2005-426, IN RE JUVENILE 2005-426

foster home. We affirm.

permanent living arrangement” (APPLA); namely, long-term care in the son’s Court (Carbon, J.) that the permanency plan for his son be “another planned DUGGAN, J. The father, T.D., appeals the order of the Concord District

guardian ad litem, Court Appointed Special Advocates of New Hampshire, Inc.

David N. Sandberg, of Manchester, by memorandum of law, for the

orally), for the father, T.D.

Goldman & LeBrun, P.A., of Concord (John P. LeBrun on the brief and

Division for Children, Youth and Families. to press. Errors may be reported by E-mail at the following address: general, on the memorandum of law and orally), for the New Hampshire

Kelly A. Ayotte, attorney general (Elyse S. Alkalay, assistant attorney

No. 2005-426 editorial errors in order that corrections may be made before the opinion goes Concord District Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as scheduled for January 2005. p. 2 violations, the father was denied parole and a new parole hearing was with the outstanding dispositional order. However, due to disciplinary family as his son’s permanency plan. outstanding dispositional order and, instead, ordering APPLA with a foster

extension from his then anticipated release date of October 27, 2004, to comply discretion by failing to grant the father an extension to comply with the

be considered in the event that reunification could not be achieved. agreement between the father and DCYF granting the father a ninety-day that in addition to termination of parental rights/adoption, APPLA would also delay, the district court in its February 2005 review hearing order, indicated distilled into one: whether the district court unsustainably exercised its

2005, the district court denied the father’s motion to reconsider and this permanency plan be long-term care with his current foster home. On June 7, four permanency options set forth by the federal Adoption and Safe Families father’s release. On May 12, 2005, the district court ordered that the APPLA does not appear in New Hampshire law. Rather, APPLA is one of

with his son could occur. setting forth several requirements to be met by the father before reunification July 29, 2003, the district court approved DCYF’s proposed dispositional order its order following the August 2, 2004 review hearing, the court approved an as the concurrent plan in the event that reunification could not be achieved. In parole was postponed because of a disciplinary violation. In light of the second The father raises four issues on appeal. The four issues, however, can be the permanency plan, with termination of parental rights/adoption identified

A permanency hearing was held on May 9, 2005, five days after the

and one-half to eight year prison sentence. RSA 169-C:3, XIX(c) (2002). On

2005 to comply with the outstanding dispositional order. Again, the father’s substantially complied with the dispositional order and reunification remained extension of ninety days from his newly anticipated release date in January In November 2004, the district court granted the father a second

reason of . . . incarceration” because on April 17, 2002, he began serving a two adjudicatory hearing, the court found that the father had neglected his son “by neglect petition in Concord District Court against the father. After an each of the first five hearings, the district court found that the father had February 2005, during which time the father remained incarcerated. After The district court held six review hearings between October 2003 and

New Hampshire Division for Children, Youth and Families (DCYF) filed a The following facts are contained in the record. On June 5, 2003, the p. 3 Court Improvement Project. arrangement . . . .

and Permanency Planning” established by the New Hampshire District Court’s contained in New Hampshire’s “Protocols Relative to Abuse and Neglect Cases guardian) placed in another planned permanent living three permanency options. These standards and procedures are also

placed for adoption, with a fit and willing relative, or with a legal that it would not be in the best interests of the child to order any of the other return home, be referred for termination of parental rights, or be determining that it would not be in the best interests of the child to proper standard. Nor does he argue that DCYF failed to document to the

where the state agency has documented a compelling reason for determining least preferable option, APPLA, the court may order such a plan only in cases has documented to the State court a compelling reason for next consider referral for legal guardianship. With respect to the fourth and the father does not argue on appeal that the district court failed to apply the

continuation of foster care. 42 U.S.C. § 675(5)(C). referred for legal guardianship, or (in cases where the State agency termination of parental rights. If neither option is appropriate, the court must interests of the son, but did not explicitly apply the standard above. However, State will file a petition for termination of parental rights, or child will be returned to the parent, placed for adoption and the

foster care, and at least once every twelve months thereafter during the not appropriate, then the second option is adoption and a petition for In this case, the district court’s order found that APPLA was in the best for the child that includes whether, and if applicable when, the

hearing must occur within twelve months after the date the child has entered at a permanency hearing. 45 C.F.R. § 1356.21 (2001). The permanency Thus, the first option is reunification with the parents. If reunification is until the state court makes “reasonable efforts to finalize a permanency plan” hearing . . . which hearing shall determine the permanency plan

42 U.S.C. § 675(5)(C) provides in pertinent part:

at 45 C.F.R. pts. 1355-57). Under ASFA, a state will not receive federal funding foster care under the supervision of the State of a permanency [P]rocedural safeguards will be applied . . . to assure each child in

The federal statute also establishes a standard for placement in APPLA.

Services State Plan Reviews, 65 Fed. Reg. 4029 (Jan. 25, 2000) (to be codified foster care.” Title IV-E Foster Care Eligibility Reviews and Child and Family enacted ASFA, in part, “to speed critical decision-making for all children in care and adoption assistance. See 42 U.S.C. §§ 670, 675 (2000). Congress Act of 1997 (ASFA), which provides the states with federal payments for foster that he wanted him to stay there at that time. p. 4 himself recognized that his son was doing well in the foster home and stated removal from that placement. Finally, at the permanency hearing, the father

his desire to remain with his current foster parents, but that he actually feared

such an environment. DCYF also noted that the son had not only expressed environment. Earlier GAL reports indicated that the foster placement provided DCYF stressed the importance of placing him in a stable and secure

be detrimental to [his] psychological well being . . . .” the stability and security that he needed and “[t]o disrupt this placement would noted that in the meantime, the son’s foster placement was providing him with

foster family and was thriving in that placement. At the permanency hearing,

because of [his] behavior.” [was] due to his own inappropriate behavior . . . .” Finally, the district court

In addition, the father testified that he “stayed in the prison nine extra months address the case plan . . . [and] [h]is request for yet another extension of time that “he’s got a lot of work to do just to stay out of prison and establish a life.” could obtain his driver’s license. The father’s counsel further acknowledged

foster placement where he had been since July 17, 2004. Reports from both

extensive time within which to demonstrate an ability and willingness to environment for his son. The district court found that the father “had job and was required to complete an alcohol awareness program before he he was unable to demonstrate that he was able to provide a safe and stable

The district court also found that the son was “deeply vested” in his

released from incarceration. In addition, he was living with his sister, had no father was not in compliance with the outstanding dispositional order and that hearing, the father’s counsel noted that the father had only recently been The record supports the district court’s findings. At the permanency

reasonable person could have found as the trial judge did.

with the dispositional order. the father argues that he should have been granted a third extension to comply At the time of the permanency hearing, the district court found that the

whether we would have found differently; rather, we determine whether a the parties and their witnesses. Id. Consequently, our task is not to determine assess and weigh the evidence before it because it has the benefit of observing N.H. 83, 84 (2002). As the trier of fact, the trial court is in the best position to unsupported by the evidence or tainted by error of law. In re Adam M., 148 We will uphold the rulings and findings of the trial court unless they are

adoption nor guardian appointment were in his son’s best interests. Rather, district court compelling reasons to demonstrate that neither reunification, p. 5 5

court’s order.

BRODERICK, C.J.