Submitted September 19, 2013.
6th Circuit Court -- Franklin Family Division.
Law Office of Joshua L. Gordon, of Concord ( Joshua L. Gordon on the brief), for the mother.
Nancy K. Quinlan, of Dover, on the brief, for the father.
CONBOY, J. HICKS, LYNN and BASSETT, JJ., concurred.
The respondent, the father of Sophia-Marie H. (father), appeals an order of the 6th Circuit Court -- Franklin Family Division ( Gordon, J.) terminating his parental rights. See RSA 170-C:5 (2002 & Supp. 2012). He argues that the evidence does not support the family division's findings: (1) that he failed to support, educate, and care for Sophia-Marie; and (2) that termination of his parental rights is in Sophia-Marie's best interest. We reverse.
The record supports the following facts. Sophia-Marie was born on November 10, 2008. She lived with the father and her mother, the petitioner (mother), until November 2009, when the father moved out. In February 2010, the mother filed a parenting petition seeking full custody of Sophia-Marie. [165 N.H. 334] The trial court granted the mother primary residential responsibility for Sophia-Marie until further hearing and awarded the father regular supervised parenting time.
On August 17, 2010, the father was incarcerated in the New Hampshire State Prison as a result of convictions for the possession and sale of drugs. On December 6, the trial court issued a final decree
and parenting plan awarding the mother sole custody of Sophia-Marie. The court recommended that the father have no visitation with Sophia-Marie while he was in prison, but noted that after he was released from prison he could file a motion for the court to consider " whether he should have parenting rights." The court further ordered the father to pay $50 a month in child support, which would accrue as an arrearage during his incarceration " to be paid after he obtains employment."
During his incarceration, the father sent at least sixteen letters to Sophia-Marie between October 8, 2010, and October 17, 2011. The father also made telephone calls to the mother and Sophia-Marie between November 2010 and February 2011. The mother then changed her telephone number so that the father could no longer contact them. The father testified that he continued to call for a few more months because he " thought maybe the phone was just turned off." In November 2011, after being released to a halfway house, the father telephoned the child's maternal grandmother in an attempt to contact the mother and Sophia-Marie. The grandmother hung up on him. She then advised prison authorities that she did not want the father contacting her. The father testified that a prison official told him that further attempts to contact the mother could result in his return to prison.
On February 13, 2012, the father was released from incarceration. In April, he filed a motion seeking to reinstate visitation with Sophia-Marie. In August, the mother filed a petition seeking termination of the father's parental rights on grounds of abandonment and nonsupport. See RSA 170-C:5, I, II (2002). That same month, the court held a hearing on the father's motion seeking visitation and, thereafter, issued an order awarding the father supervised visitation with Sophia-Marie. ...