2007-084, IN RE JUVENILE 2007-084

his parental rights and is not a party to this matter. brother. The father of the juvenile’s half-brother has voluntarily relinquished

against the juvenile’s mother alleging abuse and neglect of the juvenile’s half-

page is: http://www.courts.state.nh.us/supreme. respondent resided in Florida. The same day, DCYF filed a second petition a.m. on the morning of their release. The direct address of the court's home alleging that the juvenile’s mother had neglected him. At the time, the reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 Youth and Families (DCYF) filed a petition with the Rochester District Court dispute. On November 27, 2003, the New Hampshire Division for Children, The probate court found the following facts, which the parties do not

and remand. son, the juvenile in this case, pursuant to RSA 170-C:5, III (2002). We vacate County Probate Court (Cassavechia, J.) terminating his parental rights over his GALWAY, J. The respondent father appeals an order of the Strafford

Nancy K. Quinlan, of Dover, on the brief and orally, for the respondent.

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

editorial errors in order that corrections may be made before the opinion goes No. 2007-084 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford County Probate Court 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 dated May 29, 2007.

p. 2 children were already residing. we affirmed the probate court’s decision relative to the mother by an order

parental rights. 2 ordering DCYF to file petitions in the probate court for the termination of

2004, the respondent moved into his parents’ home, where the mother and the respondent over the juvenile. Both parents appealed. Following briefing, the parental rights of the mother over both children, and the parental rights of 2006. The probate court issued an order dated November 7, 2006, terminating

reunification efforts, ending DCYF’s obligation to aid in reunification, and hearing, and on August 29 and September 2, 2005, issued orders ending the findings of neglect. On August 18, 2005, the district court held a permanency alleged, neither parent had meaningfully corrected the conditions leading to the returned from Florida. Also, at some point between May 2004 and July 26, dispositional hearing and a case review hearing in May 2004, the respondent mother have no contact with the respondent. Some time between the and the children were removed and placed in foster care. County Probate Court, which held a hearing on September 11, 12, and 13, for the correction of the conditions leading to the neglect findings. DCYF filed termination petitions against both parents in Strafford both of the parents to assess their compliance with the requirements set out

the mother and the respondent from reunification to termination because, it On July 21, 2005, DCYF filed a motion to change the case plans of both

conditions leading to the finding of neglect. One requirement was that the from the home. On July 26, 2004, the district court granted DCYF’s request violation of the no-contact order, DCYF requested that the children be removed to DCYF. Based upon the domestic violence incident and the mother’s 21, 2005, various hearings were held in the district court relating to one or various requirements for the respondent to fulfill. From that point until July hearing was held at which the district court adopted a case plan outlining perpetrated in the children’s home. On October 25, 2004, a dispositional respondent stipulated to a finding of neglect resulting from domestic violence An adjudicatory hearing was held on September 23, 2004, at which the On July 29, 2004, DCYF filed a neglect petition against the respondent.

submitted by DCYF outlining the requirements for the mother to correct the on February 5, 2004, during which it adopted the proposed case plan entry of this consent agreement, the district court held a dispositional hearing and the respondent occurred in the presence of the children and was reported On July 9, 2004, an incident of domestic violence between the mother

she stipulated to a finding of neglect relative to both children. Following the On December 23, 2003, the mother signed a consent agreement in which court erred.

p. 3 period of at least twelve months, and because it did not do so, the probate

statute requires that the probate court review the respondent’s behavior over a of abuse or neglect. respondent’s adjudication of neglect and his permanency hearing. Because the that it considered only the approximately eleven months between the permanency hearing August 18, 2005 . . .).” Thus, the probate court admits

over the span of twelve months, to correct the conditions leading to the finding

the twelve-month point’ is correct (adjudication date September 23, 2004 to order] to the effect that the father’s case ‘was approximately three weeks shy of probate court confirmed that “[t]he statement at page 8 [of the probate court parental rights. Following a request for clarification from this court, the

be granted, the probate court must determine whether the parents have failed, Therefore, under the language of the statute, before a petition to terminate may the conditions have been corrected until twelve months have elapsed. conditions be corrected within twelve months, it cannot be determined whether

which dates it considered when deciding whether to terminate the respondent’s Upon initial evaluation, the probate court’s order was unclear as to

whole.”

