In The Matter of Bradley Carter and Rachel Carter

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Preserved: October 24, 2022 Final Order, Appendix at 5.

II. What constitutes “present environment” under RSA 461-A:11, I(c)? Preserved: October 24, 2022 Final Order, Appendix at 5. Motion for Reconsideration, Appendix at 80.

III. Should a parent have to meet the same burden under RSA 461-A:11 to modify a Parenting Plan if the original Parenting Plan was based on that parent’s sobriety at the time of the final order?

Preserved: October 24, 2022 Final Order, Appendix at 5. Motion for Reconsideration, Appendix at 79.

The Appellant, Rachel Carter (“Rachel”), and the Appellee, Bradley Carter (“Bradley”) were married for eight years. Appendix 8, Certificate of Divorce. The 6" Circuit Family Division Concord Court issued a Certificate of Divorce to the parties on December 8, 2020. Appendix 8, Certificate of Divorce. The parties share two children, Brookelyn Carter (DOB March 30, 2012) and Remington Carter (DOB June 6, 2016). Appendix 13, Transcript. Rachel has a fourteen-year-old child, from a prior relationship. Appendix 13, Transcript. Bradley has two older children from a previous relationship, ages fifteen and sixteen. Appendix 13, Transcript. Prior to the parties’ divorce Rachel was a stay-at-home mother, primarily responsible for caring for and raising the children. Appendix 13, Transcript. Rachel has been a consistent and important presence in Brookelyn and Remington’s lives up until the parties’ divorce in 2020. Appendix 13, Transcript.

When Bradly filed for divorce, Rachel struggled with alcohol abuse. Due in large part to Rachel’s abuse of alcohol and associated struggles, the original Parenting Plan signed by the court on November 2, 2020, describes the routine parenting schedule as “With Bradley at all times except with Rachel as follows: A two hour visit with the children fully supervised at the{[Merrimack County] Boscawen Visitation Center, twice per month, at a time and date convenient to Bradley...”” Appendix at 63, Parenting Plan dated November 2, 2020. This order was made when Rachel failed to appear at the final hearing.

The Merrimack Visitation Center required Rachel and Bradley to complete an intake process. Appendix 53, Transcript. Bradley changed his intake appointment date multiple times and delayed the process to initiate

Rachel’s supervised visits. Appendix 53, Transcript. Once the intake process was complete, Rachel enjoyed visits with Brookelyn and Remington at the Merrimack Visitation Center on an ongoing basis. Unfortunately, the center closed on June 30, 2022. Appendix 13, Transcript.

Rachel is sober and has maintained her sobriety since March 2020. On June 3, 2022, Rachel filed a Motion to Change Parenting Plan citing to her compliance with the November 2, 2020 Parenting Plan, and her sustained sobriety. Appendix at 69, Motion to Change Parenting Plan. Rachel specifically requested that her parenting time be unsupervised, and that the schedule be amended to allow her time with the children on the weekends. Appendix at 69, Motion to Change Parenting Plan. Bradley objected to Rachel’s request and the Court ordered the parties to attend mediation. See Appendix at 70, Petitioner’s Objection dated June 13, 2022 and Appendix at 72, Order dated July 1, 2022.

The parties proceeded to a Temporary Hearing. The Court issued a Temporary Order on [Rachel’s] Motion to Change Parenting Plan on July 28, 2022. Appendix at 73, Temporary Order dated July 28, 2022. The Temporary Order states, “The only section of RSA 461-A:11, I which the Respondent could argue applies with respect to her Motion to Change Parenting Plan is RSA 461-A:11, I(c).” Appendix at 76, Temporary Order dated July 28, 2022. The Court stated that Rachel did not meet the burden of proof, clear and convincing. Appendix at 76, Temporary Order dated July 28, 2022. The Temporary Order states further that during mediation the parties should attempt to establish a graduated schedule to allow Rachel more parenting time with the children or agree upon an alternative

supervision center so that the Respondent could continue to exercise the

two visits per month she was entitled to under the November 2, 2020 Parenting Plan. Appendix at 78, Temporary Order dated July 28, 2022 and Appendix at 63, Parenting Plan dated November 2, 2020. Finally, the Court ordered that a Final Hearing on the merits be scheduled if Rachel’s Motion to Change Parenting Plan was not resolved during mediation. Appendix at 78, Temporary Order dated July 28, 2022.

