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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Rockingham
No. 2012-873


                                     IN RE G.G.

                           Argued: September 12, 2013
                          Opinion Issued: April 18, 2014

      Joseph A. Foster, attorney general (Stephen G. LaBonte, assistant
attorney general, on the brief, and Suzanne M. Gorman, senior assistant
attorney general, orally), for the State.

      Howard Gross, of Dover, on the brief and orally, for the respondent.

      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.”

       The 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



                                         2
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. ___, ___, 82 A.3d 917, 920 (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. at ___, 82 A.3d at 920. 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. at ___, 82 A.3d at 920. We construe all parts of a statute
together to effectuate its overall purpose and avoid an absurd or unjust result.
Id. at ___, 82 A.3d at 920. Moreover, we do not consider words and phrases in
isolation, but rather within the context of the statute as a whole. Id. at ___, 82
A.3d at 920. 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. at ___, 82 A.3d at 920.

      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



                                        3
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 parent’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. With regard to the right to compel the presence of a witness at
the proceeding, RSA 169-C:11 expressly allows the court to consider whether
that witness’s presence “is required by the child, his parents or guardian.”
Moreover, “[t]he trial court has inherent power to control every aspect of the
proceeding before it.” State v. Fecteau, 140 N.H. 498, 504 (1995). “For this
reason, a trial judge has the authority to determine the manner and procedure
by which a case will be tried, except where limited by statute, court rule, or
constitutional fiat.” Id. (quotation omitted). The statutes pertinent to this
appeal do not abrogate that inherent authority. Thus, we reject the assertion
that the trial court, in this case, had no discretion to decide whether to allow
the respondent to call G.G. as a witness even though her testimony would have
been both relevant and material.

      The respondent’s interpretation would lead to an illogical result,
particularly when applied to the child who is the subject of an abuse and
neglect proceeding. Such a child necessarily will always have “relevant and
material” information. Construing the pertinent statutes as does the
respondent would allow an accused parent to compel the testimony of the child
in every abuse and neglect proceeding. That would be contrary to the primary
purpose of the Child Protection Act, which is to “provide protection to children
whose life, health or welfare is endangered.” RSA 169-C:2, I(a) (2002); see In re
Shelby R., 148 N.H. 237, 241 (2002) (“the Act’s primary interest is protecting
children, which often trumps other competing goals of the Act”), overruled on
other grounds by In re C.M., 163 N.H. 768 (2012); In the Matter of Jeffrey G. &
Janette P., 153 N.H. 200, 204 (2006) (“Under [the Child Protection Act], the
welfare of an allegedly abused or neglected child is of paramount importance.”)

       Therefore, we conclude that given the plain language of the pertinent
statutes and the court’s inherent authority to control the proceedings before it,
trial courts have the discretion in abuse and neglect proceedings to determine
whether any witness, including the child, should be compelled to testify.



                                        4
Consequently, to the extent that the trial court decided that the respondent did
not have an “absolute right” to subpoena G.G., even though her testimony
would have been relevant and material, the trial court did not err.

       Although the respondent asserts constitutional claims, he has not
sufficiently developed his constitutional arguments for our review. Accordingly,
we do not address them. See State v. Chick, 141 N.H. 503, 504 (1996)
(declining to address constitutional argument based upon “passing reference to
‘due process’”).

       Because compelling the testimony of a child who is the subject of an
abuse and neglect proceeding presents unique issues, in the exercise of our
supervisory authority, we set forth the following non-exhaustive list of factors
for courts to consider when deciding whether to compel such testimony. See
N.H. CONST. pt. II, art. 73-a. In those circumstances, we encourage trial
courts to consider: (1) the child’s age; (2) the specific potential harm to the
child from testifying; (3) the indicia of reliability surrounding any admitted out-
of-court statements describing the child’s allegations; (4) evidence that may
lend credibility to the allegations of abuse or neglect, such as consistency of
the child’s and responding parent’s accounts, or evidence of prior injury; (5) the
incremental probative value of the child’s potential in-court testimony; and (6)
whether there are alternatives to in-court testimony that would enable
meaningful examination of the child without jeopardizing the child’s well-being,
see Maryland v. Craig, 497 U.S. 836, 855 (1990) (noting that special
procedures for child testimony in criminal abuse proceedings may be
appropriate).

