2006-833, IN RE JUVENILE 2006-833

Normandin, Cheney & O’Neil, PLLC

No. 2006-833

Laconia Family Division

DCYF filed petitions for neglect against the respondent and the juvenile’s the parties. The juvenile was born on January 19, 2004. In January 2005, The following facts appear in the record before us or are not disputed by

Disabilities Rights Center, Inc., of Concord, (Ronald K. Lospennato

see HICKS, J. The respondent-mother filed a petition for writ of certiorari,

respondent’s petition. (DCYF) to file a petition to terminate her parental rights. We deny the J.) directing the New Hampshire Division for Children, Youth and Families Sup. Ct. R. 11, challenging an order of the Laconia Family Division (Martin,

Amy B. Messer on the brief, and Ms. Messer orally), as amicus curiae.

Division for Children, Youth and Families. brief, and James W. Kennedy, III, attorney, orally), for the New Hampshire

the brief and orally), for the respondent.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as respondent filed a motion asking the court to order that DCYF pay for her p. 2 unclear whether the respondent pursued these resources. On March 15, the stating that she would have to contact the various agencies directly. It is three different resources that could assist her in paying for her medications, On March 8, DCYF sent a letter to the respondent with information on

parent.” respondent’s “psychological evaluation raised concerns as to her ability to opinion if medications are not available.” The court also found that the respondent] may claim lack of assistance to sustain corrective action by expert to develop appropriate parenting skills. At the Permanency Hearing, [the stating: “DCYF [is ordered] to evaluate [the respondent’s] need for medication Following a hearing in early February 2006, the court issued an order

ordered by the court. that the respondent had ceased attending individual counseling sessions as to assist clients with payment of prescriptions.” DCYF also noted in its report court’s order regarding the respondent’s medications: “The Division is not able In a DCYF report dated January 30, 2006, DCYF responded to the

help [the respondent] to receive [her] medically recommended medicine.” counselor.” The court further noted: “DCYF shall use all reasonable efforts to outpatient counseling and . . . follow any recommendations made by her services provided by the State, “meaningfully participate in individual respondent to “continue to address her mental health needs” and, through the her mental health medications. The court issued an order requiring the requested an order from the court requiring the State to cover the co-pays on proceedings. At a review hearing on November 9, 2005, the respondent respondent’s mental health was a primary concern throughout these orders aimed at correcting the conditions leading to the neglect findings. The 2 April 2006 to review the parents’ progress and their compliance with court Several hearings were held in the family division from May 2005 through

evaluations.” psychological and anger management and/or batterers’ intervention evaluations; and (4) “satisfy and comply with all recommendations of both their

complete therapeutic parenting classes”; (3) complete psychological management and/or batterers’ intervention assessments”; (2) “satisfactorily parents. The parents were ordered to, among other things: (1) “complete anger in February and April 2005, findings of neglect were entered against both same foster home throughout these proceedings. Following a two-day hearing who was placed in a licensed foster home. The juvenile has remained in the preliminary hearing in February, DCYF was given legal custody of the juvenile, with failure to thrive by two independent medical providers.” Following a father, see RSA 169-C:7 (2002), alleging that the juvenile “ha[d] been diagnosed p. 3 On October 12, the Court (Martin

medications would help to resolve her mental health issues.

her necessary medications. She requested more time to see whether the represented that she had recently joined a program that would help her obtain individual counseling sessions as required by the court. The respondent that the respondent had failed to address her mental health issues or attend At a second permanency hearing held on September 6, DCYF reiterated

respondent to pay for her medications. filed a permanency report with the court, detailing these efforts to assist the a list of pharmacies in her area which accept the card. In late August, DCYF prescription card which could be used to obtain a discount on medications and On May 10, DCYF sent another letter to the respondent with a

obtain financial aid for her medications.

