Argued: June 27, 2018
Circuit Court-Nashua Family Division
J. MacDonald, attorney general (Thomas Broderick, assistant
attorney general, on the brief and orally), for New Hampshire
Division for Children, Youth and Families.
Office of Kathy Ann Cellamare, of Nashua (Kathy Ann Cellamare
on the brief and orally), for Mother.
Office of Dawn E. Worsley, of Nashua (Dawn E. Worsley on the
brief and orally), for Father.
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.
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
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.
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.
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.
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
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