2022-0533, In re J.H.

support the neglect finding. We affirm. the alternative, she contends that the evidence in the record is insufficient to not be found neglectful when another person was the legal guardian of J.H. In Mother argues that the trial court erred because, as a matter of law, she could she neglected her son, J.H. See RSA 169 - C:3, XIX(b) (2022). On appeal, order of the Circuit Court (Boyle, R., approved by Greenhalgh, J.) finding that BASSETT, J. The respondent, the mother of J.H. (Mother), appeals the

for the m other. The Young Law Firm, of Conway (Robert Young on the brief and orally),

Youth and Families. memorandum of law and orally), for the New Hampshire Division for Children, general (Laura E. B. Lombardi, senior assistant attorney general, on the John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 2022 - 0533 3rd Circuit Court - Ossipee Family Division

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

order, which outlines the objectives Mother must meet in order to reunify with court awarded DCYF legal cust ody of J.H. and later issued a dis posi tional housing and had not even spoken to the child in approximately 7 years.” The she “was unable or unwilling to take the child as she did not have stable financial means of the parents.” With re spect to Mother, the court found that of the child and . . . the deprivation [was] not due primarily to the lack of of J.H.’s parents was “able or willing to provide proper parental care or control Mother, Father, and the Guardian had neglected J.H. It concluded that neither Following a two - day evidentiary hearing, the circuit court found that

petitions against Mother, Father, and the Guardian. See RSA 169 - C:3, XIX(b). and did not offer any alternative caregivers. DCYF ultimately filed neglect shelter. Mother told the CPSW that she was not “able or willing” to take J.H. time, she was staying with friends and preparing to move into a homeless would put her baby at risk of being abused. Mother also reported that, at the Mother had recently had a baby and she worried that taking custody of J.H. strained because he had abused one of her other children. Additionally, not spoken to J.H. in seven years and that h er relationship with J.H. was that DCYF intended to file neglect petitions. Mother responded that she had Service Worker (CPSW) explained to Mother what had happened to J.H. and On May 6, DCYF made contact with Mother by phone. A Child Protective

treatment facility. (defining “[p]rotective supervision”). DCYF then placed J.H. in a residential giving DCYF protective supervision of J.H. See RSA 169 - C:3, XXV ( p. 2 2022) home. See RSA 169 - C:6 - a, I (2022). On May 4, the court granted that request, requested an emergency ex parte order to remove J.H. from the Guardian’s J.H. DCYF attempted to contact Mother but was unsuccessful. DCYF then DCYF contacted J.H.’s fathe r (Father), but he was unable to take custody of However, the Guardian was ultimately unable to comply with the safety plan. report and established a safety plan with which the Guardian agreed. Division for Children, Youth and Families (DCYF). DCYF investigated the family service provider, who then reported the incident to the New Hampshire pushed him up against a wall. The next day, J.H. disclosed this incident to a altercation during which the boyfriend put his hands around J.H.’s neck and On May 2, 2022, J.H. and the Guardian’s live - i n boyfriend had an

May p. 2 2022. resided with his grandmother (the Guardian) for approximately six yea rs until his parents. The circuit court granted the guardianship petition, and J.H. petitioned for guardianship over him due to the poor care he was receiving from 2016, when J.H. was approximately eight years old, J.H.’s grandmother who ha s developmental delays and who h as suffered significant trauma. In The record supports t he following facts. J.H. is a fourteen - year - old boy p. 3 3

schemes recognize the residual parental right of visitation w ith the child and Child Protection Act, see RSA ch. 169 - C (2022 & Supp. 2022). Both statutory both the guardianship statute, see RSA ch. 46 p. 3 3 (2018 & Supp. 2022), and the retain certain residual rights and dut ies to the child, which are recognized in notwithstanding the existence of a guardianship over the child, the parents establishing where the minor lives. See RSA 463:12, III(b). However, These responsibilities may include taking custody of the minor and responsibilities of a parent regarding the minor’ s support, care and education.” or court order, “a guardian of the person of a minor has the powers and Und er RSA 463:12, I, except as otherwise expanded or limited by statute