A Final Hearing was held on October 18, 2022. Rachel sought to modify the parenting plan arguing that the existing schedule is detrimental to the children’s health because they do not have regular and consistent contact with their mother, and the modification she proposed outweighed any harm likely to be caused by changing the children’s environment. See Appendix at 17, Final Hearing Transcript. Bradley argued that the parenting schedule should remain the same, however, he requested that the location of Rachel’s parenting time with the children and supervisors be amended. Appendix at 48, Final Hearing Transcript. The Court found that Rachel did not provide “sufficient evidence to establish by ‘clear and convincing evidence’ that the ‘[childrens] present environment is detrimental to the [children’s physical, mental, or emotional health...’ RSA 461-A:11, I (c).” Appendix at 5, Final Order dated October 24, 2022.

Ultimately the Court declined to adopt the proposal of either party, and instead ordered Rachel and Bradley to identify a “mutually agreeable responsible adult other than [Rachel’s] mother and [Bradley’s] significant other, to facilitate supervised visits...” Appendix at 6, Final Order dated October 24, 2022. Rachel's parenting time remains limited to a two hour

visit twice each month.

On November 7, 2022, Rachel filed a Motion to Reconsider. Appendix at 79, Motion to Reconsider dated November 7, 2022. The Court denied Rachel’s Motion to Reconsider on November 22, 2022. Appendix at 97, Order dated November 22, 2022.

Rachel filed a Discretionary Appeal on January 9, 2023. The New Hampshire Supreme Court accepted the appeal by Order dated February 24, 2023.

Your Appellant, Rachel, now requests that this Court overrule the 6" Circuit Family Division, Concord Court Order which denied her Motion to

Change Parenting Plan and the relief sought therein.

Il. STANDARD OF REVIEW In cases involving statutory interpretation this Court will review the

trial court’s interpretation do novo.” Cook v. Sullivan, 149 N.H. 774, 780 (2003). “...to the extent that resolving a modification issue requires that the [the Court] interpret pertinent statutes, [it] reviews the trial courts statutory interpretation de novo.”’ Summers, 172 N.H. at 479. The Court has also stated, “We are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. In the Matter of Plaisted & Plaisted, 149 N.H. 522, 523(2003). We interpret legislative intent from the statute as written, and we will not consider what the legislature might have said or add words that the legislature did not include. Id. at 524. We interpret statutes in the context of the overall

statutory scheme and not in isolation. Id.” In the Matter of Hampers &

Hampers, 166 N.H. 422, 433 (2014).

When reviewing a final order regarding modification of parental rights and responsibilities, the Court will not overturn the trial court’s order “unless it clearly appears that the trial court unsustainably exercised its discretion.” In the Matter of Summers & Summers, 172 N.H. 474, 479 (2019). The New Hampshire Supreme Court has previously held that the standard of review “...is not whether we would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same evidence.”

It. ARGUMENT

During the Final Hearing, Rachel presented a proposed Parenting Plan which would expand her time with the children on a graduated basis. In addition to the new schedule, Rachel argued that there was no longer a need for her parenting time to be supervised. She proposed that, going forward, her parenting time be unsupervised.

When evaluating Rachel’s proposal regarding unsupervised parenting time, the trial court stated such modifications, “...are governed by RSA 461-A:11, RSA 46-A:11 allows for changes if the ‘modification makes either a minimal change or no change in the allocation of parenting time between parents, and the court determines that such a change would be in the best interests of the child.’ RSA 461-A:11, I (f).”” However, Rachel’s proposal regarding supervision is not a modification of the parenting schedule, it is a modification of the Permanent Parenting Plan. Because the trial court found Rachel failed to meet the statutory burden of proof for a modification, the Court did not address the substance of Rachel’s modification regarding supervision. This was an error.

