2006-674, IN RE JUVENILE 2006-674

impairment” due to the mother’s “continued abuse of alcohol.” As a result, the

juvenile was in imminent danger and “likely to suffer additional serious filed a petition for neglect against the juvenile’s mother alleging that the 1998, the New Hampshire Division for Children, Youth and Families (DCYF) record before us. The juvenile was born on May 20, 1998. On September 9,

The following facts were either found by the trial court or appear in the

affirm. RSA chapter 169-C (2002 & Supp. 2006). See RSA 170-C:5, III (2002). We for failure to correct conditions that had led to a prior finding of neglect under Hillsborough County Probate Court (Patten, J.) terminating his parental rights HICKS, J. The respondent, father of the juvenile, appeals an order of the

memorandum of law and orally), for the State. Kelly A. Ayotte, attorney general (Jill A. Desrochers, attorney, on the

the brief and orally), for the respondent. Jordan, Maynard and Parodi, PLLC, of Nashua (Steven L. Maynard on

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 IN RE JUVENILE 2006-674

No. 2006-674 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough County Probate Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as and his parenting abilities.”

Howorth

before the District Court ( continued to be problematic. Orders from a post-permanency review hearing the goal through at least July 16, p. 2 2003. The respondent’s behavior, however,

to participate in parenting classes, maintain appropriate housing, remain ( assistance, including parent aides and home based services. He was ordered provisional diagnosis of Schizo-affective Disorder.” The Nashua District Court you hear about on top of a roof shooting people.’” juvenile. For example, the respondent was provided with various forms of “telling a worker at SNHS that ‘he [the respondent] could be one of those people conditions under which the respondent could assume full custody of the physical custody through a “threatening actions by [the respondent].” These actions apparently included Services)] document ongoing and repeated incidents of inappropriate and [(Court Appointed Special Advocates)], and SNHS [(Southern New Hampshire

Nevertheless, reunification of the respondent and the juvenile remained

custody of his son at this time.” District Court (and/or borderline traits, Generalized Anxiety Disorder, Depression, and a Leary, J.) found that the respondent was “not fit to assume full Mixed Personality Disorder with paranoid, histrionic, narcissistic, dependant, See In re Bill F., 145 N.H. p. 2 267 (2000); see also RSA 169-C:19-e (2002). The court’s behest at numerous review hearings, made repeated efforts to foster illness with an array of diagnoses assigned over the years: Bipolar Disorder, Bill F.” proceeding in the Nashua District Court. some six years after the finding of neglect against the mother, DCYF, at the psychological evaluation, the respondent “has an extensive history of mental respondent. Sometime prior to April 2003, the respondent sought legal and petition, and he appeared at the adjudicatory hearing on the petition. For “provisional permanency plan of reunification” of the juvenile with the mother were recounted in the supporting affidavit to the abuse and neglect On December 19, 2000, the District Court (, J.) established a

with persons and situations which he regards as being non-supportive.” a marked inability to avoid hostile and intimidating behavior when confronted Howorth, J.) noted that a “feature of [the respondent’s personality] disorder is

throughout the abuse and neglect proceedings. According to a court-ordered The respondent’s “poor interpersonal skills” were a primary concern in the district court since their inception. His reported concerns about the

The respondent has been involved in the abuse and neglect proceedings

October 13, 1998. juvenile was placed with a foster family with whom he has remained since child’s best interest.” p. 3 proof to be satisfied, “it must then consider whether termination is in the C:5, III. Once the probate court has found the petitioning party’s burden of at the erroneously accepted the State’s theory tying the district court’s prior finding, parental rights not authorized by the statute.” He contends that the court

under the direction of the district court to rectify the conditions.” RSA 170-

Leary

statutory definitions of RSA 170-C:5 to accommodate a theory of termination of

rights. We disagree. correct conditions of neglect, as creating the basis to terminate” his parental Bill F. hearing, of the respondent’s unfitness “to allegations of a failure to to such a finding within 12 months of the finding despite reasonable efforts neglect or abuse under RSA 169-C, have failed to correct the conditions leading rights may be terminated when “[t]he parents, subsequent to a finding of child The respondent argues that “the trial court improperly expanded the

