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In re S.T.

Supreme Court of New Hampshire

November 29, 2016


          Argued: October 6, 2016

         10th Circuit Court-Brentwood Family Division

          Joseph A. Foster, attorney general (Elizabeth A. Lahey, assistant attorney general, on the brief and orally), for the petitioner.

          Fitzgerald-Boyd Law PLLC, of Plaistow (Jacqueline C. Fitzgerald-Boyd on the brief and orally), for the respondent.

          LYNN, J.

         The respondent, the mother of a minor child, appeals the order of the Circuit Court (Weaver, J.) terminating her parental rights over the child. See RSA ch. 170-C (2014 & Supp. 2015). On appeal, the mother argues that the trial court erred by: (1) granting the petition brought by the petitioner, the New Hampshire Division of Children, Youth and Families (DCYF), to terminate her parental rights while the direct appeal of her underlying criminal conviction was pending; and (2) finding that termination of her parental rights was in the best interest of the child. We reverse and remand.


         The relevant facts follow. The child was born on September 17, 2013, to the mother and her boyfriend, the child's natural father (the father). A court order prohibited the father from having any unsupervised contact with the child and the mother's two other children.

         On October 21, DCYF received a report that the mother had brought the child to a doctor with concerns about "red eyes." The doctor determined that the child was suffering from bilateral conjunctival hemorrhages, and reported that the mother had expressed concern that the father might be hurting the child. The doctor reported that the injuries appeared to be suspicious in nature and referred the child to the emergency room for further examination. On October 22, DCYF was informed that a skeletal survey of the child had indicated multiple fractures of varying ages that were consistent with non-accidental trauma. DCYF brought an ex parte petition seeking removal of the child from the parents' care on grounds that the child "is in imminent danger based on the injuries that she has sustained, the inability of [the father] and [the mother] to follow the existing court orders and the fact that the injuries were consistent with non-accidental trauma." The petition was granted, and the child was placed in a foster home.

         On October 24, DCYF filed petitions, based upon the child's injuries, alleging abuse and neglect of the child by the father, and neglect by the mother. See RSA 169-C:3, II(b), (d), XIX(b) (Supp. 2015). On December 11, DCYF amended the abuse and neglect petitions to allege an incident involving the child in which the father "had the baby wrapped up against his body and [the mother] grabbed the child's legs and pulled and he twisted to pull the baby away." According to the doctor who examined the child, it was possible that some of the child's injuries that she had identified on October 22 "could be consistent with the description of the tugging that occurred between the parents."

         Also on December 11, the father and mother were arrested and charged with second degree assault of the child based upon the October incident. The mother was granted bail. The father subsequently pleaded guilty to eight counts of second degree assault and received an eight-to-sixteen-year sentence.

         Following a hearing on December 18, the trial court found that the father had abused and neglected the child in that he "admitted to the police and [DCYF] that he had a tug of war with the infant which resulted in at least some of her many fractures. Additionally, [he] had the opportunity to cause further injuries by having unsupervised time with [the child] in violation of this court's order." The court found that the mother had neglected the child because she

continued to minimize the risk that [the father] posed to her children. On several occasions, she allowed [the father] to care for [the child] unsupervised in violation of this Court's order, which placed the child at risk of serious harm. Additionally, [the mother] engaged in reckless conduct by tugging on [the child's] legs in an effort to get the [child] away from [the father]; their [actions] very likely resulting in serious harm to [the child].

         The court awarded legal custody of the child to DCYF because the mother "does not recognize the potential risk to [the child], as demonstrated by repeated violations of court orders related to [the father] having contact with the kids. [The mother's] minimization of the risk to [the child] coupled with her inappropriate handling of the child place [the child] at continued risk of harm in her care."

         On June 12, 2014, DCYF moved to modify the outstanding dispositional orders to: (1) "reunify the child with" the mother; (2) "remove the child from DCYF's legal custody and instead vest DCYF with legal supervision"; and (3) "modify the permanency plan from 'reunification' to 'maintain in the home.'" In support, DCYF stated that the mother had "made significant progress in attending to and managing the needs of her children, " had "continued to actively engage in services and ha[d] successfully completed case plan goals, " and had "increased frequent and liberal parenting time with [the child], even extended unsupervised parenting time encompassing the majority of each of several weeks, and ha[d] demonstrated her ability to safely parent her." The trial court granted the motion.

         On July 10, DCYF moved ex parte to withdraw its June 12 motion, stating that the mother had been charged with shoplifting which, in turn, had caused the State to move to revoke her bail, and that "[t]hese factors have caused a significant increase in stress" for the mother, thereby "adversely impact[ing] her ability to consistently parent." In addition, as a result of the mother's increased stress being conveyed to her children, her son had become "increasingly volatile, acting out aggressively, mostly toward [the child], " and, because of the son's behavior, DCYF was "not satisfied that [the child] can be safe in the care of her mother." The trial court granted the motion, and the child was placed in a foster home.

         On October 7, the child was again reunified with her mother until January 30, 2015, when the mother was convicted by a jury of second degree assault based upon the October 2013 "tug of war" incident and incarcerated. See RSA 631:2 (2016). At that time, the child was placed in the care of her maternal grandparents. At a review hearing on February 6, the trial court found that DCYF "has provided services to [the mother] throughout this case which enabled her to safely reunify with her daughter. The current removal is outside of the Division's control and not related to any current child safety concern other th[a]n the mother's incarceration." The court also found that the mother was "in substantial compliance" with the case plan wherein she had "attended parenting classes and engaged in mental health treatment, " and the court recommended that she continue with those services. The court ordered that DCYF have legal supervision of the child, and that physical custody remain with the child's maternal grandparents.

         The mother was subsequently sentenced on the second degree assault conviction to serve 10 to 20 years, with three years suspended for good behavior. DCYF thereafter sought a permanency order allowing it to place the child in foster care with the goal of adoption. After a review hearing on April 14, 2015, the trial court awarded legal custody of the child to DCYF, with placement to continue with the child's maternal grandparents. The court noted that "[a]lthough the mother and DCYF had hoped that a short prison sentence would be imposed, . . . [a]s a result of the incarceration of both the mother and the father, the reunification of the child with her parents is in doubt."

         On May 19, the trial court held a permanency hearing. See RSA 169-C:24-b (2014). The court found that twelve or more months had passed since the finding of abuse and neglect in December 2013, and that the child had been in out-of-home placement for a minimum of twelve months since October 21, 2013. See RSA 169-C:24-a, I(a) (2014). The trial court also found that DCYF had made "reasonable efforts to finalize the permanency plan of reunification" between the child and her mother. Although the mother was found to be "in substantial compliance" with the outstanding dispositional orders because she had "participated in parenting classes, and engaged in mental health treatment, " and had "actively worked with DCYF and services in order to correct conditions that led to [the child] being injured, " the court concluded that the ...

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