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In re H.J.

Supreme Court of New Hampshire

December 21, 2018


          Submitted: November 28, 2018

          6th Circuit Court-Concord Family Division

          Petitioner, the mother of H.J., self-represented party, by brief.

          Law Office of Gary Paradis, PLLC, of Manchester (Gary Paradis by brief), for the father.

          BASSETT, J.

         The respondent, the father of H.J. (child), appeals an order of the Circuit Court (Tenney, J.) terminating his parental rights. See RSA 170-C:5 (2014). He argues that the evidence does not support the circuit court's findings that: (1) he had abandoned the child; (2) he had not paid sufficient support; and (3) termination of his parental rights was in the child's best interest. We affirm.

         The record supports the following facts. Approximately one month after the child was born, the father was incarcerated. After the father was released, the child lived with both parents. In February 2009, the mother moved out after an incident of domestic violence. From June 2009 through September 2010, a domestic violence order was in place against the father. In April 2009, the mother filed a parenting petition. The father did not appear at any of the hearings in the parenting case. In December 2009, the mother was granted sole legal and physical custody of H.J. The parenting plan granted the father supervised visitation once a week at his expense, but gave the mother discretion to refuse such visits. The plan stated that the father "may petition the court for further orders" at such time that "he believes that he can be a positive and consistent influence in [the child's] life."

         The father visited H.J. twice at a visitation center in February and March of 2010. On March 20, 2010, he failed to appear for a scheduled visit. Around this time, he was incarcerated. When he was released in early 2011, he contacted the visitation center requesting to visit H.J. The mother exercised the discretion granted to her by the parenting plan and denied his request. She expressed concern that visitation would be emotionally disruptive to the child because the father's frequent incarcerations would not allow him to become a consistent part of the child's life. The father appears to have done nothing at this time to challenge the mother's decision. The father was re-incarcerated in 2012.

         In 2013, while still incarcerated, the father filed petitions requesting a change to the parenting plan. The court denied the petitions, observing that the father was incarcerated and "not in a position to exercise his parenting time . . . because of his circumstances." The court noted that "[a]t such time as he is released, [the father] can contact the [visitation center], who can then contact [the mother]."

         The father was released from incarceration in January 2014. He testified at the hearing on the termination of his parental rights that he "probably" contacted the visitation center at that time, but did not "remember exactly." He also testified that he did not file any additional petitions with the court seeking visitation because he was "dealing with these legal issues," had limited transportation, and "had a lot on [his] plate." At some point in 2015 the father was re-incarcerated. In early 2016, he was released. Approximately a year later, in February of 2017, he was re-incarcerated.

         In October of 2017, the mother filed a petition seeking termination of the father's parental rights on the grounds of abandonment and non-support. At the hearing on the petition, the mother requested that the court terminate the father's parental rights over H.J. so that her husband, who "has been an active and constant part of [H.J.'s] life since 2010," could adopt H.J. She testified that, since July 21, 2009, she has only received $458.70 in child support and that her child support case was closed in 2014. She acknowledged that the father has occasionally sent correspondence to H.J. including "a bunch of cards in 2010," a Toys"R"Us gift card, two letters in 2016, and a birthday card in 2017. She testified that she shared these communications with H.J. and has saved them.

         The father testified that, although he has been in jail for four of the last eight years, he never intended to abandon the child. He also testified that he had "never been given the opportunity to be a father to [his child] . . . and it hasn't been for a lack of trying."

         The guardian ad litem (GAL) submitted a final report recommending that the court terminate the father's parental rights. At the hearing, the GAL testified that even though the father may not have desired to abandon the child, there has "been a substantial period of time since there has been any contact," and the father's "personal actions, his inability to stay out of criminal mischief . . . effectuated the abandonment." The GAL further testified that termination was in the child's best interest because the mother's husband was the child's "father figure," provided "day-to-day support and emotional support," and wished to adopt H.J. The GAL recognized that the mother had exercised her right to deny visitation in 2011, which prevented the child from having contact with the father on that occasion, but concluded that the lack of a relationship between the child and the father was due to the father's consistent "renewal of [his] criminal activities."

         In its termination order, the court found that the father had abandoned the child. See RSA 170-C:5, I. It also concluded that the father failed to provide adequate support. See RSA 170-C:5, II (stating that if "parents are financially able," but "have substantially and continuously neglected to provide the child with necessary subsistence, education or other care," then a statutory ground exists to terminate parental rights). The court also determined that ...

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