plainly erroneous as a matter of law.” Id. disturb the probate court’s decree unless it is unsupported by the evidence or

and (2) that there was insufficient evidence to establish, beyond a reasonable thereby violating his state and federal due process and equal protection rights;

the statutory ground alleged in the petition against the respondent, parental reasonable doubt.” In re Juvenile 2003-195, 150 N.H. 644, 648 (2004). Under petitioning party must prove a statutory ground for termination beyond a “Before a court may order the termination of a parent’s rights, the

expanded the grounds for terminating parental rights under RSA 170-C:5, III, On appeal, the respondent argues: (1) that the trial court impermissibly the future.” On October 4, 2004, the District Court ( to rectify the conditions.” that finding, despite reasonable efforts under the direction of the district court that lead to the finding of neglect, within 12 months, indeed, within 6 years, of neglect under RSA 169-C, [the respondent] has failed to correct the conditions 3, 2006, finding beyond a reasonable doubt that, “after a finding of child The probate court terminated the respondent’s parental rights on August

termination of parental rights. between the juvenile and either parent and authorized DCYF to initiate the DCYF was no longer required to make reasonable efforts toward reunification

nature of his diagnosis, it is highly unlikely that this behavior will change in opined that “[b]ased on the history of [the respondent’s] behavior, and the provide for the financial and emotional support for [the juvenile].” The court order finding the respondent “unfit to perform the parental duties required to On July 9, 200 p. 4 4, the District Court (, J.) entered a permanency district court process.”

that are the conditions of neglect that must be repaired and corrected in the serious impairment of the child’s physical, emotional, and mental well being alcoholism that is the statutory neglect. Rather, it is the likelihood of or actual

indicate,” the following statement by the trial court: “[I]t is not the [mother’s] his physical, mental, or emotional health, when it is established education as required by law, or other care or control necessary for parental rights upon the outcome of the (b) Who is without proper parental care or control, subsistence,

RSA 169-C:3, XIX (2002) defines “[n]eglected child” to include a child:

unfitness at the

read the statutory language more broadly “than a literal reading would potential impairment of his well being. He offers, as evidence that the court suffered by the juvenile was not his mother’s alcoholism, but the actual and also clearly ruled that it did not base the termination of the respondent’s the statutory definitions of RSA 170-C:5” by concluding that the neglect because of those failures. The respondent also argues that the trial court erroneously “expanded that [the juvenile] suffered, and would likely continue to suffer respondent] ultimately failed to correct the conditions of neglect parental rights.

Bill F. hearing as “the basis to terminate” the respondent’s

conclude that the trial court did not use the district court’s prior finding of as the child impact assessment and CASA’s guardian ad litem report. We throughout the six-year history of the abuse and neglect proceedings, as well six days of hearing. It recounted numerous prior orders of the district court We agree. The court heard testimony from a number of witnesses over

correct conditions of neglect pursuant to RSA 170-C:5, III. The probate court petition clearly stated, however, that the ground for termination was failure to Nashua District Court . . . not fit to assume full custody of [the juvenile].” The among other evidence presented, for a determination that [the parental rights proceedings . . . are facts presented as evidence, and the permanency hearing order leading to the termination of in its orders on the fitness question under RSA 169-C:19-e, . . . [The respondent’s] actions and inactions found by the district court

stated:

that “[p]ursuant to RSA 169-C: 19-e, [the respondent] was found by the The petition for termination of the respondent’s parental rights alleged p. 5 5

correction of the actual, underlying conditions of neglect.” in the underlying neglect and/or a knowing refusal to participate in the agencies and professionals as a result of his poor interpersonal skills and applying the statute [in those cases] was a knowing participation by the parent psychological evaluation, the respondent “lost the support of” a number of

