Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address. reporter@courts.state.nh.us Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough County Probate Court No. 2006-674 IN RE JUVENILE 2006-674 Argued: March 22, 2007 Opinion Issued: August 17, 2007 Jordan, Maynard and Parodi, PLLC, of Nashua (Steven L. Maynard on the brief and orally), for the respondent. Kelly A. Ayotte, attorney general (Jill A. Desrochers, attorney, on the memorandum of law and orally), for the State. HICKS, J. The respondent, father of the juvenile, appeals an order of the Hillsborough County Probate Court (Patten, J.) terminating his parental rights for failure to correct conditions that had led to a prior finding of neglect under RSA chapter 169-C (2002 & Supp. 2006). See RSA 170-C:5, III (2002). We affirm. The following facts were either found by the trial court or appear in the record before us. The juvenile was born on May 20, 1998. On September 9, 1998, the New Hampshire Division for Children, Youth and Families (DCYF) filed a petition for neglect against the juvenile's mother alleging that the juvenile was in imminent danger and "likely to suffer additional serious impairment" due to the mother's "continued abuse of alcohol." As a result, the

juvenile was placed with a foster family with whom he has remained since October 13, 1998. The respondent has been involved in the abuse and neglect proceedings in the district court since their inception. His reported concerns about the mother were recounted in the supporting affidavit to the abuse and neglect petition, and he appeared at the adjudicatory hearing on the petition. For some six years after the finding of neglect against the mother, DCYF, at the court's behest at numerous review hearings, made repeated efforts to foster conditions under which the respondent could assume full custody of the juvenile. For example, the respondent was provided with various forms of assistance, including parent aides and home based services. He was ordered to participate in parenting classes, maintain appropriate housing, remain sober, and continue counseling "to address . . . his poor interpersonal skills and his parenting abilities." The respondent's "poor interpersonal skills" were a primary concern throughout the abuse and neglect proceedings. According to a court-ordered psychological evaluation, the respondent "has an extensive history of mental illness with an array of diagnoses assigned over the years: Bipolar Disorder, Mixed Personality Disorder with paranoid, histrionic, narcissistic, dependant, and/or borderline traits, Generalized Anxiety Disorder, Depression, and a provisional diagnosis of Schizo-affective Disorder." The Nashua District Court (Howorth, J.) noted that a "feature of [the respondent's personality] disorder is a marked inability to avoid hostile and intimidating behavior when confronted with persons and situations which he regards as being non-supportive." On December 19, 2000, the District Court (Howorth, J.) established a "provisional permanency plan of reunification" of the juvenile with the respondent. Sometime prior to April 2003, the respondent sought legal and physical custody through a "Bill F." proceeding in the Nashua District Court. See In re Bill F., 145 N.H. 267 (2000); see also RSA 169-C:19-e (2002). The District Court (Leary, J.) found that the respondent was "not fit to assume full custody of his son at this time." Nevertheless, reunification of the respondent and the juvenile remained the goal through at least July 16, 2003. The respondent's behavior, however, continued to be problematic. Orders from a post-permanency review hearing before the District Court (Leary, J.) noted that "[r]eports from DCYF, CASA [(Court Appointed Special Advocates)], and SNHS [(Southern New Hampshire Services)] document ongoing and repeated incidents of inappropriate and threatening actions by [the respondent]." These actions apparently included "telling a worker at SNHS that `he [the respondent] could be one of those people you hear about on top of a roof shooting people.'"

