In re J.R.

175 N.H. 676

300 A.3d 1280

IN RE J.R. ;

In re S.R.;

In re B.R.

Nos. 2022-0329

2022-0356

Supreme Court of New Hampshire.

Argued: February 23, 2023

Opinion Issued: April 25, 2023

Pearlman Legal Enterprises, of Boston, Massachusetts ( David A. Pearlman on the brief and orally), for father.

Sommers Law, PLLC, of Concord ( Eric M. Sommers on the brief and orally), for mother.

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

DONOVAN, J.

The appellants, father and mother, challenge multiple orders of the Circuit Court ( Luneau, J.) ( McIntyre, J.) finding that both parents neglected their children and ordering the children's removal from their home. On appeal, mother and father argue that both findings were unsupported by the evidence. Father also argues that the court's orders failed to provide specific written findings as required by RSA 169-C:6-b, III (2022). We affirm.

I. Facts

The following facts were found by the trial court or are supported by the record. The appellants are the parents of B.R., S.R., and J.R. Both parents have a significant history with the New Hampshire Division for Children, Youth and Families (DCYF), including reports of concern in both 2015 and 2019 due to allegations that one or both parents were manufacturing or selling methamphetamines in the home with the children present. The 2019 report of concern resulted in the children's removal from the home and neglect findings against both mother and father. In March 2020, the parents and the children were reunified and the case closed.

In October 2020, December 2020, and March 2021, DCYF received three separate reports of concern from the children's school district regarding absences at school. In each case, the school district informed DCYF that it had difficulties contacting the parents to address the attendance issues. Ultimately, DCYF closed each report as either incomplete or unfounded because either it could not investigate the school district's concerns or the mother agreed to engage in services with a third party. Nevertheless, on December 8, 2021, DCYF received another report of concern from the school district regarding each of the children's lack of attendance at school. In the ensuing investigation, DCYF discovered that all three children had been absent or tardy for a significant portion of the 2021-2022 school year. Specifically, by December 8, 2021, B.R. had already missed 43 out of 62 days of the school year.

A child protective services worker (CPSW) contacted the mother and arranged to visit the home on December 13, 2021. Mother informed the CPSW that on November 30, she had enrolled B.R. in six courses through the Virtual Learning Academy Charter School (VLACS) for the purpose of homeschooling the child. She shared a letter of intent to homeschool B.R. with the CPSW and represented that she had mailed it to the school district. On January 20, after the school district refuted mother's homeschooling representation, the CPSW conducted an unannounced home visit. Mother again stated that B.R. was being homeschooled through VLACS courses, but admitted that B.R. was currently only participating in two courses. When asked about her other two children's lack of attendance at school, mother acknowledged that S.R. and J.R. had frequently been absent from or tardy to school and were not engaged in homeschooling.

Between December and February, the CPSW also made repeated attempts to contact father by phone and mail. Despite mother confirming father's phone number and his receipt of the CPSW's letter, father did not respond to the CPSW. Father was not present for the first home visit and, during the second home visit, mother stated that father was sick and could not speak with the CPSW.

On January 21, the school district — which had access to B.R.’s VLACS account — informed the CPSW that B.R. was not participating in any VLACS courses. The assistant superintendent responsible for the homeschool registration process also informed the CPSW that she had not received a letter of intent from mother to homeschool B.R. On February 4, 2022, DCYF filed neglect petitions against both mother and father alleging educational neglect of all three children. Thereafter, the school district informed the CPSW that on February 5 it had received from the mother a letter of intent to homeschool B.R. On February 9, the trial court held a preliminary hearing on the neglect petition and found that B.R., S.R., and J.R. were "neglected children pursuant to RSA 169-C:3, XIX(b)." The court granted DCYF legal supervision of the children and permitted the children to continue to reside with mother and father with certain conditions, including cooperation with DCYF.

