2011-115 In Re Michael E. & a.

No. 2011-115

Dover Family Division

Family Division (Ashley DALIANIS, C.J. The respondent, Debra D., appeals an order of the Dover

Burns Legal Services

granted an ex The record reveals the following facts. On April 3, 2009, the trial court

adjudicatory and dispositional hearings, the trial court issued a final placement for Michael E. and Andre E. On May 26, 2009, following Division for Children, Youth and Families (DCYF), seeking out-of–home Michael A. Delaney parte neglect petition filed by the petitioner, the New Hampshire

neglect. See RSA 170-C:5, III (2002). We affirm. Michael E. and Andre E., for failure to correct conditions leading to a finding of , J.) terminating her parental rights over her sons,

for the respondent. THE SUPREME COURT OF NEW HAMPSHIRE , of Portsmouth (Christopher R. Burns on the brief),

Youth and Families. memorandum of law), for the petitioner, New Hampshire Division for Children,

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 to correct the conditions leading to the finding of neglect. See p. 2 that DCYF had proved, beyond a reasonable doubt, that the respondent failed finding of neglect. After a hearing on the TPR petition, the trial court found among other things, that she failed to correct the conditions leading to a DCYF then sought to terminate the respondent’s parental rights alleging,

of parental rights (TPR) petition. cocaine and alcohol. Accordingly, the court ordered DCYF to file a termination and alcohol, as she missed numerous drug screens and admitted to using Additionally, the court found that the respondent failed to remain free of drugs visitation with her children or to maintain a safe and stable residence for them. numerous incarcerations rendered her unable to have regularly scheduled compliant with the parent aide. The court also noted that the respondent’s respondent did not complete counseling or parenting classes and was nonthe respondent was not in compliance with its order. The court found that the issued in the neglect case, the court held a permanency hearing and found that On May 26, 2010, twelve months after the final dispositional order was 2

and to assist her with accessing community services. continue to provide the respondent with case management and a parent aide terminate the respondent’s parental rights because “she has no current ability admitted to using cocaine. At all review hearings, DCYF was ordered to The court also determined that it was in the best interest of the children to work cooperatively with the parent aide, did not undergo drug tests and RSA 170-C:5, III. with the court’s order because she missed visitation with her children, did not hearing on February 10, 2010, however, she was found not to be in compliance order at the six-month review hearing. At the respondent’s nine-month review respondent was also determined to be in partial compliance with the court’s found that the respondent was in partial compliance with its order. The On August 25, 2009, the court held a three-month review hearing and

dispositional hearing and the final dispositional order as “the neglect case.” respondent did not appeal this order. For ease of reference, we will refer to the

evaluation and locating counseling services and parenting classes. The screening, as well as to provide assistance in setting up the neurological ordered DCYF to provide her with a parent aide and to implement drug evaluation. To help the respondent meet these requirements, the court also working cooperatively with a parent aide; and (4) undergoing a neurological refraining from drug and alcohol use; (2) attending individual counseling; ( p. 3 3) intended to correct those that led to the finding of neglect, included: (1) children could safely be returned to her. These conditions, which were dispositional order set forth conditions the respondent had to meet before the C:19 (Supp. 2010). DCYF was awarded legal custody of the children. The final Andre E. by selling drugs from her home and in their presence. See RSA 169dispositional order finding that the respondent had neglected Michael E. and 3

neglect case de

end. Id so that at some point litigation over a particular controversy must come to an doctrine of collateral estoppel has been established to avoid repetitive litigation judicial economy and a policy of certainty and finality in our legal system, the challenging the neglect case findings. We agree. Spurred by considerations of action. Id DCYF asserts that collateral estoppel bars the respondent from. The burden of proving estoppel is on the party asserting it. Id. and ( p. 3 3) the party to be estopped must have appeared as a party in the first action; (2) the first action must have resolved the issue finally on the merits; estoppel will arise: (1) the issue subject to estoppel must be identical in each the neglect case, but should have reviewed the evidence presented in the the prior action. Id. Three basic conditions must be satisfied before collateral that the court in the TPR proceeding should not have relied upon the finding in action from relitigating any issue or fact actually litigated and determined in finding of neglect. Therefore, we understand the respondent’s argument to be. at 151. Thus, the collateral estoppel doctrine bars a party to a prior reconsideration, arguing that there was insufficient evidence to support a

insufficient evidence to support a finding of neglect.

novo, and in doing so, should have found that there was

reasonable doubt. In re Jack L. petitioning party must prove a statutory ground for termination beyond a Before a court may order the termination of a parent’s rights, the recited the findings from the neglect case. The respondent moved for then issued a decision granting the TPR petition, in which it relied upon and objection, the record from the neglect case into the TPR proceedings. The court supported by the sufficiency of the evidence.” The court incorporated, without finding of neglect should be entered against [the respondent] was not The respondent first argues that “the [t]rial court’s conclusion that a

erroneous as a matter of law. Id. the trial court’s finding unless it is unsupported by the evidence or plainly conditions. In re Zachary G., 159 N.H. 146, 15 p. 3 3 (2009). We will not disturb and (3) reasonable efforts under the direction of the court to rectify the 169-C; (2) a failure to correct the same within twelve months of the finding; must demonstrate: (1) a finding of child neglect or abuse under RSA chapter Thus, in order to rely upon RSA 170-C:5, III as grounds for termination, DCYF D:2, IV, VII (2010) (allowing family division to hear RSA chapter 169-C cases). under the direction of the . . . court to rectify the conditions.” See RSA 490to 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 provides for termination where “[t]he parents, subsequent to a finding of child

for them when released from jail.” This appeal followed. to care for her children and no track record to suggest she could properly care p. 4 4

findings.

