2008-785, IN RE ZACHARY G. & a.

The mother, S.G., appeals an order of the Claremont Family

Jasper on the brief), for the mother. Elliott, Jasper, Auten, Shklar & Wellman-Ally, LLP, of Newport (Bruce R.

to press. Errors may be reported by E-mail at the following address: attorney general, on the memorandum of law), for the State. Kelly A. Ayotte, attorney general (Suzan M. Lehmann, senior assistant

page is: http://www.courts.state.nh.us/supreme. IN RE ZACHARY G. & a.

No. 2008-785 editorial errors in order that corrections may be made before the opinion goes Claremont Family Division Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 reunification. The court later granted DCYF’s motion to close the action. p. 2 however, rejected this plan in October 2005. It ordered DCYF to begin gradual

permanent plan at a September 2005 permanency hearing. The court,

that inevitably lapses “back to her initial thinking pattern.”

As a result, DCYF urged termination of parental rights and adoption as the She therefore recommended terminating the parental rights of both parents. children are returned to [S.G.] she will allow contact between them and [A.G.].”

children is to be viewed cautiously” in view of her past “cycle of understanding”

from their father.” The GAL also found “it . . . highly probable that if the

2005 review hearing. counseling. The court made similar findings and rulings following a March him to stay away from the residence.” The court ordered S.G. to continue “current belief that she now truly understands why [A.G.] should not see the with photographs of Zachary’s bruises. Ranta further noted that S.G.’s remained hesitant to admit that A.G. abused Zachary, even when confronted

S.G. “did not feel that it should be her responsibility to keep the children away 2006, A.G. abused Zachary in S.G.’s home. In January 2007, the Claremont 2006 petitions) against A.G. and S.G. alleging that from June through October In October 2006, DCYF filed new petitions for abuse and neglect (the

been on S.G.’s “property at least 5 times despite a protective order instructing

assessment report, Familystrength counselor Phyllis Ranta noted that S.G.

further parental counseling. A September 2005 report from the guardian ad litem (GAL) indicated that of-home foster care placement for the children and required S.G. to undergo

for the children being removed from her care.” It further noted that A.G. had

men out of her children’s lives. In a June 2005 addendum to an earlier S.G. made several observations calling into doubt her ability to keep abusive Over the following months, counselors and professionals working with

unable to keep potentially harmful men out of her life.” The court ordered out-

inappropriate men out of her home” and refused “to accept any responsibility home” and A.G. to “undergo a batterers evaluation.” and developing as a parent, she continued “having difficult[y] . . . keeping DCYF supervision. The court ordered S.G. to “maintain a safe and sanitary although S.G. demonstrated continuing commitment to maintaining the home order in June 2004 allowing the children to remain in S.G.’s custody under The court held another review hearing in December 2004 and found that,

parenting strategies.” It noted, however, that S.G. “has shown that she is “keeping her home safe and clean” and being “receptive [to suggested] After a review hearing in September 2004, the court commended S.G. for

psychological and parenting evaluations. The court issued a dispositional children, prohibited visitation with the father, and required S.G. to undergo was still pending. p. 3 termination following the permanency hearing because its May 2007 petition

petitions relating to him. It then denied S.G.’s motion

parental rights. DCYF, however, appears not to have filed a petition for

that A.G.’s voluntary relinquishment of parental rights mooted DCYF’s

towards reunification. Finally, it ordered DCYF to petition for termination of reunify S.G. and her children. It relieved DCYF from making future efforts finding of neglect against S.G. and that DCYF made reasonable efforts to conditions that led to the finding of neglect.”

parental rights.

concluded on June 11, 2008. In its decision, the family division first noted

the sufficiency of evidence supporting the family division’s decree. findings of abuse and neglect. in limine. S.G. further challenges the statutory grounds for termination and placement because of S.G.’s failure to correct the conditions leading to its and neglect. It found that twelve months had passed since the January 2007 On appeal, S.G. argues that the trial court erred by denying her motion in closing the 2004 case “was that [S.G.] had met the goals and corrected the dispositional hearing, the family division ordered out-of-home foster care the conditions leading to the May . . . 2004 finding of neglect” because implicit

all of the evidence concerning both actions, it ordered termination of S.G.’s supervision of the district court.” in limine. Considering

