In re C.M. & a
Argued June 26, 2014.
5th Circuit Court -- Newport Family Division
Joseph A. Foster, attorney general ( Rosemary Wiant, assistant attorney general, on the memorandum of law and orally), for the petitioner.
Barbara L. Parker, of Newport, on the brief and orally, for respondent Larry M.
Simpson and Mulligan, P.L.L.C., of Lebanon ( James L. Mulligan, on the brief and orally), for respondent Sonia M.
LYNN, J. HICKS and BASSETT, JJ., concurred; CONBOY, J., concurred specially. CONBOY, J., concurring specially.
The respondents, Larry M. (Larry) and Sonia M. (Sonia), appeal the order of the Circuit Court ( Cardello, J.), terminating their parental rights over their children, A.M. and C.M. See RSA ch. 170-C (2014). On appeal, Larry argues that the trial court erred by: (1) proceeding with the termination case based on an underlying neglect case in which he [166 N.H. 767] was improperly denied counsel; and (2) finding that termination of his parental rights was in the best interests of the children. Sonia argues that the court erred because: (3) the trial judge did not recuse himself despite the fact that he presided over the underlying neglect case in the circuit court. Both respondents argue that the court erred by: (4) failing to afford them twelve months from the superior court's de novo finding of neglect within which to correct the conditions which led to the finding of neglect; and (5) finding that the petitioner, the New Hampshire Division for Children, Youth and Families (DCYF), made reasonable efforts to assist them in correcting the conditions that led to the neglect finding. We affirm.
The following facts are supported by the record or are not in dispute. On April 12, 2011, DCYF initiated proceedings in the circuit court against Larry and Sonia, alleging that they had neglected their children by failing to provide them with a safe and sanitary home and adequate supervision, and by exposing them to household domestic violence. See RSA 169-C:7 (2014). The court granted DCYF temporary custody of the children, see RSA 169-C:6, :6-a (2014), and, pursuant to the law in effect at that time, see RSA 169-C:10, II(a) (2002) (repealed 2011; re-enacted 2013), appointed counsel to represent each parent. An adjudicatory hearing was held on May 12, at which the parents were represented by appointed counsel. See RSA 169-C:18 (2014). Following the hearing, the Circuit Court ( Cardello, J.) found that both parents had neglected the children and continued the order granting legal
custody to DCYF. Both parents also were represented by appointed counsel at the dispositional hearing held on June 13. After this hearing, the court ordered that the children remain in the legal custody of DCYF and set forth specific measures that the parents were to undertake before the children could be returned to them.
Both parents appealed to the superior court, and a de novo hearing was scheduled for August. See RSA 169-C:28 (2014). In the interim, on July 1, 2011, Laws 2011, 224:77 took effect. This legislation amended RSA 169-C:10, II(a), so as to abolish the statutory right to counsel for an indigent parent alleged to have abused or neglected his or her child. Thereafter, the parents each filed a motion to continue to be represented by court-appointed counsel, asserting that such representation was mandated by the State and Federal Constitutions. The superior court approved an interlocutory transfer of these constitutional issues to this court, and we subsequently held in In re C.M., 163 N.H. 768, 48 A.3d 942 (2012), that although the State and Federal Constitutions did not guarantee the right to court-appointed counsel to every indigent parent accused of abusing or neglecting his or her child, such a right may exist under the facts and circumstances of a [166 N.H. 768] particular case. See In re C.M., 163 N.H. at 777-78. We remanded to the superior court to determine whether appointment of counsel for either or both parents was constitutionally required in this case. Id. at 778.
