Petition of K.S.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

3rd Circuit Court-Ossipee Family Division
Case Nos. 2023-0151
2023-0639
Citation: Petition of K.S., 2024 N.H. 62

PETITION OF K.S.

Argued: September 10, 2024
Opinion Issued: November 8, 2024

Children’s Law Center of New Hampshire, of Portsmouth (Stephanie
Hausman and Lisa L. Wolford on the brief, and Stephanie Hausman orally), for
the petitioner.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Laura E. B. Lombardi, senior assistant attorney general, on the brief,
and Mary A. Triick, senior assistant attorney general, orally), for the New
Hampshire Division for Children, Youth and Families.

DONOVAN, J.

¶1 The petitioner, K.S., seeks certiorari review of orders issued by the
Circuit Court (Countway, J.) in proceedings pursuant to RSA chapter 169-C
(2022 & Supp. 2023). K.S. argues that the trial court erred by: (1) denying her
access to information to which she had statutory and due process rights; (2)
relying on a “reasonable efforts” standard rather than the child’s best interest
analysis to address placement and services recommendations; (3) declining to
hold an evidentiary hearing prior to approving her placement in a residential
treatment program in violation of her right to due process; (4) denying her
request to be placed with her father; (5) denying her request to “change the
dispositional order to reflect changes in the case, her needs, and the
circumstances”; and (6) denying her request to “allow her grandmother to be
involved in family therapy, permanency planning, and other team meetings.”
We affirm.

I. Facts

¶2 The following facts are drawn from the record. In April 2022, the
respondent, the New Hampshire Division for Children, Youth and Families
(DCYF), filed petitions alleging neglect by both K.S.’s mother and father.
Following a preliminary hearing, the court issued an order finding reasonable
cause to believe that both parents neglected K.S., and it awarded DCYF
protective supervision to place K.S. in an out-of-home placement. Both
parents subsequently consented to the neglect findings. Over the following
months, K.S. resided with an aunt, her father, a friend, and others until each
placement requested that she be removed by DCYF. In July 2022, the court
granted DCYF legal custody of K.S. The same month, the court issued a
dispositional order finding that returning K.S. to either of her parents’ care was
contrary to K.S.’s welfare because neither parent was willing or able to care for
K.S.

¶3 In November 2022, a child protective services worker informed K.S.’s
father of the circumstances leading to K.S.’s removal from her most recent
placement. After the father expressed concerns for K.S.’s safety, he filed a
request for involuntary emergency admission of K.S. to a hospital. Although
K.S. did not meet the criteria for involuntary emergency admission, her father
nonetheless asked that she be voluntarily held at the hospital. K.S. remained
at the hospital for approximately one week before being transferred to another
hospital, where she stayed until January 2023. During this time, K.S. filed a
motion seeking: (1) an emergency hearing regarding her hospitalization; (2)
discovery relating to, among other things, DCYF’s efforts to provide mental
health services and identify appropriate foster placements; and (3) an order
authorizing her to obtain medical records from both hospitals.

¶4 The court held an emergency hearing on December 1, 2022, and six-
month review and motion hearings on January 3, 2023. On January 4, the
court issued an order approving K.S.’s placement in the CAST program, which
DCYF defined as a sixty-day diagnostic program that recommends future
treatment placements. In so doing, the court denied K.S.’s request to be
reunified with her father. The court also found that DCYF made reasonable
efforts toward reunification and concluded that DCYF provided services to the

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family “that are accessible, available and appropriate.” Regarding K.S.’s
discovery requests, the court ruled that: (1) K.S. should access her medical
records “through the use of a release” to be obtained from her father; (2) DCYF
case notes and other forms are discoverable; and (3) “many of the [remaining]
items sought in [K.S.’s motion] are overly broad, unduly burdensome and/or
simply not discoverable in the context of this juncture of the proceeding.” K.S.
moved for reconsideration, which the court denied.1

¶5 At a March 2023 hearing regarding K.S.’s post-CAST program
placement, DCYF recommended that K.S. be placed at a residential treatment
program in Vermont based upon the level of care K.S. required pursuant to a
Comprehensive Assessment for Treatment (CAT). DCYF explained that it
considered placements outside of New Hampshire in order to locate a program
that could accommodate K.S.’s needs. K.S. challenged the validity of the CAT
and her placement, requesting that she instead be placed in a family setting in
her home community. The court subsequently issued an order accepting the
CAT’s recommended level of care and granting DCYF’s request to place K.S. at
the residential treatment program in Vermont.

