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In re O.D.

Supreme Court of New Hampshire

October 23, 2018


          Argued: June 27, 2018

          9th Circuit Court-Nashua Family Division

          Gordon J. MacDonald, attorney general (Thomas Broderick, assistant attorney general, on the brief and orally), for New Hampshire Division for Children, Youth and Families.

          Law Office of Kathy Ann Cellamare, of Nashua (Kathy Ann Cellamare on the brief and orally), for Mother.

          Law Office of Dawn E. Worsley, of Nashua (Dawn E. Worsley on the brief and orally), for Father.

          HANTZ MARCONI, J.

         The parents of O.D., B.D., and G.D. appeal an order of the Circuit Court (Quigley, J.) terminating their parental rights over their children, on the ground that they failed to correct the conditions leading to a finding of neglect. See RSA 170-C:5, III (2014). They argue that the circuit court violated their due process rights by terminating their parental rights without requiring the New Hampshire Division for Children, Youth and Families (DCYF) to file new abuse or neglect petitions against them after the court issued an ex parte order removing the children from their home during ongoing neglect proceedings and by failing to appoint counsel for them during the neglect proceedings. We affirm.


         The record supports the following facts. Mother and Father are the biological parents of the three children. Prior to January 2015, the children were living with their grandmother, who was their legal guardian. After receiving reports that the grandmother was homeless and that she had been arrested for shoplifting while in the company of one of the children, DCYF obtained an ex parte order in January 2015 removing the children from her custody and care. The children were placed in an out-of-home placement. Thereafter, DCYF filed three neglect petitions alleging that the grandmother neglected each of the children. See RSA 169-C:7 (2014). The affidavit of the child protective service worker attached to the petitions alleged that the grandmother neglected the children due to her: (1) failure "to secure safe and appropriate housing for the children"; (2) arrest for shoplifting in the presence of O.D. and endangering the welfare of a child; (3) inability to "provide basic medical care for the children"; and (4) inability "to meet [O.D.]'s mental health needs." Mother and Father were not living with the children at the time the petitions were filed. In February 2015, after holding an adjudicatory hearing on the neglect petitions, the Circuit Court (Moore, J.) found that the children were neglected. See RSA 169-C:18, V (2014). In its order, and in its order following the dispositional hearing, the court required DCYF to provide services to the grandmother, the parents, and the children. See RSA 169-C:21 (2014). DCYF developed a case plan; the first objective included that the parents "will locate and secure appropriate housing for the children" and "[c]reate a plan addressing how [they] will protect their children from exposure to substance abuse and domestic conflict."

         In August 2015, the Circuit Court (Quigley, J.) terminated the grandmother's legal guardianship over the children, at DCYF's request, after finding that the guardianship was "no longer in the best interests of the three minor children." The grandmother was dismissed from the RSA chapter 169-C proceedings.

         The Circuit Court (Moore, J.) held review hearings in June, September, and December of 2015 to assess the parents' compliance with the dispositional order and case plan conditions. The court determined that Mother and Father were "in partial compliance" at each hearing. The children remained in an out-of-home placement.

         In an order issued after a permanency hearing in March 2016, the Circuit Court (Moore, J.) found that DCYF had discussed "parental surrender with both parents." The court further found: "Both parents have indicated their desire to continue to participate in case plan services to work towards the proposed goal of reunification prior to a termination of parental rights trial being conducted." The court also found that the parents could not "demonstrate that the children would not be endangered in the manner adjudicated on the initial petition, if returned home" because they could not "demonstrate that the children will not be exposed to domestic violence and substance abuse." See RSA 169-C:23 (2014) (setting forth standard for return of child in placement pursuant to RSA chapter 169-C). The court found that it was anticipated that reunification between the children and the parents would be achieved in June 2016, and continued the children's out-of-home placement.

         In July 2016, DCYF filed an assented-to motion to modify custody, requesting reunification of the children with the parents. DCYF represented that Mother and Father "ha[d] been participating in extensive parenting time," which had been "going well," and that they "ha[d] been able to provide for all the needs of the children," including maintaining "stable housing that is safe and appropriate for the children." DCYF also represented that the parents "ha[d] been compliant with Court orders and . . . achieving their case plan goals." The Circuit Court (Leary, J.) granted the motion and transferred legal and physical custody of the children to Mother and Father; DCYF maintained legal supervision and was ordered to provide referrals and support services, and to perform monthly home assessments. The children were reunified with the parents at the parents' home in Massachusetts on July 11, 2016.

         Thereafter, the Massachusetts Department of Children and Families (MDCF) received "reports of concerns" about the children while they resided with the parents, which MDCF shared with DCYF. In November 2016, a DCYF family services worker went to the parents' home to evaluate whether it was safe for the children. After consulting with MDCF, DCYF filed an ex parte motion in the pending RSA chapter 169-C case in New Hampshire, requesting removal of the children from the parents' Massachusetts home. DCYF alleged, in part, that ...

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