Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Petition of New Hampshire Division For Children, Youth And Families

Supreme Court of New Hampshire

March 15, 2018

PETITION OF NEW HAMPSHIRE DIVISION FOR CHILDREN, YOUTH AND FAMILIES

          Argued: February 1, 2018

         9th Circuit Court-Manchester Family Division

          Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior assistant attorney general, on the brief and orally), for the New Hampshire Division for Children, Youth and Families.

          Sakellarios and Associates, LLC, of Manchester (Olivier Sakellarios on the brief and orally), for the respondent.

          Nixon Peabody LLP, of Manchester (Jason A. Casey on the brief and orally), and CASA of New Hampshire, of Manchester (Betsy Paine and Caroline Delaney on the brief), for Court Appointed Special Advocates of New Hampshire, as amicus curiae.

          HICKS, J.

         The New Hampshire Division for Children, Youth and Families (DCYF) filed a petition for writ of certiorari, see Sup. Ct. R. 11, challenging orders of the Circuit Court (Carbon, J.) closing a child protection case brought under RSA chapter 169-C (2014), and appointing the New Hampshire Department of Health and Human Services (DHHS) as guardian of the minor child pursuant to RSA 170-C:11, IV (2014). We reverse and remand.

         I

         The facts are not in dispute. In November 2014, DCYF filed a petition for neglect under RSA chapter 169-C against the respondent-mother alleging that she neglected her child by engaging in drug use and exposing the child to domestic violence in the home. See RSA 169-C:7 (2014). Following a hearing, the child was found to be neglected. In January 2015, the trial court held a dispositional hearing and issued orders requiring, among other things, that the mother: attend and meaningfully participate in substance abuse and/or mental health counseling; attend and meaningfully participate in visits with the child; follow the terms of her release from incarceration and remain free from incarceration; and obtain and maintain a home free from untreated substance abuse, mental health issues, and/or domestic violence.

         At a three-month review hearing in April, the mother was found to be in "partial compliance." At a six-month review hearing in August, the mother failed to appear and was found to be "not in compliance." At a permanency hearing in December, the mother was again found to be "not in compliance, " at which time DCYF recommended and the court ordered a change in the permanency plan from reunification to adoption and that DCYF file a termination of parental rights petition under RSA chapter 170-C to enable adoption to occur.

         In October 2016, a hearing was held on DCYF's petition for termination of parental rights on grounds that the mother had failed to correct the conditions leading to the finding of neglect. See RSA 170-C:5, III (2014). The court denied the petition, finding that DCYF failed to meet its burden of proof as to the legal grounds for termination beyond a reasonable doubt. According to the court, DCYF did not present evidence of the mother's failure to correct the conditions that led to the finding of neglect despite DCYF's provision of reasonable efforts. The court also found that termination would not be in the child's best interest given her apparently "significant mental health issues, " the lack of evidence of what services were offered to the child, and the fact that, if the court were to terminate the mother's parental rights, the child "would be in State care for an indeterminate period of time." In addition, the court noted that it was undisputed that the mother and child "have a strong bond, " that the mother appeared to be taking her obligations seriously, and that, if appropriate care was provided to the child, and the mother could correct the conditions that led to the finding of neglect, "perhaps [the child] may be able to be returned to her mother's care." The court indicated that it would schedule a second permanency hearing "for purposes of determining a new permanency plan."

         The court subsequently determined that, rather than holding a new permanency hearing, it would conduct a dispositional hearing "to determine services to be provided to the family." Accordingly, in January 2017, the court held a dispositional hearing at which it "received input from all parties as to the future plan for [the child] and services to be afforded to her mother." DCYF recommended that the permanency plan be reunification with the mother, with the alternative plan being termination and adoption if the mother was unable to correct the conditions that led to the finding of neglect. The court stated that it would adopt the proposed orders as submitted and scheduled a review hearing to take place in May.

         In February, however, the court, sua sponte, issued an order concluding that "the New Hampshire legislature has determined that guardianship should be awarded for a child, pursuant to RSA 170-C:11, IV, when a termination proceeding fails, but the Court nonetheless believes that the child's parental care requires substitution or supplementation." The court found the language of the statute mandatory, and that "[n]o discretion is provided in this context, assuming that the Court finds a need for substitution or supplementation." The court reasoned:

It is clear . . . that there is a present need for substitution/supplementation of parental care for [the child]. Although [DCYF] failed to prove, beyond a reasonable doubt, that the grounds for termination exist, there is ample evidence that Mother has not fully complied with the outstanding dispositional orders, and has not been able to demonstrate that [the child] would not be endangered in the manner adjudicated if she were to be returned home. The Court cannot find that returning [the child] to her home is in her best interests. [See RSA 169-C:23.] Accordingly, the Court orders ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.