On March 4, DCYF learned from law enforcement that mother had been arrested on February 17 for possession and conspiracy to sell methamphetamine. Mother's arrest resulted from an investigation by state and federal agencies that targeted thirteen individuals in a multi-month, cross-border drug trafficking ring. The CPSW spoke with mother about the arrest. Mother confirmed that she had been pulled over and that law enforcement searched her car, but denied any methamphetamine possession or knowledge of the other twelve individuals identified in the drug trafficking investigation. Thereafter, law enforcement provided the CPSW with the underlying facts surrounding the mother's arrest, and the CPSW had the opportunity to view a video of mother's post-arrest interview with law enforcement. In the interview, mother admitted that on three occasions between November 2021 and February 2022 she purchased an ounce of methamphetamine from a dealer she believed to be associated with a drug cartel. Mother stated that on at least two occasions after she purchased the methamphetamine, she either transported the drugs to her home or had been on her way home prior to being detained by law enforcement. Mother also stated that when she had friends over to her house, they would take the methamphetamine together.

On March 10, the CPSW conducted an unannounced home visit. The CPSW spoke with father, who denied having any knowledge of mother's arrest. Father also assured the CPSW that neither he nor mother used illegal drugs or interacted with anyone involved in the drug trafficking investigation. Mother again denied any involvement in drug trafficking and disavowed her post-arrest admissions to the police. On March 11, based upon the criminal allegations against mother, DCYF filed a motion for ex parte removal of the children from the home. The trial court granted the motion and found that mother's continued involvement in drug trafficking beginning in 2015, and her risk-taking behavior related thereto, "demonstrate that the children's health or life are in imminent danger if they are allowed to remain in the parents’ home." The court awarded DCYF protective supervision of the children.

On March 29 and 31, the court held an adjudicatory hearing at which DCYF presented testimony from two counselors from the children's school district and the two CPSWs involved in the investigation.

Father testified, but mother did not. At the conclusion of the adjudicatory hearing, the court issued an order finding that both mother and father neglected the children. The court further found that DCYF had made reasonable efforts to prevent the children's removal from the home and that return of the children to the home would be contrary to their welfare. In support of its findings, the court relied upon "the facts and circumstances set forth" in the court's prior ex parte order, DCYF's motion for removal, and the CPSW's affidavit. Accordingly, the court awarded DCYF legal custody of the children with continued out-of-home placement.

In May 2022, following a dispositional hearing, the court found that return of the children to their home would be contrary to their welfare because neither parent had corrected the behavior that led to the children's initial removal. Father and mother each appealed separately. We accepted the two appeals and consolidated them.

II. Standard of Review

When reviewing final orders in abuse and neglect cases, we will uphold the findings and rulings of the trial court unless they are unsupported by the evidence or tainted by error of law. In re Craig T., 144 N.H. 584, 585, 744 A.2d 621 (1999). As the trier of fact, the trial court is in the best position to assess and weigh the evidence before it. Id. Thus, our task is not to determine whether we would have found differently, but, rather, whether a reasonable person could have found as the trial court did. Id.

III. Analysis

On appeal, both mother and father challenge the sufficiency of the evidence supporting the trial court's findings of neglect. As an initial matter, based upon DCYF's initial petitions for neglect, we construe the court's adjudicatory order as finding, in part, that B.R., S.R., and J.R. were neglected children because they were without proper "education as required by law." RSA 169-C:3, XIX(b) (2022); see State v. Kay, 162 N.H. 237, 242, 27 A.3d 749 (2011) ("Our interpretation of a trial court order is a question of law, which we review de novo."). DCYF bears the burden of proving neglect by a preponderance of the evidence. See RSA 169-C:13 (2022). RSA 169-C:3, XIX(b) provides that a "Neglected child" means a child:

Who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health, when it is established that the child's health has suffered or is likely to suffer serious impairment; and the deprivation is not due primarily to the lack of financial means of the parents, guardian, or custodian ....

(Emphasis added.) See also RSA 169-C:3, XXVII-a (2...