In the Matter of Chrestensen & Pearson, 172 N.H. 40, 4 p. 3 3 (2019). lead to reasonable results and effectuate the legislative purpose of the statutes. construe them so that they do not contradict each other, and so that they will Id. When interpreting two statutes that deal with a simila r subject matter, we together to effectuate its overall purpose and avoid an absurd or unjust result. legislature did not see fit to include. Id. We construe all parts of a statute consider what the legislature might h ave said or add language that the Id. We interpret legislative intent from the statute as written and will not possible, construe that language according to its plain and ordinary meaning. construing a s tatute, w e first examine the language of the statute, and, if review de novo. In re Guardianship of B.C., 174 N.H. 628, 631 (2021). When interpretation. Statutory interpretation presents a question of law, which we Resolving the parties’ dispute requires that we engage in statutory

with DCYF. to provide safe shel ter to J.H. when the Guardian failed to do so. We a gree of all parental rights and obligations and that Mother retained a parental duty and RSA 169 - C: p. 3 3, XXVII (2022), that a guardianship does not relieve a parent of her parental responsibilities. DCYF counters, re lying on RSA 463:13 (2018) care for J.H. In essence, Mother contends that the guardianship “absolved” her responsible for J.H.’s well - being and, therefore, she was not required by law to (2018), Mother asserts that the Guardian stood in her stead as the person neglectful while the guardianship remained in effect. Relying on RSA 463:12 tainted by error of law because she could not, as a matter of law, be found We turn first to Mother’s argument that the court’s neglect finding was

favorable to the court’ s decision. Id. court’s assessment of the evidence and view the facts in the li ght most tainted by error of law. In re N.T., 175 N.H. p. 3 300, 311 (2022). We defer to the and rulings of the trial court unless they are unsupported by the evidence or When reviewing a finding of abuse or neglect, we will sustain the findings

its neglect finding relative to Mother. J.H. This appeal followed. Our review of the circuit court’s order is limited to p. 4 4

purposes share two characteristics). (explaining that the enumerated sources of “gross income” for child support healthcare services); In the Matter of Clark & Clark, 15 p. 4 4 N.H. 420, 423 (2006) (enumerated list of services compensable under resti tution statute were all which aids our interpre tation of the more general word or words. See, e.g., id. to discern a common theme or character of the specific enumerated words, specific words. See id. at 392. When applying this principle, we are often able to embrace only persons or things similar in nature to those enumerated by the specific words in a statute follow general ones, the general words are construed See State v. Moore, 173 N.H. 386, 391 - 92 (2020). Under th is principle, when in a statute, we apply the statutory interpretation principle of ejusdem generis. Ordinarily, when the legislature uses the phrase “including, but not limited to” responsibilities for support.” RSA 169 - C:3, XXVII (emphases added). of visitation, consent to adoption, right to determin e religious affiliation and pursuant to termination of parental rights, including, but not limited to, right after the transfer of legal custody or guardianship except guardianship responsibilities” as “those righ ts and responsibilities remaining with the parent N.H. at 43. The Child Protection Act defines “[r]esidual parental rights and and the guardianship statute to resolve this question. See Chrestensen, 172 We look to the language and purpose of both the Child Protection Act

notwithstanding the existence of t he guardianship. whether Mother continued to have a parental duty to provide safe shelter G.B., 17 p. 4 4 N.H. 575, 581 - 82 (2021) (similar). H ere, the parties disagree as to refused to take custody of child or arrange a safe place for th e child to go); In re father was notified that child was ready to be discharged from hospital, he constitutes neglect. See id. at 296 - 97 (affirming neglect finding when, after inability to pro vide the child with shelter, or to delegate that duty to another, informed that her or his ch ild lacks sa fe shelter, the parent’s unwillingness or See In re M.M., 174 N.H. 281, 296 (2021). We have held that, when a parent is parental responsibility here i s the duty to provide the child with safe shelter. Some parental duties may be discharged by delegation. Id. The relevant child’s physical and emotional needs. In re Adam M., 148 N.H. 83, 84 (2002). Parental responsibilities come in many forms, including providing for the

