2011-123, In re Haley K.

XIX (b) and (c) (2002). An adjudicatory hearing was scheduled for June 29, petition alleging that Haley was a neglected child as defined in RSA 169-C:3, Hampshire Division for Children, Youth and Families (DCYF) filed a neglect

foster family with whom she had previously resided. In June 2009, the New

mother concluded that she was unable to care for Haley and returned her to a

Michael A. Delaney

arrested and incarcerated for theft. After the respondent was incarcerated, his May 2009, she was living with the respondent and his mother when he was The following facts are undisputed. Haley was born in August 2007. In

No. 2011-123 Concord Family Division

efforts to assist him in correcting the conditions of neglect. We affirm. Lucinda Hopkins

the Concord Family Division (Tenney Hampshire Division for Children, Youth and Families.

argues that the trial court erred in finding that the State made reasonable ___________________________ , J.) terminating his parental rights. He CONBOY, J. The respondent, the father of Haley K., appeals an order of

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: assistant attorney general, on the memorandum of law), for the petitioner, New

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

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as reasonable doubt. In re Juvenile 2006-674

p. 2 petitioning party must prove a statutory ground for termination beyond a Before a court may order the termination of a parent’s rights, the

reasonable services for his reunification with Haley. termination of his parental rights because the State failed to provide On appeal, the respondent argues that the trial court erred in ordering

incarceration. termination petition and had remained in foster care since the respondent’s Haley was three years and four months old at the time of the hearing on the

relative, see

her life; this lack of stability led to social and emotional behavioral issues.

In re Juvenile 2006-674 order unless it is unsupported by the evidence or erroneous as a matter of law.

may not apply in cases in which the child is being appropriately cared for by a

had had numerous caregivers, including the respondent in the early stages of

efforts by DCYF to assist him in rectifying the conditions. See the State, for twelve of the most recent twenty-two months. This requirement home placement pursuant to a finding of neglect, under the responsibility of parental rights be filed in those cases in which a child has been in an out-of-

respondent’s incarceration in May 2009, Haley was twenty-one months old and [her] and that Haley was very likely to suffer serious harm.” At the time of the Haley in the care of his mother “who was unwilling/unable to provide care for

(2010) (authorizing family division to exercise jurisdiction over termination of direction of district court to assist in rectifying conditions); RSA 490-D:2, VII RSA 169-C:24-a, III (a), or when the State has not provided to the within twelve months of the finding despite reasonable efforts by State under months, the conditions that led to the finding of neglect despite reasonable reasonable doubt that the respondent had failed to correct, within twelve After the two-day termination hearing, the trial court found beyond a RSA 169-C:24-a, I (Supp. 2010) requires that a petition for termination of

Haley’s physical and emotional health because, upon his incarceration, he left

be terminated when parent fails to correct conditions leading to neglect finding 170-C:5, III; In re Craig T., 147 N.H. 739, 743-45 (2002) (parental rights may

mother surrendered her parental rights.

respondent failed to provide proper parental care or control necessary for

neglect or abuse under RSA 169-C.” At the hearing on the petition, Haley’s the petition alleged that the respondent had failed “to correct conditions of petitions to terminate both parents’ parental rights pursuant to RSA 170-C:5;

(2002). The trial court found that the original neglect petition alleged that the

Haley’s mother agreed that she was a neglected child. In July 2010, DCYF filed 2009, at which time a consent order was entered in which the respondent and this paragraph,” and that “[i]ncarceration in and of itself

p. 3 our review of the applicable statutes is de To address his argument requires that we engage in statutory analysis;

“shall not be considered proper parental care and protection for purposes of

neglected his child. This statute further provides that placement in foster care responsibilities to and for the child and has been found to have abused or result of incarceration for a felony offense, is unable to discharge his

deprivation is not due primarily to the lack of financial means of the parents,”

neglect conditions.

