In re J.H.

313 A.3d 748

IN RE J.H.

No. 2022-0533

Supreme Court of New Hampshire.

Argued: April 27, 2023

Opinion Issued: November 14, 2023

3rd Circuit Court-Ossipee Family Division

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

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

BASSETT, J.

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

The record supports the following facts. J.H. is a fourteen-year-old boy who has developmental delays and who has suffered significant trauma. In 2016, when J.H. was approximately eight years old, J.H.’s grandmother petitioned for guardianship over him due to the poor care he was receiving from his parents. The circuit court granted the guardianship petition, and J.H. resided with his grandmother (the Guardian) for approximately six years until May 2022.

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

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

Following a two-day evidentiary hearing, the circuit court found that Mother, Father, and the Guardian had neglected J.H. It concluded that neither of J.H.’s parents was "able or willing to provide proper parental care or control of the child and … the deprivation [was] not due primarily to the lack of financial means of the parents." With respect to Mother, the court found that she "was unable or unwilling to take the child as she did not have stable housing and had not even spoken to the child in approximately 7 years." The court awarded DCYF legal custody of J.H. and later issued a dispositional order, which outlines the objectives Mother must meet in order to reunify with J.H. This appeal followed. Our review of the circuit court’s order is limited to its neglect finding relative to Mother.

[1, 2] When reviewing a finding of abuse or neglect, we will sustain the findings and rulings of the trial court unless they are unsupported by the evidence or tainted by error of law. In re N.T., 175 N.H. 300, 311, 286 A.3d 1124 (2022). We defer to the court’s assessment of the evidence and view the facts in the light most favorable to the court’s decision. Id.

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

[4–8] Resolving the parties’ dispute requires that we engage in statutory interpretation. Statutory interpretation presents a question of law, which we review de novo. In re Guardianship of B.C., 174 N.H. 628, 631, 273 A.3d 383 (2021). When construing a statute, we first examine the language of the statute, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. When interpreting two statutes that deal with a similar subject matter, we construe them so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statutes. In the Matter of Chrestensen & Pearson, 172 N.H. 40, 43, 206 A.3d 329 (2019).

[9] Under RSA 463:12, I, except as otherwise expanded or limited by statute or court order, "a guardian of the person of a minor has the powers and responsibilities of a parent regarding the minor’s support, care and education." These responsibilities may include taking custody of the minor and establishing where the minor lives. See RSA 463:12, III(b). However, notwithstanding the existence of a guardianship over the child, the parents retain certain residual rights and duties to the child, which are recognized in both the guardianship statute, see RSA ch. 463 (2018 & Supp. 2022), and the Child Protection Act, see RSA ch. 169-C (2022 & Supp. 2022). Both statutory schemes recognize the residual parental right of visitation with the child and the parental responsibility of support during a guardianship. See RSA 463:13, I, HI; RSA 169-C:3, XXVII. The Child Protection Act sets forth additional residual parental rights and responsibilities. See RSA 169-C:3, XXVII. Accordingly, the grant of a guardianship of a minor to a person other than a parent does not extinguish all parental rights and duties. See In re Guardianship of Nicholas P., 162 N.H. 199, 205, 27 A.3d 653 (2011) (observing that the appointment of a guardian does not "remove[ ] the entire bundle of parental rights" (quotation omitted)).

[10, 11] Parental responsibilities come in many forms, including providing for the child’s physical and emotional needs. In re Adam M., 148 N.H. 83, 84, 802 A.2d 1218 (2002). Some parental duties may be discharged by delegation. Id. The relevant parental responsibility here is the duty to provide the child with safe shelter. See In re M.M., 174 N.H. 281, 296, 262 A.3d 343 (2021). We have held that, when a parent is informed that her or his child lacks safe shelter, the parent’s unwillingness or inability to provide the child with shelter, or to delegate that duty to another, constitutes neglect. See id. at 296-97, 262 A.3d 343 (affirming neglect finding when, after father was notified that child was ready to be discharged from hospital, he refused to take custody of child or arrange a safe place for the child to go); In re G.B., 174 N.H. 575, 581-82, 267 A.3d 1131 (2021) (similar). Here, the parties disagree as to whether Mother continued to have a parental duty to provide safe shelter notwithstanding the existence of the guardianship.

[12–14] We look to the language and purpose of both the Child Protection Act and the guardianship statute to resolve this question. See Chrestensen, 172 N.H. at 43, 206 A.3d 329. The Child Protection Act defines "[r]esidual parental rights and responsibilities" as "those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship except guardianship pursuant to termination of parental rights, including, but not limited to, right of visitation, consent to adoption, right to determine religious affiliation and responsibilities for support." RSA 169-0:3, XXVII (emphases added). Ordinarily, when the legislature uses the phrase "including, but not limited to" in a statute, we apply the statutory interpretation principle of ejusdem generis. See State v. Moore, 173 N.H. 386, 391-92, 239 A.3d 897 (2020). Under this principle, when specific words in a statute follow general ones, the general words are construed to embrace only persons or things similar in nature to those enumerated by the specific words. See id. at 392, 239 A.3d 897. When applying this principle, we are often able to discern a common theme or character of the specific enumerated words, which aids our interpretation of the more general word or words. See, e.g., id. (enumerated list of services compensable under restitution statute were all healthcare services); In the Matter of...