rights” (quotation omitted)). appointment of a guardian does not “remove[] the entire bundle of parental Guardianship of Nicholas P., 162 N.H. 199, 20 p. 5 5 (2011) (observing that the parent does not extinguish all parental rights and duties. See In re Accordingl y, the grant of a guardianship of a minor to a person other than a residual parental rights and responsibilities. See RSA 169 - C:3, XXVII. I, III; RSA 169 - C:3, XXVII. The Child Protection Act sets forth additional the parental responsibility of support during a guardianship. See RSA p. 4 463:13, 5

the shared purpose s of both statutory schemes, we conclude that the light of the language of RSA 169 - C:3, XXVII, RSA 463:12, and RSA 463:13 and child safe shelter if and when the guardian is unable or unwilling to do so. In notion that a parent retains a residu al parental responsibility to provide the 463 does not automatically receive physical custody of the minor supports the individual or entity”). The fact that a guardian appointed under RSA chapter some instances, exist concurrently with an award of legal custody to another home”); cf. B.C., 174 N.H. at 632 (concluding that a “guardianship may, in that interests of a minor are “generally best promoted in the minor’s own include the parent or parents. See RSA 463:12, II - III; RSA 463:1 (recognizing than the guardian may have physical custody of the minor, which could live, RSA 463:12, III(b). The statute thus contemplates that someone other the guardian to take custody of the minor and establish where the minor will contact with the minor,” RSA 463:12, II(a), and permits, but does not require, “[b]ecome or remain personally acquainted with” and “maintain sufficient plain language of the guardianship statute. The statute requires a guardian to Recognizing such a residual parental duty is also consistent with the

or other relatives for temporary placement). in foster care, that DCYF inform court of efforts to locate non - custodial parent RSA 169 - C:6 - a, I (requiring, before emergency removal of child and placement opportunity for a “home” placement. See RSA 169 - C:2, II, III(b); RSA 463:1; cf. fails to do so furthers the statutory purposes by providing the child an duty to provide for the minor’s basic shelter in the event that a legal guardian legal guardian.” RSA 1 69 - C:3, XX - a (2022). Recognizing a residual parental than the child’s biological parent or parents, adoptive parent or parents, or placements over out - of - home placements — placements “with someone other 463:1. In other words, the statutes express legislative preference for in - home his “own home” or “home community.” RSA 169 - C:2, II, III(b) (2022); R SA statutes express legislative intent that a child should, when possible, remain in the child. See RSA 169 - C:2, I (2022); RSA 463:1 (2018). Moreover, both Both statutes express legislative intent to pr ioritize the best interests of

be attained”). as a whole indicates a different legislative purpose in view of the objectives to qualification that general words will not be used in a restricted sense if the act Small, 99 N.H. at 3 p. 5 51 (explaining that ejusdem generis “is always subject to the language in light of those purposes. See Chrestensen, 172 N.H. at 43; see also purposes of both of the statutory schemes at issue and cons true the statutory not an edict — in ascertaining legislative intent). We instead look to the of ejusdem generis “is neither final nor exclusive” and serves only as a tool — instance. See State v. Small, 99 N.H. 349, 351 (1955) (observing that the rule XXVII. We therefore find the principle of ejusdem generis unhelpful in this by the residual parental rights and responsibilities listed in RSA 1 p. 6 69 - C:3, Here, howev er, we are unable to discern a unifying characteristic shared 6

children “at DCYF’s request”). found to be neglected, court terminated grandmother’s guardianship over the In re O.D., 171 N.H. 437, 438 - 39 (2018) (observing that, after children were terminated, s ee RSA 4 p. 6 63:15, IV (2018) (termination of guardianship); see also reunify with J.H., there are avenues by which the guardianship can be a, III(a) (2022); RSA 169 - C:24 - b, II(a) (2022), and tha t, if Mother wishes to is not the only possible outcome of this neglect proceeding, see RSA 169 - C:24 he had safe shelter. Additionally, we note that J.H.’s reunification with Mother provide shelter, Mother had a duty to take custody of J.H. or otherwise ensure recognized herein: when contacted by DCYF about the Guardian’s inability to Mother, that does not undermine the residual parental responsibility if we assume that the guardianship is a barrier to future reunificat ion with cannot even happen because the RSA 463 guardianship is still in place.” Even Mother next ass erts that reunification with J.H. “under RSA 169 - C:23