1. DCYF shall assist [the respondent] in the effort to

It is hereby ordered that:

. . . .

cannot always afford all necessary medications. . . .

her own mental health issues for which the family

difficulties in the discharge of her parental duties is

A significant factor in [the respondent’s]

. . . .

permanency plan of reunification between the child[ ]” and the parents; the among other things, that: DCYF had made “reasonable efforts to finalize the

reasonable efforts at reunification, but has not

the Court (McKenna the father and adoption of the minor by her foster parents. After the hearing, reports recommending termination of the parental rights of the respondent and Before the hearing, the court-appointed special advocate and DCYF filed The motion was heard at the scheduled permanency hearing in April.

[The court] find[s] that the DCYF has made

recommendation:

status and ability to parent.” medications alleged to be “essential to maintain [the respondent’s] emotional listing all of the respondent’s medications and their purpose, including prescribed medications. The motion included a letter from a nurse practitioner p. 4 Petition of State of N.H. (State v. San Giovanni)

arbitrarily, unreasonably, or capriciously.

law, or unsustainably exercised its discretion or acted

I. Statutory Arguments

respect to jurisdiction, authority or observance of the

is limited to whether the trial court acted illegally with would result in substantial injustice. Certiorari review the writ sparingly and only where to do otherwise

to the child’s home.” RSA 169-C:24-a, III(c). RSA 170-C:5, III provides that a III (2002); (2) her right to due process; and (3) her right to equal protection. reasonable efforts as the state deems necessary for the safe return of the child this error violated: (1) RSA 169-C:2 (2002), RSA 169-C:24-a and RSA 170-C:5, the family of the child, consistent with RSA 170-C:5, III, such services and failure to “secure alternative means of payment.” The respondent argues that for termination of parental rights, however, if “[t]he state has not provided to evidenced, she suggests, by DCYF’s refusal to pay for her medications and its file a petition for termination of parental rights. The State cannot file a petition permanency plan of reunification between the juvenile and herself. This was the most recent 22 months,” RSA 169-C:24-a, I(a), the State may be required to finding of child neglect or abuse, under the responsibility of the state, for 12 of when it found that DCYF had made reasonable efforts to finalize the The respondent asserts that the family division erred as a matter of law “Where a child has been in an out-of-home placement pursuant to a discretion of the court. We exercise our power to grant 4

granted as a matter of right, but rather at the

Because there is no statutory right to de

(citations omitted). Certiorari is an extraordinary remedy that is not , 154 N.H. 671, 674 (2007)

supreme court. See In re Diane R., 146 N.H. 676, 678-79 (2001). party seeking review may file a petition for writ of certiorari in the superior or from a post-final dispositional order in a RSA chapter 169-C proceeding, a

petition for writ of certiorari. court. See RSA 169-C:24-a (Supp. 2007). The respondent then filed this termination of parental rights petition against both parents in the probate significant mental health needs.” The court ordered DCYF to proceed with a of the child[ ]” in part because she had failed to address her “numerous and respondent “cannot demonstrate that return of custody is in the best interests respondent was only in partial compliance with prior orders; and the to pay for her medications were reasonable. See p. 5 efforts made by DCYF in helping the respondent to obtain financial assistance consideration DCYF’s limitations, regarding both its staff and finances, the her that it was her responsibility to contact them directly. Taking into on these various programs and provided all the information to her, informing resources referred to her. DCYF, however, did the research for the respondent card. The record is unclear as to whether the respondent pursued any of the medications and a list of numerous pharmacies in her area which accept the provided the respondent with a prescription card that provided a discount on for three different agencies that could help pay for her medications. DCYF also 2006, DCYF provided the respondent with information and contact numbers efforts” under RSA 169-C:24-a and RSA 170-C:5, III. By letter dated March 8, We believe that DCYF’s actions were sufficient to constitute “reasonable

This accords with our prior decisions. In Jonathan T.

role is to “[p]rovide assistance to parents to deal with and correct problems.” disagree. help the respondent obtain financial assistance for medications. The State’s make sure that the [respondent] was able to procure these medications.” We better caregivers to their children. In the present case, DCYF provided aid to medications, DCYF . . . did not take the necessary time and effort required to N.H. at 303. In this manner, DCYF provided aid to help the parents become recourse in dealing with her mental health issues was to obtain her necessary preparing checklists to help the family develop routines. Jonathan T., 148 The respondent contends that “when it became evident that [her] best DCYF made reasonable efforts to help the parents with reunification by

N.H. at 648.