offending” parent’s parental rights because “the constitutional basis for noncompliant with orders on this issue. As noted in the court-ordered different” from prior cases in which we have upheld the termination of a “non- history of the abuse and neglect proceedings and he was at times found to be problems with his behavior were repeatedly noted throughout the six-year orders to “address his poor interpersonal skills” in therapy. Nevertheless, neglect proceedings from the beginning. As such, he was under continuing petition, the respondent has been a knowing participant in the abuse and As noted above, however, although not the subject of the original neglect

neglected his son. The respondent’s argument has long been foreclosed by

the district court’s efforts to rectify conditions. foster custody in the first instance.” He asserts that this case is “distinctly help alleviate the dangerous situation that caused his child to be placed in parental rights could be terminated only by “his participation in, or refusal to argues that a parent reading RSA 170-C: p. 5 5, III would be led to believe that his that a statute give fair notice of conduct that will trigger its application,” and process argument. He contends that “[a]t a minimum, due process requires Our decision in Tricia H. is dispositive of the respondent’s second due

Id. at 422. the district and probate courts expressly found that he neither abused nor brought within the protective umbrella of RSA 169–C proceedings” and both “had nothing at all to do with the underlying factors that caused his son to be such a finding within 18 [now, 12] months of the finding,” despite terminated under RSA 170-C: p. 5 5, III, consistently with due process, where he parent in question have “failed to correct the conditions leading to that parent’s rights can be terminated. It requires rather that the respondent in an RSA chapter 169-C neglect proceeding before does not provide that a parent must have been the named

170-C: p. 5 5 re Tricia H., 126 N.H. 418 (1985), in which we held that subsection III of RSA

The respondent further contends that his parental rights may not be

The trial court accurately interpreted and applied the statute.

impairment . . . . that his health has suffered or is very likely to suffer serious p. 6 6

his own mental health needs addressed.” Nevertheless, the record amply with request[s] to improve parenting skills, to abstain from alcohol, and to have

it. he fails to develop the argument in his brief and we therefore need not address

stated by the trial court was: exceptions for failures attributable to mental illness. We disagree. The basis for termination of the respondent’s parental rights, as based upon mental illness or mental disorder under RSA 170-C:5, IV (2002). correct conditions of neglect under RSA 170-C:5, III and an inability to parent process. support termination of his parental rights. He argues that he “has complied Finally, the respondent contends that the evidence is insufficient to

See Gulf Ins. Co. v. AMSCO, 153 N.H. 28, 40 (2005).

the extent the respondent is attempting to raise an equal protection challenge,

failure to remedy the conditions of neglect, but the statute makes no To be sure, the respondent’s mental illness presumably contributed to his

separate and distinct grounds for termination of parental rights: failure to and well being, while under the direction of the district court impairment of the child’s physical, emotional and mental health to meet all of [the juvenile’s] needs and avoid the risk of harm or correct . . . conditions of neglect, by not becoming consistently able juvenile’s schools. [the respondent’s] failure, over a seven year period, to sufficiently

The respondent next argues that the trial court erroneously conflated two

issue of due process.” Tricia H., 12 p. 6 6 N.H. at 423. We similarly conclude here. RSA 170-C:5, III and ruled that it “provide[d] no colorable basis to raise any that evidence in Tricia H. “more than sufficient” to meet the requirements of pediatrician; Familystrength; Child and Family Services; and one or more of the termination of parental rights as in the best interest of the child.”). We found transportation service, and fuel assistance program); the juvenile’s follow through with their recommendations and instructions, we have upheld Services (apparently alienating at different times their parent aide program, (2004) (“Where the parents refused to cooperate with the service providers and H., 126 N.H. at 423; see also In re Juvenile 2003-195, 150 N.H. 644, 649-50 refused treatment offered to help him to become a responsible parent.” Tricia welfare division to involve him in ameliorating the conditions of neglect, and upon his release from New Hampshire Hospital, rebuffed the efforts of the the father “actually knew of the neglect proceedings, became a party to them We do not see this case as “distinctly different” from Tricia H., in which