that Faith T. controls here. terminate parental rights). Accordingly, we disagree with Mother ’s con tention differences between abuse and neglect proceedings and proceedings to 348 - 49; see also In re C.M., 1 p. 6 63 N.H. 768, 774 (2012) (discussing the necessary care — constitutes neglect under RSA chapter 169 - C. See id. at care — when the person wit h legal custody of the child has failed to provide we had no occasion to consider whether a pa rent’s failure to provide necessary province of those in whom legal custody is l odged.” Id. In Faith T., however, child[]’s ‘ mental, emotional, or physical health ’” because such care “is the based upon a failure to provide for or manage the “care necessary for the parent cann ot have her parental rights terminated under RSA 170 - C:5, II 170 - C:5, II (2002)) (emphasis omitted). We observed that, on the other hand, a mental, emotional, or physical health. ’” Faith T., 165 N.H. at 348 (quoting RSA the child’s “‘ subsistenc e, education or other care necessary for [the child’s] parental rights terminated if, although financial ly able, she neglects to pay for legal custody [of the child] is lodged with others, ’” a parent can have her II (Su pp. 2022). In Faith T., we explained that, under RSA 170 - C:5, II, “‘ when termination of parental rights. See Faith T., 165 N.H. at 348 - 49; RSA 170 - C:5, rather, it concerned the interpretation of one statutory basis for the J.H. basic shelter. Faith T. did not involve an appeal of a neglect finding; proposition that the guardianship rel ieved her of her pare ntal duty to provide Mother argues that In re Faith T., 165 N.H. 346 (2013), supports the We are not persuaded by Mother’s arguments to the contrary. First,

otherwise ensure that the child has a safe place to go. provide the child basic shelter — to take physical custody of the child o r after receiving actual notice that the child’s guardian is unable or unwilling to legislature intended that parents retain a residual parental responsibility — p. 7 7

established that the child’s health has suffered or is likely to suffer the child’s physical, mental, or emotional health, when it is education as required by law, or other care or control necessary for (b) Who is without proper parental care or control, subsistence,

As relevant here, a “[n]eglected child” is defined as a child:

financial status, it could not meet its burden of proof. We disagree. financial means. She asserts that, because DCYF did not investigate her insufficient evidence that the neglect was not due primarily to her lack of Finally, we turn to Mother’s argument that the record contains

demonstrate that she preser ved this a rgument. See id. contain a motion for reconsideration. Accordingly, Mother has failed to the final guardianship order from the record. Nor does the appellate record order, cou nsel did not raise any argument in closing based up on the absence of at the hearing about her knowledge, or lack thereof, of the final guardianship articulated in her brief. Id. Although Mother’s counsel questioned the CPSW demonstrate that she specifically raised before the trial court the arguments N.H. 252, 255 (2014). It is Mother’s burden, as the appealing party, to judicial review of matters not raised in the trial forum. Dukette v. Brazas, 166 not adequately preserve it for our review. Parties generally may not have We decline to address the merits of this argument because Mother did

and demonstrating that she could have contact with J.H. of proving she neglected J.H. without providing the final guardianship order parental duty. Accordingly, she asserts that DCYF could not meet its burden have posed a legal and practical barrier to her ability to fulfill her residual guardianship order prevents her from having contact with J.H., which would Mother’s first sufficiency argument, she posits that it is possible that the neglect was not due primarily to her lack of financial means. Turning to final guardianship order into evidence; and DCYF failed to prove that the the evidence, see N.T., 1 p. 7 75 N.H. at 311, for two reasons: DCYF did not offer the Mother next asserts that the court’s neglect finding was unsupported by

