2020-0110, Petition of New Hampshire Division for Children, Youth and Families

circuit court from joining DCYF as a party to an ongoing guardianship case Services (DHHS), petitions this court for a writ of prohibition to prevent the (DCYF), a division of the New Hampshire Department of Health and Human HICKS, J. The New Hampshire Division for Children, Youth and Fami lies

Service, as amicus curiae. orally), for the Warren B. Rudman Center for Justice, Leadership & Public Pierce School of Law (Mr. Greabe and Ms. Evans on the brief, and Mr. Greabe John Greabe and Risa Evans, University of New Hampshire, Franklin

guardians. John F. Driscoll, of Portsmouth, on the memorandum of law, for the

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

No. 2020 - 0110 10th Circuit Court - Portsmouth Family Division

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

referrals from courts in one of two ways. First, if a court suspects that there is a problem in a At a motion hearing in the circuit court, DCYF explained that the agency typically receives 1

the case a s “a means of allowing the Division input into the case.” In addition, 1 merely a “referral to the Division,” and noted that DCYF had been “joined” to ‘Department.’” The circuit court construed Judge Hall’s original order as “without resolution the child may be at risk of placement with the the first order, the circuit court relied on RSA 1 70 - G:4 and concluded that hearing and issued a written order denying DCYF’s motion to reconsider. As in January p. 2 29, 2020, the Circuit Court (Pendleton, J.) conducted a motion is not at risk of place ment with DHHS in connection with abuse or neglect. On in a minor guardianship proceeding under RSA chapter 463 in which the child RSA 170 - G:4 did not authorize the trial court to order DCYF to provide services DCFY filed a motion to reconsider on September 20, 2019, arguing that

time, including overnight vis its. may be necessary to facilitate future expansion of father’s parenting the Court orders DCYF to provide father with such other supports as Court joins DCYF as a party to the case. In addition to a parent [aide], hours per week. This order is entered pursuant to RSA 17 0 - G:4 II. The supervise visits between father and [the child] on a weekly basis for 8 DCYF is therefore ordered to provide the services of a parent [aide] to

do so. independently. It is imperat ive that father be afforded the opportunity to He needs assistance and the ability to learn to care for [his child] parenting skills and experience to enjoy parenting time with his [child]. [The father] is young. He is trying to be self - reliant and to increase his

concluded its order as fol lows: case “has not progressed” since the last hearing in September p. 2 2018. The court circuit court credited the father’s allegations and expressed concern that the his chi ld’s medical appointments as established by previous court orders. The willfully interfering with his rights to unsupervised parenting time and notice of scheduled parenting time. The father alleged that the child’s guardians were Circuit Court (Hall, J.) issued a written order addressing the father’s motion for who are the child’s maternal grandparents. On September 10, 2019, the dispute between the father of a three - year - old child and the child’s guardians, This petition arises from a guardianship case involving an ongoing

so. We agree and, accordingly, grant DCYF’ s petition for a writ of prohibition. agency to the private case because no statute authorizes the circuit court to do litigants. DCYF contends that the circuit court lacked the authority to join the and from ordering the agen cy to provide services for the benefit of private p. 3 3

has been of invaluable assistance to the court. Justice, Leadership & Public Service brief ed, and Mr. Greabe argued, this case. Their service At the court’s invitation, John Gr eabe and Risa Evans of the Warren B. Rudman Center for 2 and conduct its own investigation. notice of suspected abuse or neglect, DCYF will call central intake itself to create an assessment investigation that was already in progress. However, if the court’s referral by order is DCYF’s first had previously been involved in that case, the court may request an assessment of results from an raises concern about a child’s safety, the court may send a copy of its order to DCYF. If DCYF abuse or neglect. Second, if during the course of a hearing the c ourt learns of information that central intake. Central intake is the primary mechanism by which DCYF receives referrals of child family th at raises concern about a child’s welfare, the court may refer the case to DCYF by calling

review. See Rogers v. Rogers, 171 N.H. 7 p. 3 38, 743 (2019); see also In the Matter statutory interpretation, which presents a question of law subject to de novo (2017). Whether the circuit court has subject matter jurisdiction is a matter of jurisdiction. In re Search Warrant for Records from AT&T, 170 N.H. 1 11, 113 The circuit court is a statutory court of limited subject matter

the private litigants. party to a private guardianship case and order that DCYF provide services to RSA 170 - G:4 or RSA chapter 46 p. 3 3 authorizes the circuit cour t to join DCYF as a 146 N.H. at 687 (citation omitted). Here, the right to relief is clear. Nothing in caution and forbearance,” and “only when the right to relief is clear.” Cigna, authority to issue a writ of prohibition is d iscretionary, and we do so “with are special and important reasons for doing so.” Sup. Ct. R. 11(1). Our prohibition, RSA 490:4 (2010); however, we will not issue the writ unless “there 149 N.H. 105, 114 (2003). This court has original jurisdiction to issue a writ of with which they are clearly not vested. See id.; see also Appeal of McDonough, or other tribunals, officers, or persons from usurping or exercising authority Healthcare, 146 N.H. 683, 687 (2001). It is used to prevent subordinate courts A writ of prohibition is an extraordinary remedy. Petition of Cigna

