The New Hampshire Supreme Court released In Re James N. on October 8, 2008 holding that the basis of a CHINS petition under the Child in Need of Services statute cannot be founded upon a delinquent act.

In 2007, the Mother filed a CHINS petition involving her 6 year old son James, who at the time was in DCYF’s custody. Mother alleged that he was a child in need of services for failing to obey the reasonable commands of his parent, guardian or custodian pursuant to RSA 169-D:2, II(b). The specific acts alleged in the petition were: threatening others with physical harm, threatening to set fire to a residence, harming his foster family’s dog, attempting to strangle his foster brother, head butting, biting, and placing glass “sharps” in others’ clothing.

At the hearing, James, joined by DCYF, moved to dismiss arguing that the alleged underlying facts are delinquent acts and may not be included in a CHINS petition. The court granted James’ motion finding that the petition failed because the acts alleged were delinquent acts.

The mother then filed four delinquency petitions alleging cruelty to animals, simple assault, and reckless conduct. James moved to dismiss arguing that a six-year old is presumed not to be competent to stand trial in delinquency proceedings and is presumed not to be capable of committing a crime due to his tender age. The court agreed with James and found that he could not consult with his attorney or have a rational understanding of the proceeding. Therefore, it would be a violation of his due process rights to make him stand trial.

The mother appeals to the NH Supreme Court and argues that the allegation of a delinquent act should not be fatal to a CHINS petition if the child cannot form the required mens rea (guilty mind). The court disagreed, and stated that the plain language of the statute does not allow delinquent acts to be included in a CHINS petition. Further, under the Mother’s interpretation the child would have to prove his guilt with respect to the act in order to show the act should be excluded from the petition. This would be an absurd result and the legislature would not pass an act leading to an absurdity. Additionally, the court points out that the definition of a child in need of services supports their interpretation because the definition does not overlap with the definition of a delinquent.

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.