¶6 Before the nine-month review hearing, K.S. requested that she be
placed with her father. However, following the hearing, the court granted
DCYF’s recommendation that K.S.’s treatment continue at the residential
program. In its order, the court also recommended family therapy on the terms
and conditions identified by the treatment facility.

¶7 Prior to the twelve-month permanency hearing, K.S. filed a motion to
compel DCYF to produce extensive discovery relating to DCYF’s placement
decisions. DCYF objected, claiming that the “vast majority” of K.S.’s requests
had already been fulfilled and that the remaining requests were “burdensome,
overbroad, and not reasonably tailored to obtaining information necessary for
the Court’s determination of the issues presented.” DCYF also expressed its
“concern over the conduct of this litigation, as well as the impact it has on the
child.” The court denied K.S.’s motion for the reasons articulated by DCYF.

¶8 The court held a twelve-month permanency hearing in June 2023.
K.S.’s father had previously stated that he wished to surrender his parental
rights. At the hearing, K.S. communicated her desire to live with her maternal
grandmother, begin the next school year at her local high school, have the
court approve her father’s surrender of his parental rights, close the RSA
chapter 169-C case, and maintain a “legal relationship with her mother and
siblings.” DCYF recommended guardianship, and Court Appointed Special

1 On March 8, 2023, K.S. filed a petition for a writ of certiorari in this court seeking review of the

trial court’s January 2023 order. See Sup. Ct. R. 11. In April 2023, K.S. filed a motion to stay the
proceedings in this court pending the trial court’s resolution of issues raised at the twelve-month
permanency hearing, and we granted the motion.

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Advocates of New Hampshire (CASA) recommended adoption. The court
accepted CASA’s recommendation and found adoption to be the best plan to
achieve permanency for K.S. The court explained that it considered K.S.’s
input, “which supports adoption by her grandmother.”

¶9 Thereafter, DCYF filed, and the court approved, petitions for the
termination of the parents’ parental rights “to ensure [K.S.] could be freed for
adoption.” DCYF placed K.S. with her maternal grandmother in August 2023.
In November 2023, K.S. filed a second petition for a writ of certiorari in this
court. See Sup. Ct. R. 11.

¶10 The following month, K.S.’s grandmother notified DCYF that she
was no longer able to care for K.S. DCYF placed K.S. at another residential
treatment program in February 2024, deeming the placement appropriate
based on her needs. The court awarded DCYF guardianship over K.S.
pursuant to RSA 170-C:11, II (2022). Following an April 2024 post-
permanency hearing, the court changed K.S.’s permanency plan to “another
planned permanent living arrangement,” finding the change appropriate “given
[K.S.’s] age (including the ability to object to any adoption), the need for
independent living skills, and lack of available pre-adoptive placements.”

II. Analysis

¶11 Review on certiorari is an extraordinary remedy, usually available
only in the absence of a right to appeal, and only at the discretion of the court.
Petition of N.H. Div. for Children, Youth and Families, 170 N.H. 633, 639
(2018). We exercise our power to grant such writs sparingly and only when to
do otherwise would result in substantial injustice. Id. “Our review of a court
decision on a petition for a writ of certiorari entails examining whether the
court acted illegally with respect to jurisdiction, authority or observance of the
law, or unsustainably exercised its discretion or acted arbitrarily,
unreasonably, or capriciously.” In re J.H., 171 N.H. 40, 47 (2018) (quotation
omitted).

