugs.” Father appealed the court’s final address his abuse of alcohol, his anger, his mental health, and his lack of The court stated that Father “must actively participate in a Case Plan to “properly addressed” as he plans to resume care a nd custody of the children. court’s narrative order noted the concern that Father’s mental health be domestic violence, and/or mental health issues.” See RSA 169 - C:21, II. The reasonably free from untreated (or insufficiently treated) substance abuse, during supervised visits with the children, and “[o]btain and retain a home therapy, or medical treatment.”), learn p arenting skills from the parent aide relative, custodian, household member, or child to undergo individual or family treatment, see RSA 169 - C:19, IV (“The court may order any parent, guardian, parents were required to attend and participate meaningfully in counseling and safe and age - appropriate manner.” See RSA 169 - C:21, II. In addition, the issues,” and “do these things while simultaneously parenting his children in a “demonstrate an ability to address any mental health and/or domestic violence to meaningfully identify and address the mother’s substance abuse issues,” appropriate manner,” and similarly r equired Father to “demonstrate an ability simultaneously parenting her children in a safe, consistent, and age sobriety and address any mental health and/or domestic violence issues, while The case plan required Mother to “demonstrate an ability to maintain her

C: 2 p. 3 3. be neglected in the manner adjudicated on the initial petition.” See RSA 169 to provide proper parental care,” and demonstrated that the children “will not meaningfully completed the dispositional case plan, demonstrated their “ability determined that the children could be returned home provided that the pa rents remained contrary to their welfare. See RSA 169 - C:19, III, :21. The court placement based upon its finding that returning the children to th e home In its final dispositional order, t he court continued the out - of - home

other than supporting Mother in her sobriety. imposition of case plan conditions requiring him to participate in anything p. 4 4

final dispositional order” a nd that the “superior court shall hear the matter de superior court by . . . any party having an interest . . . within 30 days of the C:28 provides that an appeal under RSA chapter 169 - C “may be taken to the We first address whether Father’s appeal is properly before us. RSA 169 -

169 N.H. 265, 269 (2016). questions of constitutional law, which we also review de novo. See In re N.B., determine his a bility to regain custody of his children. These issues raise on compliance with the case plan; and (3) holding a parental fitness hearing to crafting its dispositional order; (2) conditioning reunification with his children not alleged in the petitions, nor proved during the adjudicatory hearing, in that the trial court violated his constitutional rights by: (1) considering facts review de novo. See In re S.T., 169 N.H. p. 4 441, 448 (2016). Father also contends his children. These issues raise questions of statutory interpretation, which we sobriety; and (3) holding a parental fitness hearing before reuniti ng him with participate in case plan conditions unrelated to supporting Mother in her conditions before reunifying him with his children; (2) ordering him to against him, the trial court erred by: (1) requiring him to comply with case plan On ap peal, Father argues that, after dismissing the neglect petitions

determination that he is “not presently fit to care for his children.” ability to regain custody of his children. Father does not challenge the court’s circuit court’s authority to hold a parental fitness hearing to determine his Father subsequently amended his notice of appeal to include a challenge to the

fit to care for his children. by a preponderance of the evidence, that [Father] is not presently the Court is of the opinion that DCYF has met its burden of proof, coupled with his domestic violence an d anger toward third parties, willingness to open a can of beer while driving with the children, attacks and erratic driving while with the children, and his of caring for young children. Between his self - admitted anxiety leads the Court to question whether [Fathe r] is emotionally capable Incidents of this nature reflect significant instability which

court’s order concluded by stating: submitted by DCYF and CASA and testified to during the fitness hearing. The health, and alcohol abuse incidents mentioned in the reports previously custody. The court’s order reiterated many of the domestic violence, mental Following a three - day hearing, the court denied Father’s request for

hearing. Father’s appeal o f the dispositional order pending the outcome of the fitness him as a formerly accused but exonerated household parent. We stayed p. 5 5