Teachers Program of the Parent Information Center; Southern New Hampshire resulting difficult behavior, including the following providers: NH Parents as p. 7 7

their impact on [the juvenile] We conclude that the evidence supports that determination. Moreover, the have been driven by his immediate narcissistic needs regardless of correct the conditions that led to a finding of neglect under RSA chapter 169-C. numerous occasions, [the respondent’s] decisions about [his son] capacity to shape his behavior to meet his child’s needs. On

model his father’s unacceptable behavior. respondent’s hostile behavior could negatively affect him in that he might

therefore found, beyond a reasonable doubt, that the respondent had failed to without causing a grave risk of impairment to his well being.” The court during the evaluation are consistent with a parent who lacks the necessary to meet all of his physical, emotional and mental health needs, without a parent “able to provide him with the care, comfort and control he was experiencing at the onset of this case in the district court”; namely, respondent’s limitations left the juvenile “in the same conditions of neglect that After reviewing the evidence, the probate court concluded that the premises. terminated assistance and prohibited him from entering their of continuity in necessary services, the district court found that the financial resources for [the respondent] and [the juvenile] have the obvious and immediate detriment to the juvenile of interruption of and lack for his son. Social service agencies that provide[d] care and respondent] from coming back on campus.” We also note that in addition to behavior and the school requested a restraining order prohibiting [the situation ended with his son being expelled from school because of his father’s The patterns of parenting observed by others as well as observed arrangements for his education[,] . . . [t]he outcome . . . was disastrous. The concerns” about the respondent’s parenting abilities: The court-ordered psychological evaluation also “raise[d] serious

respondent] from coming into the office and have terminated care offices have taken the extraordinary step of prohibiting [the Suffice it to say that due to [the respondent’s] behavior, physicians’ when [the respondent] has acted inappropriately, to his son’s peril. choose the school at which to enroll his son and “to make all related Similarly, the district court noted that when it allowed the respondent to

It is unnecessary to again review all of the many situations

As the district court stated in a permanency order dated July 9, 2004:

incurably deficient. supports the conclusion that the respondent’s parenting abilities remained plan to reunite father and son had been approved.

permanency plan until October 2004, nearly four years after the provisional adoption, or through placement in permanent foster care.” permanency plan for reunification in place. The court did not change the provisional July 9, 2004, that found the father “unfit,” but, nonetheless, kept the

permanency hearing “no later than 12 months” after that date. 42 U.S.C.A. twelve months of the child’s entry into foster care. arrangements. This is why the ASFA requires a permanency hearing within

17, 2002) (unpublished opinion). “The philosophy behind ASFA is that it is Services v. L.C., No. CS00-04212, 2002 WL 1932501, at *2 (Del. Fam. Ct. Jan.

permanency, either through termination of the parents’ rights and subsequent period, the federal government has mandated that the child deserves reunify the father and son. The court even entered a new permanency order on they are able to provide adequate care of their child after that one (1) year time permanency review hearings, but still ordered the State to continue efforts to A.2d 244, 250 (N.J. Super. Ct. Ch. Div. 2005). “If the parents do not show that 13, 2001, January 23, 2002, June 24, 2002 and July 16, 2003 post- See State, DYFS v. S.A., 90 p. 8 8 father was not in compliance at the May 15, 2001, August 21, 2001, November Adoption and Safe Families Act of 1997 (ASFA), he was entitled to a living with his foster family since October 13, 1998. Under the Federal years is indefensible. Children need and deserve permanent living record support it, the proceedings in this case trouble me. The child has been I believe that leaving the father and son in legal uncertainty for four

to reunify the father and son to continue. Specifically, the court found that the provisional permanency plan for one reason or another, it permitted the effort ensuing years, the court found that the father did not comply with this opinion because under our deferential standard of review the law and the permanency plan” for reunifying the father and his son. Although, through the Following that hearing, the district court established a “ concurred specially. later. hold a permanency hearing until December 19, 2000, more than two years § 675(5)(c) (Supp. 2007). The record shows, however, that the court did not

termination of the respondent’s parental rights is in the juvenile’s best interest.

DALIANIS, J.