2010-169, In re Jack L.

Michael A. Delaney

No. 2010-169

Henniker Family Division

Henniker Family Division (Scheffy LYNN, J. The respondents, mother and father, appeal an order of the

Prevett & Prevett, LLP

Courteous Law, PLLC ___________________________

RSA 170-C:15 (2002). We affirm. their son, Jack L., on the grounds of abandonment. See RSA 170-C:5, I (2002);

orally), for respondent mother.

THE SUPREME COURT OF NEW HAMPSHIRE orally), for respondent father.

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

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 gave the CPSW a specific address for the father in Searcy, Arkansas. Finally, p. 2 the parents to appear for the next review hearing. In October, the grandmother hearing, from which the parents were again absent, the family division ordered parents were living in Arkansas. Subsequent to the nine-month review child protection service worker (CPSW) learned from the grandmother that the address or telephone number for either of the parents. In August, a DCYF In June 2008, a six-month review hearing was held; DCYF still had no

result of this petition,” the District Court (Barry children’s natural parents . . . are at risk of losing their parental rights as a unauthorized contact with Jack L. preliminary hearing in July 2007, both parents were present. Stating that “the occur. The father met with his daughter’s therapist once, and had one this proceeding, the court appointed a guardian ad litem (GAL) for Jack L. At a that he would need to see the children’s therapist before any such visit could maintain the safety of, Jack L. and his sister in the home. In connection with area” and wanted to see his daughter and Jack L. DCYF informed the father neglected Jack L., based on an inability to provide proper supervision for, or with a new address. In April, the father contacted DCYF, as he “was in the pursuant to RSA chapter 169-C (2002 & Supp. 2010), alleging that she had Following an adjudicatory hearing scheduled for August 8, see filed a petition against the grandmother in the Hillsborough District Court, time, the parents had moved from Washington, but had not provided DCYF Three years later, the division for children, youth and families (DCYF) parents were sent notice of the review hearing, but did not attend. By that In March 2008, a three-month review hearing was held. Again, the

did not attend. been sent notice of the dispositional hearing, they remained out of state and and awarded legal custody of the child to DCYF. Although the parents had Henniker Family Division found that the grandmother had neglected Jack L. time, the case had been transferred to the Henniker Family Division. The C:18 (2002), a dispositional hearing was held on November 14, 2007. By that

moved to the State of Washington. parents were conducted. In September, both parents left New Hampshire and represent them individually. In August, psychological evaluations of both

grandmother. consent of the parents, a guardianship over the child to his paternal treatment of the child, the Coos County Probate Court granted, with the the respondents. In January 2004, based on certain aspects of the mother’s The record supports the following. Jack L. was born in February 1999 to

p. 3 The trial court, as the trier of fact, is in the best position to assess and [them] under the [ADA] in the underlying Abuse/Neglect matter”; and (2) Motion to Dismiss based on the failure of [DCYF] to appoint a Guardian for argue that the family division erred “as a matter of law” in: (1) “den[ying] [their] allegations of family division error are virtually identical. Specifically, they Although the parents have filed co-appeals and individual briefs, their

G., 159 N.H. at 153; see Adam R., 159 N.H. at 792. unsupported by the evidence or plainly erroneous as a matter of law. Zachary their witnesses. Id. We will not disturb the family division’s finding unless it is

