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- courts/supreme

- court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

7th Circuit Court

- Rochester Family Division

No. 2022

- 0257

IN RE H.C.

Argued: February 23, 2023

Opinion Issued: November 14, 2023

Law Office of Joshua L. Gordon

, of Concord ( Joshua L. Gordon

, on the

brief and orally )

, for the petitioners.

John A.M. Hinsman III

, of Dover, on the brief and orally, for the

respondent.

BASSETT

, J. The respondent, the mother of H.C., appeals an order of

the Circuit Court ( Cross

, J.) that terminated her parental rights after the court

found that she had been convicted of a felony assault which resulted in injury

to H.C.’s sibling. See RSA 170

- C:5, VII(d) (2022). This appeal requires that we

address the following issues: (1) whether RSA 170

- C:5, VII (d) applies in this

case when H.C. was born after the date of the felony assault; (2) whether RSA

170

- C:5, VII (d) applies to convictions obtained outside the State of New

Hampshire; and (3) whether the trial court erred in finding that termination of

the respondent’s parental rights was in H.C.’s best interest. Because we

conclude that RSA 170

- C:5, VII (d) applies and that the trial court did not e rr in2

ruling that termination of the respondent’s parental rights was in H.C.’s best

interest, we affirm its decision.

I. Background

The following facts were found by the trial court or are supported by the

record. H.C. was born in December 2015. Prior to H.C.’s birth, in 2014 and

2015, the respondent sexually assaulted H.C.’s sibling. In 2017, the

respondent was convicted in Maine of a Class A felony for the December 2014

sexual assault of the sibling, see Me. Rev. Stat. Ann. tit. 17

- A, § 253 (Supp

. 2023 )

, an d she was sentenced to prison for a minimum of eight years. The

respondent’s parental rights over H.C.’s sibling were terminated in 2017.

At the time of H.C.’s birth, the respondent was under house arrest for

several pending Maine charges and the respon dent’s two sisters were appointed

as co

- guardians of H.C. After one year, one of the sisters became H.C.’s sole

guardian. The respondent has not seen H.C. since she was “not quite 2 years

old.”

In January 2020, H.C.’s guardian and her husband filed a petition to

terminate the respondent’s parental rights alleging that the respondent: (1)

had abandoned H.C., see RSA 170

- C:5, I (2022); (2) had failed to support,

educate or care for H.C., see RSA 170

- C:5, II (2022) (amended 2022) ; and (3)

had been con victed of felony assault against a sibling of H.C., see RSA 170

- C:5,

VII(d). Following a three

- day hearing, the trial court granted the petition,

ruling that the respondent “was convicted of a felony sexual assault that

resulted in injury to [H.C.]’s sibl ing,” see RSA 170

- C:5, VII(d), and that

termination of the respondent’s parental rights was in H.C

. ’s best interest.

This appeal followed.

II. Analysis

Before a court may order the termination of parental rights, the

petitioning party must prove a statutor y ground beyond a reasonable doubt. In

re S.T.

, 169 N.H. 441, 448 (2016). RSA 170

- C:5 (2022) (amended 2022) sets

forth the grounds upon which a petition to terminate parental rights may be

granted. In this case, we are asked to interpret RSA 170

- C:5, VI I (d)

, which

provides that a petition to terminate parental rights may be granted when:

VII. The parent has been convicted of one or more of the following

offenses:

(a) Murder, pursuant to RSA 630:1

- a or 630:1

- b, of another

child of the parent, a sibling or step

- sibling of the child, the

child ’s other parent, or other persons related by3 consanguinity or affinity, including a minor child who

resided with the defendant.

(b) Manslaughter, pursuant to RSA 630:2, of another child

of the parent, a sibling or s tep

- sibling of the child, the

child ’ s other parent, or other persons related by

consanguinity or affinity, including a minor child who

resided with the defendant.

(c) Attempt, pursuant to RSA 629:1, solicitation, pursuant

to RSA 629:2, or conspiracy, purs uant to RSA 629:3, to

commit any of the offenses specified in subparagraphs

VII(a) and VII(b).