The five-day termination hearing commenced on February 29, 2008, and

matter.

both parents failed to correct the conditions leading to the findings of abuse safety. The children were placed with a relative. After a February 2007 exclude from the hearing any “attempt[] to show that [S.G.] has failed to correct Prior to the family division’s termination hearing, S.G. moved in limine to

to the May . . . 2004 finding of neglect despite reasonable efforts under the

After a February 2008 permanency hearing, the family division ruled that A.G. in the home without taking necessary precautions to ensure Zachary’s that A.G. slapped Zachary while in the home and that S.G. knowingly allowed resided with the children in S.G.’s home in contravention of previous orders, cited as grounds for termination S.G.’s failure “to correct the conditions leading S.G.’s parental rights. It referenced the 2004 and 2007 findings of neglect and DCYF petitioned the family division in May 2007 to terminate A.G.’s and

Zachary and that S.G. neglected both children. Specifically, it found that A.G. Family Division issued orders of protection after it found that A.G. abused home,” RSA 169-C:23, II (2002) (listing prerequisites to reunification).

p. 4 endangered in the manner adjudicated on the initial petition, if returned finding, on the merits in a now closed action, that the children “will not be express finding, necessarily implied by the October 2005 order to reunify is a

a party in the first action . . . .

is germane to both actions. Although that issue was never resolved by an

on the merits, and the party to be estopped must have appeared as over a particular controversy must come to an end.”

finding of neglect by no longer exposing the children to violent, abusive men — relevant issue — whether S.G. corrected the conditions leading to the 2004 There is no dispute that DCYF appeared in the first action and that the

Restatement (Second) of Judgments § 27 comment j at 261 (1982) (giving

in each action, the first action must have resolved the issue finally been established to avoid repetitive litigation so that at some point litigation estoppel will arise: the issue subject to estoppel must be identical

S.G. has satisfied her burden of demonstrating these three conditions.

Cook, 149 N.H. at 778 (quotation omitted).

and finality in our legal system, the doctrine[] of . . . collateral estoppel [has] Three basic conditions must . . . be satisfied before collateral

of Winchester Zoning Bd. of Adjustment, 157 N.H. 710, 715 (2008). unsupported by the evidence or legally erroneous. Cardinal Dev. Corp. v. Town N.H. 724, 730 (2002). We will uphold the trial court’s ruling unless burden of proving estoppel is on the party asserting it. Appeal of Stanton, 147 and determined in the prior action.” Id. at 778 (quotation omitted). The party to a prior action . . . from relitigating any issue or fact actually litigated actions. S.G. contends that the family division erred by denying her motion N.H. 774, 777 (2003) (quotation omitted). Thus, “[t]he doctrine . . . bars a

“Spurred by considerations of judicial economy and a policy of certainty

A. Collateral Estoppel

such evidence. We disagree. limine because collateral and judicial estoppel preclude reconsideration of any

action. Some witnesses gave opinion testimony in view of evidence from both termination hearing to relate observations from the first abuse and neglect 416 (1983); see RSA 170-C:1 (2002). DCYF called several witnesses at the [termination] is in the child’s best interest,” In re Matthew G., 124 N.H. 414, W., 147 N.H. 408, 412 (2002), and the court “must consider whether petitioning party must prove a statutory ground for termination,” In re Antonio Before the court may involuntarily terminate parental rights, “the

I. Estoppel termination proceedings, DCYF took a position “clearly inconsistent,”

estoppel could somehow apply, S.G. failed to establish that, by initiating proves antithetical to the children’s best interests. Even assuming judicial protective proceeding resulting in reunification if such reunification ultimately incidents of abuse and neglect. children to violent, abusive men — again manifested and resulted in new closure, the condition leading to the 2004 findings of neglect — exposure of the

rejecting S.G.’s judicial estoppel argument. incidents of abuse and neglect. 270, with its earlier motion to close the 2004 petitions given the intervening

where issues are identical, [if the] potential adverse impact on the public parental rights proceedings, on occasion we do relax preclusive doctrines, “even whether DCYF could ever be judicially estopped by assertions in a child in another phase.” Pike v. Mullikin, 1 p. 5 58 N.H. 267, 270 (2009). We doubt using one argument and then relying upon a contradictory argument to prevail consideration of evidence concerning the earlier, closed action because, after its judicial integrity by “prevent[ing] a party from prevailing in one phase of a case Cedar Co., 152 N.H. 813, 848 (2005). The doctrine of judicial estoppel protects

