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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 
2

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 crossexamine 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 
3

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 
4

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 crossexamine 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. 
5

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 outof-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. 
6

 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. 

 
7

 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 selfincrimination. 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. 
8

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.