guardianship, it found tha t Mother had neglected J.H. that the trial court did not err when, notwithstanding the existence of the a matter of law, Mother owed that residual parental duty to J.H., we conclude guard ian is unable or unwilling to provide the c hild basic shelter. Because, as has a safe place to go after the parent receives actual notice that the child’s duty to take physical custody of the child or otherwise ensure that the child responsibilities as a matter of law. Those residual responsibilities include the guardianship over a child, parents retain certain residual parental rights and In sum, we conclude that, not withstanding the existence of a p. 8 8

situation. and the fact that she had a newborn in her care than they discussed her living testified tha t she and the CPSW talked more about her relationship with J.H. which was based on his history of victim izing other children. Mother also could take J.H., she declined because of her “rough relationship” with J.H., testimony of the CPSW. Mother testified that when the CPSW asked her if she children. Mother’s testimony was, to some extent, consistent with the strained and distant relationship with J.H. and his past abuse of other that Mother identified as preventing her from taking custody of J.H. were her [with Mother] and talked about how that could happen.” Instead, the barriers housing or her financial means, the CPSW “would have had a conversation only barrier to Mother taking custody of J.H. had been her lack of stable was not financially able to take” J.H. In fact, the CPSW testified that, if the and would soon be moving into a homeless shelter, but Mother “did not say she that conversation, Mother indicated that she was currently living with friends with Mother on the phone for approximately twenty to thirty minutes. During id., was the primary cause of the neglect. The CPSW testified that she spoke the evidence, that “something else, unrelated to [Mother’s] financial means,” The record here demonstrates that DCYF proved, by a preponderance of

cause.” Id. something else, unrelated to the parent s’ fin ancial means, was the primary evidence that the parents do not lack financial means” or “by proving that lack of financial means was not the primary c ause of neglect by “[p]roviding burden. Id. Instead, we explained, DCYF can meet its burden of proving that a always put on evidence of the parents’ financial status in order to meet this (emphasis omitted). In H.B., we rejected the proposition that DCYF must means was not the “primary cause” of the neglect. H.B., 175 N.H. at 595 592, 595 (2023). In other words, DCYF must prove that a lack of financial guardian, or custodian.” RSA 169 - C:3, XIX(b); see also In re H.B., 175 N.H. control was “not due primarily to the lack of financial means of the parents, by a preponderance of the evidence, that any deprivation of parental care or Under RSA 169 - C:3, XIX(b), DCYF must satisfy this burden by showing,

preponderance of the evidenc e. See RSA 169 - C:13 (2022). omitted). DCYF bears the burden of proving neglect allegations by a the circuit court process.” G.B., 174 N.H. at 5 p. 8 81 (quotation and brackets being that are the conditions of neglect that must be repaired and corrected in actual serious impairment of the child’s physical, emotional, and mental w ell taken or not taken by the parent or parents”; rather, “it is the likelihood of or RSA 169 - C:3, XIX(b) (emphasis added). “Statutory neglect is not the actions

lack of financial means of the parents, guardian, or custodian. . . . serious impairment; and the deprivation is not due primarily to the p. 9 9

concurred. M AC DONALD, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,

Mother neglected J.H. Accordingly, we conclude that the trial court did not err when it found that the neglect was not due primarily to Mother’s lack of financial means. determine that there was sufficien t evidence to supp or t the court’s finding that child whe n informed that the guardian is unable or unwilling to do so. We also child, a parent retains a residual responsibility to provide safe shelter for the In sum, we hold that, despite the existence of a guardianship over the

of financial means.” RSA 16 p. 9 9 - C:3, XIX(b); see also N.T., 175 N.H. at 311. proper parental care or control of J.H. was “not due primarily to” Mother’s “lack that the record sup ports the trial court’s finding that Mother’s failure to provide take J.H. into he r care and J.H. was thereby neglected. We therefore conclude Mother’s financial status — were the prim ary reasons that Mother declined to evidence, that Mother’s relationship with J.H. and J.H.’s past behavior — not This evidence is sufficient to establish, by a pre ponderance of the