In The Matter of Bradley Carter and Rachel Carter

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Please proceed. Uh, if it please the court. This case provides the court with the opportunity to decide the meaning of present environment as that term is used in our parental rights and responsibility statute, RSA 4 61 A and more specifically 4 61 A 11 C. It it, reviewing the briefs of the parties, it is clear that the court has yet to decide this issue. Rachel Carter is asking the court to decide the meaning of present environment in the context of the overall statutory scheme and not in isolation. We interpret a statute in the context of the overall statutory scheme and not in isolation. Every case in which this court interprets a statute. You will find that phrase. Is that how you get to 4 61 A two? Yes. And you're ahead of me. Sorry. That's okay. Looking at the overall scheme of this statute, at a minimum must include the purpose and the state policy that are set forth in the statute, which are found at 4 61 A two because children do best when both parents have a stable and meaningful involvement in the lives of their, in their, 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 support frequent and continuing contact between each child and both parents encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced, consider both the best interests of the child in light of the factors set out in 4 6 61 a six, and the safety of the parties in developing a plan. This chapter shall be construed so as to promote the policy stated in this section That might be so. But how do we get beyond or get around the trial court's finding that your client didn't meet her burden of proof with respect to sobriety, Uh, I think the trial court looked at the home of Bradley Carter As the present environment, and the court held that Rachel had failed to show that there was any detrimental harm to the children to Remington and Brooklyn in Bradley's home. It did not look at the argument made by, uh, Rachel's counsel that it is detrimental per se, if one of the parents is not in a child's life. I agree that the issue of whether there was a continuing problem of sobriety was a factor that had to be considered. Uh, but I think, but it is clear from the record that the court's focus was on whether or not Rachel proved that Bradley's home was a detrimental environment. And the critical thing in this case is simply this. If present environment is defined as where the child has happens to be primarily residing at any particular moment, then a parent who does have a sobriety problem or a drug problem or a mental health problem, and as a result of that, ends up with four hours of time with her child in a supervised contact each month, there is no way to ever get past that, to get the equal time with a child that the statute intends unless they can prove that the present environment Bradley's home is detrimental to the child. So You're advancing a broad definition of environment to include circumstances, I assume? Yes. I I am looking at the purpose of the statute, the policy of the state, which is to encourage the continuing frequent involvement of both parents in the life of a child. And I am saying that should have been the focus of the court in this case. Uh, I, I, I know this the, uh, apelli cites the summers case in, in their brief. In that case, the mother had a definite severe alcohol problem. I mean, bottles empty in full found, hidden in her bedroom. Uh, but in that case, the parenting plan included provisions in it for reviews over a period of time to determine whether that alcohol problem was continuing or not. There was no such provision in this order, And those reviews would not invoke the present environment Correct hurdle. Right. Mr. Crisp, can you just clarify, uh, is my understanding right that at the time of the filing of the divorce, uh, your client had a sobriety problem, but at the time of the final decree, uh, she had addressed that problem and that was known to the court at the time? Um, the facts are that she defaulted and didn't appear at the final hearing. I think, you know, there may still have been a continuing problem at that moment in time. Uh, and as a result, the order only reflects what Bradley had to say about her condition and the current circumstances of the parties. I I think it's important. It, in addition to arguing that Rachel has failed to meet her burden of showing that Bradley's environment is in some way detrimental, uh, there's a lot of negative about our client in the arguments that were made. There's a couple of points I wanna make to the court. Rachel Carter holds a certification from the State of New Hampshire to provide childcare. She has been working full-time at a childcare facility, uh, providing care to infants. Uh, she provided a seven panel alcohol hair follicle test at the hearing, at the final hearing on this modification, she provided evidence that she had been regularly attending aa. She provided letters from her mental health counselor attesting to her sobriety. But nothing seems to be satisfactory, and I appreciate the need to be cautious. But this mother who is here in the courtroom who works with children every day, is afforded four hours of time a month with her children whom she was the principal