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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 ___________________________ Claremont Family Division No. 2008-785 IN RE ZACHARY G. & a. Submitted: May 14, 2009 Opinion Issued: July 31, 2009 Kelly A. Ayotte, attorney general (Suzan M. Lehmann, senior assistant attorney general, on the memorandum of law), for the State. Elliott, Jasper, Auten, Shklar & Wellman-Ally, LLP, of Newport (Bruce R. Jasper on the brief), for the mother. HICKS, J. The mother, S.G., appeals an order of the Claremont Family Division (Scheffy, J.) terminating her parental rights. See RSA 170-C:5, III (2002). We affirm. The record supports the following. S.G. is the natural mother of two minor children: Zachary G. and Kandace G. The New Hampshire Division for Children, Youth and Families (DCYF) filed petitions in March 2004 (the 2004 petitions) alleging that Zachary was abused and that Zachary and Kandace were neglected. See RSA 169-C:3, II(d), XIX (2002). Among other things, the petitions alleged repeated physical abuse of Zachary by A.G. (Zachary's father and S.G.'s husband) and S.G.'s failure to protect Zachary and Kandace from A.G.'s violent behavior. The Claremont District Court approved a consent order in May 2004, entered findings of abuse and neglect, granted DCYF legal supervision of the

children, prohibited visitation with the father, and required S.G. to undergo psychological and parenting evaluations. The court issued a dispositional order in June 2004 allowing the children to remain in S.G.'s custody under DCYF supervision. The court ordered S.G. to "maintain a safe and sanitary home" and A.G. to "undergo a batterers evaluation." After a review hearing in September 2004, the court commended S.G. for "keeping her home safe and clean" and being "receptive [to suggested] parenting strategies." It noted, however, that S.G. "has shown that she is unable to keep potentially harmful men out of her life." The court ordered outof-home foster care placement for the children and required S.G. to undergo further parental counseling. The court held another review hearing in December 2004 and found that, although S.G. demonstrated continuing commitment to maintaining the home and developing as a parent, she continued "having difficult[y] . . . keeping inappropriate men out of her home" and refused "to accept any responsibility for the children being removed from her care." It further noted that A.G. had been on S.G.'s "property at least 5 times despite a protective order instructing him to stay away from the residence." The court ordered S.G. to continue counseling. The court made similar findings and rulings following a March 2005 review hearing. Over the following months, counselors and professionals working with S.G. made several observations calling into doubt her ability to keep abusive men out of her children's lives. In a June 2005 addendum to an earlier assessment report, Familystrength counselor Phyllis Ranta noted that S.G. remained hesitant to admit that A.G. abused Zachary, even when confronted with photographs of Zachary's bruises. Ranta further noted that S.G.'s "current belief that she now truly understands why [A.G.] should not see the children is to be viewed cautiously" in view of her past "cycle of understanding" that inevitably lapses "back to her initial thinking pattern." A September 2005 report from the guardian ad litem (GAL) indicated that S.G. "did not feel that it should be her responsibility to keep the children away from their father." The GAL also found "it . . . highly probable that if the children are returned to [S.G.] she will allow contact between them and [A.G.]." She therefore recommended terminating the parental rights of both parents. As a result, DCYF urged termination of parental rights and adoption as the permanent plan at a September 2005 permanency hearing. The court, however, rejected this plan in October 2005. It ordered DCYF to begin gradual reunification. The court later granted DCYF's motion to close the action. In October 2006, DCYF filed new petitions for abuse and neglect (the 2006 petitions) against A.G. and S.G. alleging that from June through October 2006, A.G. abused Zachary in S.G.'s home. In January 2007, the Claremont