(d) A felony assault under RSA 631:1, 631:2, 632

- A:2, or

632

- A:3 which resulted in injury to the child, a sibling or

step

- sibling of the child, the child ’ s other parent, or other

persons related by consanguinity or affinity, including a

minor child who resided with the defendant.

The respondent first argues that RSA 170

- C:5, VII(d) does not apply in

this case because H.C. had not yet been born at the time the assault was

committed; therefore, she posits: (1) H.C. was not a sibling of the respondent’s

older child at the time that the respondent committed the charged assault; and

(2) H.C. “was incapable of being injured pursuant to RSA 170

- C:5, VII(d). ” The

petitioners contend that this issue has not been preserved for our review

because the respondent first raised it in the motion for reconsideration that she

filed in the trial court. The record reflects that the petitioners filed an objection

to the m otion and that the trial court denied the respondent’s motion “for the

reasons cited in the [petitioners’] objection.”

The purpose of our preservation rule is to ensure that trial courts have

the opportunity to rule on issues and to correct errors befo re parties seek

appellate review. State v. Perez

, 173 N.H. 251, 258 (2020). Here, because the

trial court had an opportunity to consider this purely legal question of

statutory interpretation when it reviewed and denied the respondent’s motion

for recons ideration, we conclude that the issue has been preserved for our

review. See State v. Gross

- Santos

, 169 N.H. 593, 598 (2017).

Before addressing the merits of the respondent’s arguments, we

summarize our well

- established principles of statutory interpret ation.

Statutory interpretation presents a question of law that we review de novo

. Avery v. Comm’r, N.H. Dep’t of Corr.

, 173 N.H. 726, 733 (2020). We interpret

legislative intent from the statute as written. Id

. However, we do not read

words or phras es in isolation, but, rather, in the context of the entire statutory

scheme. State v. Folds

, 172 N.H. 513, 521 (2019). Our goal is to apply4

statutes in light of the legislature’s intent in enacting them and in light of the

policy sought to be advanced by the entire statutory scheme. Id

. We will give

effect to the plain and ordinary meaning of the language used in the statute

unless such an interpretation would lead to an unjust and seemingly illogical

result

. See, e.g.

, State v. Carpentino

, 166 N.H. 9, 20 (2014).

With these principles in mind, we address the respondent’s argument

that RSA 170

- C:5, VII(d) does not apply because H.C. was born after the

respondent assaulted H.C.’s sibling. RSA 170

- C:5, VII(d) authorizes the

termination of an individual’ s parental rights when the individual has been

convicted of “ [ a ] felony assault under RSA 631:1, 632:2, 632

- A:2 or 632

- A:3

which resulted in injury to the child, a sibling or step

- sibling of the child

. . . .”

RSA 170

- C:2 (2022) defines “child” as “a pers on less than 18 years of age.” The

respondent argues that, because H.C. was not yet born, she “was not a ‘ child ’

within the meaning of RSA 170

- C:2 when the assault occurred.” Accordingly,

she argues, H.C. “was incapable of being injured pursuant to RSA 1 70

- C:5,

VII(d).” She further asserts that, because H.C. was not yet born, she was not a

sibling of the victim at the time the assault was committed and “[t]herefore she

was incapable of being injured” pursuant to RSA 170

- C:5, VII(d). We disagree.

“Si bling” is defined as “one of two or more persons who have the same

parents but who are not necessarily of the same birth; sometimes one of two or

more persons having one common parent.” Webster’s Third New International

Dictionary 2110 (unabridged ed. 2002). We decline to read a requirement into

the statute that the child who is the subject of the termination petition must

have been injured by the felony assault of the child’s sibling. See In re J.P.

, 173 N.H. 453, 460 (2020) (wh en interpreting statutes, we give effect to every

word of the statute whenever possible and will not consider what the

legislature might have said or add language that the legislature did not see fit

to include). Moreover, the statute does not require tha t the child who is the

subject of the termination petition have been born at the time of the assault.

Rather, the statute makes clear that a child whose sibling has been injured in

a felony assault

, as described in the statute, may be the subject of a pet ition to

terminate the parental rights of the perpetrator parent.