N.H. 482, 48 p. 5 5 (2007) (quotation omitted). acted arbitrarily, unr easonably, or capriciously.” In re Juvenile 2006 - 833, 156 authority or observance of the law, or unsustainably exercised its discretion or entails examining whether the court “acted illegally with respect to jurisdiction, (2010). Our review of a court decision on a petition for a writ of certiorari certiorari. See In re Bill F., 145 N.H. 267, 271 (2 000); see also RSA 490:4 circuit court and treat Father’s combined appeal as a petition for a writ of efficiency and economy, we exercise our superintendent jurisdiction over the are related and constitute qu estions of law only, in the interests of judicial his appeal of both the final dispositional order and the post - dispositional order review orders”). In the instant case, where the questions that Father raises in RSA 169 - C:28 “does not allow for de novo review of post - final dispositional his children. See In re Diane R., 146 N.H. 676, 678 (2001) (explaining that trial court’s post - dispositional order denying his request to regain custody of In any event, Father could not have appealed to the superior court the

inadequately briefed argumen t). Juvenile 2003 - 604 - A, 1 p. 5 51 N.H. 719, 721 (2005) (declining to revie w and, with out sufficient briefing on this i ssue, we decline to resolve it. See In re superior court when seeking de novo review of the dispositional order only, yet to determine whether a party may limit the scope of an appeal to the novo when both orders are appealed. Thomas M., 141 N.H. at 56, 60. W e have to hear both the adjudicatory and dispositional aspects of a neglect case de We have previously held that RSA 169 - C:28 requires the superior court

the neglect petitions against him to de novo review by the superior court. not appeal the case plan without also subjecting the circuit court’s dismissal of conditions therein. Father argues that, pursuant to RSA 169 - C:28, he could against him. Rather, he appeal s only its disposition — the case plan and the not appeal the court’s adjudication — its dismissal of the neglect petitions filed With respect to the circuit court’s final dispo sitional order, Father does

agency will provide to the child and family. RSA 1 p. 6 69 - C:21, II. home” and the specific plan describing the service s that the child placing includes “the conditions the parents shall meet before the child is returned insufficient evidence of abuse or neglect, see RSA 169 - C:18, IV. D isposition ne glected,” RSA 169 - C:21, I, or a dismissal of the petition because of A dj udication includ es a written “finding that the child has been abused or dispositional hearing if the court adjudicates a child to be abused or neglected). follows, and includes, adjudication. See RSA 169 - C:19 (providing for a dispositional order” is issued after a dispositional hearing, it necessarily In re Thomas M., 141 N.H. p. 5 55, 60 (1996). By virtue of the fact that a “final referring to the order of the district court following its dispositional hearing.” novo.” RSA 169 - C:28, I. “The term ‘final dispositional order’ is a term of art 6

against Mother.” (Emphasis omitted.) to those “aimed at address ing the factors that led to the finding of [n]eglect reunificatio n with his children. He also argues that such conditions are limited comply with case plan co nditions, his compliance may not be a prerequisite for argues that, although the trial court may have the authority to order him to court’s finding tha t the children were neglected: Mother’s drug use. Father him to participate in case plan conditions unrelated to the fact that led to the Father next argues that the trial court exceeded its authority by ordering

neglect petitions. See RSA 1 p. 6 69 - C:18, V - c. actively engaged in remedial efforts to address the circumstances leading to the threat of imminent harm to the children and that Mot her and Father were thus, to Mother ’ s or Father’s custody, unless the court found that there was no C:18, V - c prohibited the court from returning the children to the home, and, ordered that they remain in an out - of - home placement. Therefore, RSA 169 children’s presence in the parents’ home remained contrary to their welfare and In both the adjudicatory and dispositional orders, the court found that the Here, an out - of - home placement was ordered in the preliminary order.

mean “mother, father, adoptive parent”). been exonerated. See RSA 1 p. 6 69 - C:3, XXI (Supp. 2017) (defining “[p]arent” to imposition of conditions up on parents who have not been accused or who have who have been adjudicated abusive or neglectful, nor do they prohibit the home. T hese provisions do not limit the imposition of conditions to parents parents to comply with conditions before the child can be returned to the The plain language of these provisions requires the court to order the parent or meet before the child is returned home.” RSA 169 - C:21, II (em phasis added). the court’s final dispositional order “shall include conditions the parents shall II states that, once the court finds that the child has been abused or neglected, RSA 169 - C:18, V - c (emphasis added); see also RSA 169 - C:23. RSA 169 - C:21,

address the circumstances surrounding the underlying petition. parent or parents are actively engaged in remedial efforts to finds that there is no threat of imminent harm to the child and the child, the child shall not be returned to the home unless the court If a preliminary order provided for an out - of - home placement of the