VI (2002) also authorizes termination of parental rights when a parent, as a

health has suffered or is very likely to suffer serious impairment; and the

termination of his parental rights should be ordered for failure to correct was not a factor that the trial court could consider when determining whether appears to argue that the effect of his incarceration on the welfare of his child

under the direction of the district court to rectify the conditions. RSA 170-C:5, months, the conditions leading to a finding of neglect despite reasonable efforts authorizes termination when parents have failed to correct, within twelve for [her] physical, mental, or emotional health, when it is established that [her] subsistence, education as required by law, or other care or control necessary neglected child includes one who “is without proper parental care or control,

as grounds to terminate his rights” and “[i]ncarceration was [his] doing,” he

In this case, DCYF sought termination under RSA 170-C:5, III, which

As the State observes, under RSA chapter 169-C, the definition of a

used. Id concedes that his “length of incarceration may very well have proved available reasonable services that he could access while incarcerated. Although he child, the respondent argues that DCYF had an obligation to provide

permanent foster care must be pursued). entry into foster care, termination of parental rights and adoption or

words that the legislature did not include. Id.

. We can neither ignore the plain language of the legislation nor add

and, where possible, we ascribe the plain and ordinary meanings to words 38, 42 (2011). When construing statutes, we first examine the language used, failed to correct the conditions that led to a finding that Haley was a neglected novo, Appeal of Keelin B., 162 N.H.

that they are able to provide adequate care of their child within one year of

In support of his assertion that the trial court erred in finding that he

for termination of parental rights.” RSA 170-C:5, VI (emphasis added).

mandated that a child deserves permanency; therefore, if parents do not show

a, III(c); cf

(under Federal Adoption and Safe Families Act of 1997, federal government has

. In re Juvenile 2006-674, 156 N.H. at 9 (Dalianis, J., concurring)

necessary for the safe return of the child to the child’s home.” RSA 169-C:2 p. 4 4family of the child “such services and reasonable efforts as the [S]tate deems 4

DCYF due to prison policy; (3) DCYF and the respondent attempted to arrange

during visits at the prison; (2) random drug screens could not be provided by

that the respondent visited consistently and acted appropriately with Haley The trial court found that: (1) DCYF provided a parent aide who reported

management and coordination of services including visitation at the prison.

reasonable services is constrained by its staff and financial limitations. In re neglect conditions. We have previously held that the State’s ability to provide DCYF provided reasonable services to assist the respondent in correcting the We therefore turn to the specific facts of this case to determine whether

support; and (5) a child protective services worker (CPSW) for case alcohol abuse counselor (LADAC) and individual therapy; ( p. 4 4) home based random drug screens; (3) referrals for counseling by a licensed drug and

The dispositional order required DCYF to provide: (1) a parent aide; (2)

relevant in cases that seek termination based upon an alternative ground. that may be directly relevant to one ground for termination may also be depending upon the provision chosen. Accordingly, we conclude that factors

refrain from illegal activity and comply with parole terms. financially as evidenced by maintaining employment and an apartment; and (5)

provision to proceed. Nor does it limit the evidence that can be presented

by the assigned parent aide; ( p. 4 4) demonstrate an ability to care for himself

be sought; it does not limit a petitioner’s discretion in determining under which RSA 170-C:5 provides alternative grounds under which termination may

therapist; (3) demonstrate his ability to appropriately parent Haley as reported

direction, we decline to adopt such an interpretation of the statute.

meetings; (2) manage his addictions as evidenced by reports from his individual substances as evidenced by random drug screens and attendance at AA/NA that the respondent: (1) demonstrate that he is free from illegal/illicit

the conditions of neglect remained uncorrected. Absent specific legislative actual incarceration should not have been considered in determining whether him in correcting the conditions that led to a finding of neglect, but that his

The dispositional orders issued in the underlying neglect case required

particular case are to be assessed. Id. word “reasonable” is the standard under which the department’s efforts in a Juvenile 2006-833, 156 N.H. p. 4 482, 486 (2007). We have emphasized that the

incarceration should have been made in the remedial plan developed to assist In essence, the respondent argues that special accommodations for his

because of incarceration.” RSA 169-C:3, XIX (c).

parents “are unable to discharge their responsibilities to and for the child RSA 169-C:3, XIX (b). The statute also defines a neglected child as one whose p. 5 Affirmed

affirm the decision of the trial court.

the original finding of neglect had been corrected. See

of his parental obligation to provide for the care of his child. Accordingly, we see deployed overseas, the respondent’s physical unavailability did not absolve him care and support during his incarceration. Much like a military parent who is

consider in addressing the broader issue of whether the conditions leading to

services to assist him in rectifying the conditions leading to a finding of neglect, court’s finding. Rather, he failed to make adequate provisions for his child’s While the respondent argues that DCYF did not provide reasonable

DALIANIS, C.J.