Review of the legislature’s expressed purpose in enacting the statute

supports our conclusion. Paragraph VII of RSA 170

- C:5 was enacted in 1999

to bring New Hampshire “into compliance w ith the federal Adoption and Safe

Families Act” (ASFA) and to e nsure that New Hampshire qualified for the

continued receipt of federal funding for its child protection system. See Laws

1999, ch. 133 ; N.H.H.R. Jour. 227 (1999)

. Section 1 of Chapter 133 pr ovides:

Purpose; Intent. The purpose of this amendment to RSA 170

- C is

to initiate New Hampshire’s compliance with the Adoption and Safe

Families Act of 1997 that became effective on November 19, 1997.

The Adoption and Safe Families Act is designed and intended to5

reform parts of the current child welfare system and to promote

the safety, permanency and well

- being of children in out

- of

- home

placements.

Laws 1999, 133:1. In 2005, the legislature expanded the protection provided

by RSA 170

- C:5, VII(d) to cases in which the parent had been convicted of a felony assault which resulted in injury to a sibling or step

- sibling of the child.

Laws 2005, ch. 235.

Prior to passage of the federal ASFA, “state and federal law appeared to

give primary considerati on to the rights of parents, as opposed to the welfare of

their children.” State ex rel. Children, Youth v. Amy B.

, 61 P.3d 845, 847 (N.M.

Ct. App. 2002). The ASFA specifically provides that “the child’s health and

safety shall be the paramount concern” and that

reasonable efforts [to preserve and reunify families] shall not be

required to be made with respect to a parent of a child if a court of

competent jurisdiction has determined that (i) the parent has

subjected the child to aggravated circumstances (as defined in

State law, which definition may include but need not be limited to

abandonment, torture, chronic abuse, and sexual abuse)[.]

42 U.S.C.A. § 671(a)(15) (A), (D)(i)

.

“ The ASFA required as a condition of ongoing federal funding that states ’

plans contain ‘ assurances that in administering and cond ucting service

programs under the plan, the safety of the children to be served shall be of

paramount concern. ’” In re Interest of Georgina V.

, 620 N.W.2d 130, 134 (Neb.

Ct. App. 2000). “ It is clear that the ASFA was designed to accelerate the

terminatio n of parental rights in those cases where Congress felt termination

was justified and clearly necessary, such as when a parent had murdered a

sibling of the child. ” Id

.

To adopt the temporal limitation proffered by the respondent would limit

to an appr eciable extent the purpose of the statute

— the protection of a child

whose parent has been convicted of one or more of the enumerated felonies.

See State v. Kay

, 115 N.H. 696, 698 (1975) (declining to adopt interpretation of

consumer protection statute t hat would “nullify[ ] to an appreciable extent the

purpose of the statute”). The language of RSA 170

- C:5, VII(d) is also clear that

the assault conviction supporting a termination petition is not limited to one

that caused injury to the child who is the s ubject of the petition; rather, an

assault that caused injury to the child’s sibling or step

- sibling is also a ground

for termination.6

Because there is no dispute that the respondent is the mother of both

H.C. and the child whom she sexually assaulted, the respondent’s first claim of

error fails.

The respondent next argues that because she was convicted of

committing sexual assault in Maine, her conviction does not come within the

scope of the offenses that satisfy the requirements of RSA 170

- C:5, VI I(d). She

contends that the trial court should not have looked beyond the language of

the statute because its language is clear and unambiguous. The petitioners

disagree, arguing that “[s]tatutes must be construed ‘in the context of the

overall statutory scheme.’” We agree with the petitioners.

Under a literal reading of the statute, a parent who had been convicted in

New Hampshire of committing a felony assault upon a child’s sibling, resulting

in injury to the sibling, would be subject to termination of parental rights over

the child under RSA 170

- C:5, VII(d)

, whereas, a parent who had been convicted

in Maine of committing felony assault for the identical conduct, resulting in the

same injury to the sibling, would not be subject to termination of parental

rights over the child under RSA 170

- C:5, VII(d). To apply the statute in this

way would lead to dras tically different consequences for both the parents and

the children despite the parents having been convicted for the same injurious

conduct.