omitted). 1990 (ADA), 42 U.S.C. §§ 12101 et and need not be established “beyond a reasonable doubt.” Id. (quotation The assessment of a child’s best interest is not an evidentiary fact, however, other things, that their rights under the Americans with Disabilities Act of whether termination is in the child’s best interest. Adam R. L. The parents unsuccessfully moved to dismiss the petitions, arguing, among, 159 N.H. at 792. petitions against both parents on the grounds that they had abandoned Jack division). If a statutory ground is established, the court must then consider On December 18, 2008, DCYF filed termination of parental rights (TPR) (statutory references to probate courts include the judicial branch family 146, 153 (2009) (family division); RSA 170-C:5; see also RSA 490-D:14 (2010) termination beyond a reasonable doubt. Id.; see In re Zachary G., 159 N.H. of parental rights, the petitioning party must prove a statutory ground for parents. Adam R., 159 N.H. at 792. Before a court may order the termination Supp. 2010) is the welfare of the child, which prevails over the interests of the consideration in termination proceedings under RSA chapter 170-C (2002 & if applicable due process requirements have been met. Id. The dominant parents are not unassailable, and terminations of parental rights will be upheld 788, 792 (2010) (quotation omitted). Nevertheless, the fundamental rights of of Part I, Article 2 of the New Hampshire Constitution. In re Adam R., 159 N.H. Parental rights are “natural, essential, and inherent” within the meaning

parental rights were terminated on February 10, 2010. This appeal followed. Subsequent to a hearing, at which both parents appeared with counsel, their guardians were not provided for them in the underlying neglect proceedings.

telephone number provided for locating the father. father was living in the area. There was not, however, a specific address or and told her that the father and grandmother had met with him, and that the in December, an investigator at the attorney general’s office called the CPSW considered, the parents’ ADA arguments when denying their motions to p. 4 petition. The record is also clear that the family division was aware of, and father on the same date in his addendum to his motion to dismiss the TPR dismiss the TPR petition and her supporting memorandum of law, and by the the neglect case were raised by the mother in her March 4, 2009 motion to arguments concerning a failure to provide GALs or guardians under the ADA in of neglect against the grandmother. The record indicates that the parents’ parents’ motions to dismiss the TPR petitions, not the November 2007 finding allegation of error arises from the family division’s June 10, 2009 denial of the petitions, we find that this issue was preserved for appellate review. This guardians for them in the neglect proceedings as a basis to dismiss the TPR not allowing them, in effect, to collaterally attack a failure to provide GALs or In contrast, insofar as the parents argue that the family division erred by

bringing the case before this court. As such, the issue is not preserved. neglect case to the superior court pursuant to RSA 169-C:28, a prerequisite to — to a failure to provide GALs or guardians. Nor did the parents appeal the represent them in the neglect case, or objected — on ADA grounds or otherwise their attorneys ever requested the appointment of GALs or guardians to our appellate review. The record does not reflect that either the parents or provide GALs or guardians for them in that case, the issue is not preserved for attack the neglect proceedings directly, by predicating error on a failure to division’s finding of neglect. We agree that, insofar as the parents seek to neither raised it during the neglect proceedings, nor appealed the family DCYF argues that the parents failed to preserve this issue, as they

appointed counsel) to represent his or her interests in the neglect proceedings required was the appointment for each of them of a suitable person (besides parent, we assume that, however characterized, what the parents claim was interchangeably. In the absence of any suggestion to the contrary by either parents appear to have used the terms “guardian” and “guardian ad litem” note that at various points in their filings and arguments before this court, the guardians in the original neglect proceedings against the grandmother. We the TPR petition based on the fact that they were not provided with GALs or The parents first contend that the family division should have dismissed of the person for all purposes. Neither parent suggests that he or she required the appointment of a guardian III .

arguments in turn below. [Jack L.’s] welfare on [their] behalf . . . .” We address each of the parents’ abandonment under [RSA 170-C: p. 5 5, I], where [the grandmother] inquired about constituted an agency and that said agency precluded a finding of “reject[ing their] argument that [their] relationship with [the grandmother] 5

relationship” that precluded a finding of abandonment under RSA 170-C: p. 5 5, I, argument that their relationship with the grandmother constituted an “agency The parents next contend that the family division erred in rejecting their

TPR case on these grounds. no error in the family division’s denial of the parents’ motions to dismiss the parents in the neglect case is irrelevant to the TPR action. Therefore, we find In short, whether GALs or guardians should have been provided to the