RSA 461-A:11, II states, “Except as provided in RSA 461-A:11, I(b)- (D for parenting schedules and RSA 461-A:12 for a request to relocate the

residence of the child, the court may issue an order modifying any section of a permanent parenting plan based on the best interest of the child.” RSA 461-A:11, II (emphasis added). Therefore, the Trial court should have evaluated whether the proposed modification of the Parenting Plan, regarding supervision, is in the best interest of the children, rather than evaluating if the Rachel met the heightened burden of proof required by RSA 461-A:11, I(f.

The Trial court erred when it failed to evaluate Rachel’s request to modify the Parenting Plan regarding the supervision requirement, as the Court applied RSA 461-A:11, I rather than RSA 461-A:11, IL.

The Final Order of the Trial court included a list of statutory factors from RSA 461-A:6 used to determine the best interest of the children. However, the Court stated that it utilized the factors in evaluating Bradley’s proposed parenting plan, rather than Rachel’s request regarding unsupervised parenting time. Ultimately, the trial court declined to adopt Bradley’s proposed parenting plan. Instead, it issued its own order regarding supervision and the parenting schedule. Notably, the Trial court did not utilize the factors regarding the best interest of the child in its

analysis of Rachel’s request for unsupervised visits.

The New Hampshire Supreme Court should overturn the trial court’s ruling that Rachel failed to meet her burden of proof in regard to the proposed supervision modification. The record shows the children will benefit greatly from spending consistent time with their mother in a normal environment such as Rachel’s home. The children have a strong desire to spend time with their mother outside of the supervision center. Appendix 17, 18, Transcript. The supervision requirement has prevented Rachel from exercising the entirety of her parenting time due to visitation center closures. Appendix 20, 25, Transcript. This has resulted in the children spending less time with Rachel than the court intended. Appendix 25, Transcript. The children miss their mother, who was their primary caretaker prior to the parties’ divorce. Appendix 13, 14, Transcript. There is no justification for further supervision. Rachel provided evidence of sustained sobriety at the Final Hearing. Appendix 16, 29, Transcript. Additionally, as disclosed on Rachel’s financial affidavit, Rachel is NH DHHS licensed and is employed by a childcare center. Appendix 12, Transcript. She is responsible for the daily care and safekeeping of children. Rachel should be awarded unsupervised visitation with her children, as it is in the best interest of the children. In the alternative, the issue should be remanded to the trial court for a proper analysis of the best interest of the child in light of

the requested modification.

At the final hearing Rachel also argued that RSA 461-A:11, I(c) provided statutory justification for her request to modify the Parenting Plan, and specifically the parenting schedule. RSA 461-A:11, I(c) states that the court may modify a permanent order concerning parenting rights and responsibilities, “Jf the court finds by clear and convincing evidence that

the child’s present environment is detrimental to the child’s physical,

mental, or emotional health and the advantage to the child of modifying the order outweighs the harm likely to be caused by a change in environment.” RSA 461-A:11, I(c) (emphasis added). RSA 461-A:11 does not define what constitutes the child’s “present environment, ” and the New Hampshire

Supreme Court has not defined the term in any prior case law.

i. Although the Court has not defined the term “present environment” it has acknowledged instances when a trial court found an environment to be detrimental or non- detrimental.

The New Hampshire Supreme Court has acknowledged instances when trial courts determined that a present environment was detrimental to a child, sufficient to meet the burden of proof required for a modification of the parenting schedule. Jn the Matter of St. Pierre and Thatcher, the child was severely burned by a bonfire while in the respondent’s care. In the Matter of St. Pierre & Thatcher, 172 N.H. 209, 214 (2019). The respondent failed to notify the petitioner or seek medical treatment for the child in a timely manner. Id. “The court [] found the incident was ‘concerning, ’ and

declared that it met the standard for modification of a parenting plan. See RSA 461-A:11, I (¢) (Supp. 2016).” Id. at 215. This suggests that a child’s present environment includes the supervision and care provided to the

child.

