In re Bagley

513 A.2d 331, 128 N.H. 275, 1986 N.H. LEXIS 283
CourtSupreme Court of New Hampshire
DecidedJuly 9, 1986
DocketNo. 85-248
StatusPublished
Cited by37 cases

This text of 513 A.2d 331 (In re Bagley) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bagley, 513 A.2d 331, 128 N.H. 275, 1986 N.H. LEXIS 283 (N.H. 1986).

Opinion

Batchelder, J.

In this petition for a writ of certiorari, Lana and Leon Bagley challenge a decision of the New Hampshire Division for Children and Youth Services (the “division”) upholding a finding by the division’s Nashua district office that a report of child neglect in the petitioners’ household was “founded”. See RSA 169-C:29 to :39 (Supp. 1985). We grant the petition, vacate the decision, and remand for proceedings consistent with this opinion.

This case presents important social and constitutional issues. At center stage are our government’s laudable efforts to combat one of the great evils of the day: the abuse and neglect of children. In the background, however, looms the image of Big Brother. Our role is to decide whether our constitution permits the government to give its imprimatur to reports of child abuse and neglect — and to store and use those reports — without affording to those accused notice and a meaningful opportunity to be heard.

Lana and Leon Bagley are married and have five children. In October 1984, the ages of these children ranged from two to eleven. At that time Lana Bagley was caring for several children, in addition to her own, in her Nashua home. Leon Bagley, a postal service employee and a Special Forces veteran and reservist, kept a variety of weapons and ammunition in the house, including rifles, shotguns, pistols, and a revolver.

On the afternoon of October 14, 1984, Mrs. Bagley and the children returned home from shopping to find Mr. Bagley asleep. Mr. Bagley had been drinking heavily. Mrs. Bagley roused her husband, who became angry, followed his wife into the kitchen, and pushed her. Mr. Bagley then returned to the master bedroom and began to handle one of his weapons. Hearing this, Mrs. Bagley collected her children and left the house.

Mrs. Bagley sent the children to her mother’s house and telephoned the Nashua Police Department. The police arrived, spoke to Mrs. Bagley, and took positions outside the house. One of the officers then telephoned Mr. Bagley. Inside the house, Bagley pointed a [278]*278semi-automatic rifle at his ringing bedroom telephone and fired two rounds into it. The telephone continued to ring. Bagley picked up the receiver, spoke to the officer, and agreed to leave the house unarmed.

The police interviewed Bagley, who admitted that he had shot the telephone. Bagley then entered the house with the officers and showed them the newly perforated telephone, the rifle, and many of his other weapons. The police, believing that the Bagleys had reconciled their differences, advised Mrs. Bagley of her right to file a domestic violence petition, issued a summons charging Mr. Bagley with discharging a firearm within the city limits, and departed.

On October 18, 1984, the division’s Nashua district office received a telephone call regarding the Bagley household. The informant said that Mr. Bagley had allegedly discharged a shotgun in the house, and expressed concern regarding Mrs. Bagley’s lack of a daycare license. The following day a division employee telephoned the Nashua Police Department and was provided with the details of the incident. A division social worker, Maureen Ricker, was assigned to investigate the matter.

On October 26, Ricker visited the Bagley home and interviewed Mrs. Bagley. Ricker explained that the agency had received a report “concerning guns in the house and potential violence.” Mrs. Bagley admitted that the incident had occurred, but assured Ricker that she and her children were not in danger. She also expressed her concern that Ricker’s investigation would affect her eligibility for a daycare license. She agreed to confer with her husband and to meet again with Ricker.

On October 29, both of the Bagleys went to the district office. Mrs. Bagley explained to Ricker that since the incident the guns had been transferred to her mother’s house, where they would remain at least until the Bagleys obtained a secure container for them. Mr. Bagley recounted the incident and said that it would not happen again. He agreed to attend counseling sessions with his wife. Mr. Bagley also stated that “he was a gun expert, that he knew how to handle guns, and that he did not feel that the guns being in the house presented a danger to the children.”

On November 8, Ricker returned to the Bagley residence and interviewed three of the children. In the following weeks, Ricker twice met with Mrs. Bagley and her attorney.

On or about November 21, 1984, the district office telephoned the Bagleys. The Bagleys allegedly were told that the office had found that “(1) the children were in hazardous living conditions, and (2) Mr. Bagley was a danger to others, in conflict with the community and had used defective judgment.” The record does not contain any [279]*279reference to this call. The Bagleys did not receive written notice of the division’s findings.