grant DCYF’s petition for a writ of prohibition. issue, amicus curiae was appointed to defend the appealed decision). We now Mata v. Lynch, 1 p. 3 35 S. Ct. 2150, 2154 (20 15)) (where parties agreed on legal orders. See In re Guardianship of L.N., 173 N.H. 77, 78 n.1 (2020) (citing 2 Public Servic e to file a brief as amicus curiae in support of the circuit court’s Hampshire School of Law Warren B. Rudman Center for Justice, Leadership & matter opposed DCYF’s petition in this court, we invited the University of New which we accepted on May 1, 2020. Because no party in the guardianship On February 24, 2020, DCYF filed a petition for original jurisdiction,

the parenting superv ision records. weeks and update the court with a report of those services along with copies of the circuit court required DCYF to provide the services originally ordered for six p. 4 4

authority to order that an agency adopt a particular course of action. Nonetheless, having the ability to make a referral differs from having the referrals to DCYF about suspected cases of c hild abuse or neglect. At most, RSA 170 - G: p. 4 4 recognizes that the circuit court may make

case. guardianship case and order that DCYF provide particular services in that granting the circuit court the power to join DCYF as a party to a private cases. However, neither statute contains language that can be construed as clearly grants the circuit court subject matter jurisdiction over guardianship clearly defines powers and responsibilities of DHHS, and RSA chapter p. 4 463 or neglect.” RSA 170 - G:4, II (Supp. 2019). The plain lang uage of RSA 170 - G:4 youth who are at risk of placement with [DHHS] in connection with child abuse to it by the [circuit court] pursuant to RSA . . . 463 and for all children and “[p]rovide, through social workers, servic es for all children and youth referred private litigants. RSA 170 - G:4 provides that DHHS has the power and duty to in a private guardianship case and order that the agency provide services to the The circuit court relied primarily on RSA 170 - G:4 to join DCYF as a party

party to a purely private dispute. statute that authorizes the circuit court to unilaterally join the agency as a accept an appointment as guardian of the minor child, and there is no other jurisdiction over third party claims to marital property). Here, DCYF did not matter. See Muller, 16 p. 4 4 N.H. at 519 (discussing circuit court’s lack of to join DCYF and order th at the agency provide services in a purely private the absence of express legislative authority, the circuit court has no authority appointment as guardian of a minor. See RSA 463:10 (2018); RSA 463:18. In subjec t to the circuit court’s personal jurisdiction when the agency accepts an statute.” In the Matter of Muller & Muller, 164 N.H. 512, 519 (2013). DC YF is are statutory, “the court has only such power in that field as is granted by 490 - F:3 (Supp. 2019) (establishing the circuit court). Because guardianships cases on the circuit court. See RSA 463:4 (2018); RSA 463:18 (2 018); see also RSA chapter 463 confers exclusive jurisdiction over minor - guardianship

Id. also the last, and we need not consider legislative history to aid our analysis.” a whole.” Id. “If a statute is unambiguous, then t he first step of our analysis is consider words or phrases in isolation, but within the context of the statute as ___ (decided Sept. 30, 2020) (slip op. at 3) (citation omitted). “We do not meaning.” Petition of N.H. Div. fo r Children, Youth and Families, 173 N.H. ___, and, if possible, construe that language according to its plain and ordinary interpreting a statute, our first step is to examine the language of the statute, jurisdiction “requires us to engage in statutory interpretation”). “When of Malle tt & Mallett, 163 N.H. 202, 208 (2012) (question of family division’s p. 5 5

pursuant to RSA 170 - G:4 to mandat e a particular course of conduct on the part of DCYF. provide. We simply make clear that the circuit court lacks the authority under its referral power with respect to the investigatory steps the agency should take and services the agency should This is not to say, however, that the circuit court has no abilit y to provide guidance to DCYF 3

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

prohibition is granted. State v. Addison, 16 p. 5 5 N.H. 381, 418 (2013). DCYF’s petition for a writ of 170 - G:4, it is not necessary to address DCYF’s constitutional arguments. See the private litigants. Because we have resolve d this case by interpreting RSA authority to join DCYF as a party and to order the agency to provide services to For these reasons, we conclude that the circuit court lacked the

action. a party to the litigation and requiring t hat DCYF take a particular course of exceeded its statutory authority to refer cases to DCYF by joining the agency as Dictionary 1907 - 08 (unabridged ed. 2002). Accordingly, the trial court information, o r [a] decision” from DCYF. Webster’s Third New International benefit of the father. This mandate goes well beyond sending the case for “aid, that DCYF provide services such as a parent aid e and other supports for the The circuit court ordered that DCYF be joined to the case and it further ordered 167 N.H. p. 5 507, 513 (2015) (citation omitted). Here, the original order was clea r. court order is a question of law, which we review de novo.” Choquette v. Roy “referral” does not justify the court’s actions. “The interpretation of a trial Finally, the circuit court’s characterization of its origina l order as a mere

orders directing the manner in which DHHS handles the referrals. 3 make referrals to DHHS cannot be construed as authorizing the court to issue Therefore, the provision in R SA 170 - G:4 giving the circuit court discretion to law - specialist” and “referral of the question to the board of directors”). Black’s Law Dictionary 1394 (9th ed. 2009) (“referral of client to employment e.g., id. (patient referred to specialist; bill referred to committee); see also in directing the conduct of the person or agency receiving the referral. See, 08 (unabridged ed. 2002). The one making the referral often has a limited role information, [or] decision.” Webster’s Third New International Dictionary 1907 meaning of the word “referral.” A referral involves sending for “aid, directives to DCYF. This reading, however, is not supported by the ordinary implied referr al power broadly as allowing the circuit court to mandate The Rudman Center as amicus curiae urges this court to construe this