In the Matter of Miller & Todd, the trial court found that the children’s present environment was detrimental as they were residing with their mother who, “.... continues to engage in unwarranted interference with the father’s parenting.” In the Matter of Miller & Todd, 2019 N.H. LEXIS 134, *2, 2019 WL 2743833. However, the trial court held that the “advantage to the children of modifying the parenting plan was outweighed by the probable harm from such a change in their primary residence.” In the Matter of Miller & Todd, 2019 N.H. LEXIS at *3. Notably the trial court considered one parent’s interference with the other parenting time as part of the child’s present environment. Jn the Matter of Miller & Todd, 2019 N.H. LEXIS at *2. The Supreme Court of New Hampshire affirmed the trial court’s order in a non-precedential decision. Jn the Matter of Miller & Todd, 2019 N.H. LEXIS at *12.

The New Hampshire Supreme Court addressed RSA 461-A:11, I(c) in the case, Jn the Matter of Kelly & Fernandes-Prabhu. In the Matter of Kelly & Fernandes-Prabhu, 170 N.H. 42, 50 (2017). The Court stated, “Although the GAL’s report stated that modification of the parenting schedule ‘might alleviate some of the tension between the parties, tension between parents does not alone establish clear and convincing proof of a detrimental environment for the child.” In the Matter of Kelly & Fernandes-Prabhu, 170 N.H. at 49-50. The Court held that it could not find that a modification was warranted on the basis of RSA 461-A:11, I(c) because the trial court’s order did not discuss, reference, or provide analysis of RSA 461-A:11, I(c). Jn the Matter of Kelly & Fernandes-Prabhu, 170 N.H. at 50. Still, Jn the Matter of Kelly & Fernandes-Prabhu suggests that when there is tension amongst parents, it can be considered as part of a child’s present environment even if the tension alone is not proof of a

detrimental environment.

ii. The entirety of RSA 461-A indicates that the presence or absence of a parent, as well as the ability of each parent to support the child’s relationship with the other parent contribute to the present environment of a child.

The limited case law indicates that a child’s present environment is comprised of care and supervision provided for a child, interference of one parent with the parenting time of another, and tension amongst the parents of the child. However, these are not the only factors which comprise a child’s present environment as defined by RSA 461-A:11, I(c). The entirety of RSA 461-A and its stated statutory purpose reveal that the presence or absence of a parent, as well as the ability of each parent to support the child’s relationship with the other parent, contribute to the present environment of a child. The presence of both parents, and the relationships encouraged and fostered amongst the parents and child are determinative of the child’s mental and emotional environment.

It is within this Court’s authority to interpret the meaning of present environment in consideration of the entirety of RSA 461-A. “Jn matters of statutory interpretation, we are the final arbiter of legislative intent expressed in the words of the statue considered as a whole.” State v. Kidder, 150 N.H. 600, 602 (2004). Further the New Hampshire Supreme Court, “/construes] the statute ’s language according to its plan and ordinary meaning.” In re Berg, 152 N.H. 658, 662 N.H. (2005). “We interpret statutes in the context of the overall statutory scheme and not in

isolation. In the Matter of Hampers & Hampers, 166 N.H. at 433.

Rachel argued at the Final Hearing that her children’s present environment was detrimental for various reasons. First, the mere lack of Rachel’s presence in the children’s daily environment is detrimental to their physical, mental, and emotional health. RSA 461-A:2 states, “Because children do best when both parents have a stable meaningful involvement in their lives, it is the policy of this state, unless it is clearly shown that in a particular case it is detrimental to a child to: (a) Support frequent and continuing contact between each child and both parents.” The children reside with Bradley, and at most, they see Rachel for two hours twice a month. Due to the closing of visitation centers, and the parties’ inability to reach an agreement concerning appropriate alternative supervisors,

Rachel’s parenting time with the children has been severely restricted.

By the plain language of RSA 461-A the children’s present environment is detrimental to their physical, mental, and emotional health as Rachel, a fit parent who does not pose a threat to the safety of the children, has been unable to have frequent and continuing contact with the children. Even though Rachel has shown sustained sobriety she has been denied meaningful involvement in the children’s lives, which she and the

children previously enjoyed.