On December 14, 1984, the Bagleys’ lawyer wrote Raymond Barrett, administrator of the bureau of children, and requested a hearing. Barrett replied by letter. He notified the Bagleys that an administrative review panel consisting of three disinterested social workers would hear the case, specified the date, time, and location of the hearing, and explained its format. He also stated that before the date of the panel review the Bagleys could ask to review their record at the district office. In a second letter to the Bagleys, dated March 12, 1985, Barrett stated, “[S]ince Mr. Bagley has been listed as the alleged perpetrator in our records, a review of the findings can not take place unless he is present, since the purpose of the panel review is to examine the circumstances of the finding regarding Mr. Bagley.”

The hearing occurred on March 26, 1985. Both the Bagleys and their attorney attended. At the beginning of the hearing the panel chairperson stated that the division had made a finding of neglect based on “hazardous living conditions.” The panel members heard testimony from Ricker and her supervisor, and much of the police report of the shooting incident was read into the record. The Bagley’s attorney was not permitted to cross-examine the division employees, but was allowed to ask them questions via the panel chairperson. The Bagleys then testified, and were questioned by the panel members. The Bagleys’ attorney made a final statement, and the panel adjourned.

On April 1, 1985, the panel, in an inter-department communication to Barrett, recommended that the decision of the district office be upheld. Barrett, in an April 5, 1985, letter to the Bagleys, accepted this recommendation and upheld the district office’s decision. He gave no reasons for his determination.

The Bagleys next requested a “fair hearing.” Dagny Fecht, administrator of the office of fair hearings, reviewed the record, the tape recording of the hearing before the panel, the panel’s recommendation to Barrett, and Barrett’s decision. On May 7, 1985, Fecht upheld the decision in a written determination that included factual findings. This petition followed.

The Bagleys raise three arguments on appeal. They contend that the division erred in deciding that the report of neglect was founded, in that (1) there was no evidence that the children’s health had suffered or had been very likely to suffer “serious impairment,” RSA 169-C:3, XIX(b) (Supp. 1985), and (2) one parent was at all times exercising proper parental control over the children. They also argue that the division has abridged their constitutional rights [280]*280to due process of law.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re R.H.
Supreme Court of New Hampshire, 2021
vIn the Matter of Michelle Chirco and Anthony Chirco
Supreme Court of New Hampshire, 2018
Officer John Gantert v. City of Rochester & A
135 A.3d 112 (Supreme Court of New Hampshire, 2016)
Doe v. State
111 A.3d 1077 (Supreme Court of New Hampshire, 2015)
State v. Veale
972 A.2d 1009 (Supreme Court of New Hampshire, 2009)
Appeal of the Town of Nottingham
904 A.2d 582 (Supreme Court of New Hampshire, 2006)
In re Shelby R.
804 A.2d 435 (Supreme Court of New Hampshire, 2002)
In re Support Enforcement Officers I & II
781 A.2d 1021 (Supreme Court of New Hampshire, 2001)
State v. McLellan
767 A.2d 953 (Supreme Court of New Hampshire, 2001)
Appeal of Morrill
765 A.2d 699 (Supreme Court of New Hampshire, 2001)
Shearer v. Leuenberger
591 N.W.2d 762 (Nebraska Supreme Court, 1999)
In re Preisendorfer
719 A.2d 590 (Supreme Court of New Hampshire, 1998)
Larose v. Superintendent
702 A.2d 326 (Supreme Court of New Hampshire, 1997)
Bragg v. Director, New Hampshire Division of Motor Vehicles
690 A.2d 571 (Supreme Court of New Hampshire, 1997)
State v. Haley
689 A.2d 671 (Supreme Court of New Hampshire, 1997)
In re Smith
652 A.2d 154 (Supreme Court of New Hampshire, 1994)
In re Grimm
635 A.2d 456 (Supreme Court of New Hampshire, 1993)
In re Tracy M.
624 A.2d 963 (Supreme Court of New Hampshire, 1993)
In re Donovan
623 A.2d 1322 (Supreme Court of New Hampshire, 1993)
In re Eduardo L.
621 A.2d 923 (Supreme Court of New Hampshire, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
513 A.2d 331, 128 N.H. 275, 1986 N.H. LEXIS 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bagley-nh-1986.