¶12 We first address K.S.’s argument that the trial court erred in
denying her access to information “to which she was statutorily entitled and
which was relevant to her best interest with regard to treatment and
placement” prior to its January and March 2023 placement decisions and its
June 2023 permanency order. First, K.S. maintains that from November 2022
to January 2023, she was hospitalized longer than medically necessary due to
DCYF’s failure to identify an appropriate placement. K.S. alleges that, during
this time, she was denied access to information regarding her hospitalization,
DCYF’s placement efforts, and her father’s other child custody case that was
relevant to the court’s January 2023 placement determination. Second, K.S.
alleges that the court erred in failing to order DCYF to provide her with
information regarding its efforts to secure a foster family placement prior to the

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court’s March 2023 order approving her placement at the residential treatment
program in Vermont. Third, K.S. claims that, prior to issuing its June 2023
permanency order, the court “failed to ensure that [she] had all relevant
information about the permanency options.” K.S. asserts both statutory and
due process rights to the information sought. DCYF maintains that K.S. “fails
to demonstrate error or actual prejudice with respect to any of these
categories.”

¶13 In view of the more recent developments in K.S.’s case, we first
consider whether these issues, which pertain to the court’s January, March,
and June 2023 orders, are moot. Generally, a matter is moot when it no longer
presents a justiciable controversy because the issues involved in the case have
become academic or dead. Londonderry Sch. Dist. v. State, 157 N.H. 734, 736
(2008). An issue that has already been resolved is not entitled to judicial
intervention. Appeal of Hinsdale Fed. of Teachers, 133 N.H. 272, 276 (1990).
However, “[m]ootness is not subject to rigid rules, but is a matter of
convenience and discretion.” State v. Luwal, 175 N.H. 467, 470 (2022). A case
may not be moot if it presents legal issues that are of pressing public interest
and that are capable of repetition yet evading review. Id.

¶14 We conclude that issues pertaining to the court’s January and
March 2023 placement decisions, which resulted in K.S.’s placement in the
sixty-day CAST program and then the residential treatment program in
Vermont, are moot because K.S. is no longer at those placements. K.S. was
placed in the CAST program in January 2023 and at the residential treatment
program in Vermont beginning in March 2023. After leaving the program in
Vermont, K.S. was placed with her grandmother in August 2023 and at
another residential treatment program in February 2024. Therefore, regardless
of whether the trial court unsustainably exercised its discretion in the
management of discovery in this case, issues pertaining to K.S.’s January and
March 2023 placements no longer present a justiciable controversy. See In the
Matter of O’Neil & O’Neil, 159 N.H. 615, 624 (2010).

¶15 Similarly, the issue of whether the trial court erred in failing to
order DCYF to provide K.S. with information prior to the June 2023
permanency order is also moot. In its permanency order, the court, consistent
with K.S.’s expressed desire to be placed with her grandmother, found adoption
by K.S.’s grandmother to be the best plan to achieve permanency. The
parental rights of K.S.’s parents were terminated, and K.S. was placed with her
grandmother. However, K.S.’s grandmother subsequently notified DCYF that
she could no longer care for K.S. DCYF thereafter placed K.S. at a residential
treatment program and changed K.S.’s permanency plan from “adoption
through termination of parental rights or surrender” to “another planned
permanent living arrangement (APPLA).” Therefore, because the June 2023
permanency order is no longer in effect, the issue of whether the court erred in
denying K.S.’s discovery requests is moot. See id.

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 [¶16] We next consider K.S.’s argument that the court erred by “excusing
[DCYF’s] failures” to “secure community-based counseling services,” “obtain
other trauma-mitigating services and supports,” and “demonstrate any effort
toward securing alternative family-based placements for her” under the “low
bar of the reasonable-efforts standard.” K.S. challenges the court’s January
2023 order approving her placement in the CAST program following the six-
month review hearing. Specifically, K.S. takes issue with the court’s
conclusion that, “[k]eeping in mind that the applicable standard is whether the
State has made reasonable efforts to finalize the permanency plan . . . the State
has made reasonable efforts towards reunification.” (Emphasis omitted.) K.S.
alleges that the court’s reference to “reasonable efforts” was error and that
DCYF’s efforts must be measured according to the “best interests” standard.
However, because K.S. is no longer in the CAST program, the issue of whether
the court properly assessed DCYF’s services and placement efforts prior to its
January 2023 placement decision is moot. See id.