The respondent offers no plausible explanation why the legislature would

create such a distinction, arguing s imply that construing the statute to apply

to convictions obtained in another state “would invite trial courts to interpret

non enumerated, non New Hampshire convictions without the guidance of the

legislature.” We are not persuaded by this argument. The legislature’s

identification of convictions for felony assault under four New Hampshire

criminal statutes resulting in injury to a child of the perpetrator parent

provides clear guidance to trial courts in determining whether out

- of

- state

convictions qual ify as a ground for termination of parental rights.

We conclude that t o construe the statute as providing for termination of

parental rights of a parent who commits a felony assault upon a sibling in New

Hampshire, but not doing so if the same parent com mits the same felony

assault upon the sibling across the border in Maine, would be both illogical

and unjust

. We have long held that we will not give effect to the plain and

ordinary meaning of the language used in a statute when that interpretation

leads to an unjust and seemingly illogical result

. See Doe v. State

, 114 N.H.

714, 717 (1974) (in absence of any sound reason of policy or otherwise for

unfair discrimination produced by literal reading of statute, court rejected

interpretation that would bar defendant whose only sentence following

conviction was a fine from seeking annulment of that conviction); State v.

Carpentino

, 166 N.H. 9, 20 (2014) (recognizing when interpreting sentencing

statute that this court “will avoid construing statutes in a mann er that would7

produce an unjust and seemingly illogical result”); St. Onge v. Oberten, LLC

, 174 N.H. 393, 395 (2021) (court will construe statutes in harmony with overall

statutory scheme and to avoid an un just result). Therefore, we reject the

respondent’s literal reading of the statute. Rather, we hold that the use of the

word “ under ” in RSA 170

- C:5, VII(d) requires that the elements of the offense

giving rise to an out

- of

- state conviction must be the equivalent of those

required for convictio n in New Hampshire. In this case, the trial court

compared the elements of RSA 631

- A:2 (2016) with those of the Maine statute

under which the respondent was convicted, see Me. Rev. Stat. Ann. t it. 1 7

- A,

§ 253, and found: “It is clear, therefore

, that the New Hampshire and Maine

statutes proscribe the same conduct; mother was convicted of violating a

statute that is essentially the same as RSA 631

- A:2.” The respondent does not

challenge this finding on appeal.

Finally, the respondent argues that the trial court erred in finding that

termination of her parental rights was in the best interest of H.C. After a

statutory ground for termination of parental rights is established, the court

must consider whether termination, or some alternative disposition al order, is

in the child’s best interest. In re J.D.

, 175 N.H. 108, 114 (2022). We will not

disturb the trial court’s fin dings unless they are unsupported by the evidence

or plainly erroneous as a matter of law. Id

. at 114

- 15.

To support her challeng e to the trial court’s best interest ruling, t he

respondent observes that she “has had consistent and appropriate contact with

[H.C.] despite her incarceration and has a positive and appropriate relationship

with [H.C.].” She contends that “[g]iven her in carceration and the

guardianship, there is no compelling reason for a termination of her parental

rights.” In contrast, t he petitioners assert that “H.C. has never known her

biological mother, and has little idea of her beyond a voice on a telephone.”

As the trial court observed, when determining the best interest of the

child, the dominant consideration is the child’s welfare, which prevails over the

interest of the parent. See In re S.A.

, 174 N.H. 298, 300 (2021). The court

made the following findin gs to support its best interest determination: (1)

guardianship is “always modifiable” and the respondent “has at times told

others that she might request termination of the guardianship upon her release

from prison”; (2) the petitioners intend to adopt H. C.; and (3) H.C. “is fully

adjusted to her life with the petitioners and the other children in their home”

and “closely bonded to all of them.” The guardian ad litem also supported the

petitioners’ petition, observing that “the basis for the [respondent]’ s 8

- year

prison sentence and 18 years on supervised release thereafter is for sexually

assaulting her 3

- year

- old son and endangering the welfare of her 5

- year

- old

daughter,” and opining that “termination is necessary to protect [H.C.]’s safety,

security an d welfare.”8

The trial court concluded that H.C. “will know that petitioners, who have

been the only stable and consistent presence in her life, will always be there for

her.” On the record before us, we cannot say that the trial court erred by

conclu ding that terminating the respondent’s parental rights was in the best

interest of H.C.