RSA 1 p. 6 69 - C:18 provides in relevant part:

children should have been immediately returned to his care an d custody. contends that once the neglect petitions against him were dismissed, the plan conditions as a prerequisite for reunifying him with his children. Father challenges the trial court’s statutory authority to require compliance with case We begin by addressing Father’s statutory arguments. Father first

custody. C:19 - e i s only triggered when a non - acc used, non - household parent requests after a finding that his or her child has been abused or neglected, RSA 169 hold a parental fitness hearing pursuant to RSA 169 - C:19 - e. He con tends that, Finally, Fat her argues that the trial court lacked statutory authority to

threatened or actually caused harm to the children’s health. imposed conditions on both parents to remedy the circumstances that C:3, XIX(b). Here, the circuit court properly applied the statutes when it impairment” to the child’s “physi cal, mental, or emotional health,” RSA 169 remedy include the circumstances that threaten or actually cause “serious underlying [neglect] petition,” RSA 169 - C:18, V - c, that the parents must 1, 5 (200 p. 7 7) (quotation omitted). Thus, the “circumstances surrounding the and corrected in the district court process.” In re Juvenile 2006 - 674, 156 N.H. and mental well being that are the conditions of neglect that must be repaired likelihood of or actual serious impairment of the child’s physical, emotional, actions taken or not taken by the parent or parents, but rather “it is the interpretation of RSA 169 - C:3, XIX (b) (2002) that statutory neglect is not the 169 - C:3, XIX(b). In In re Juvenile 2006 - 674, we agreed with the trial court ’s the child’s health has suffered or is likely to suffer serious impairment.” RSA for the child’s physical, mental, or emotional health, when it is established that subsistence, education as required by law, or other care or control necessary in relevant part, as a child “[w] ho is without proper parental care or control, Here, the petitions alleged neglect. A “[n] eglected child” is statutorily defined, and the statutory grounds upon which the petition is based.” RSA 169 - C:7, III. A petition must “set forth the facts alleged to constitute abuse or neglect,

drug use. underlying petition” limits the conditions imposed to those addressing Mother’s adjudicated on the initial petition” and “circumstances surroundi ng the home”). Father ’s argument suggest s that the language “in the manner endangered in the manner adjudicated on the initial petition, if returned be returned to the custody of his or her parents unless “child will not be also RSA 169 - C:23, II (providing that child in out - of - home placement may not circumstances surrounding the underlying petition.” RSA 169 - C:18, V - c; see the “parents are actively engaged in remedial efforts to address the neglected child may not be returned to the home unless the court finds that However, RSA 169 - C:18 provides, in relevant part, that an abused or

this provision limits the type of c onditions that may be imposed. agency will prov ide to the child and family.” RSA 169 - C:21, I, II. Nothing in plan which shall include, but not be limited to, the services the child placing meet before the child is returned home. The order shall also include a spec ific enter a final order in writing” that “shall include conditions the parents shall On ce a child is adjudicated to be abused or neglect ed, the court “must p. 8 8

a fundamental liberty interest protected by Part I, Article 2 of the New “We have long recognized the right to raise and care for one’s children as

to aid our analysis. State v. Ball, 124 N.H. 226, 231 - 33 (19 p. 8 83). address his claims und er the State Constitution and rely upon federal law only arguments only in regard to his substantive due process rights. We first his procedural due process rights. Therefore, our analysis addresses his Constitution. Father does not argue that either of these alleged errors violated Constitution and the Fourteenth Amendment to the United Sta tes raises these arguments under Part I, Article 2 of the New Hampshire fitness hearing to determine his ability to regain custody of his children. He with the children on his compli ance wi th the case plan, and (2) held a parental dismissal of the neglect petitions against him, it (1) conditioned reunification infringed upon his fundamental right to parent his children when, following Father next asserts that the trial court impermissibly burdened and