       Although we encourage trial courts to consider these enumerated factors,
we stress that our list is not exhaustive and that trial courts are not required to
consider all of the factors or to give them equal weight. We also encourage trial
courts to make express findings of fact with regard to the factors upon which
they rely so as to facilitate appellate review. See In the Matter of Rupa & Rupa,
161 N.H. 311, 318 (2010) (regarding factors to determine award of grandparent
visitation).

       The concurrence expresses concern that by listing factors for the court to
consider when deciding whether to compel the child’s testimony, we are
suggesting that a respondent must make a threshold showing that examination
of the child will, to some degree, challenge the child’s credibility. That concern
is unwarranted. Given the nature of the respondent’s position here – that he
has an absolute right to examine the child – as well as the state of the record,
we decline to now decide whether the respondent bears such a burden or
whether any presumption should apply.




                                        5
       Although we agree with the trial court that relevance and materiality are
not the only limits on the respondent’s right to compel the testimony of the
child, the record is unclear as to whether the trial court adequately considered
the competing interests of the respondent and the child. Of course, neither did
the trial court have the benefit of the non-exhaustive list of factors enumerated
above. Accordingly, we vacate its decision and remand for further proceedings
consistent with this opinion. When the court is considering whether to compel
G.G. to testify in this case, the court may wish to consider whether she testified
at the respondent’s criminal trial and, if so, whether her testimony in the
criminal proceeding would suffice for the instant proceeding.

                                                  Affirmed in part; vacated in
                                                  part; and remanded.

     DALIANIS, C.J., and HICKS, and CONBOY, JJ., concurred; LYNN, J.,
concurred specially.



      LYNN, J., concurring specially. I agree in large measure with the
majority opinion, but write separately because I have a narrower view than
does the majority as to when a trial court may sustainably exercise its
discretion to deny a person accused of abuse or neglect the right to call the
child who is the subject of the alleged abuse or neglect as a witness at the
adjudicatory hearing.

       At the outset, I believe it important to emphasize the points on which I
am in complete agreement with the majority. First, I agree that RSA 169-C:12
(2002) permits the petitioner to introduce reliable hearsay evidence, including
statements of the allegedly abused child such as those contained in the
videotaped interview of G.G., and that doing so does not make the declarants
“adverse witnesses” whom the respondent is entitled to cross-examine under
RSA 169-C:18, III (Supp. 2013). Second, I also agree that RSA 169-C:18, III
does not give the respondent – or any other party for that matter – an “absolute
right” to call any witness he chooses; both RSA 169-C:11 (2002) and the court’s
inherent authority to control the proceeding before it grant the court some
measure of discretion to determine whether a party has a legitimate reason to
call a particular witness. To cite an obvious example, if a party can establish
fact “X” through the testimony of one witness, then, absent highly unusual
circumstances, the court can sustainably exercise its discretion to determine
that calling ten witnesses to establish this same fact is unnecessarily
cumulative and/or a waste of time even though each witness has information
that is relevant and material. Cf. N.H. R. Ev. 403.




                                        6
        I am also in basic agreement with the non-exclusive list of factors the
court encourages trial courts to consider in determining whether to permit a
respondent to call an alleged child victim as a witness in the respondent’s case
at the adjudicatory hearing. However, I am troubled by the implications of the
majority opinion insofar as it can be interpreted to suggest that the trial court
can decline to permit the respondent to call the alleged child victim for the
purpose of challenging his or her credibility unless the respondent can make
some kind of threshold showing that doing so will be productive. In my view,
given the terms of RSA 169-C:18, III, it would constitute an unsustainable
exercise of discretion for a court to require any such threshold showing if there
is (1) any legitimate question concerning the child’s credibility or the validity of
the allegations1 and (2) the respondent has had no prior opportunity to test the
child’s credibility, unless (3) a specific showing is made by the petitioner of
likely concrete harm to the child that would result from being required to
testify that cannot otherwise be ameliorated by the court.2 Only when such a
showing is made would I then permit the court to balance the harm against the
likely benefit to the respondent from obtaining the child’s testimony. Cf. In re
Tayler F., 995 A.2d 611, 626, 628 (Conn. 2010) (holding that court’s
determination that child is “unavailable” to testify in a neglect proceeding so as
to allow admission of child’s out-of-court statements under residual hearsay
exception “must be based . . . on evidence specific to the child and the
circumstances, not a generalized presumption that testifying is per se
harmful,” and that the court must find that the child will suffer “serious
emotional or mental harm” if forced to testify; and “emphasiz[ing] that a finding
that it is not in the best interest of the child to testify is not equivalent to
psychological harm”); see also id. at 626 n.9 (noting that expert opinion is