Rather, the TPR petitions alleged that both parents had abandoned Jack L. individual psychological evaluations form the basis for the TPR proceeding. parent’s case did a failure to follow the recommendations set forth in the dispositional order in the neglect case was never satisfied, and thus in neither for Jack L., the condition precedent for compliance with this aspect of the manifested in any meaningful way a desire to resume parental responsibilities made for re-entry into their children’s lives.” But because neither parent ever contact with the court or their attorneys, there might have been provisions stated in denying the parents’ motions to dismiss: “Had [the parents] had New Hampshire and desired to become involved in their son’s life. As the court forth in their individual psychological evaluations in the event they returned to order was limited to requiring them to comply with the recommendations set the underlying neglect proceedings. However, with regard to the parents, that order in the neglect case to superior court, as was their right. See should have been appointed to assist them in complying with the court order in the parents, and, as already noted, the parents did not appeal the dispositional their parental rights. Here, the parents contend that GALs or guardians we fail to see a nexus between any such failure to do so and the termination of merit. The finding of neglect was made against the grandmother, not against provide for GALs or guardians for the parents in the underlying neglect case, the neglect proceeding is properly preserved, we find the argument lacking in we were to assume that DCYF or the court had a duty under the ADA to dismissed because the parents were not provided with GALs or guardians in proceeding, the court would not have terminated their parental rights. Even if they argue that had they been provided with GALs or guardians in the neglect the court would not have found neglect on the part of the grandmother. Nor do that had they been provided with GALs or guardians in the neglect proceeding, representative, “or any party having an interest”). The parents do not argue C:28, I (appeal may be taken to superior court by child, child’s authorized

Although the argument that the TPR proceeding should have been

this issue is properly before us. terminating their parental rights was timely filed on March 17, 2010. Thus, dismiss. The parents’ appeal of the family division’s February 10, 2010 order p. 6 We agree with the above assessment and reiterate what we stated in In re

intention to abandon.” The [parents] chose not to take “the opportunity to rebut the for the vast majority of [Jack L.’s] life sustains the presumption. rebuttable presumption [of abandonment]; the fact that it went on

of six months satisfies the statutory requirements to form a financial welfare. The fact that this went on for a period in excess their lives that they did anything to provide for his emotional or actions made it clear that [Jack L.] was not sufficiently a priority in Thomas M. I am left to guess what the [parents’] intentions were but their, 141 N.H. 55 (1996):

with Jack L. See father made no more than minimal efforts, to communicate or have contact relocation from New Hampshire, the mother made virtually no efforts, and the child since August 25, 2007, a period well in excess of six months. See mother had abandoned Jack L., in that neither parent had contact with the Moreover, the record contains ample evidence that, subsequent to their The December 2008 TPR petitions alleged that both the father and the

observed: the child, the court may declare the child to be abandoned.”). As the trial court such parent has made only minimal efforts to support or communicate with

id. (“If in the opinion of the court the evidence indicates that

grandmother, by moving out of state. their child to whatever extent possible, the parents left the child, and the given the factual circumstances presented here. had been awarded to DCYF. Instead of attempting to become responsible for clear, however, is that no such defense is available to the parents in this case legal custody of Jack L. and was not responsible for his care, as legal custody asserted as a defense to a TPR proceeding alleging abandonment. What is finding of neglect against the grandmother. The grandmother no longer had We need not decide whether an agency theory can ever be successfully six months). By November 2007, the family division had already made a care and custody of another without communication from parent for a period of 170-C:5, I (presumption of abandonment arises where parent has left child in

substitute for actual parenting or as a defense to the petitions.” argument, stating: “It is a novel theory but I cannot accept it as a reasonable principles of agency law to TPR proceedings. The family division rejected the parents acknowledge that they know of no authority that directly applies the because the grandmother inquired about Jack L.’s welfare on their behalf. The p. 7 7

Thomas M

absence without some contact with the children in his or her care.

pretend to discharge this responsibility during an extended from the child. But a parent, guardian, or custodian cannot periodic substitute care while the adult is temporarily separated category. No doubt fulfillment of this obligation co-exists with Caring for a child’s emotional well-being falls under the latter active involvement of the child’s parent, guardian, or custodian.

DALIANIS, C.J.