caregiver up until the time of the divorce in 2020. These children miss their mother. They want to see their mother, and the court should have focused on those issues rather than on, did Bradley provide, did she prove that Bradley's environment was detrimental and All the arguments that you've just made were made to the trial court as well? Yeah, they were, and there were exhibits presented, copies of the hair follicle test, the aa, uh, tokens you get for attendance. Uh, the response to that at, after our client was hounded to produce those, the response was, well, you can buy those on eBay, uh, after being hounded to get a hair follicle test and getting one that showed for the last four to six months, no alcohol. Well, we, we really want is a fingernail clipping test. I mean, nothing has ever been satisfactory Here, Mr. Crisp, a major thrust of your briefing is that the court should have applied 4 61 a 11 two rather than one, but that's not, uh, have you withdrawn that argument? Um, We haven't withdrawn that argument, your Honor. I acknowledge that we didn't refer to

that statute in the motion to reconsider we did not bring A preservation problem. Mr. Eaton says it's not preserved. Do you agree it's not preserved? Uh, I'm not willing to concede that, your Honor. Uh, but I do, I do acknowledge that it was not set forth in our, in our motion to reconsider. Uh, I think, you know, they have cited the not nagel, I I don't know how you pronounce that case, uh, in which, you know, there's an argument that, uh, if you are, uh, deciding it on the basis of clear and convincing evidence, implicit in that is a finding of best interest. This case kind of works the opposite, where the lesser burden of proof should have implied when looking at the supervision issue. Uh, I think the more important issue here is that defining what, uh, present environment means. I think it would be extraordinarily helpful to all parties and litigants in these cases if there was a clear definition to that term, uh, established by the court. And So you would ask that we adopt the more expansive interpretation and then remand for the trial court to assess using that definition? Yes. And I would only add to that a definition that is consistent with the stated purpose and policy that the statute sets forth. If there are no other questions. Thank you, attorney Chris. Attorney Eaton. Thank you, Mr. Chief Justice. Good morning. Your honors. May I please the court? Mike Eaton on behalf of the FOE Bradley Carter. Uh, Mr. Carter's in the courtroom with us today. Uh, I'll start, excuse me, by just addressing what Attorney Crisp ended with, which was, uh, the application of 4 61 A 11 Roman numeral two. Uh, and as attorney crisp indicated, that applies to the request for unsupervised parenting time. Uh, it can't apply to the request for expanded parenting time. Um, as Justice Bassett. You indicated. It's our contention is that it's not preserved. Uh, but I would note as well that, uh, there is another basis for, uh, affirming the trial court's order on, on that issue, aside from preservation. And that goes back to the, uh, I think it's naja, if I'm pronouncing that correctly. Uh, something this court said in that case, which was for error to be, to require reversal on appeal, it must have been prejudicial to the party claiming it. Uh, and here, there, there is just no prejudice. Uh, as the appellant notes in her brief, uh, the trial court applied subsection F of Roman numeral one, which is a best interest standard. Roman numeral two also applies the best interest standard. So whether or not the court applied f or two, it would've resulted in the same analysis and, and ultimately the same conclusion. And how is there no prejudice? Excuse Me? How is there no prejudice? Uh, well, there's no prejudice because the, the issue on appeal is whether the trial court applied the correct standard, so there's no prejudice, because even if the trial court aired in applying f over two, uh, it's ultimately at the end of the day the same standard. It's still the best interest standard. But the question is through what lens? The narrow lens of the current environment in the home, or the broader lens of, um, the total circumstances for the child. So essentially, best interest is the same standard. It just depends on how we define the scope. Correct. But I think with respect to the supervision issue, it that the present environment issue is not, uh, necessarily relevant, uh, because you don't need to establish a detrimental present environment to, to necessarily make a change to a non-schedule provision, um, or, or a change that, that only minimally impacts the allocation of parenting Plan. So that brings up another question we have seen, and in the summer's case, I think we reviewed a situation where the court in essence retained jurisdiction and scheduled review hearings, and those aren't expressly authorized by the statute. 