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In re N.B

Supreme Court of New Hampshire

August 19, 2016

IN RE N.B.; IN RE J.B.

          Argued: April 5, 2016

         8th Circuit Court-Jaffrey Family Division

          Rilee & Associates, P.L.L.C., of Bedford (Cyrus F. Rilee, III on the brief), and Zimble & Brettler, LLP, of Boston, Massachusetts (Charles R. Capace on the brief and orally), for Tammy Cole.

          Joseph A. Foster, attorney general (MaryBeth Misluk, attorney, on the memorandum of law and orally), for the New Hampshire Division for Children, Youth and Families.

          Nixon Peabody LLP, of Manchester (W. Daniel Deane and Mark Tyler Knights on the brief, and Mr. Deane orally), for CASA of New Hampshire.

          LYNN, J.

         The appellant, Tammy Cole, appeals an order of the Circuit Court (Forrest, J.), which ruled, in part, that in the event Cole institutes an action for damages against the New Hampshire Division for Children, Youth and Families (DCYF) and/or Court Appointed Special Advocates of New Hampshire (CASA) or their agents or employees, the case must be filed as confidential and the pleadings submitted under seal. Because we find that the court's ruling constitutes an unconstitutional prior restraint on speech, we reverse this part of the order.

         The record reflects the following facts. Tammy Cole is the biological grandmother of N.B. and J.B. In May 2012, DCYF filed a petition alleging that N.B. and J.B. had been neglected by their biological parents. See RSA 169-C:7, I (2014). The court appointed CASA to serve as the children's guardian ad litem. After the court made a finding of neglect and awarded DCYF legal custody, DCYF removed N.B. and J.B. from their parents' home and placed them in Cole's physical custody. In November 2013, the biological parents sexually abused N.B. and J.B. during an unsupervised visit. The court subsequently terminated the biological parents' parental rights, and the abuse and neglect case was closed. In May 2014, Cole and her husband adopted the children.

         In July, Cole filed a motion in the circuit court seeking to copy the court's records relating to the children's abuse and neglect case. Cole also notified DCYF and CASA that N.B. and J.B. had potential negligence claims against these agencies based upon the abuse that occurred while the children were in the legal custody of DCYF. DCYF and CASA objected to Cole's motion and each requested a protective order. DCYF and CASA argued that Cole was not entitled to make a copy of the court record, and CASA requested that the court grant a protective order limiting Cole's inspection of the records to review at the courthouse and limiting disclosure of the court file.

         After a hearing, the court granted Cole's motion to copy records and also granted CASA's request for a protective order, in part. It first concluded that Cole was entitled to "inspect" the court's records pursuant to RSA 169-C:25, I(a) (2014), which creates an exception to the confidentiality of court records of abuse and neglect proceedings that allows the records to be accessed by parents and certain other persons. Next, the court concluded that Cole's ability to "inspect" the court records did not preclude making a copy of the records to review outside of the court. Turning to the requests for protective orders to limit the disclosure of the contents of the court records, the court "recognize[d] that a nondisclosure order constitutes a prior restraint on Ms. Cole's first amendment rights, and that it is permissible only if it is narrowly tailored to serve a compelling state interest." After balancing Cole's right to free speech against the children's right to privacy and the State's interest in protecting that privacy, the court concluded that it saw no need for the details of the case to be discussed with the media, but that any protective order should be tailored to give Cole the ability to file a civil suit on behalf of N.B. and J.B. To meet the competing interests it identified, the court made three rulings pertaining to Cole's use of the records:

1) Ms. Cole and/or her counsel may obtain a full copy of the court records for her adoptive children's nonpublic proceedings.
2) Neither Ms. Cole nor her counsel nor anyone else who is entitled, through her, to access the juvenile court records may disclose those materials publicly, whether through self-publication or through sharing those materials with journalists or other private individuals not directly involved in the present case.
3) In the event that Ms. Cole proceeds with her planned civil suit, the pleadings are to be filed under seal and the case is to be filed as confidential. The framework set out in Petition of Keene Sentinel, 136 N.H. 121 (1992) can then be applied by the court before which the case is filed.

         Cole moved for reconsideration of the third part of the order. The court denied the motion, and this appeal followed.

         On appeal, Cole challenges only the third part of the trial court's order, which requires that any future case be filed as confidential and the pleadings filed under seal. She argues that this constitutes a prior restraint on free speech that violates her rights under the New Hampshire and United States Constitutions because it is neither narrowly tailored nor does it serve a compelling State interest. Further, she asserts that it impermissibly places the burden upon her, instead of on the parties seeking nondisclosure, and that it unfairly restricts her disclosure while allowing others to disclose the same information. DCYF and CASA argue that there are a number of compelling State interests that justify the order and that the order is narrowly tailored to serve these interests as it is limited in both scope and duration. Because Cole does not challenge the second part of the trial court's order, which precludes her from publicly disclosing the court records, and because it would violate this part of the order if she were to publicly file ...


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