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In re K.H.

Supreme Court of New Hampshire

June 19, 2015

IN RE K.H.

Argued: May 21, 2015

2nd Circuit Court - Haverhill Family Division

Joseph A. Foster, attorney general (Laura E.B. Lombardi, senior assistant attorney general, on the memorandum of law and orally), for the petitioner.

James R. Laffan, of Lebanon, by brief and orally, for the respondent.

DALIANIS, C.J.

The respondent, D.H., appeals an order of the Circuit Court (Cyr, J.) granting the petition of the petitioner, the New Hampshire Division for Children, Youth and Families (DCYF), to terminate his parental rights over his son, K.H., on the ground that he failed to correct, within 12 months, the conditions leading to a finding of neglect. See RSA 170-C:5, III (2014). On appeal, the respondent argues that: (1) the trial court admitted hearsay evidence in violation of RSA 170-C:10 (2014); and (2) there was insufficient evidence to support the court's finding that he failed to correct the conditions leading to the original neglect finding and its determination that terminating his parental rights was in the child's best interests. We affirm.

I. Background

The trial court found, or the record contains, the following facts. The child was born in February 2008. On September 17, 2009, a petition for abuse/neglect was brought against the respondent and the child's mother. At that time, the respondent was incarcerated in a county jail in connection with an incident in which he had punched the child's mother in the stomach in the child's presence. The petition was based upon domestic violence between the parents, the failure of the parents to maintain a safe, clean, and sanitary home for their child, and their failure to address their respective mental health issues. The affidavit in support of the petition alleged, among other things, that DCYF was "concerned with the decisions that the parents are making regarding their son" because it was "apparent that there are anger issues, domestic violence, and parenting issues, " including issues related to "the home environment, supervision of [the child] and [the respondent] being incarcerated for assault."

Thereafter, the parents consented to a finding of neglect. The trial court approved their consent decree on September 23, 2009. Pursuant to the decree, the child was placed with his mother, the respondent was granted supervised visitation with him, and DCYF was awarded legal custody of him.

The child remained in his mother's physical custody until March 2010, when the court awarded DCYF protective supervision of the child because the mother had failed to supervise him properly and had placed him at risk of harm. The trial court placed the child with his current foster family, where he remained until June 22, 2011, when he was placed with the respondent.

Between June 22, 2011, and September 13, 2012, the original neglect case remained open, and DCYF continued to provide services. However, in approximately early September 2012, assessment workers and the guardian ad litem visited the respondent's home to investigate a report that he had physically abused and emotionally neglected the child (a report that was never confirmed). They found the child's behavior to be out of control, observing him choking and hitting the respondent. The respondent had to be prompted to tell the child to stop. The respondent told an assessment worker that he did not discipline the child when the child acted out. The child told the worker that he hits the respondent because the respondent does not listen to him.

During the week after this initial visit, the child again acted out aggressively. At one point, he struck the respondent in the groin with a bar, causing bleeding. On another occasion, the respondent called the police twice in one evening because the child was hitting and throwing things. On still another occasion, the police were called because the child was in a car, throwing things. The police were able to get the child out of the car, and they took him to the emergency room. Later, the respondent told police officers that he could no longer have the child in his home.

The next weekend, DCYF approved placing the child with his current foster family for respite care. The respondent and his girlfriend, who is not the child's mother, reported that, after the child returned from his foster family's home, he was like a different child. However, within days of the child's return to the respondent's home, a parenting support worker, who was at the respondent's home at the time providing services, called DCYF because the respondent again said that he could not "do this anymore, " meaning that he could no longer take care of his son. The child was again taken to his foster family for respite care.

On September 13, 2012, DCYF filed an ex parte motion to change the child's placement from his father's care to that of a licensed foster parent. In its motion, DCYF stated that it sought a change in placement for the child because "[t]here is reasonable cause to believe that [the child] is in a potentially unsafe environment with his father who is unable to maintain [the child's] behaviors in the home." The trial court granted the motion, and the child was placed, ...


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