We believe that our conclusion today applies RSA 170

- C:5, VII(d) as

intended by the legislature and reflects the policy sought to be advanced by the

entire statutory scheme. See Folds

, 172 N.H. at 521. If the legislature

disagrees with this interpretation, it is free to amend the statute as it deems

appropriate.

Affirmed

.

HICKS and DONOVAN, JJ., concurred; M AC DONA LD

, C.J., and HANTZ

MARCONI, J., dissented.

M AC DONALD

, C.J., and HANTZ MARCONI, J., dissenting. The

legislature enacted a statute specifically referring to a series of New Hampshire

crimes. See RSA 170

- C: 5, VII (2022). If a parent is convicted of one of those

crimes, it could be the basis for termination of his or her fundamental parental

rights. Concluding that the legislature’s plain language “leads to an unjust

result,” the majority effectively rewrites the statute t o incorporate similar

crimes in other states. Because we do not agree that our role extends to the

extensive revision of duly enacted statutes, we respectfully dissent.

I

RSA chapter 170

- C authorizes a court to order the termination of

parental rights when certain conditions exist. The conditions pertinent to this

case are set forth in RSA 170

- C:5, VII

. Under that subsection, a termination

petition may be granted when the parent has been convicted of one or more of

the following offenses:

(a) Murde r, pursuant to RSA 630:1

- a or 630:1

- b, of another child

of the parent, a sibling or step

- sibling of the child, the child’s other

parent, or other persons related by consanguinity or affinity,

including a minor child who resided with the defendant.

(b) Man slaughter, pursuant to RSA 630:2, of another child of the

parent, a sibling or step

- sibling of the child, the child’s other

parent, or other persons related by consanguinity or affinity,

including a minor child who resided with the defendant.9

(c) Attempt, pursuant to RSA 629:1, solicitation, pursuant to RSA

629:2, or conspiracy, pursuant to RSA 629:3, to commit any of the

offenses specified in subparagraphs VII(a) and VII(b).

(d) A felony assault under RSA 631:1, 631:2, 632

- A:2, or 632

- A:3

which r esulted in injury to the child, a sibling or step

- sibling of the

child, the child’s other parent, or other persons related by

consanguinity or affinity, including a minor child who resided with

the defendant.

The petition rests, in part, on the allegatio n that RSA 170

- C:5, VII(d)

applies in light of the respondent’s conviction in Maine. That requires the

court to resolve two questions: whether a felony assault occurred under any of

the enumerated statutes and, if so, whether it resulted in injury to a “s ibling” of

H.C.

Taking the second question first, resolution requires nothing more than a

straightforward application of the plain meaning of “sibling.” As applied to the

undisputed facts, the dictionary definition of sibling cited by the majority

estab lishes that H.C. is a sibling of the older child who was sexually assaulted.

There is no ambiguity. We agree with the majority’s conclusion in that respect.

However, we respectfully take issue with the remainder of its analysis.

As a matter of basic principles of statutory interpretation, we would proceed to

the next issue. The majority takes a different course. It detours to consider

what it characterizes as the “legislature’s expressed purpose in enacting the

statute.” In the face of an unambigu ous statute, we question what objective is

served by such an inquiry. But, if we were to consider the “e xpressed

purpose,” we would consult RSA 170

- C:1 (2022), which is captioned “Purpose.”

That provision states:

The purpose of this chapter is to provi de for the involuntary termination

of the parent

- child relationship by a judicial process which will safeguard

the rights and interests of all parties concerned and when it is in the best

interest of the child. Implicit in this chapter is the philosophy t hat

whenever possible family life should be strengthened and preserved, and

that the parent

- child relationship is to be terminated only when the

adoption of that child may be contemplated.