amount of time or, if not, the full twelve months was not required in this case. district court to rectify the conditions.” Because the statute requires that the months of the finding despite reasonable efforts under the direction of the C, have failed to correct the conditions leading to such a finding within 12 “The parents, subsequent to a finding of child neglect or abuse under RSA 169- C:5, III provides that a petition to terminate parental rights may be granted if: we ascribe the plain and ordinary meaning to the words used. Id. RSA 170- When construing a statute, we first examine its language and, where possible, evidence. In re Juvenile 2005-212, 154 N.H. 763, 765 (2007) (quotation omitted). parental rights was in the best interest of the child, were unsupported by the legislative intent as expressed in the words of the statute considered as a “In matters of statutory interpretation, we are the final arbiter of

parental rights. DCYF responds that either the respondent had the required months, he contends it was error for the probate court to terminate his conditions leading to the finding of neglect. Because he did not have twelve C:5, III requires that he have a minimum of twelve months to correct the Regarding the respondent’s statutory argument, he argues that RSA 170-

made reasonable efforts to reunify him with his child, and that terminating his he failed to correct the conditions leading to the finding of neglect, that DCYF neglect. Additionally, he contends that the probate court’s determinations that required twelve months to correct the conditions leading to the finding of On appeal, the respondent contends that he was not given the statutorily p. 4 4

despite reasonable efforts under the direction of the district court to rectify the

arguments raised by the respondent. conditions leading to such a finding within twelve months of the finding, of the probate court on the ground stated, we do not address the other abuse under RSA chapter 169-C, the parents must have failed to correct the proceedings consistent with this opinion. Because we have vacated the order petition to terminate parental rights based upon a finding of child neglect or RSA 170-C:5, III (2002) requires that, before the probate court may grant a BRODERICK, C.J., concurring specially. I concur with the majority that

concurred specially. DALIANIS, DUGGAN and HICKS, JJ., concurred; BRODERICK, C.J.,

terminating the respondent’s parental rights and remand the matter for For the reasons stated, we vacate the order of the probate court

legislature. to deny any parent, including the respondent, that which is granted by the to the applicability of twelve months, and neither this court nor the probate court is in the position RSA 170-C:5, III requires the probate court to review a parent’s conduct over distinct that Melissa M. has no bearing on our decision here. As we have held, terminating parental rights. The relevant statutory issues are sufficiently timeframe for the probate court to consider in making its determination about final order of the district court. Here, the statute is concerned with the proper statute at issue in Melissa M. concerned the reunification requirements of a contends, relying upon over the full twelve months. However, Melissa M. is distinguishable. The was not necessary for the probate court to review the respondent’s behavior DCYF also contends, citing In re Melissa M., 127 N.H. 710 (1986), that it

the respondent’s behavior from some other point, and we express no opinion as September 200 p. 4 4, it is irrelevant whether the probate court could have reviewed respondent’s behavior beginning with his stipulation to a finding of neglect in Because, however, the probate court confirmed that it reviewed the respondent was made aware of the finding of neglect against the mother. court could have reviewed the respondent’s behavior from the time the

“subsequent to a finding of child neglect or abuse under RSA 169-C,” DCYF 170-C:5, III states that the time period for calculating the twelve months begins DCYF argues that the probate court’s order should be upheld. First, while RSA respondent’s behavior over twelve months as required by RSA 170-C:5, III, Despite our holding that the probate court erred by failing to review the erred.