The family division did not unsustainably exercise its discretion by

B. Judicial Estoppel

bar to reconsidering evidence from an earlier action if there exist subsequent

broad contention that collateral estoppel does not apply in termination of

circumstances). Consequently, collateral estoppel did not preclude judicata bars subsequent custody determinations absent material change in c at 2 p. 5 53; cf. Sheehy v. Sheehy, 88 N.H. 223, 226 (1936) (recognizing that res denied, 290 Or. 449 (1981); Restatement (Second) of Judgments § 27 comment 1985); Matter of Newman, 619 P.2d 901, 904-06 (Or. Ct. App. 1980), review

probative value,” RSA 170-C:10 (2002), we hold that collateral estoppel is no C broadly admits all “relevant and material information . . . to the extent of its collateral estoppel does not end our inquiry. While we do not accept DCYF’s properly protected, see RSA 170-C:1 (2002), and the fact that RSA chapter 170- Given the overriding need to ensure that the children’s best interests are

interests of persons not themselves parties in the initial action . . . .”). a new determination . . . because of the potential adverse impact . . . on the . . . (permitting relitigation of issue where “[t]here is a clear and convincing need for (2004) (quotation omitted); cf. Restatement (Second) of Judgments § 28( p. 5 5)

That S.G. has successfully demonstrated the three conditions of

the trier as necessary to the first judgment”). preclusive effect to an “issue . . . recognized by the parties as important and by court.

p. 6 reasonable efforts to correct the condition provided under the direction of the chapter 169-C findings of neglect. (2) a failure to correct the same within twelve months of the finding; and (3) demonstrate: (1) a finding of child neglect or abuse under RSA chapter 169-C;

in the termination action by premising the termination petition upon stale RSA in order to rely upon RSA 170-C:5, III as grounds for termination, DCYF must

on its face. not consider legislative history to construe a statute that is clear

findings under RSA 170-C:5, III is tantamount to bypassing RSA chapter 169-C requirements of RSA chapter 169-C. Relying exclusively upon the 2004 efforts under the direction of the district court to rectify the conditions.” Thus, RSA 170-C:5, III clearly imports the procedural safeguards and substantive

context of the overall statutory scheme and not in isolation. We do

leading to such a finding within 12 months of the finding despite reasonable S.G.’s parental rights based upon this allegation. We agree that this was error. child neglect or abuse under RSA 169-C, have failed to correct the conditions 2004 findings as grounds for termination, and the family division terminated DCYF specified S.G.’s failure to correct the conditions leading to the

See id.

and ordinary meaning. Furthermore, we interpret statutes in the itself, and, if possible, construe that language according to its plain interpreting a statute, we first look to the language of the statute

termination was in the children’s best interests. C:5, III provides for termination where “[t]he parents, subsequent to a finding of State v. Balukas erroneous as a matter of law., 155 N.H. 377, 378-79 (2007) (citations omitted). RSA 170-

expressed in the words of a statute considered as a whole. In This court is the final arbiter of the intent of the legislature as she failed to correct conditions leading to a finding of neglect and that

the family division’s finding unless it is unsupported by the evidence or plainly grounds by In re Craig T., 147 N.H. 739, 744-45 (2002). We will not disturb State v. Robert H., 118 N.H. 713, 716 (1978), overruled in part on other The elements of RSA 170-C:5, III must be proven “beyond a reasonable doubt.” We begin by addressing S.G.’s arguments concerning RSA 170-C:5, III.

