In re G.G.

92 A.3d 648, 166 N.H. 193
CourtSupreme Court of New Hampshire
DecidedApril 18, 2014
Docket2012-873
StatusPublished
Cited by3 cases

This text of 92 A.3d 648 (In re G.G.) 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 G.G., 92 A.3d 648, 166 N.H. 193 (N.H. 2014).

Opinions

Bassett, J.

The respondent, the father of G.G., appeals the order of the Superior Court (Delker, J.), which, after de novo review, upheld a finding by the 10th Circuit Court — Portsmouth Family Division that the respondent had abused and neglected G.G. See RSA 169-C:21, 28 (2002). The respondent contests the superior court’s denial of his request to cross-examine or subpoena G.G. after the court admitted her videotaped interview into evidence. We affirm in part, vacate in part, and remand.

The facts underlying the respondent’s abuse and neglect of G.G. are not at issue in this appeal. Accordingly, we need not recite them. The relevant procedural facts are as follows. At the superior court adjudicatory hearing, the petitioner, the New Hampshire Division for Children, Youth and Families (DCYF), sought to introduce into evidence a videotaped recording of an interview of G.G. by a Child Advocacy Center worker. The respondent’s attorney objected to the recording’s introduction without G.G. testifying at the hearing. He argued that he had “a black-and-white statutory right to cross-examine her.” See RSA 169-C:18, III (Supp. 2013). He also argued that, because G.G.’s presence at the hearing was required for his defense, he had a statutory right to subpoena her. See RSA 169-C:11 (2002).

The State disagreed, arguing that requiring G.G. to testify was contrary to the purpose of the Child Protection Act, which is to protect the child. See RSA ch. 169-C (2002 & Supp. 2013). The State informed the court that G.G.’s therapist had raised “concerns about the child testifying,” and argued: “[I]t’s nothing more than an opportunity to depose this witness because she’s going to have to testify in a criminal case.” The State stated that if the court determined that G.G.’s presence was required and that a subpoena should issue, see RSA 169-C:11, the State would move to quash it and “bring in a therapist to say why it will be detrimental to this particular child to testify in this particular proceeding.”

[195]*195The trial court deferred ruling on the matter until it reviewed the video to determine whether it was “reliable, . . . trustworthy, and otherwise admissible.” Cf RSA 516:25-a (2007) (“In all civil actions, suits or proceedings to recover damages on behalf of a minor child for abuse or assault, including sexual abuse or sexual assault, any statement of the minor child alleged to have been the victim of such abuse or assault shall not be excluded as hearsay, provided that the trial judge, prior to the admission of such testimony, shall make findings of fact that the statement sought to be admitted is apparently trustworthy and that the witness seeking to testify to such statement is competent.”). After reviewing the video, the court decided that the State could “introduce [the recorded] interview without having to call [G.G.] to testify” and that the respondent had no “right to subpoena [G.G] to testify about these events.”

The court rejected the respondent’s assertion that he had “an absolute right to subpoena [G.G.] and force her to testify.” The court concluded that G.G. would be eligible for subpoena only if it determined that the respondent had “a compelling need” for her to be a witness at the proceeding or that her presence was otherwise • “necessary or essential.” The court decided that “the respondent’s request to subpoena [G.G. was] not necessary for his defense” because: (1) he did not argue or demonstrate that G.G.’s testimony in the proceeding would contradict what she said in the recorded interview; (2) he did not identify any areas of cross-examination that he intended to pursue through G.G. that he could not explore during the testimony of the DCYF worker through whom the interview was admitted; and (3) the recorded interview was “largely cumulative” of the disclosures G.G. made to her guidance counselor and mother. The court concluded that subpoenaing G.G., “an eleven year old child,” would only subject her “to the drama of testifying in a proceeding which is designed to protect her best interests.”

Resolving the issues in this appeal requires that we engage in statutory interpretation. Our review of the superior court’s decision, therefore, is de novo. In re Cierra L., 161 N.H. 185, 188 (2010). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Petition of Carrier, 165 N.H. 719, 721 (2013). We first look to the language of the statute itself, 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. Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole. [196]*196Id. This enables us to better discern the legislature’s intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id.

The statutes pertinent to this case are RSA 169-C:18, III, RSA 169-C:12 (2002), and RSA 169-C:11. RSA 169-C:18, III provides, in pertinent part:

The petitioner shall present witnesses to testify in support of the petition and any other evidence necessary to support the petition. The petitionees shall have the right to present evidence and witnesses on their own behalf and to cross-examine adverse witnesses. The admissibility of all evidence in this hearing shall be determined by RSA 169-C:12!

RSA 169-C:12 provides that “[i]n any hearing under [RSA chapter 169-C], the court shall not be bound by the technical rules of evidence and may admit evidence which it considers relevant and material.” RSA 169-C:11 provides, in pertinent part:

A subpoena may be issued pursuant to RSA 516, or upon application of a party to the proceedings, or upon the motion of the court. The court may issue subpoenas requiring . . . the attendance of any person whose presence is required by the child, his parents or guardian or any other person whose presence, in the opinion of the court, is necessary.

The respondent argues that those statutes confer upon him an “absolute right to call witnesses on his own behalf.” He contends that the pertinent statutes neither “limit [n]or exempt the child from testifying in cases of abuse or neglect.” He further argues that, in this particular case, G.G. “is the only one — according to the hearsay testimony taken — who has direct knowledge of the alleged assault.” Her testimony, he contends, is thus, relevant, material, and admissible under RSA 169-C:12. Accordingly, he argues, the superior court erred when it refused to allow him to compel G.G.’s testimony.

We disagree with the respondent to the extent that he contends that RSA 169-C:12 constitutes the only limitation upon an accused parént’s ability to present witnesses on his own behalf. The structure of the statutory scheme establishes that whatever right an accused parent may have under RSA 169-C:18, III to “present evidence and witnesses on [his] own behalf and to cross-examine adverse witnesses” is qualified, not only by RSA 169-C:12, but also by RSA 169-C:11 and the court’s inherent authority to control its own proceedings.

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Related

In re C.O. In re G.L.
203 A.3d 870 (Supreme Court of New Hampshire, 2019)
Petition of New Hampshire Division for Children, Youth and Families
182 A.3d 1266 (Supreme Court of New Hampshire, 2018)
Deere & Co. v. State
130 A.3d 1197 (Supreme Court of New Hampshire, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
92 A.3d 648, 166 N.H. 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gg-nh-2014.