In re Bagley
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
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 dаy: 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 сollected 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
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. Baglеy 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
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, timе, 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 оn 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 bеfore 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,”
This case involves the Reporting Law, a subdivision of the Child Protection Act.
When the division receives a report of abuse or neglect, it must begin a child protective investigation within seventy-two hours of receipt of the report.
Once it completes an investigation the division may refer the case to law enforcement authorities for possible criminal prosecution, and must do so if the abuse or neglect causes serious bodily injury to a child.
In addition, the division keeps a record in the central registry of the report and investigation.
For each report of neglect or abuse, a protection report form and a protection investigation form are completed and stored in the registry. The registry also contains a file of perpetrators. N.H. Admin. Rules, He-C 6426.01(f)(2). Records of “founded” reports are retained for seven years, records of unfounded reports for three.
The present reporting law does not specify a means by which the subject of an abuse or neglect report and investigation may challenge a determination of the division. Between 1979 and 1983, such a subject was entitled, upon request, to receive a copy of all information contained in the registry pertaining to her case. Laws 1979, 361:2 (codified at
Today none of these protective measures is provided for by statute. The subject of an abuse or neglect report is not entitled to notice either of the report or of the outcome of the subsequent investigation. The division’s regulations, however, permit the release of information in a child abuse report to the perpetrator upon written request. N.H. Admin. Rules, He-C 6407.08. Even if the subject learns of the investigation’s outcome, he or she has no statutory right to challenge it.
Once the division determines that a report of abuse or nеglect is “founded,” two outcomes are possible. The division may designate the matter as “founded, case opened” and open the case for services under its protection program. N.H. ADMIN. Rules, He-C 6426.01(m). If the division chooses this designation, it may file an abuse or neglect petition in district court. See
The second outcome results when the division designates the case as “founded, problem resolved.” This occurs when a reported inci
The Bagley case fell into the “founded, problem resolved” category. Because the Bagleys transferred the guns to Mrs. Bagley’s mother’s house and obtained counseling, the division decided that no further action was warranted. The division did not refer the matter to a law enforcement authority, file a neglect petition, or impinge in any other manner uрon the Bagleys’ parental rights. Insofar as the division was concerned, the only tangible result of the affair was that records of the report and investigation were placed in the central registry.
The consequences of this result were not insignificant, however. The Bagleys allege that, because of the division’s determination, Mrs. Bagley will never obtain a license to operate a daycare center, see
We note that we may grant the Bagleys’ petition only if the division exceeded its jurisdiction or authority, otherwise acted illegally, abused its discretion, or acted arbitrarily, unreasonably, or capriciously. See Runde v. City of Concord,
Our constitution provides that no citizen “shalLbe-ar-Fested^impr-isoned, despoiled, or deprived of his property, immunities — or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” N.H. Const, pt. I, art. 15. We long have regarded “the law of the land” as synonymous with “due process of law.” See Mayo v. Wilson,
In determining whether challenged-urocedures satisfy the due process requirement, we employ a two-part-anniy&is — Eirst,_we determine whether the challenged procedures concern a legallyjarcu
The division contends that in determining that the report of neglect was founded and entering its determination in the central registry, it infringed upon no constitutionally protected interest of the Bagleys. It points out that the central registry entry remains confidential, and has not in any way affected the Bagleys’ legal relationship with their children. The division distinguishes the proceedings under review, which concern only its finding that the neglect repоrt was founded, from other proceedings in which that finding might play a part, such as daycare licensing hearings pursuant to RSA chapter 170-E. It concedes that a protected property interest would be at stake in the latter cases, but denies that either a liberty or a property interest is implicated here.
The Bagleys identify part I, article 2 of the New Hampshire Constitution as the source of a property or a liberty interest that was jeopardized by the division’s actions. That provision states that all citizens “have certain natural, essential, and inhеrent rights.” The Bagleys contend that their natural rights as parents were affected by the division’s actions, and hence were entitled to due process protection. See Provencal v. Provencal,
We disagree with this contention. None of the petitioners’ “natural, essential, and inherent rights,” as we have construed that phrase, is at stake here. This case does not involve a custody determination, as in Provencal, or an attempt to terminate parental rights, as in State v. Robert H._,
This conclusion does not resolve the matter, however. An interest need not be recognized as a “natural, essential, and inherent” right under part I, article 2 in order to be the subject of due process protection under part I, article 15 of the New Hampshire Constitution. Cf. Duffley v. New Hampshire Interscholastic Athletic Association, Inc.,
The general rule is that a person’s liberty may be impaired when governmental action seriously damages his standing and associations in the community. 16C C.J.S. Constitutional Law § 980, at 306 (1985). We have recognized that the stigmatization that attends certain governmental determinatiоns may amount to a deprivation of constitutionally protected liberty. See Clark v. City of Manchester,
In the present case, the division in effect has labeled the Bagleys as neglectful parents. In investigating the quality of their family life and identifying them as the probable perpetrators of an incident of child neglect, the division exposed the Bagleys to “public opprobrium” and “may have damaged their standing in the community.” Bohn,
The division argues that the confidential manner in which it maintains central registry records obviates any danger of stigmatization. There are degrees of confidentiality, however. If the records were intended to remain entirely confidential, there would be no reason to store them. Under its rules the division may in some circumstances exchange information with other agencies or individuals. N.H. Admin. Rules, He-C 6407.05. In the present case the information in the central registry apparently will prevent Mrs. Bagley from obtaining a daycare license. The division also fails to take into account the possibility of unauthorized disclosure of central registry records.