¶17 K.S. next argues that the court “decided issues related to [her]
hospitalization and her institutional placement without affording her an
evidentiary hearing of sufficient length to call witnesses” in violation of her
right to due process of law. On December 23, 2022, K.S. requested that the
court hold a two-hour evidentiary hearing in addition to the six-month review
and motion hearings scheduled for January 3, 2023. The court denied the
request, explaining that it was unable to accommodate a two-hour hearing on
January 3. K.S. alleges that the court erred by denying her request for an
evidentiary hearing and “restricting the information upon which it relied” in
approving her placement in a residential program. DCYF responds that a
hearing is not required prior to a residential placement.

¶18 As we have explained, issues relating to the court’s January 2023
order approving DCYF’s recommendation that K.S. be placed in the CAST
program are moot. See id. However, we agree with K.S. that the issue of
whether a child in DCYF’s custody is entitled to an evidentiary hearing prior to
being placed in an institutional out-of-home placement presents an issue of
pressing public interest that is capable of repetition yet evading review. See
Appeal of Hinsdale Fed. of Teachers, 133 N.H. at 276. We therefore will
address the merits of her argument. Cf. Petition of Brooks, 140 N.H. 813, 816
(1996) (addressing petitioner’s claim “because it raises a significant
constitutional issue”).

¶19 K.S. claims that the court’s failure to hold an evidentiary hearing
violated her procedural due process rights under the State and Federal
Constitutions. The threshold issue in a procedural due process claim is
whether there is a constitutionally protected interest at stake. In the Matter of
Akin & Suljevic, 174 N.H. 743, 753 (2022). If such an interest is at stake, we
then determine whether the procedure at issue afforded the requisite
safeguards, mindful that the requirements of due process are flexible and call

6
for such procedural protections as the particular situation demands. Id.; see
Mathews v. Eldridge, 424 U.S. 319, 334 (1976). Procedural due process
requires that parties whose rights are affected “have the opportunity to be
heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S.
at 333. “The ultimate standard for judging a due process claim is the notion of
fundamental fairness.” State v. Veale, 158 N.H. 632, 637 (2009) (quotation
omitted).

¶20 Part I, Article 15 of the New Hampshire Constitution provides in
part: “No subject shall be . . . 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. The phrase “law of the land” means due process of
law. In re C.M., 163 N.H. 768, 771 (2012). We first address K.S.’s arguments
under the State Constitution and rely upon federal law only to aid our analysis.
See State v. Ball, 124 N.H. 226, 231-33 (1983).

¶21 We have not previously discussed whether a child in DCYF’s
custody has a due process right to an evidentiary hearing prior to placement in
an institutional setting. Here, the parties do not dispute that K.S. possesses a
constitutional liberty interest during neglect proceedings. We will assume,
without deciding, that K.S. has a protected liberty interest in her placement in
an out-of-home institutional setting. Cf. In the Matter of Stapleford &
Stapleford, 156 N.H. 260, 264 (2007) (assuming without deciding that children
have a protected liberty interest in the outcome of their parents’ divorce).
Therefore, we next consider whether the procedure at issue afforded the
requisite safeguards. See In the Matter of Akin & Suljevic, 174 N.H. at 753.

¶22 To determine whether the State Constitution requires an
evidentiary hearing prior to an out-of-home placement, we employ the three-
prong test articulated by the United States Supreme Court in Mathews v.
Eldridge, 424 U.S. at 335. See In re C.M., 163 N.H. at 772. This test balances:
(1) the private interest affected by the official action; (2) the risk of an
erroneous deprivation of such interest through the procedures used, the
probable value, 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. Id.; Mathews, 424 U.S. at 335.