The majority overlooks RSA 170

- C:1 and, instead, relies on a purp ose

statement appearing in a 1999 session law. The 1999 session law set forth an

initial version of RSA 170

- C:5, VII (d). However, six years later, the legislature

“repealed and reenacted” RSA 170

- C:5, VII and

, while it set forth the new

subsection (d), i t did not contain the “ expressed purpose” statement the

majority quotes. In other words, the “expressed purpose” language on which

the majority relies was never actually considered by the legislature when it10

repealed and reenacted RSA 170

- C:5, VII(d) six years later. This underscores

the hazards of relying on stray bits of legislative history.

The majority’s apparent objective in discussing the 1999 session law’s

purpose statement is to inform the reader that the law was to “initiate New

Hampshire’s co mpliance with the Adoption and Safe Families Act of 1997

[( ASFA)],” a federal statute. The majority quotes a Nebraska intermediate

appeals court: “It is clear that the ASFA was designed to accelerate the

termination of parental rights in those cases where Congress felt termination

was justified and clearly necessary, such as when the parent had murdered the

sibling of a child .” In re Interest of Georgina V.

, 620 N.W.2d 130, 134 (Neb. Ct.

App. 2000). With respect, what Congress may or may not have “f elt” is

irrelevant to the interpretation of this unambiguous New Hampshire statute.

The majority nonetheless extrapolates that the purpose of RSA 170

- C:5, VII is

“the protection of a child whose parent has been convicted of one or more of the

enumerated f

elonies.” However, as noted above, the Legislature has already

and quite clearly expressed the purpose of RSA chapter 170

- C. See RSA 170

-

C:1. In sum, if reliance on “purpose” is somehow relevant to the statutory

analysis, we would rely on the legislatur e’s expressly codified statement, not

the court’s extrapolation based on an inapplicable session law.

II

We turn to the question of whether a felony assault occurred under any

of the statutes enumerated in RSA 170

- C:5, VII(d). As quoted above, the

legi slature has identified a series of New Hampshire crimes that can be the

basis for termination of parental rights. The respondent was convicted of

felony sexual assault of H.C.’s sibling in Maine, under a Maine statute

. Me.

Rev. Stat. Ann. tit. 17

- A, § 25 3 (Supp. 2023). This is certainly a concerning

circumstance. Nonetheless, the plain language of RSA 170

- C:5, VII(d)

precludes the Maine conviction as serving as a basis for termination of the

respondent’s parental rights. Concluding that it would be “un just” to apply the

statute as written, the majority effectively rewrites it. We believe the statute

should be applied as enacted by the legislature and that to rewrite it exceeds

our authority.

We begin by observing that RSA chapter 170

- C is no ordinary statute. It

sets forth the standards and procedures for the termination of a fundamental

constitutional right. “[P]arental rights are natural, essential, and inherent

rights within the meaning o f the State Constitution.” In re Baby K.

, 143 N.H.

201, 205 (1998) (quotation omitted). “We have recognized that the loss of one’s

children can be viewed as a sanction more severe than imprisonment.” In re

Noah W.

, 148 N.H. 632, 636 (2002); see also Sta te v

. Robert H.

, 118 N.H. 713,

716 (1978) (“The permanent termination of the rights of parents over their

children is even more final than involuntary commitment or delinquency

proceedings .”), overruled on other grounds by In re Craig T.

, 147 N.H. 739,11

744

- 45 (2002)). “Given the severity of the termination sanction, and the

significance of the parental interest, we have held that to terminate parental

rights, due process requires proof beyond a reasonable doubt, the same burden

of proof required for a crim inal conviction and incarceration.” In re Noah W.

, 148 N.H. at 636 (quotation omitted).

When a statute implicates personal liberties, the judiciary’s interpretive

lens should especially focus on the legislature’s actual words. For example, we

have l ong recognized that courts should not extend penal statutes “by their

spirit or equity to other offences than those which are described, or clearly

provided for in their terms

. They are never to be extended by implication.”