Today governments collect great quantities of data abоut their citizens, data which, when stored in computers, potentially are
We hold that in determining that the report of child neglect was founded, and in entering and maintaining a record of this determination in the сentral registry, the division engaged in an official adjudication of the status of potentially injurious consequences and thus deprived the Bagleys of their “liberty” within the meaning of part I, article 15 of the New Hampshire Constitution. Compare Wisconsin v. Constantineau,
We now turn to the second part of our inquiry: whether the challenged procedures afforded the requisite safeguards. In analyzing this problem we consider the following factors: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable vаlue, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Appeal of Portsmouth Trust Co.,
The gist of thе Bagleys’ due process argument is that they did not receive (1) written notice of the division’s determination; (2) notice of the reasons for the determination; or (3) notice as to whom the division had designated as the perpetrator in the reported incident of neglect. The lack of notice, they contend, impaired their ability to challenge the division’s determination. We agree. In the absence of specific notice, confusion has reigned throughout these proceedings. The division has never definitively identified the basis of its finding or the person against whоm the finding was made. Was the incident of neglect the shooting of the telephone, the presence in the house of loaded weapons, or a combination of both? Was the perpetrator Mr.
When the Bagleys were notified by telephone of the division’s determination, they allegedly were told only that “the children were in hazardous living conditions” and that “Mr. Bagley was a danger to others, in conflict with thе community and had used defective judgment.” The cryptic forms filed in the central registry fail to clarify the matter. The protection report form lists an “incident date” of October 14, 1984, but describes the “Estimated Duration of Situation” as “Over 6 months.” The accompanying protection investigation form lists Mr. Bagley’s role as that of “Alleged Perpetrator” and Mrs. Bagley as “Not Involved.” The “type” of “neglect ... or hazardous living” is designated as “Defective Judgment” and “Living in Hazard Cond.,” with “Physical Abuse of Spouse/Fighting” and “Alcohol Problem” appearing as “Factors present.”
In his March 12, 1985 letter tо the Bagleys, Barrett stated that “Mr. Bagley [had] been listed as the alleged perpetrator in [the division’s] records.” At the hearing before the administrative review panel, one panel member stopped the proceedings and asked whether the finding was against Mrs. Bagley in addition to Mr. Bagley. She eventually was told that only Mr. Bagley’s name was involved. Much of the discussion at the hearing pertained to the telephone-shooting and Mr. Bagley’s drinking. The only evidence regarding the presence of loaded weapons came from the police report, which according to Mrs. Bagley contained “a lot of inaccurate information.”
The panel, in its recommendation to Barrett, stated that “Mr. Bagley’s drinking and use of firearms were a danger to the family,” and did not mention Mr. Bagley’s arsenal as a factor. Barrett’s decision, addressed to both parents, gave no reasons for the determination. Fecht’s fair hearings decision listed both parents as appellants and discussed both the shooting incident and the presence of the arsenal. In its brief to this court, the division stated that it had concluded that both parents had neglected their children and that it has listed both parents in the central registry. Finally, at argument the division agreed that a “fair interpretation” of its decision was that the presence of weapons, and not the shooting incident, was the basis of the finding of neglect.
Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. City of Claremont v. Truell,
We hold that the notification procedures employed by the division did not afford the Bagleys the protections required by part I, article 15 of the New Hampshire Constitution. Because the division has acted illegally, we grant the petition.
In the future, when the division determines that a report of child abuse or neglect is “founded, problem resolved,” the division must provide written notice to the person determined to be the perpetrator of the incident of abuse or neglect. The notice must set forth the nature of the report and the reasons underlying the division’s determination. In addition, the notice should identify the perpetrator as such. Finally, the notice should inform the perpetrator of his right of access to the information stored by the division, as well as his right to challenge the determination in an administrative hearing. If the determination is upheld after a hearing, the division must provide the perpetrator with a written statement of the reasons for its decision to uphold.
On remand, the division need not repeat the child protective investigation it made as a result of the report. It must, however, notify the Bagleys of its determination in the manner described above, and, if the determination is adverse to them, afford them a second opportunity to challenge it.
The Bagleys also challenge the manner in which the panel hearing was conducted. They argue that they (1) were not allowed to cross-examine witnesses; (2) were denied the right to effective assistance of counsel; and (3) never received an adjudication from an impartial and detached magistrate.
These arguments are without merit. Although the division did not permit full-blown cross-examination at the hearing, the Bagleys’ attorney was allowed to question each of the division’s witnesses through the panel chairperson, to question her own witnesses, and to make a closing statement. The panel consisted of three division social workers with no prior knowledge of the case. Their recommendation was subject to the approval of the administrator of the bureau of children and to review by the administrator of the office of fair hearings. We perceive no constitutional infirmity in
Because the National Constitution provides no greater protection than does our State Constitution in these circumstances, we do not address the petitioners’ fourteenth amendment claims. See Whalen v. Roe,
Petition granted; decision vacated; remanded.