2013-276, In re Sophia-Marie H.

The respondent, the father of Sophia-Marie H. (father),

Nancy K. Quinlan, of Dover, on the brief, for the father. to press. Errors may be reported by E-mail at the following address: brief), for the mother.

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 rights on grounds of abandonment and nonsupport. See RSA 170-C:5, I, II

p. 2 August, the mother filed a petition seeking termination of the father’s parental April, he filed a motion seeking to reinstate visitation with Sophia-Marie. In On February 13, 2012, the father was released from incarceration. In

he was not a very good father to Sophia-Marie, but that he was now committed the mother could result in his return to prison. father testified that a prison official told him that further attempts to contact advised prison authorities that she did not want the father contacting her. The

At the final hearing, the father admitted that, prior to his incarceration,

the mother and Sophia-Marie. The grandmother hung up on him. She then

release from incarceration was in December 2012. that the only child support payment she had received from the father since his father telephoned the child’s maternal grandmother in an attempt to contact

Marie that he is her father, she plans to do so eventually. She further testified turned off.” In November 2011, after being released to a halfway house, the to call for a few more months because he “thought maybe the phone was just the father could no longer contact them. The father testified that he continued

the letters that the father had sent and that, although she has not told Sophia- Sophia-Marie. The mother testified that she did not inform Sophia-Marie about “daddy” and that, if the termination petition were granted, he would adopt and February 2011. The mother then changed her telephone number so that

with the mother’s fiancé. She stated that Sophia-Marie refers to him as made telephone calls to the mother and Sophia-Marie between November 2010 Sophia-Marie between October 8, 2010, and October 17, 2011. The father also During his incarceration, the father sent at least sixteen letters to

petition. At the hearing, the mother testified that she and Sophia-Marie live On February 20, 2013, the court held a hearing on the termination

termination petition. arrearage during his incarceration “to be paid after he obtains employment.” the father to pay $50 a month in child support, which would accrue as an consider “whether he should have parenting rights.” The court further ordered

because visitation was thereafter suspended pending resolution of the mother’s

that after he was released from prison he could file a motion for the court to

supervised visitation with Sophia-Marie. However, no visitation occurred seeking visitation and, thereafter, issued an order awarding the father (2002). That same month, the court held a hearing on the father’s motion father have no visitation with Sophia-Marie while he was in prison, but noted the mother sole custody of Sophia-Marie. The court recommended that the December 6, the trial court issued a final decree and parenting plan awarding

State Prison as a result of convictions for the possession and sale of drugs. On On August 17, 2010, the father was incarcerated in the New Hampshire for her. See RSA 170-C:5, II. The court also determined that it was in Sophia p. 3 abandoned Sophia-Marie, but that he had failed to support, educate, and care In its termination order, the court found that the father had not

not sure how to weigh the risks and benefits of that.” “I know what we have, but I’m just not sure what the future will hold, and I’m with her father. The GAL stated, “I don’t have . . . a crystal ball.” He later said,

pulled it together,” then Sophia-Marie “would . . . miss[] out on [a] relationship”

concern that, if the termination petition were granted and the father “has

that the father’s “track record” concerned him. However, he also expressed father’s parole officer and counselor and “they both think he’s doing well,” but relationship with the father, the GAL testified that he had spoken with the

whether he thought it was in Sophia-Marie’s best interest to create a

[and] he wants to be involved in [his] daughter’s life.” When asked by the court appears to be a changed man and has “made an effort to turn his life around GAL testified that this was not an easy decision. He stated that the father

that recommended that the termination petition be denied. At the hearing, the

alternative dispositional orders is the most desirable, under a standard giving

termination is in the child’s best interest. In re Adam R., 159 N.H. 788, 792 of Part I, Article 2 of the New Hampshire Constitution. In re Jack L., 161 N.H. statutory ground is established, the court must then consider whether Sophia-Marie’s guardian ad litem (GAL) submitted a detailed final report over termination of parental rights cases under RSA chapter 170-C). Once a Sophia-Marie prior to his incarceration, he had started paying child support.

welfare of the child, which prevails over the interests of the parents. In re Jack termination proceedings under RSA chapter 170-C (2002 & Supp. 2012) is the (2010). Such a determination requires assessment of which of the possible

Parental rights are “natural, essential, and inherent” within the meaning RSA 490-D:2, VII (2010) (authorizing family division to exercise jurisdiction motion for reconsideration was denied, and this appeal followed. reasonable doubt. In re Haley K., 163 N.H. 247, 249 (2012); see RSA 170-C:5; temporarily.” He stated that, although he did not provide financial support for petitioning party must prove a statutory ground for termination beyond a Before a court may order the termination of a parent’s rights, the

L., 161 N.H. at 614.