A. Grounds for Termination

argues that insufficient evidence supported the family division’s findings that the statutory grounds for termination relied upon in this action. She further S.G. next contends that the family division misapplied RSA 170-C:5, III,

II. Construction and Application of RSA chapter 170-C information about A.G.’s employment or residence. When Colpas asked S.G. p. 7 this incident, Colpas testified that S.G. was unwilling to provide police with

incident. Although S.G. took the children to the police department following the sufficiency of evidence.

hit him in their home. She further testified that Kandace witnessed the children. Colpas filed the 2006 petitions after Zachary informed her that A.G. challenge this finding. We therefore turn to the parties’ arguments concerning caused it, and counseled S.G. about the need to keep A.G. away from the

efforts towards reunification during this twelve-month period and S.G. does not Zachary’s bruising in 2004, contacted police after S.G. informed her that A.G. neglect. Furthermore, the family division found that DCYF made reasonable a termination decree until twelve months after the January 2007 findings of

Its order was based upon the following. Kandace — applies to the 2004 doubt, S.G. failed to keep violent, abusive men away from Zachary and the substance of the family division’s ruling — that, beyond a reasonable

assessment worker for DCYF in both the 2004 and 2006 actions. She observed of child). The family division neither began the termination hearing nor issued

assurance that S.G. corrected the children’s exposure to violent, abusive men.

received twelve months to correct the conditions. same behavioral pattern resulted in both the 2004 and 2007 findings. Finally, January 2007 findings of neglect, we reject S.G.’s argument because she in fact were premature because, when filed, twelve months had not elapsed since the

Gail Colpas related her observations while assisting S.G. as an suffered by untimely disposition and to allow relitigation antithetical to interest

see from entire record that no injury has been done); The court ordered termination based upon a lack of reasonable

findings in its termination petitions and detailed in its allegations how the and neglect prior to initiating the termination action. It also cited the 2007 we agree that DCYF’s May 2007 petitions to terminate S.G.’s parental rights DCYF complied with RSA 170-C:5, III by obtaining the 2007 findings of abuse

576, 579 (1984) (affirming termination of parental rights because no prejudice

160, 167 (2003) (noting that judgment will not be disturbed where court can

S.G. next argues that the termination petitions were premature. While sixty-day period for the disposition of parental rights termination petition). (emphasis added)). warranted for failure “to correct the conditions leading to” finding of neglect purpose of RSA chapter 170-C by elevating form over substance. product of the same condition. See RSA 170-C:5, III (providing termination

381 (1983) (declining to treat as jurisdictional the court’s failure to observe State v. Gallagher, 157 N.H. 421, 425 (2008); cf. In re Robyn W., 124 N.H. 377,

grounds for termination, the error was one of form and we will not frustrate the While DCYF’s allegation improperly cited the 2004 findings of neglect as what was going on with therapy.” p. 8 hearing that reunification may have compromised the children’s safety. to A.G. was of great concern given Zachary’s continuing fear and his statement seeing A.G. She later became involved in this action and conceded at the final

home alone with the children despite an order of protection against him.

things that the therapist had wanted to hear, and she didn’t really believe in middle of the night.” In her opinion, remaining at home with risk of exposure Cutter received a call from Zachary’s therapist because Zachary was again

Zachary. Scott also testified about an unannounced visit where he found O.L. Scott testified about another incident involving O.L. throwing a suitcase at that O.L. caused bruising on his forehead by lifting him into the ceiling fan. changed his mind after S.G. told him that she “had been telling her therapist in favor of reunification because S.G. was doing well with parenting classes, he windows for fear “that his dad was going to come in through the window in the for her involvement in the case.” While Scott at one point changed his opinion ultimately moved to close the first case. After the first action was closed, presence in the home. She testified that Zachary avoided sleeping near worries; low self-esteem.” Corcoran explained the negative influence of A.G.’s

safe to have around the children. This was because Zachary once indicated

done anything wrong. He testified that “[s]he would never take responsibility [A.G.] could continue or should see the children.” Nevertheless, Cutter statements made by S.G., Cutter believed that S.G. still “felt strongly that around every corner; difficulty sleeping; impulsivity; nightmares; all kinds of reunification. She had concerns about reunification because, based upon

Scott encountered O.L., a live-in boyfriend of S.G., who he believed was not [him].” Equally troubling was that, while regularly in the home to help S.G., the case, despite orders of protection and despite what both sides were telling not understand why so much was asked of her” and disputed that she had primarily hypervigilance; worried about his safety; was looking for danger case around November 2005 when the children were in the process of or September 2006. Zachary “presented with moderate to severe PTSD, children with post-trauma reactions, worked with Zachary starting in August Dr. Kathleen Corcoran, a child therapist who specializes in treating

fall of 2006. He believed S.G. and A.G. “were in very close contact throughout programs, he harbored concerns about her progress because she “continued to