¶23 Regarding the private interest affected, K.S. contends that her
“interest in an accurate and well-founded decision on institutional placement
was substantial” and that the government “shares her interest in accurate fact-
finding related to the need for institutional placement.” We agree that both the
child and DCYF share an interest in locating an appropriate placement. See
RSA 169-C:2, II(d) (2022) (“This chapter seeks to coordinate efforts by parents
and state and local authorities, in cooperation with private agencies and

7
organizations, citizens’ groups, and concerned individuals” to, inter alia,
“[p]rovide protection, treatment, and rehabilitation, as needed, to children
placed in alternative care.”). However, as DCYF notes, in light of its legal
custody of K.S., K.S.’s private interests at the placement hearing were
“significantly less” than at the dispositional hearing. Indeed, as K.S.’s legal
custodian, DCYF had authority over her placement. See RSA 169-C:3, XVII(a)-
(b) (2022) (defining legal custody as including, inter alia, the right to “determine
where and with whom the child shall live” and “have the physical possession of
the child”).

¶24 K.S. claims that the risk of erroneous deprivation through the
procedures used was “palpable” because the court relied upon inaccurate
representations made by DCYF. DCYF disagrees, arguing that, given the
procedure established by RSA 169-C:19-f authorizing courts to review
independent assessments when a child is placed in a residential facility, an
evidentiary hearing would “provide little value, especially where the CAT
assessment process includes a procedure through which parties may seek
reconsideration, as [K.S.] did in this case.” We agree with DCYF.

¶25 The child’s best interest is well protected by RSA chapter 169-C’s
established procedures. See RSA 169-C:2 (2022). One of RSA chapter 169-C’s
stated purposes is “to establish a judicial framework to protect the rights of all
parties involved in the adjudication of child abuse or neglect cases” and to
“provide effective judicial procedures . . . which recognize and enforce the
constitutional and other rights of the parties and assures them a fair hearing.”
RSA 169-C:2, II-III. RSA 169-C:24 (2022) sets forth procedures for periodic
review hearings, and RSA 169-C:19-f (2022) provides that, when a child is
placed in a “qualified residential treatment program,” the court shall order an
assessment, and based upon its review of that assessment, issue an order
“approving the placement or changing the placement within 60 days.”
Moreover, the CAT assessment is subject to reconsideration in certain
circumstances and K.S. availed herself of such procedure to obtain
reconsideration of the February 2023 CAT determination following the court’s
March 2023 placement decision. These procedures allow parties to seek review
and challenge the accuracy of the findings upon which the court’s decisions are
based, and they protect the child’s interest in well-founded decisions. We are
not persuaded that holding an evidentiary hearing would provide additional
value in this context.

¶26 Finally, as to the government’s interest, K.S. argues that the
burden of an evidentiary hearing is “minimal.” DCYF responds that “requiring
the court to hold an evidentiary hearing before approving a child’s placement
for residential treatment would impede DCYF’s ability to provide” for the child
and would create a significant burden for the courts. We agree with DCYF. As
mentioned above, RSA 169-C:19-f requires the court to review and either
approve or change a child’s placement in a qualified residential treatment

8
program. If the court were required to hold an evidentiary hearing prior to
approving a child’s placement in a qualified residential treatment program, the
court’s placement decisions would be delayed, as would the child’s access to
the services provided by the pending placement. Here, the court was unable to
hold a two-hour evidentiary hearing in addition to the six-month review and
motion hearings on January 3. K.S. maintains that her hospitalization
beginning in November 2022 was longer than medically necessary and that
DCYF “failed to identify a legitimate placement for her.” However, had the
court granted her request and scheduled an evidentiary hearing for a later
date, approval of K.S.’s placement in the CAST program, which ended her
hospitalization, may have been further delayed. K.S.’s argument thus
underscores the importance of a timely ruling on DCYF’s placement
recommendation.