In re Jonathan T. whether the services provided have been accessible, available and appropriate. In assessing the State’s efforts, the family division must consider

1999). are to be adjudged . . . .” In re Antony B., 735 A.2d 893, 900 (Conn. App. Ct. linchpin on which the department’s efforts in a particular set of circumstances parent and child.” Id. (quotation omitted). “The word reasonable is the its available staff and financial resources to maintain the legal bond between N.H. 644, 648 (2004). “Thus, the State must put forth reasonable efforts given constrained by its staff and financial limitations. In re Juvenile 2003-195, 150 we have recognized that the State’s ability to provide adequate services is

, 148 N.H. 296, 301 (2002); RSA 169-C:24-a, III(c). However,

[court] to rectify the conditions.” months of the finding despite reasonable efforts under the direction of the have failed to correct the condition leading to the finding of neglect “within 12 petition for termination of parental rights may be granted where the parents p. 6 We do not reach the issue raised by the amicus

to reunify the respondent with the juvenile. unreasonably, or capriciously in finding that the State made reasonable efforts family division unsustainably exercised its discretion or acted arbitrarily, Accordingly, based upon the record before us, we cannot say that the

II. Due Process and Equal Protection

raised before the family division. See protection “under New Hampshire law.” These arguments, however, were never pay for or secure her medications violates her right to due process and equal The respondent argues that DCYF’s failure to make reasonable efforts to

rights was in accord with the statutes cited by the respondent. 6 division’s order requiring DCYF to file a petition for termination of parental dispute these findings in her petition. We hold, therefore, that the family of custody is in the best interests of the child[ ].” The respondent does not that “the child[ ] will not be endangered . . . if returned home,” nor that “return Petition of Support Enforcement Officers, Accordingly, the family division found that the respondent did not demonstrate meaningfully and consistently in the services ordered by this court.” parents had unsupervised visitation,” and the respondent “has not participated care,” the child “lost weight during the three-month period of time in which the “demonstrate that [the child’s] health is not likely to suffer if returned to her division found that since the original finding of neglect, the respondent failed to as may be necessary to prevent abuse or neglect of children.” The family C:2, I, such as: to “[p]rotect the safety of the child,” and to “[t]ake such action review. Syncom Indus. v. Wood, 155 N.H. 73, 78 (2007). was not raised in the family division and therefore is not preserved for our whenever possible,” this does not trump the other goals listed under RSA 169purposes of the Child Protection Act is to “[p]reserve the unity of the family of the Americans with Disabilities Act to these proceedings because this issue Further, while we recognize that under RSA 169-C:2, I(b), one of the regarding the application

possible.” In re Antony B.

by DCYF. The respondent must make her own effort in conjunction with the efforts made

“Reasonable efforts means doing everything reasonable, not everything overruled on other grounds by In re Craig T., 14 p. 7 7 N.H. 739, 744-45 (2002). for their own children” (quotation omitted)), cert. denied, 452 U.S. 964 (1981), DCYF must “work with the natural parents to enable them to provide a family responsibilities. Cf. In re Diana P., 120 N.H. 791, 798 (1980) (recognizing that RSA 169-C:2, I(c). Its role is not to assume the full weight of the parents’ 7

Petition denied

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

them. writ of certiorari that was not raised below). Accordingly, we decline to address 14 p. 7 7 N.H. 1, 8 (2001) (declining to review constitutional argument in petition for