services provided have been accessible, available and appropriate. In re In assessing the State’s efforts, the court must consider whether the

and parenting classes, and drug screening.” The record supports these “provided case management, parent aide support, suggestions for counseling The trial court found that DCYF “developed a well-reasoned case plan” and made “reasonable efforts” under RSA 169-C:2 p. 4 4-a, III(c) and RSA 170-C:5, III. We conclude that the record supports the trial court’s finding that DCYF

court to rectify the conditions.” months of the finding despite reasonable efforts under the direction of the . . . have failed to correct the conditions leading to the finding of neglect “within 12 petition for termination of parental rights may be granted where the parents child’s home.” RSA 169-C:2 p. 4 4-a, III(c) (2002). RSA 170-C:5, III provides that a efforts as the state deems necessary for the safe return of the child to the the child, consistent with RSA 170-C:5, III, such services and reasonable DCYF cannot file a TPR petition if “[t]he state has not provided to the family of by the respondent and not DCYF, DCYF failed to make reasonable efforts. because the “vast majority if not all of the services [she] utilized” were arranged reunify her with her children. Specifically, the respondent contends that are to be adjudged.” Id support the trial court’s conclusion that DCYF made reasonable efforts to. (quotation and ellipsis omitted). linchpin on which the department’s efforts in a particular set of circumstances parent and child.” Id. (quotation omitted). “The word reasonable is the available staff and financial resources to maintain the legal bond between N.H. at 486. “Thus, the State must put forth reasonable efforts given its constrained by its staff and financial limitations. In re Juvenile 2006-833, 156 we have recognized that the State’s ability to provide adequate services is Juvenile 2006-833, 156 N.H. 482, 486 (2007); RSA 169-C:24-a, III(c). However,

The respondent next argues that there was insufficient evidence to

TPR case. estoppel bars the respondent from challenging the neglect case findings in the doctrine, see In re Zachary G., 1 p. 5 59 N.H. at 151-52, we conclude that collateral has not submitted any argument as to why we should relax this preclusive demonstrated the three conditions for collateral estoppel and the respondent neglect was resolved finally on the merits. Because DCYF has successfully superior court for de novo review, see RSA 169-C:28; therefore, the issue of N.H. 676, 678 (2001), and the respondent did not appeal that order to the was a “final dispositional order,” RSA 169-C:28 (2002); see In re Diane R., 1 p. 4 46 both the neglect case and the TPR case. See id. The court’s finding of neglect the respondent neglected her sons under RSA chapter 169-C, is germane to respondent appeared as a party in the first action. The relevant issue, whether DCYF has satisfied its burden of demonstrating collateral estoppel. The 5

Affirmed

doubt, that the respondent’s parental rights should be terminated. conclude that there was sufficient evidence to prove, beyond a reasonable failed to correct the conditions leading to the neglect finding. Thus, we upon these findings, the trial court reasonably determined that the respondent record supports these findings, we uphold them. We conclude that, based that she can refrain from illegal drug use when she is not incarcerated.” As the comply with the orders for drug screens.” Additionally, she “failed to establish DUGGAN, HICKS, CONBOY and LYNN, JJ., concurred. parent aides assigned to assist her to reunify with her boys” and “did not The court found that the respondent “was largely uncooperative with the “never acknowledged that there were any neglectful conditions to be corrected.”. correct the conditions that led to the original neglect finding, the respondent The trial court found that although she was given thirteen months to

terminated, we disagree. See to prove, beyond a reasonable doubt, that her parental rights should be To the extent that the respondent argues there was insufficient evidence

neglect. See id. prove that she failed to correct the conditions which led to the finding of to assist her, we now consider only whether there was sufficient evidence to entered against the respondent and that reasonable efforts were made by DCYF that there was sufficient evidence to prove that there was a finding of neglect

respondent obtain necessary services were reasonable. See id. regarding both its staff and finances, the efforts made by DCYF to help the while she was incarcerated. Taking into consideration DCYF’s limitations, The caseworker also informed the respondent of the services available to her available in the respondent’s community and provided that information to her. DCYF.” Id. Here, the caseworker obtained information about the services parent must “make her own effort in conjunction with the efforts made by of the parents’ responsibilities.” In re Juvenile 2006-833, 1 p. 5 56 N.H. at 487. A Juvenile 2006-833, 156 N.H. at 487. “Its role is not to assume the full weight parents to deal with and correct problems.” RSA 169-C:2, I(c) (2002); see In re This, however, is not required. The State’s role is to “[p]rovide assistance to because the caseworker did not enroll her in any of the services she obtained. The respondent argues that DCYF did not make reasonable efforts