2

On July 9, 2004, the District Court (Leary, J.) entered a permanency order finding the respondent "unfit to perform the parental duties required to provide for the financial and emotional support for [the juvenile]." The court opined that "[b]ased on the history of [the respondent's] behavior, and the nature of his diagnosis, it is highly unlikely that this behavior will change in the future." On October 4, 2004, the District Court (Leary, J.) ordered that DCYF was no longer required to make reasonable efforts toward reunification between the juvenile and either parent and authorized DCYF to initiate the termination of parental rights. The probate court terminated the respondent's parental rights on August 3, 2006, finding beyond a reasonable doubt that, "after a finding of child neglect under RSA 169-C, [the respondent] has failed to correct the conditions that lead to the finding of neglect, within 12 months, indeed, within 6 years, of that finding, despite reasonable efforts under the direction of the district court to rectify the conditions." On appeal, the respondent argues: (1) that the trial court impermissibly expanded the grounds for terminating parental rights under RSA 170-C:5, III, thereby violating his state and federal due process and equal protection rights; and (2) that there was insufficient evidence to establish, beyond a reasonable doubt, that the respondent had failed to correct conditions of neglect. "Before a court may order the termination of a parent's rights, the petitioning party must prove a statutory ground for termination beyond a reasonable doubt." In re Juvenile 2003-195, 150 N.H. 644, 648 (2004). Under the statutory ground alleged in the petition against the respondent, parental rights may be terminated when "[t]he parents, subsequent to a finding of child neglect or abuse under RSA 169-C, have failed to correct the conditions leading to such a finding within 12 months of the finding despite reasonable efforts under the direction of the district court to rectify the conditions." RSA 170C:5, III. Once the probate court has found the petitioning party's burden of proof to be satisfied, "it must then consider whether termination is in the child's best interest." Juvenile 2003-195, 150 N.H. at 648. "We will not disturb the probate court's decree unless it is unsupported by the evidence or plainly erroneous as a matter of law." Id. The respondent argues that "the trial court improperly expanded the statutory definitions of RSA 170-C:5 to accommodate a theory of termination of parental rights not authorized by the statute." He contends that the court erroneously accepted the State's theory tying the district court's prior finding, at the Bill F. hearing, of the respondent's unfitness "to allegations of a failure to correct conditions of neglect, as creating the basis to terminate" his parental rights. We disagree.

3

The petition for termination of the respondent's parental rights alleged that "[p]ursuant to RSA 169-C: 19-e, [the respondent] was found by the Nashua District Court . . . not fit to assume full custody of [the juvenile]." The petition clearly stated, however, that the ground for termination was failure to correct conditions of neglect pursuant to RSA 170-C:5, III. The probate court also clearly ruled that it did not base the termination of the respondent's parental rights upon the outcome of the Bill F. hearing. Rather, the court stated: [The respondent's] actions and inactions found by the district court in its orders on the fitness question under RSA 169-C:19-e, . . . and the permanency hearing order leading to the termination of parental rights proceedings . . . are facts presented as evidence, among other evidence presented, for a determination that [the respondent] ultimately failed to correct the conditions of neglect that [the juvenile] suffered, and would likely continue to suffer because of those failures. We agree. The court heard testimony from a number of witnesses over six days of hearing. It recounted numerous prior orders of the district court throughout the six-year history of the abuse and neglect proceedings, as well as the child impact assessment and CASA's guardian ad litem report. We conclude that the trial court did not use the district court's prior finding of unfitness at the Bill F. hearing as "the basis to terminate" the respondent's parental rights. The respondent also argues that the trial court erroneously "expanded the statutory definitions of RSA 170-C:5" by concluding that the neglect suffered by the juvenile was not his mother's alcoholism, but the actual and potential impairment of his well being. He offers, as evidence that the court read the statutory language more broadly "than a literal reading would indicate," the following statement by the trial court: "[I]t is not the [mother's] alcoholism that is the statutory neglect. Rather, it is the likelihood of or actual serious impairment of the child's physical, emotional, and mental well being that are the conditions of neglect that must be repaired and corrected in the district court process." RSA 169-C:3, XIX (2002) defines "[n]eglected child" to include a child: (b) Who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, when it is established

4

that his health has suffered or is very likely to suffer serious impairment . . . . The trial court accurately interpreted and applied the statute. The respondent further contends that his parental rights may not be terminated under RSA 170-C:5, III, consistently with due process, where he "had nothing at all to do with the underlying factors that caused his son to be brought within the protective umbrella of RSA 169

Download 2006-674, IN RE JUVENILE 2006-674.pdf

New Hampshire Law