The children’s present environment is also detrimental because they solely reside with the Petitioner who is unsupportive of the children’s relationship with the Respondent, and their maternal family. RSA 461-A:6 states that in evaluating parenting rights and responsibilities in the best interest of the child the Court should consider “the ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, including whether contact is likely to result in harm to the child or parent.” RSA 461- A:6. It is therefore determinantal to the children’s interests, including their physical, mental, and emotional health, to be in an environment wherein their relationship with their mother is discounted and discouraged. At the Final Hearing, when testifying on Bradley’s behalf, his attorney stated, “They don’t need a new family, Your Honor. They already got a family.” Appendix at 40, Transcript. Bradley considers himself and his own family members to be the children’s complete family. He refuses to recognize that the children also have a maternal family, specifically Rachel, her eldest daughter, and the children’s maternal grandparents. Bradley is not supporting frequent and continuing contact in various forms. Rather, he is

vehemently working to exclude Rachel from the children’s lives.

Bradley continues to deny Rachel’s sobriety. It is detrimental to the children’s physical, mental, and emotional health for a parent to continually communicate that the other parent is unsafe, and not to be trusted. This is alienating behavior. RSA 461-A:6 states that in determining parental rights and responsibilities the Court should consider, “/t/he support of each parent for the child’s relationship with the other parent...”

RSA 461-A:6. Bradley discourages the children from having a relationship with Rachel by refusing to acknowledge she is sober. Bradley should recognize and promote Rachel’s sobriety to the children, rather than contest her success. He refuses to accept substantial evidence of Rachel’s recovery. Rachel submitted evidence of her sobriety at the Final Hearing included compliant monitoring via SoberLink for a period of twelve weeks, a negative hair follicle test, Alcoholic Anonymous sobriety chips, and documentation of her participation in therapy. When denying Bradley’s proposed parenting plan language, the trial court stated it considered,

“...the steps that [Rachel] has apparently taken to demonstrate her sobriety with the [Bradley].” Appendix at 6, Final Order. The trial court did not question the credibility of the evidence presented by Rachel, yet Bradley continues to dispute its reliability. It is clear Bradley is not supportive of the children’s relationship with Rachel as he continues to use her past abuse of alcohol to maintain the current Parenting Plan and prevent Rachel from

expanding her parenting time.

This Court should find that the children’s present environment is detrimental to their physical, mental, and emotional health because of Bradley’s interference with Rachel’s parenting time, his lack of support for the children’s relationship with Rachel, as well as Rachel’s infrequent parenting time. Language contained in various sections of RSA 461-A indicates that the presence or absence of a parent and ability of each parent to support a child’s relationship with the other parent, are factors that comprise a child’s present environment. When weighing the totality of applicable factors from RSA 461-A, Rachel has clearly shown that the children’s present environment is detrimental. Upon review a reasonable person would not come to the same conclusion as the trial court. The children’s present environment is a detriment to their physical, mental, and emotional health. Furthermore, the benefit of modifying the Parenting Plan far outweighs any potential harm to the children. Therefore, Rachel has clearly met the statutory basis for a modification of the parenting schedule under RSA 461-A:11, I(c).

RSA 461-A:11, I provided nine circumstances under which the court may modify a permanent order concerning parental rights and responsibilities. However, none of the nine circumstances allow a parent to seek a modification of parental rights and responsibilities based on their ability to prove sobriety, when the permanent order was based in whole or

in part on that parent’s substance abuse.

The legislature did not specifically list sustained sobriety of a parent as a circumstance which may warrant modification of a parenting plan. However, the legislature did clearly state that it is the policy of State of New Hampshire to “...support frequent and continuing contact between each child and both parents...” and to “..encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced...” unless it is clearly detrimental to a child. RSA 461-A:2 (a), (b). The legislature intended a parent be able to seek modification to expand parenting time in the interest of promoting frequent

and continuing contact.

