In re Craig T.

744 A.2d 621, 144 N.H. 584, 1999 N.H. LEXIS 155
CourtSupreme Court of New Hampshire
DecidedDecember 30, 1999
DocketNo. 98-743
StatusPublished
Cited by12 cases

This text of 744 A.2d 621 (In re Craig T.) 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 Craig T., 744 A.2d 621, 144 N.H. 584, 1999 N.H. LEXIS 155 (N.H. 1999).

Opinion

BROCK, C.J.

The respondent, Joann T., appeals the Superior Court’s (Smukler, J.) denial of her motions to dismiss petitions alleging that she neglected her two children, Craig T. and Megan T. See RSA 169-C:3, XIX(b) (1994). She argues on appeal that the evidence was insufficient to support the findings of neglect. We affirm.

The petitioner, the New Hampshire Division for Children, Youth, and Families (DCYF), filed two neglect petitions in Laconia District Court against the respondent. The first petition alleged that she was present and failed to intervene when Todd T., who is her husband [585]*585and the children’s father, was observed shaking and violently striking Craig, then age three. See RSA 169-C:3, XIX(b), :7 (1994). The second petition alleged that Megan is likely to suffer substantial harm in that her physical, mental, and emotional health will be impaired because she was present during the assault on Craig, and the respondent failed to protect her from witnessing the traumatic event. See id. In April 1998, the Laconia District Court found that Craig and Megan were “neglected” within the meaning of the statute. See RSA 169-C:3, XIX(b).

The respondent appealed to the superior court. See RSA 169-C:28 (1994 & Supp. 1999). At the end of the State’s presentation of evidence at the two-day de novo hearing, see RSA 169-C:18 (1994 & Supp. 1999), the respondent moved to dismiss, arguing that the State had failed to present sufficient evidence of neglect to sustain either petition and that the State had failed to present sufficient evidence that either child suffered or would likely suffer harm. See RSA 169-C:3, XIX(b). The superior court denied these motions, concluding that the evidence supported findings that the respondent had neglected both children. Subsequently, the children were placed in foster care.

On appeal, the respondent contends that the State produced insufficient evidence to support a finding that either child was neglected. She argues that the evidence failed to establish any physical contact between the children and herself, or any suffering or impairment of the children. She argues that she did not participate in the assault on Craig and that her failure to intervene does not constitute neglect within the meaning of the statute.

We will uphold the rulings and findings of the trial court

unless they are unsupported by the evidence or tainted by error of law. The court, which is the trier of fact, is in the best position to assess and weigh the evidence before it because it has the benefit of observing the parties and their witnesses. Consequently, our task is not to determine whether we would have found differently; rather, we determine whether a reasonable person could have found as the trial judge did.

In re Tracy M., 137 N.H. 119, 125, 624 A.2d 963, 966 (1993) (citations and quotation omitted).

The following evidence was presented at the hearing. On December 15, 1997, Todd T., Craig, Megan, and the respondent were shopping at Radio Shack in the Belknap Mall in Belmont, when Craig began touching expensive items. As a result, Todd T. spanked [586]*586Craig while the respondent stood beside him with Megan. Todd T. then put Craig under his arm and walked through the mall towards the parking lot.

The trial court heard several accounts of what happened next. A mall employee who observed the assault testified that he heard a child scream “pretty loud” and saw Todd T. walk by his store, repeatedly striking Craig, who was under his arm, with “pretty hard hits” to the head, both open- and closed-handed. Describing the blows as making “a thumping noise,” the employee recounted that Craig was “screaming pretty loud and holding the back of his head, . . . like trying to block the hits.”

A mall security guard testified that he saw a man and a woman come around a corner in the mall and that the man had a boy under his arm. He described how the man took his free hand and “hit that baby right in the face,” asserting that the man struck the boy once, with a closed fist, as he passed, and once more on the way to the parking lot. After witnessing the episode, the security guard went to the assistant manager’s desk and requested that the police be called.

A registered nurse, who had been shopping at the mall, “heard someone yelling all the way across the parking lot.” When she looked in that direction, she saw the family exit the mall and walk toward their car. She testified that the man put the child down, spanked him, and threw him into the back seat of the car. She further testified:

[H]e kept yelling. He was yelling in his car. So I kept looking over. And a woman got in and got in the driver’s side of the car, closed the door, and the next thing — and then he was still yelling and I looked over and he was turned around into the back seat and the whole car was moving and he had his arm up and it looked like he was hitting and shaking the child in the back seat right behind him and it didn’t stop.

According to her testimony, she went over to the car, knocked on the window, and said, “[Y]ou stop that right now.” The nurse was so shaken by what she saw that she, as well as two others who witnessed what occurred, went inside the mall and called the Belmont police.

The respondent’s version of the events differed significantly from that of the three unrelated observers. She testified that Todd spanked Craig only “[o]nce on the butt.” Craig responded with a temper tantrum, during which he typically “hits himself in the [587]*587head.” Although she admitted that a woman in a hospital shirt came up to the car and said, “Stop,” she countered that “it was not her business.” Furthermore, although the respondent conceded that she was present with both Megan and Craig during the entire incident, she testified that she disagreed with “every word” of the witnesses’ testimony.

RSA 169-C:3, XlX(b) defines a neglected child as one

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

See also Petition of Jane Doe, 132 N.H. 270, 277, 564 A.2d 433, 438 (1989). The record contains sufficient evidence to support the trial court’s findings of neglect against both children under the statute.

That the respondent did not exercise “proper parental care or control” to provide for Craig’s physical, mental, and emotional health, see RSA 169-C:3, XIX(b), is firmly supported by the evidence. Children are dependent on their parents for physical and emotional health and safety, and parents have a duty to protect their children from harm. Here, the respondent witnessed an episode of physical force directed upon her three-year-old son that horrified onlookers. The respondent, however, took no action whatsoever to protect Craig from repeated hits to the head by Todd T., and testified that what happened was no one else’s business.

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Cite This Page — Counsel Stack

Bluebook (online)
744 A.2d 621, 144 N.H. 584, 1999 N.H. LEXIS 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-craig-t-nh-1999.