Child Protective Service Worker Amanda Cutter became involved with the

for the Claremont District Office of DCYF between the spring of 2004 and the While Scott acknowledged that S.G. was actively involved in counseling

Stuart Scott worked with Zachary and Kandace as a reunification worker

to handle it is just to ignore him.” why she did not remove A.G. from the home, S.G. responded: “[T]he best way having visits elsewhere.”

p. 9 importance of protecting Zachary over “her rights and her inconvenience at

troubling because it again demonstrated S.G.’s failure to appreciate the meeting and said, no way, I have my rights.” The GAL found this reaction would see A.G. In response, S.G. “stood up and swore and stomped out of the

between S.G. and the children occur outside S.G.’s home for fear that Zachary

not be harmed in the future.”

A.G. entering S.G.’s apartment building, the GAL recommended visitation

permanency plan because he still could not “state or justify that these kids will reunification, DCYF later switched to termination and adoption as the day and night. Simono explained that although DCYF’s original plan for S.G. was began coming to S.G.’s apartment in February 2008 and had been there every see A.G. up to the GAL. At a team meeting convened after Simino observed occasions of seeing A.G. and S.G. together, including testimony that A.G. period of reunification in the first action, S.G. left whether the children would someone who could control Zachary.” At a December 2005 meeting, during the

and in mid-December he saw A.G. enter S.G.’s apartment building. Finally, threat he poses to the children, other witnesses described several recent

relationship with their father, and that she needed A.G. “because he was

hard for him to feel safe . . . . August 2007. He then began having reservations about unsupervised visits, at his father that he wanted him to die; and that he – – it’s very Although S.G. is now divorced from A.G. and claims to recognize the

S.G. said early in the case that she believed the children should have a

of 2007. He testified that S.G. made progress in parenting strategies up to mother would protect him but she didn’t; that he’s been so angry

harm abusive men can visit upon Zachary and Kandace. The GAL, who was first appointed in the summer of 2005, testified that

CPSW Mark Simino began working as the case manager in May or June he can’t trust anyone to protect him. He had wished that his

children’s safety and S.G.’s ability to recognize the emotional and physical S.G. had made progress in her opinion, Avery still had concerns about the with S.G. on parenting strategies beginning around May 2007. Even though Sally Avery, parent aide for Southwestern Community Services, worked

My concern with Zach has been he has said that he feels like

was not able to do so.” Concerning future contact with A.G., she testified: “that his mother was supposed to protect him from being harmed and that she paramount. p. 10 trigger a grieving process, she ultimately noted that permanency was

promise to be delivered upon. adolescents and adults. They have waited long enough for that from fear in order to thrive and become productive and happy

Although Corcoran conceded that terminating S.G.’s parental rights would

in the near future. They need and deserve stability and freedom

environment before he can really calm down and settle down and feel safe.” concluded Zachary was “going to need years in a very safe, very nurturing had been in multiple out of home placements for a prolonged period. Corcoran

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

hearings in this matter that the children might be returned to her against [S.G.] There was no suggestion during the five days of respectively, of their entire lives. There is an open neglect case

The evidence sufficiently supported this finding. Zachary and Kandace

been in placement about 36 months, over forty and fifty [percent], These children, whose ages are 90 months and 70 months, have

With respect to the children’s best interests, the court found:

Antonio W., 147 N.H. at 412. unless unsupported by the evidence or plainly erroneous as a matter of law. the child.” Id. (quotation omitted). We will not disturb the trial court’s finding the most desirable, under a standard giving priority to the assumed interest of findings of neglect. conclusion concerns which of the possible alternative dispositional orders is In re Shannon M., 146 N.H. 22, 28 (2001) (quotation omitted). “Rather, the not required to be established by the standard of beyond a reasonable doubt.” what is in the child’s best interest is not an evidentiary fact, however, and is which must prevail over the interests of the parents.” Id. “The conclusion of 147 N.H. at 412. The children’s welfare is the “dominant consideration . . . , consider whether termination is in the children’s best interest. See Antonio W., After the court finds statutory grounds for termination, it must further

B. Best Interests

beyond a reasonable doubt, failed to correct the conditions leading to the This evidence supports the family division’s finding that S.G. had,