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In Re Jack L.

March 16, 2011


The opinion of the court was delivered by: Lynn, J.

Henniker Family Division

Argued: January 13, 2011

The respondents, mother and father, appeal an order of the Henniker Family Division (Scheffy, J.) terminating their parental rights over their son, Jack L., on the grounds of abandonment. See RSA 170-C:5, I (2002); RSA 170-C:15 (2002). We affirm.


The record supports the following. Jack L. was born in February 1999 to the respondents. In January 2004, based on certain aspects of the mother's treatment of the child, the Coos County Probate Court granted, with the consent of the parents, a guardianship over the child to his paternal grandmother.

Three years later, the division for children, youth and families (DCYF) filed a petition against the grandmother in the Hillsborough District Court, pursuant to RSA chapter 169-C (2002 & Supp. 2010), alleging that she had neglected Jack L., based on an inability to provide proper supervision for, or maintain the safety of, Jack L. and his sister in the home. In connection with this proceeding, the court appointed a guardian ad litem (GAL) for Jack L. At a preliminary hearing in July 2007, both parents were present. Stating that "the children's natural parents . . . are at risk of losing their parental rights as a result of this petition," the District Court (Barry, J.) also appointed counsel to represent them individually. In August, psychological evaluations of both parents were conducted. In September, both parents left New Hampshire and moved to the State of Washington.

Following an adjudicatory hearing scheduled for August 8, see RSA 169-C:18 (2002), a dispositional hearing was held on November 14, 2007. By that time, the case had been transferred to the Henniker Family Division. The Henniker Family Division found that the grandmother had neglected Jack L. and awarded legal custody of the child to DCYF. Although the parents had been sent notice of the dispositional hearing, they remained out of state and did not attend.

In March 2008, a three-month review hearing was held. Again, the parents were sent notice of the review hearing, but did not attend. By that time, the parents had moved from Washington, but had not provided DCYF with a new address. In April, the father contacted DCYF, as he "was in the area" and wanted to see his daughter and Jack L. DCYF informed the father that he would need to see the children's therapist before any such visit could occur. The father met with his daughter's therapist once, and had one unauthorized contact with Jack L.

In June 2008, a six-month review hearing was held; DCYF still had no address or telephone number for either of the parents. In August, a DCYF child protection service worker (CPSW) learned from the grandmother that the parents were living in Arkansas. Subsequent to the nine-month review hearing, from which the parents were again absent, the family division ordered the parents to appear for the next review hearing. In October, the grandmother gave the CPSW a specific address for the father in Searcy, Arkansas. Finally, in December, an investigator at the attorney general's office called the CPSW and told her that the father and grandmother had met with him, and that the father was living in the area. There was not, however, a specific address or telephone number provided for locating the father.

On December 18, 2008, DCYF filed termination of parental rights (TPR) petitions against both parents on the grounds that they had abandoned Jack L. The parents unsuccessfully moved to dismiss the petitions, arguing, among other things, that their rights under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 et seq. (2006), were violated because guardians were not provided for them in the underlying neglect proceedings. Subsequent to a hearing, at which both parents appeared with counsel, their parental rights were terminated on February 10, 2010. This appeal followed.


Parental rights are "natural, essential, and inherent" within the meaning of Part I, Article 2 of the New Hampshire Constitution. In re Adam R., 159 N.H. 788, 792 (2010) (quotation omitted). Nevertheless, the fundamental rights of parents are not unassailable, and terminations of parental rights will be upheld if applicable due process requirements have been met. Id. The dominant consideration in termination proceedings under RSA chapter 170-C (2002 & Supp. 2010) is the welfare of the child, which prevails over the interests of the parents. Adam R., 159 N.H. at 792. Before a court may order the termination of parental rights, the petitioning party must prove a statutory ground for termination beyond a reasonable doubt. Id.; see In re Zachary G., 159 N.H. 146, 153 (2009) (family division); RSA 170-C:5; see also RSA 490-D:14 (2010) (statutory references to probate courts include the judicial branch family division). If a statutory ground is established, the court must then consider whether termination is in the child's best interest. Adam R., 159 N.H. at 792. The assessment of a child's best interest is not an evidentiary fact, however, and need not be established "beyond a reasonable doubt." Id. (quotation omitted).

The trial court, as the trier of fact, is in the best position to assess and weigh the evidence before it. Id. It has the benefit of observing the parties and their witnesses. Id. We will not disturb the family division's finding unless it is unsupported ...

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