On remand, the Superior Court ( Tucker, J.) determined that neither Larry nor Sonia was constitutionally entitled to appointed counsel. The court found that Sonia is a high school graduate who had received special education services while in school, that she had completed the requirements for a licensed practical nurse certificate, and that she suffers from severe depression. The court found that Larry is partially disabled and blind in one eye and that he received special education assistance while in school. Despite their limitations, the court found that the parents were capable of understanding and responding to the allegations in the petition. The court noted that the case did not present particularly complex legal issues or expert testimony, examples of circumstances which our C.M. opinion indicated might require the appointment of counsel for an accused parent. See id. at 777. Rather, the court found that the case was straightforward, involving allegations that the parents failed to provide adequate food and clothing for the children, that they were subjected to unclean living conditions, and that they were exposed to physical violence between the parents. The court also found that the parents' purported defense -- lack of financial resources to provide for the children -- was not so complex as to be difficult for them to explain. With the assistance of counsel, the parents moved for reconsideration of the order denying them appointed counsel. The court denied the motion, and neither parent appealed that ruling.
Following a de novo hearing, the superior court issued its adjudicatory order on January 16, 2013. The court found that Larry and Sonia had neglected C.M. (then age eight) and A.M. (then age six) and ordered that the children remain in the custody of DCYF. The court found that Larry took a " hands-off approach" to parenting, leaving such responsibilities to Sonia, even after he was confronted with an investigation into the home situation. He engaged only sporadically with a parent educator from the Good Beginnings program when she sought to help the parents develop the skills necessary to maintain a proper level of parental care and control. He blamed Sonia for not keeping him apprised
of appointments with Good Beginnings, but also acknowledged that he made no efforts on his own to learn of the meeting times. The court found that Sonia had " difficulty meeting her obligations as, in effect, a single parent to her two boys." Although she attended meetings with the representative of Good Beginnings, she also missed scheduled appointments. She suffers from depression, but stopped seeing a doctor for this condition after he denied her medication on her first visit.
[166 N.H. 769] The court recited evidence adduced at the hearing showing that: (1) Larry was physically violent with Sonia in front of the children, including an incident in which the police were called because he had been trying to choke her; (2) the household was chaotic, permeated with the smell of garbage and cigarette smoke; (3) the children were regularly left unattended and free to engage in mischief, on one occasion pulling a fire alarm, on another throwing beer bottles out the window, and on yet another, watching an adult video depicting shooting and killing; and (4) Sonia left C.M. at home alone while she took a long walk to court with A.M. in order to attempt to have lifted a restraining order she had obtained against Larry. The court also referenced the testimony of more than one witness that there was little or no food in the home and that the children were lacking in proper hygiene and did not have adequate clothing for the winter. The court observed that Sonia attributed the absence of food and medicine in the home to the fact that she had neglected to submit paperwork necessary to obtain public assistance. The court found that neither parent works and that Sonia's lack of employment was apparently based on her choice to stay at home.
Additionally, the court found that neither parent ensures that the children attend school. In a period of approximately three months, C.M. had over twenty unexcused absences from his first grade class, as a result of which his academic progress suffered, and he was deprived of the opportunity to eat breakfast provided by the school. Calls to C.M.'s home to inquire about the absences were not returned. A.M. started school at Head Start but lost his placement with that program due to continual absences. Although Sonia attributed the school absences to lack of transportation, she admitted to a DCYF worker that she had trouble getting the children to bed and that they often remained awake until past midnight. The worker said that the children appeared exhausted.
The court's narrative order summarized as follows:
It was shown that the parents neglect to provide the children with certain necessities, including adequate food and clothing. While there are monetary issues to be sure, the parents use the income they have on cigarettes. It is not clear whether Larry ... is able to work, but Sonia has been employed and now chooses to stay home. The parents have not been diligent in obtaining public assistance, despite efforts by others to assist them in doing so.
The parents do not ensure that their boys attend school. Sonia ... contends it is due to transportation problems, but the evidence was that the parents have not responded to attempts by representatives of Head Start and the town ... to address the issue. The evidence suggests further that transportation is not the [166 N.H. 770] only impediment to school attendance. Due to a lack of parental control, the children keep late hours and, by implication, lack sufficient sleep to begin the school day on time.
A third sign of neglect is the home environment. Sonia ... resisted efforts
to convince her to relocate to a domestic violence shelter in order to remove the children and herself from threatening conduct by Larry ... .
In sum, [C.M.] and [A.M.] require a greater degree of care or control than Larry and Sonia ... are presently willing or able to provide. This lack of care or control is not ...