1 In determining whether there is a legitimate question as to the child’s credibility that may
warrant permitting the respondent to call the child as a witness, a significant factor for the court
to consider is whether the respondent has offered testimony at the hearing or elsewhere that
refutes the allegations of abuse or neglect. The absence of testimony by an accused parent in the
RSA chapter 169-C proceeding is particularly significant on this point, since RSA 169-C:12-a
(2002) makes testimony given by the parent in such proceedings inadmissible in criminal
proceedings related to the alleged abuse or neglect. This statute provides additional impetus for
the rule that permits the fact finder to draw an adverse inference against a litigant in a civil
proceeding who chooses not to testify based on the exercise of the privilege against self-
incrimination. See N.H. R. Ev. 512(d); see also In re Quinn, 763 N.E.2d 573, 578 (Mass. App. Ct.
2002).

2 Among the actions the trial court may take to ameliorate the impact on the child of being

required to testify are the following: (1) prohibiting overly aggressive or overtly hostile questioning
by respondent’s counsel; (2) allowing the child’s guardian (or, in appropriate circumstances, a
non-accused parent) to be close to or to stand by the child while testifying; (3) ordering that the
examination take place in the more informal setting of the judge’s chambers rather than in the
courtroom; (4) limiting the persons permitted to be present during the child’s testimony,
including, if the circumstances warrant, precluding the respondent from being present during the
time the child testifies; and (5) having the parties submit written questions, which the judge can
then ask the child in chambers with a record but without the parties present, after which the
judge shares the child’s answers with the parties.



                                                   7
divided on question of whether it is per se harmful for alleged child abuse
victims to testify). I recognize that protection of children is the primary
purpose of RSA chapter 169-C. However, the statute also establishes an
adversary process, albeit a relaxed one, as the basis through which the
determination of whether a child has been abused or neglected is to be
established, and the State quite obviously has no legitimate interest in
protecting a child from the exposure of false or inaccurate claims of abuse or
neglect.

        What I find particularly troubling here is the State’s representation to the
trial court of its “concerns” about having the child testify in this case, when in
the next breath it announced that the child would be testifying in the related
criminal case against the respondent. Apparently, any “concerns” of harm to
the child that might result from her testifying in this closed-to-the-public abuse
and neglect proceeding are not of sufficient magnitude to prevent her from
testifying in a presumably much more contentious, open-to-the-public felony
criminal trial before a jury. Perhaps there is a meritorious explanation for this
seeming contradiction, but if so, it is not obvious from the record before us.
While in some circumstances one possible explanation might be that the
danger of harm to the child increases if she is required to testify on multiple
occasions – i.e., in both this abuse and neglect case and at the criminal trial –
the record here raises a serious question as to whether there was any
legitimate need for the State to move forward with this case prior to the
criminal trial. The record indicates that the child resides with her mother, who
is not accused of any wrongdoing, and that a condition of the respondent’s bail
in the criminal case is that he have no contact with the child. Given these
circumstances, one might reasonably ask why the rush to proceed with this
case before the criminal case went to trial. Compare In re Quinn, 763 N.E.2d
at 576-77 & n.4 (child’s mother also had been adjudged unfit parent and
superior court refused to proceed with criminal case until care and protection
proceeding concluded). Had the State chosen to wait, and had the child
testified at the criminal trial and been subject to cross-examination, the
transcript of the same could have been provided to the judge in this case and –
as the majority seems to recognize – would have sufficed to address any
possible concern about insuring that the respondent had the opportunity to
test the child’s credibility.

      Despite my unease for the reasons stated in the preceding paragraph,
because the record is unclear as to whether the respondent testified in this
case, and therefore whether there was a legitimate question as to the child’s
credibility, I concur with the majority’s decision to remand this case to the trial
court for reconsideration in light of the factors it identifies, including any
testimony given by the child at the criminal trial.




                                         8