'cause you have the countervailing consideration of finality, which then in this circumstance imposes this, I'll say, higher bar to making a change in the parenting schedule. So is it better practice for the court to retain jurisdiction in these circumstances and step sort of the, um, parenting time? Is that something that would be a better practice? Uh, it's a good question, your Honor. Uh, perhaps, uh, I think in cases where there may be an ongoing issue that that could be resolved in the future, depending on the circumstances, the trial court could take that approach, uh, it's certainly not required. Uh, and as, as the court noted in summers, uh, even that stipulation and a provision where it said, you know, if you can meet these prerequisites, you know, establish testing and, and treatment over a course of six months, you can review it again as the court said. That's, that's not a guarantee. And, and that's why in that case, it, it was affirmed that the, uh, the denial of the petition to modify for extra time. Uh, and, and I'll, I'll jump right into the present environment issue. Uh, you know, I don't think we need to decide, or I don't think Courtney decide, excuse me, the, uh, definition of present environment in this case. Uh, and it may be that the court consider can consider any circumstance that affects the children, whether that's inside, uh, the residential parent's home or not. But what the, what a party does need to present is clear and convincing proof that the children's present environment, whatever that may be, is affecting them negatively, either physically, mentally, or emotionally. Uh, and that goes back to the Kelly Case where, uh, tension alone cannot establish, uh, a, a detrimental present environment without showing the effects, uh, on the child of that tension between, between the parents. And this case is the same here, where, uh, the appellant, uh, argues that certain circumstances may affect the children, but there's no clear and convincing proof that they in fact do affect the children negatively or otherwise. Um, and I would point again to the, to the court's opinion in Cho where those, uh, that evidence was present. There was, as this court framed, it demonstrable negative effects of the father's behavior upon the son. And that included things like, uh, coaching the child to provide false information about the mother and then threatening corporal punishment if he did. But Isn't there a presumption in the statute that the children are benefited and therefore not detrimented by having both parents involved in their parenting? Yes, your Honor, that is a presumption in the statute, uh, 4 61 82. Uh, it's also a policy of the state within that statute, uh, that the court consider the children's best interests, whatever those circumstances may be, uh, as well as the safety of the parties. Uh, and it's a policy of the state to give courts wide discretion in these matters. Um, and, and I would point to cases like Billups, which was the case of the incarcerated father, uh, whose right to contact the children in, in to any degree was terminated. Essentially, it wasn't a termination of parental rights, uh, but it was, you know, he couldn't contact the children. Um, and that, uh, did not affect, uh, the policy of the state. Uh, and then this court last year issued an order in Albin 2022 Westlaw 1-839-010-FOUR, in which it affirmed an order of the court restricting contact between the mother and the child to telephonic contact or email and text messages once every four days. And interestingly, the, the mother in that case raised this very argument that, that that would be contrary to the policy of the state for frequent and continuing contact. Uh, and the court rejected that argument. I'd also note, as well as the appellant has noted that she calls the children every day. Uh, and, and that does support frequent and continuing contact, especially when we look at cases like Connolly, uh, where, you know, some visitation plus video chats with the children twice per week was sufficient to address, uh, the frequent and continuing contact, uh, policy of the state In in cons destroying present environment. Do we take into account the policy of the state? Uh, I think, you know, the entire analysis does need to take into account the policy of the state. Yes. Uh, but as a preliminary matter, as this court indicated in the Muchmore case, uh, you have to meet one of those circumstances regardless. I mean, in the muchmore case, the trial court found that it would be in the best interest of the children to modify the parenting plan, but the parent hadn't actually established, uh, detrimental present environment. Uh, and, and this court said, you, you know, whether that's a problem or not, uh, this, the legislature has said you need to meet one of these circumstances to justify a modification. And then to, to briefly address the issue of alcohol use. And, and as we've indicated, alcohol use was not the sole concern, uh, in this case. There, there, there is a long history of concerns here. Uh, you know, I, I don't dispute that it may be good policy and it probably is good policy to, for the legislature to address this issue. Those Other concerns predate the final parenting plan. Some do, uh, some do, for instance, the, the incident, uh, when the children, uh, nearly got into a car with an intoxicated driver, that that's pre predated Parenting plan. So there are some continuing concerns. There are some continuing concerns. Yes. So after, so the parenting plan was issued in November, 2020. Uh, there was a period after that until August of 2021, where the appellant chose not to exercise the