611, 614 (2011) (quotation omitted). The dominant consideration in

Marie’s best interest to terminate the father’s parental rights. The father’s remodeler, but that he was currently “on leave” because there was “no work testified that he obtains sporadic employment from his father as a painter and relationship Sophia-Marie has with the mother’s fiancé is good for her. He

refers to the mother’s fiancé as “daddy” and that he believes that the to being in her life. He testified that it does not bother him that Sophia-Marie doubt that the father was “financially able” to pay for Sophia-Marie’s care, but

p. 4 the heavy burden to produce evidence demonstrating beyond a reasonable

although the parents are financially able, they have substantially

currently “on leave” because there was “temporarily” no work. The mother had to testimony that he was sporadically employed by his father, but that he was circumstances. The evidence concerning the father’s employment was limited

RSA 170-C:5, II authorizes termination when,

because the record contains scant evidence as to the father’s financial

agree. able to do so, had failed to support” Sophia-Marie under RSA 170-C:5, II. We

to be “financially able” in this context. We need not do so here, however, The statute does not define, and we have not addressed, what it means

evidence to prove, beyond a reasonable doubt, that [he], although financially

or other care.” RSA 170-C:5, II.

The father first argues that the mother failed to “provide sufficient

continuously neglected to pay for [the child’s necessary] subsistence, education the father was “financially able” but nonetheless had “substantially and of Sophia-Marie, she had the burden to prove, beyond a reasonable doubt, that

matter of law. We therefore decline to dismiss his appeal on this ground. 4 parental rights was unsupported by the evidence and, therefore, erroneous as a

RSA 170-C:5, II (emphasis added). Because the mother has sole legal custody

interest. Thus, he contends that the trial court’s decision terminating his

other care when legal custody is lodged with others. continuously neglected to pay for such subsistence, education or emotional, or physical health or have substantially and

and care for Sophia-Marie and that termination was in Sophia-Marie’s best prove, beyond a reasonable doubt, that he did not adequately support, educate, court erred in terminating his parental rights because the mother failed to

subsistence, education or other care necessary for his mental, and continuously neglected to provide the child with necessary

erroneous as a matter of law. We disagree. The father argues that the trial

plainly erroneous as a matter of law. See In re Haley K., 163 N.H. at 249.

priority to the assumed interest of the child. In re Shannon M., 146 N.H. 22,

father’s appeal because he has failed to allege that the court’s order was plainly As a threshold matter, the mother asserts that we should dismiss the

We will affirm the trial court’s order unless it is unsupported by the evidence or consideration is welfare of child, which must prevail over interest of parent). parent against best interest of child under RSA chapter 170-C, dominant 28 (2001); In re Adam R., 159 N.H. at 792 (in weighing fundamental rights of p. 5 Marie. See In re Lisa H., 134 N.H. 188, 193 (1991) (noting that trial court’s termination of the father’s parental rights was in the best interest of Sophia-

ground for termination, we need not address the trial court’s finding that

parental obligation to provide for the care of his child. See In re Haley K., 163

In light of our determination that the mother failed to prove a statutory

II. Therefore, that finding was erroneous as a matter of law.

this was error. It is true that incarceration did not absolve the father of his support during his incarceration as evidence that the mother met her burden, To the extent that the court relied upon the father’s failure to pay child

her burden of proving he was “financially able.” demonstrating his ability to make such payments, the mother failed to meet court-ordered child support payments, in the absence of any evidence to provide for Sophia-Marie’s support, education, or care under RSA 170-C:5,

the mother’s burden under RSA 170-C:5, II. Cf. In re Sheena B., 139 N.H. 179, father’s failure to pay support during his incarceration cannot be used to meet

on this record, the trial court erred in its finding. Cf. George v. Al Hoyt & Sons, testified, and the trial court found, that the father was not current on his finding that the mother proved beyond a reasonable doubt that the father failed both parties discuss it in their briefs, we take the opportunity to explain why, issue could arise in a future proceeding between these parties and because

obligation to do so was postponed, by the family division. Therefore, the Inc., 162 N.H. 123, 138 (2011).

“financially able” to support Sophia-Marie. Moreover, although the mother Accordingly, we conclude that the evidence did not support the trial court’s good provider” for her family, however, does not establish that the father is should have known, would lead to loss of opportunity to see his child). statutory conditions for termination of parental rights). However, because this Sophia-Marie. The fact that the father’s fianceé believes that the father is “a did not support a finding that father engaged in conduct that he knew, or consideration of child’s best interest is necessary only after finding one of the

failure to pay child support while he was incarcerated was anticipated, and his incarceration “to be paid after he obtains employment.” Thus, the father’s father’s child support obligation would accrue as an arrearage during his

provider for her family to show that he was “financially able” to provide for prohibiting contact with child was not evidence of abandonment where record The mother points to the father’s fianceé’s opinion that he is a good 184-85 (1994) (lack of contact when father was subject to restraining order doubt, his ability to provide for Sophia-Marie.

