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In re J.H.

Supreme Court of New Hampshire

June 8, 2018

IN RE J.H.; IN RE A.H.

          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 New Hampshire Division for Children, Youth and Families.

          Kurdek Law Office, PLLC, of Merrimack (Dennis J. Kurdek on the brief and orally), for Father.

          Nixon Peabody LLP, of Manchester (Mark Tyler Knights on the brief and orally), for CASA of New Hampshire.

          HANTZ MARCONI, J.

         Father challenges the Circuit Court's (Carbon, J.) authority to hold a hearing to determine his parental fitness to regain custody of his children, J.H. and A.H., following the dismissal of the neglect petitions filed by the New Hampshire Division for Children, Youth and Families (DCYF) against him. See RSA 169-C:19-e (2014). Father also appeals the trial court's dispositional order imposing conditions on him before his children could be returned to his custody, after finding that the children were neglected by Mother but not by Father. See RSA 169-C:18 (Supp. 2017), :19 (2014), :21 (2014), :23 (2014). We affirm.

         I

         The record supports the following facts. Mother, who is not a party to this appeal, and Father are the parents of J.H. and A.H.; the parents and the children shared the same home. In November 2016, DCYF filed petitions for neglect under RSA chapter 169-C (2014 & Supp. 2017) against Mother and Father alleging neglect of both children. See RSA 169-C:6-a, VI (Supp. 2017), :7 (2014). The affidavit of the child protective service worker attached to the petitions alleged that Mother "has used heroin and likely requires treatment" and that Father was aware of Mother's heroin use and was unable or unwilling to address it. At the preliminary hearing, the court found reasonable cause to believe that the children were neglected by both Mother and Father. See RSA 169-C:15, I, III (2014). The court ordered an out-of-home placement because continuation of the children in the home "present[ed] imminent danger to" the children's health until substance abuse issues were addressed. See RSA 169-C:16, I(c) (2014). The court appointed Court Appointed Special Advocates for Children of New Hampshire (CASA) to serve as the children's guardian ad litem. See RSA 169-C:15, III(a).

         Following the adjudicatory hearing, the court dismissed the petitions against Father because there was "insufficient evidence that he was aware of Mother's drug usage." See RSA 169-C:18, IV. However, the court entered a finding of neglect against Mother because of her opioid use and overdose. See RSA 169-C:3, XIX(b) (Supp. 2017) (defining "[n]eglected child, " in part, as one whose "health has suffered or is likely to suffer serious impairment"); RSA 169-C:12-e (Supp. 2017) (providing that "[e]vidence of a custodial parent's opioid drug abuse . . . shall create a rebuttable presumption that the child's health has suffered or is very likely to suffer serious impairment"). In its adjudicatory order, the court continued the out-of-home placement, finding that returning the children to the home remained contrary to their welfare "[u]ntil such time as all substance abuse and/or mental health issues are addressed." See RSA 169-C:18, V-c. The court also ordered a social study and case plan from DCYF. See RSA 169-C:18, V.

         At the dispositional hearing, Father argued that he should be presumed fit and requested immediate reunification with the children. Father objected to the introduction of information concerning his mental health and domestic violence issues recounted in reports submitted by DCYF and CASA. DCYF's and CASA's reports alleged that Father had a history of mental health issues, alcohol misuse, and domestic violence. Additionally, Father objected to the imposition of case plan conditions requiring him to participate in anything other than supporting Mother in her sobriety.

         In its final dispositional order, the court continued the out-of-home placement based upon its finding that returning the children to the home remained contrary to their welfare. See RSA 169-C:19, III, :21. The court determined that the children could be returned home provided that the parents meaningfully completed the dispositional case plan, demonstrated their "ability to provide proper parental care, " and demonstrated that the children "will not be neglected in the manner adjudicated on the initial petition." See RSA 169-C:23.

         The case plan required Mother to "demonstrate an ability to maintain her sobriety and address any mental health and/or domestic violence issues, while simultaneously parenting her children in a safe, consistent, and age appropriate manner, " and similarly required Father to "demonstrate an ability to meaningfully identify and address the mother's substance abuse issues, " "demonstrate an ability to address any mental health and/or domestic violence issues, " and "do these things while simultaneously parenting his children in a safe and age-appropriate manner." See RSA 169-C:21, II. In addition, the parents were required to attend and participate meaningfully in counseling and treatment, see RSA 169-C:19, IV ("The court may order any parent, guardian, relative, custodian, household member, or child to undergo individual or family therapy, or medical treatment."), learn parenting skills from the parent aide during supervised visits with the children, and "[o]btain and retain a home reasonably free from untreated (or insufficiently treated) substance abuse, domestic violence, and/or mental health issues." See RSA 169-C:21, II. The court's narrative order noted the concern that Father's mental health be "properly addressed" as he plans to resume care and custody of the children. The court stated that Father "must actively participate in a Case Plan to address his abuse of alcohol, his anger, his mental health, and his lack of observation of [Mother's] use of illicit drugs." Father appealed the court's final dispositional order to this court. But see RSA 169-C:28, I (2014) (providing for appeal of "the final dispositional order" to the superior court for de novo review).

         Subsequently, the circuit court held a three-month review hearing. See RSA 169-C:24, I (2014); see also RSA 169-C:28, I (providing that an appeal does not suspend the order being appealed unless the court so orders). At the hearing, Father again requested custody of the children based on his presumed fitness. In its subsequent order, the court stated that it did not believe that a failure to prove a petition of neglect makes a parent "fit" and scheduled a parental fitness hearing to evaluate his request for custody. See RSA 169-C:19-e. Father moved for reconsideration, arguing that because the State failed to prove its neglect petitions against him, it failed to rebut the presumption that he is a fit parent, and that RSA ...


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