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Family Division issued orders of protection after it found that A.G. abused Zachary and that S.G. neglected both children. Specifically, it found that A.G. resided with the children in S.G.'s home in contravention of previous orders, that A.G. slapped Zachary while in the home and that S.G. knowingly allowed A.G. in the home without taking necessary precautions to ensure Zachary's safety. The children were placed with a relative. After a February 2007 dispositional hearing, the family division ordered out-of-home foster care placement because of S.G.'s failure to correct the conditions leading to its findings of abuse and neglect. DCYF petitioned the family division in May 2007 to terminate A.G.'s and S.G.'s parental rights. It referenced the 2004 and 2007 findings of neglect and cited as grounds for termination S.G.'s failure "to correct the conditions leading to the May . . . 2004 finding of neglect despite reasonable efforts under the supervision of the district court." After a February 2008 permanency hearing, the family division ruled that both parents failed to correct the conditions leading to the findings of abuse and neglect. It found that twelve months had passed since the January 2007 finding of neglect against S.G. and that DCYF made reasonable efforts to reunify S.G. and her children. It relieved DCYF from making future efforts towards reunification. Finally, it ordered DCYF to petition for termination of parental rights. DCYF, however, appears not to have filed a petition for termination following the permanency hearing because its May 2007 petition was still pending. Prior to the family division's termination hearing, S.G. moved in limine to exclude from the hearing any "attempt[] to show that [S.G.] has failed to correct the conditions leading to the May . . . 2004 finding of neglect" because implicit in closing the 2004 case "was that [S.G.] had met the goals and corrected the conditions that led to the finding of neglect." The court deferred ruling on the matter. The five-day termination hearing commenced on February 29, 2008, and concluded on June 11, 2008. In its decision, the family division first noted that A.G.'s voluntary relinquishment of parental rights mooted DCYF's petitions relating to him. It then denied S.G.'s motion in limine. Considering all of the evidence concerning both actions, it ordered termination of S.G.'s parental rights. On appeal, S.G. argues that the trial court erred by denying her motion in limine. S.G. further challenges the statutory grounds for termination and the sufficiency of evidence supporting the family division's decree.

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I.

Estoppel

Before the court may involuntarily terminate parental rights, "the petitioning party must prove a statutory ground for termination," In re Antonio W., 147 N.H. 408, 412 (2002), and the court "must consider whether [termination] is in the child's best interest," In re Matthew G., 124 N.H. 414, 416 (1983); see RSA 170-C:1 (2002). DCYF called several witnesses at the termination hearing to relate observations from the first abuse and neglect action. Some witnesses gave opinion testimony in view of evidence from both actions. S.G. contends that the family division erred by denying her motion in limine because collateral and judicial estoppel preclude reconsideration of any such evidence. We disagree. A. Collateral Estoppel "Spurred by considerations of judicial economy and a policy of certainty and finality in our legal system, the doctrine[] of . . . collateral estoppel [has] been established to avoid repetitive litigation so that at some point litigation over a particular controversy must come to an end." Cook v. Sullivan, 149 N.H. 774, 777 (2003) (quotation omitted). Thus, "[t]he doctrine . . . bars a party to a prior action . . . from relitigating any issue or fact actually litigated and determined in the prior action." Id. at 778 (quotation omitted). The burden of proving estoppel is on the party asserting it. Appeal of Stanton, 147 N.H. 724, 730 (2002). We will uphold the trial court's ruling unless unsupported by the evidence or legally erroneous. Cardinal Dev. Corp. v. Town of Winchester Zoning Bd. of Adjustment, 157 N.H. 710, 715 (2008). Three basic conditions must . . . be satisfied before collateral estoppel will arise: the issue subject to estoppel must be identical in each action, the first action must have resolved the issue finally on the merits, and the party to be estopped must have appeared as a party in the first action . . . . Cook, 149 N.H. at 778 (quotation omitted). S.G. has satisfied her burden of demonstrating these three conditions. There is no dispute that DCYF appeared in the first action and that the relevant issue -- whether S.G. corrected the conditions leading to the 2004 finding of neglect by no longer exposing the children to violent, abusive men -- is germane to both actions. Although that issue was never resolved by an express finding, necessarily implied by the October 2005 order to reunify is a finding, on the merits in a now closed action, that the children "will not be endangered in the manner adjudicated on the initial petition, if returned home," RSA 169-C:23, II (2002) (listing prerequisites to reunification). See Restatement (Second) of Judgments

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