A statutory conflict appears to exist between RSA 461-A:2 and RSA 461-A:11 the latter portion of the statute prevents a parent who demonstrates a pattern and history of sustained sobriety, from seeking a modification to expand or reinstate their parenting time. Such a conflict prevents that parent from enjoying frequent and continuing contact with the child, and sharing parental rights and responsibilities with their co-parent as described by RSA 461-A:2, I.

The New Hampshire Supreme has held that, “when interpreting two statutes which deal with a similar subject matter, we will construe them so that they do not contradict each other, and so that they will lead to a reasonable result and effectuate the legislative purpose of the state.” In the Matter of Liquidation of Home Ins. Co., 166 N.H. 84, 89 (2014). Parental rights and responsibilities are the subject matter of all sections of RSA 461-

The legislature stated in RSA 461-A:2, II that, “This chapter shall be construed so as to promote the policy stated in this section.” Accordingly, RSA 461-A:2, II should be construed in a manner that promotes frequent and continuing contact between both parents and their children and

encourages the sharing of parental rights and responsibilities.

In the present case, Rachel suffered from alcoholism during the parties’ divorce. Prior to seeking treatment and recovery, Rachel posed potential harm to the children. The Court restricted her parenting time to supervised visits. The permanent order did not address Rachel’s modification of the parenting schedule if Rachel were to seek treatment and ultimately achieve sobriety, as she now has now done. The trial court did not make a written finding that Rachel continued to pose a threat to the children. Rather the trial court found she failed to meet the burden of proof necessary to satisfy any of the nine circumstances listed in RSA 461-A:11. Despite providing substantial evidence of her sobriety, the trial court denied Rachel’s request for a modification. If achieving sobriety is not a basis for modifying an order that was based on alcohol abuse, there is no relief or remedy available to Rachel. Rachel contends the Court’s analysis must be flawed as described in sections A and B of this Brief. She asserts that the statutory conflict between RSA 461-A:2 and RSA 461-A:11 must be addressed and resolved. This Court should find that a parent whose parenting time was previously limited due to substance abuse may seek a

modification on the basis of their sobriety, a clear change in circumstances.

This issue of statutory interpretation presents a question of first impression and a novel question of law. This is an issue of broad public interest. It is against public policy to prevent a parent from having a substantial role in their children’s lives because the statute regarding modification fails to address their specific circumstance. This is particularly

true in the case of substance abuse, recovery, and sobriety.

_Rachel’s care, custody and control of her children has been obstructed. She is a fit parent with a pattern and history of sobriety. Unfortunately, a significant portion of Granite Staters have suffered from some kind of substance abuse. Regarding alcohol use specifically, United Health Foundation found that seventeen percent of adults in New Hampshire report engaging in binge drinking. United Health Foundation, America’s Health Rankings analysis of CDC, Behavioral Rick Factor Surveillance System, (June 6, 2023) http://www.americahealthrankings.org/explore/measures/ExcessDrink/NH. Given the prominence of substance abuse in the state, the law must protect children, when necessary, by limiting contact. However, RSA 461-A states that there is a right to parent one’s child, and there should be frequent and continuing contact between the child and both parents. Therefore, there must be an opportunity for modification when the circumstances which were the cause for concern have been addressed. Otherwise, the Family Division courts are violating a fundamental liberty interest of the parent, failing to promote the policy of the State of New Hampshire as codified by the legislature in RSA 461-A:2.

The New Hampshire Supreme Court should overrule the 6" Circuit Family Division, Concord Court Order which denied Rachel’s Motion to Change Parenting Plan and the relief therein sought. The trial court misapplied RSA 461-A:11 regarding Rachel’s request for her parenting time to be unsupervised. This is a change to the Parenting Plan, not the schedule, therefore the trial court should have used a best interest of the children analysis as described in RSA 461-A:11, II. Rachel met her burden for modification by showing that the children’s present environment is detrimental to their physical, mental, and emotional health, when looking at the totality of factors which contribute to a child’s present environment Finally, the trial should have applied the test contained in RSA 461-A:11, I “the court may issue an order modifying any section of the permanent parenting plan based on the best interest of the child.” When evaluating Rachel’s Motion to Modify, it should not have applied the nine circumstances delineated in RSA 461-A:11, I.