Wood v. Adams

, 35 N.H. 32, 36 (1857). Indeed, as Chief Justice Marshall

observed: “The rule that penal laws are to be construed strictly

. . . is founded

on the tenderness of the law for the rights of individuals; and on the plain

principle that the power of punishment is vested in th e legislative, not in the

judicial department.” United States v. Wi l tberger

, 18 U.S. 76, 95 (1820).

We recognize that RSA chapter 170

- C is not penal in nature and there

are, to be sure, interests to be balanced, including the best interest of the child.

See RSA 170

- C:1. Nonetheless, given the “severity of the termination sanction”

involving this fundam ental right, we believe the foregoing principles should

apply and a court should not extend this statute’s terms beyond its plain

language. Notably, the majority does not conclude that the statute is

ambiguous, rather that it would be “unjust” not to appl y Maine law. To that

end, we fail to see how it would necessarily be unjust for the legislature to limit

the potential grounds for terminating a fundamental constitutional right to

convictions under statutes which it itself has enacted and crimes which it itself

has defined.

Moreover, we think it is fair to presume that the legislature is, at all

times, fully aware that New Hampshire is one of fifty sovereign states in a

federal system. Our statutes are replete with provisions enacted over the years

dem onstrating our legislature taking into account, in a variety of contexts, the

potential applicability of the laws of other states. See, e.g.

, RSA 231:132

- a, I

(2009) (“It shall be an affirmative defense that at the time of the infraction the

vehicle was b eyond the control of the registered owner as a result of a violation

of RSA 262:12, 637:3 or 637:9 or a similar statute in another jurisdiction .”

(emphasis added)); RSA 400

- A:37, IV

- a(c ) (Supp. 2022) (“[f]or the purposes of

subparagraph (b), this chapter i ncludes the law of another state or jurisdiction

that is substantially similar to this chapter ” (emphasis added)); RSA 561:20

(2019) (referencing “the Uniform Transfers to Minors Act, or under another

state’s Uniform Transfers to Minors Act or similar stat ute ” (emphasis added));

RSA 650:2, II (2016) (“ A person who commits any of the acts specified in

subparagraphs (a) through (e) of paragraph I with knowledge that such act

involves a child in material deemed obscene pursuant to this chapter is guilty

of: (a ) A class B felony if such person has had no prior convictions in this state12

or another state for the conduct described in this paragraph

. . . . ” (emphasis

added )).

The most pertinent example appears in the very next statutory provision

following RSA 170

- C:5. RSA 170

- C:5

- a provides for the termination of the

parent

- child relationship in cases of sexual assault. Termination under this

provision may be based upon a fi nding that the father of the child “ [h] as been

convicted of or

. . . has pled guilty or nolo contendere to a violation of sexual

assault as defined in RSA 632

- A:2 through RSA 632

- A:4, or a similar statute in

another state against the birth mother for his c onduct in fathering the child.”

RSA 170

- C:5

- a, I (2022) (emphasis added).

It is this highlighted language

— “or a similar statute in another state”

—

that the majority effectively inserts, in multiple locations, into RSA 170

- C:5,

VII. Yet, in enacting RSA 170

- C:5, VII(d) and, as described above, reenacting

RSA 170

- C:5, VII(a)

- ( c ), the legislature has chosen not to do so. To incorporate

crimes from other states presents a policy decision and, under our system of

separated powers, N.H. CONST. pt. I, art

. 37, such a policy decision is for the

legislature to make. Of note, in its analogous statute, Maine refers to “[a]

compara ble crime in another jurisdiction.” Me. Rev. Stat. Ann. t it. 22,

§ 4055(1

- A)(B)(12) (2019). The legislature may, or may not, cho ose to follow

Maine. But, that is a decision for it to make.

On the basis of its plain language, the respondent was not convicted

“under” the statutes identified in RSA 170

- C:5, VII(d). Therefore, the

petitioners have failed to prove a statutory grou nd for termination beyond a

reasonable doubt. In light of this conclusion, we do not reach the issue of

whether termination is in the child’s best interest.

We respectfully dissent.