parenting time she was afforded at the time, including under the final parenting plan. Uh, there were issues with, uh, violating court orders as well, uh, an incident where she kept the children overnight against court orders. There was an incident just shortly before the final hearing in this matter, uh, involving a, a similar issue not keeping the kids overnight, but it was raised at the final hearing. Um, so there were other concerns with respect to the appellant's ability to comply with restrictions. And I, I think that does Some of that have to do with the fact that the center, the supervised visitation center closed, Uh, the inconsistency in exercising her visits? Yes. That did after, I think it was July of 2022 when the center closed, then yes, there was a period of time where we were trying to figure out, or the parties were trying to figure out how to get her, her visitation. And, uh, Mr. Carter made some accommodations and said, you know, we can do it at the public library, or just shortly before the final hearing, it was for bowling and ice cream, uh, with, uh, the appellant's mother as the supervisor. Um, so yeah, that did play a part of a role. And, and ultimately, Mr. Carter proposed, uh, a modification to the supervision provision that would allow, uh, for her to continue visits despite the fact that the center had closed. Uh, so again, just briefly to address the sobriety issue, um, uh, again, the legislature has addressed this in other areas, uh, most notably in the, uh, criminal area with the implementation of drug courts. Uh, it's, it is clearly an issue for the legislature to address. I think that, you know, the statute shows that the legislature has looked at certain circumstances that existed at the time of the final parenting plan, but have since been remedied or, or exist no more. Uh, and it has proposed, you know, standards for modifying the parenting plan based on those circumstances. Uh, and this is one of those areas that the legislature would have to address because it would involve, uh, speculation as to how they would address it. Um, you know, we don't know how the legislature would define sustained sobriety, for instance, or whether they would require clear and convincing proof in establishing that as opposed to some other standard, um, whether there would be some sort of wait period as there is in, uh, subsection I of Roman Numer one. Uh, so, so these are, they're difficult issues. And, uh, you know, it wouldn't, the court can do something similar to what it did earlier this year in the in rage a PS case, which involved the issue of abuse and, and how substance misuse plays into that. And, uh, and perhaps indicate that this is an area the legislature should address and, and it may desire to address it. Uh, but at the end of the day, in this case, following the precedent established by much more, uh, the appellant has to show one of these circumstances listed in 4 61 A 11, uh, to justify a modification of, of parenting time. Uh, and ultimately the standard of review here is highly deferential. It's, it's, if, if the court's judgment was in any way reasonable, in any way supported by the record, uh, this court accepts that judgment. So for those reasons, we'd ask the court to affirm the trial court's order. Thank you. Uh, I, I did reserve two minutes for rebuttal. Uh, I, I want to point out something to the court. In Judge Lairs order, uh, at the temporary hearing, she found that it was detrimental to the children not to have time with her mother. Uh, with respect to all this issue with these, with these issues with alcohol, we, we don't deny that Rachel had a problem with alcohol around the time of the divorce. Uh, we're not denying that, uh, the Bradley has been unable to really identify any incident that occurred throughout the proceedings to modify the parenting plan where there was any evidence of, uh, Rachel's lack of sobriety. Uh, counsel makes reference to Rachel having the ability to have telephone conversations with the children each evening. Bradley's proposal was that, that be modified so that the phone calls would be at his discretion, terminated when he wanted to, and recorded by him. Uh, But the court didn't adopt the, the court didn't proposal of either party did it, it crafted its own corner, something In the middle. Uh, but nonetheless, it's, and, and I sh and I would add that up until the final hearing, uh, Bradley wasn't even allowing the two hours he was insisting on one hour only. That was the only way Rachel could get agreement to see the children. Uh, the fact remains that, uh, well, I also want to point out, uh, you know, RSA 4 61, A 11 one B through one, except for those provisions of the statute and 4 61 A 12, which is the relocation, the court may issue an order, modify any section based on best interest. Okay? So except in the case of 4 61 A 11 F, which is the one that the judge applied, the court could use best interest. Well, if you, if that's one of the exceptions, the burden is clear and convincing. And so there was prejudice because if it was under section two, its best interests, but under the section applied by the court, it's clear and convincing. So my red light is up. Thank you for your consideration. Thank you very much. Counsel case is submitted. Court invites, uh.