p. 5 that, however, I am not prepared at this point to say that the probate court neglect. Because I am not certain that the probate court has not already done of at least twelve months to correct the conditions leading to the finding of

this case to the probate court to decide whether the father failed over a period

requirement. Consequently, I concur with the majority’s decision to remand

argument. DCYF’s memorandum of law states: twelve months.” I do not believe that is an accurate portrayal of DCYF’s other date subsequent to September 23, 2005, which was after the statutory not necessary for the probate court to review the [father’s] behavior over the full permanency hearing. I am not so certain of that. statutorily required twelve-month period, or on November 7, 2006, or some The majority states that “DCYF also contends, citing [Melissa M.], that it was August 18, August 29, or September 2, 2005, all of which were before the re Melissa M., 127 N.H. 710 (1986), has no bearing on a decision in this case. end date of its review, I am uncertain if the probate court review ended on In addition, I write separately because I disagree with the majority that In

parental rights. period between September 23, 2004, and August 18, 2005, the date of the majority states that “the probate court admits that it considered” only the probate court’s clarification of an inconsistency in the wording of its order, the agreement.” Absent a definitive statement from the probate court regarding the correct the conditions leading to the finding of neglect. Based upon the November 7, 2006, “approximately 26 months after the father signed a consent the probate court’s order granting the petition for termination was issued September 2, 2005. In addition, this court’s request for clarification noted that on August 29, 2005, and was supplemented with a second order issued on that the district court order subsequent to the permanency hearing was issued The probate court’s response to our request for clarification also noted

to which dates the probate court considered when it terminated the father’s months have elapsed.” I write separately, first, because I remain uncertain as cannot be determined whether the conditions have been corrected until twelve is the date on which the probate court ended its review of the father’s efforts to father stipulated to a finding of neglect. What remains unclear to me, however, on which the Rochester District Court held an adjudicatory hearing and the me that the probate court began with the date of September 23, 2004, the date court as to which dates it considered in making its determination. It is clear to As noted by the majority, we requested clarification from the probate

statute requires that the conditions be corrected within twelve months, it conditions. I also concur with the majority’s statement that “[b]ecause the interests via adoption. p. 6 could be ordered in furtherance of the child’s permanency

reunification was necessary under any conditions no termination result that where the district court properly ruled no effort toward neglect case. To conclude otherwise would lead to the anomalous no failure to correct grounds proved unless there is a predicate

Melissa M. concerned the reunification requirements of a final order of the the majority that Melissa M. is “distinguishable” as the “statute at issue in I find the reasoning of the probate court to be persuasive. While I agree with

case brought under RSA 170-C:5, III, as here, since there can be twelve-month period. M.] ruling would not have equal application to a failure to correct is not dispositive if the district court efforts did not continue for a co-terminus [T]he court cannot conceive of any logical reason why the [Melissa

rights case under RSA chapter 170-C. The probate court continued: to a neglect case under RSA chapter 169-C, and not a termination of parental In the instant case, the probate court recognized that Melissa M. related

which reunification could safely occur.” Id. at 714. which a parent and child may be reunited when no conditions exist under the statute “does not require a court to attempt to specify conditions under Notwithstanding the language of RSA 169-C:21, II, we disagreed, and held that regain custody of the child, as required by RSA 169-C:21, II. Id. at 712. erred in failing to establish a plan of conditions for him to meet in order to month period for probate court review (required by RSA 170-C:5, III) is met, it 711. On appeal to this court, the father contended that the trial court had termination of parental rights in the probate court. Melissa M., 127 N.H. at custody of Melissa to the division, and directed the division to file a petition for “abused child” within the meaning of RSA 169-C:3, II, awarded permanent Court’s interpretation is nevertheless sound. abused. On de novo appeal, the superior court found that Melissa was an pursuant to RSA chapter 169-C, entered a finding that Melissa had been ordered in any event. While revealing that the father had sexually abused his daughter, the district court, In Melissa M., subsequent to the division of welfare’s investigation

Contrary to the majority, I believe that DCYF has argued that if the twelve-

context of a termination proceeding under RSA 170-C, the Probate

required to do so in every case, and therefore termination may be to correct the conditions of neglect, under [Melissa M.], it is not were deemed not to have provided a full 12 months for [the father] The Probate Court reasoned that even if the District Court p. 7 7

am not prepared at this point to decide that

remand of this case, the specific applicability of

for termination under RSA 1 p. 7 70-C:5, III. Further,

here, yet the issue may well arise in the probate court. Unlike the majority, I

foundation for both the probate court’s order and DCYF’s argument. Given our

the district court under the statute serves as the prerequisite for every petition district court,” that statute is referenced in RSA 1 p. 7 70-C:5, III, and a finding by