¶27 Accordingly, weighing the above factors, we hold that the court’s
approval of K.S.’s placement in an institutional setting without holding an
evidentiary hearing did not violate K.S.’s right to due process. We note that our
conclusion is consistent with that of the Vermont Supreme Court, which
rejected a similar argument and ruled that a change in a child’s placement
without “a prior due process hearing” did not violate the child’s right to due
process. See In re J.S., 571 A.2d 658, 663-64 (Vt. 1989). Because the State
Constitution is at least as protective of individual liberties in these
circumstances as the Federal Constitution, see In re Samantha L., 145 N.H.
408, 414 (2000); Mathews, 424 U.S. at 334-35, we reach the same result under
the Federal Constitution.

¶28 We next consider K.S.’s argument that the court erred by denying
her request to be placed with her father at the six-month review hearing. This
issue is moot. See In the Matter of O’Neil & O’Neil, 159 N.H. at 624. K.S.’s
father surrendered his parental rights in September 2023. The termination of
his parental rights “divest[ed] the parent and the child of all legal rights,
privileges, duties and obligations.” RSA 170-C:12 (2022). Therefore, even were
we to find error in the court’s denial of K.S.’s request to be placed with her
father, the relief she presumably seeks — to be placed in his care — is no
longer possible. Similarly, issues relating to the court’s refusal to update the
July 2022 dispositional order to require K.S.’s father’s participation in family
therapy while K.S. was placed in Vermont are moot. See In the Matter of O’Neil
& O’Neil, 159 N.H. at 624.

¶29 Finally, K.S. argues that the court erred by denying her request to
allow her grandmother to be involved in family therapy, permanency planning,
and other team meetings. Following the permanency hearing, K.S. requested
the court’s permission to share case information with her grandmother and to
permit her grandmother to attend transition and treatment meetings. CASA
objected on the grounds that the grandmother was not a party to the case and
DCYF had not yet completed the home study required to place K.S. in her

9
grandmother’s care. CASA also noted that the grandmother could request
access to the case information pursuant to RSA 169-C:25, I(b). The court
agreed with CASA and denied K.S.’s request.

¶30 Regarding K.S.’s request to share case information with her
grandmother, RSA 169-C:25, I(b) (2022) instructs that “[a] grandparent seeking
access to court records . . . shall file a request for access with the court clerk
supported by an affidavit signed by the grandparent stating the reasons for
requesting access.” The record does not indicate that the grandmother made
such a request. In addition, although RSA 170-G:8-a, II (2022) grants DCYF
discretion to disclose Department of Health and Human Services case records
to “[a]nother member of the family of the child named in the case record, if
disclosure is necessary for the provision of services to the child or other family
member,” it does not require DCYF to do so. See RSA 170-G:8-a, II(a)(4).
Noting “the history of acrimony” between K.S.’s father and grandmother, CASA
objected to sharing all case information until DCYF determined whether
adoption by K.S.’s grandmother would be appropriate. We are not persuaded
that the court erred by declining to order DCYF to disclose its records to K.S.’s
grandmother.

¶31 Regarding K.S.’s requests that her grandmother be allowed to
attend transition meetings and court hearings, the record reflects that the
grandmother attended weekly transition meetings when K.S. was in Vermont.
In any event, in December 2023, K.S.’s grandmother notified DCYF that she
was no longer able to care for K.S. and asked that DCYF find a new placement.
Although K.S. may continue to seek her grandmother’s involvement in her
case, the court changed K.S.’s permanency plan in April 2024 to APPLA
because adoption by her grandmother was no longer a viable option. On the
record before us, we cannot conclude that the trial court erred by denying
K.S.’s motion.

¶32 The additional arguments that K.S. raises do not warrant further
discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). We conclude that
the court did not act illegally with respect to jurisdiction, authority or
observance of the law, and it neither unsustainably exercised its discretion nor
acted in an arbitrary, unreasonable, or capricious manner. See In re J.H., 171
N.H. at 47.

Affirmed.

MACDONALD, C.J., and BASSETT, J., concurred.

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