consider it in the first instance. See State v. Edic, 169 N.H. 5 p. 8 80, 583 (2017). Therefore, his argument is not preserved for our review, and we decline to process rights. Father did not make this argument in the trial court. raised at the adjudicatory hearing, the trial court violated his procedural due that, b y considering facts that were not alleged in the neglect petition s, nor We now consider Fathe r’s constitutional challenges. Father first argues

parental fitness hearing upon Father’s request for custody of the children. Therefore, pursuant to RSA 169 - C:19 - e, the court did not err in holding a who has not been charged with abuse or neglect.” RSA 169 - C:19 - e, I. the parent of neglected child ren, placed him in the same position as “[a] parent him had been dismissed. The dismissal of the neglect petitions against Father, his children had been found to be neglected, but the neglect petitions against requested custody of his children and the parental fitness hearing was held, RSA 169 - C:19 - e, I; see also Bill F., 145 N.H. at 274. At the time Father

parental duties. neglected the child or is otherwise unfit to perform his or her preponderance of the evidence, that he or she has abused or and shall be awarded custody unles s the state demonstrates, by a evidence pertaining to his or her ability to provide care for the child hearing, the parent shall be provided the opportunity to present family court regarding his or her ability to obtain custody. At the shall be afforded, upon request, a full hearing in the district or A parent who has not been charged with abuse or neglect

outlined in Bill F., provides: RSA 16 p. 9 9 - C:19 - e, which codified the parental fitness hearing procedure 9

regained his presumption of fitness once the neglect petitions against him were constitutionally protecte d fundamental right to parent. Although Father additional hearing to determine Father’s parental fitness did not violate his the children to Father’s custody. Instead, we conclude that holding an We disagree, however, that the court was required to immediately return

her fitness, which is inconsistent with a presumption of f itness. reinstating custody essentially requires the parent to affirmatively prove his or presumptively fit parent to prove his or her compliance with conditions before an out - of - home placement may be returned to his or her custody. Requiring a demonstrate compliance with certain enumerated conditions before a child in due process rights”). RSA 16 p. 9 9 - C:23 places the burden on the parent to non - accused parent “would subject him to an undue burden and violate his parent. See Bill F., 145 N.H. at 273 (holding application of RSA 169 - C:23 to the children can be returned to his custody violates his fundamental right to presumptively fit parent, to demonstrate his compliance with conditions before petitions against him. We agree that requiring Father, a no n - neglectful and of immediately returning the children upon the dismissal of the neglect be met before the children could be returned to his care and custody, instead Fath er argues that the trial court erred by imposing conditions that must

stage of the proceedings. See id. 16 p. 9 9 - C proceeding s, we agr ee that Father was a presumptively fit parent at that abused or neglected his children in the adjudicatory phase of the RSA chapter him, he was pres umed to be a fit parent. Because he was not found to have Father asserts that, upon the dismissal of the neglect petitions against

(quotation omitted). disadvantaged home is not a sufficient basis for coercive intervention.” Id. a s howing of specific harm to the children, growing up in a so - called been model parents.” Jeffrey G., 153 N.H. at 204 (quotation omitted). “Absent management of their children does not evaporate simply because they have not interest of biological and adoptive parents in the care, custody and duties. See id. at 204; Bill F., 145 N.H. at 274. “The fundamental liberty are found to be abusive, neglectful, or otherwise unfit to perform their parental parental fitness. B iological and adoptive parents are presumed fit until they Father’s arguments are ba sed, primarily, upon the presumption of

power to intervene if a child’s welfare is at stake.” Id. is not absolute, but is subordinate to the State’s competing parens patriae Granville, 530 U.S. 57, 66 (2000) (plurality opinion)). “This fundamental right Matter of Jeffrey G. & Janette P., 153 N.H. 200, 203 (2006) (cit ing Troxel v. decisions concerning the care, custody, and control of their children.” In the States Constitution protects the fundamental right of parents to make “Similarly, the Due Process Clause of the Fourteenth Amendment to the United Hampshire Constitution.” Bill F., 145 N.H. at 272 (quotation omitted). p. 10 10

LYNN, C.J.