N.H. at 252. However, the final decree on the parenting plan provided that the

father had sporadic employment does not establish, beyond a reasonable substantially and continuously neglected to do so. The mere fact that the a relationship with the child. Cf. In the Matter of Miller & Todd, 161 N.H. 630,

p. 6 fiancé, absent further court order. The record does not reflect any effort by the

due, in part, to the other parent’s efforts to thwart attempts made to establish child’s lack of knowledge of the parent whose rights are being terminated is cannot be assumed that termination is in the best interest of a child where the

of Sophia-Marie, and she will remain with both the mother and the mother’s

Marie’s best interest. Cf. In re Jessica B., 121 N.H. 291, 296 (1981) (upholding to disclose the father’s attempts to contact her or even that he is her father. It assessing whether termination of the father’s parental rights is in Sophiareintroducing the father to Sophia-Marie is a factor to be considered in parental rights are not terminated. The mother has legal and physical custody Sophia-Marie has with the mother’s fiancé would be disrupted if the father’s Moreover, there is no evidence that the strength of the relationship

Marie does not know her father, it is, in part, due to the mother’s decision not Sophia-Marie, and we cannot ignore the fact that to the extent that Sophia- We recognize that the difficulty and confusion that may result from However, the father has endeavored to maintain a relationship with

adopt her.” fiancé, “whom she already considers to be her father, is willing and prepared to other factors).

interest to terminate his parental rights and deny her the opportunity of father, we cannot say, under the facts of this case, that it would be in her best might be difficult and confusing for Sophia-Marie to be reintroduced to her separation from the child is caused solely by the other parent). Although it

possibility that the child will be harmed” (quotation omitted)); In re Sheena B.,

developed a strong relationship with the mother’s fiancé. Marie’s] life at this point would be difficult and confusing” and the mother’s parents as “mom” and “dad” was one factor to consider in conjunction with

139 N.H. at 184 (finding no statutory abandonment by one parent where

behavior so inconsistent with the best interests of the child as to raise a strong between a child and the noncustodial parent may, if continuous, constitute years old. She is now almost five years old and, in that time, she has 641 (2011) (stating that “the obstruction by a custodial parent of visitation occasionally). Sophia-Marie has not seen the father since she was nearly two The court concluded that “[a]ttempting to reintroduce [the father] into [Sophiachild had not lived with mother for nearly five years and saw mother only with or connection to [the father] and is apparently unaware of his existence.” received at the hearing.” The court observed that Sophia-Marie “has no bond

termination of parental rights where part of basis for termination was that in Sophia-Marie’s best interest based upon the GAL’s report and “the evidence The court determined that termination of the father’s parental rights was having a relationship with her father. Cf. id. at 601.

p. 7 concerned that if termination were ordered, Sophia-Marie would miss out on Sophia-Marie’s best interest. Indeed, the GAL also testified that he was predict the father’s future behavior supports a finding that termination is in

Reversed.

behavior cannot be predicted. However, we cannot say that the inability to

parenting skills” and “responsible [f]atherhood.” See id. (evidence that mother termination was necessary. incarceration he completed a parenting class “designed to promote healthy such a case. Accordingly, we conclude that the trial court erred in finding that

event of constitutional import. See In re William A., 142 N.H. at 602. Although

changed his life. We recognize the GAL’s concern that the father’s future

HICKS, LYNN and BASSETT, JJ., concurred.

ability to have a positive relationship with Sophia-Marie. During his termination is sometimes required to protect a child’s best interest, this is not

termination of a parent’s legal bond to a child is a solemn and irreversible reunification, short of terminating parental rights. As we have said before, as the father’s counselor and parole officer, and it appears that the father has which to protect a child from the difficulty and confusion associated with in [his] daughter’s life.” The GAL testified that he spoke with the father as well Todd, 161 N.H. at 640. This discretion affords trial courts various means by rebuild their relationship. Cf. In re William A., 142 N.H. 598, 601-02 (1998) father has “made an effort to turn his life around [and] he wants to be involved and a child’s contact with noncustodial parents. See In the Matter of Miller & good for her. The father merely wants the right to visit with his daughter to We note that trial courts have broad discretion in managing visitation that he believes the relationship Sophia-Marie has with the mother’s fiancé is

Furthermore, the evidence suggests that the father has enhanced his

with child and had consented to step-mother’s appointment as legal guardian).

classes supported denying termination petition). The GAL testified that the had enhanced her ability to parent where she was participating in parenting relationship that she has with the mother’s fiancé. Indeed, the father testified father to acquire legal and physical custody of his daughter or to disrupt the

(termination not in best interest of child where mother merely wanted to visit