New Hampshire Family Law Blog : New Hampshire Divorce Lawyer & Attorney : Crusco Law Firm : Family Law, Custody, Child Support : Manchester, New Hampshire, Massachusetts

If you are the non-accused, non-custodial parent of a child who is the subject of an abuse or neglect filing by the Division of Children, Youth and Families, the outcome of the case could have a substantial affect on your parental rights. Although non-accused, if a finding of true is entered, the parents of the child have an obligation to correct the conditions that led to the finding of neglect. If the conditions have not been corrected within twelve months of the finding, your parental rights could be terminated, even if you are the non-accused parent. Accordingly, it is very important to be well versed on your rights and, if possible, hire an attorney to represent you.  

Request for custody

As the parent who does not live with the child and is not alleged to have abused or neglected your child, you have the right to petition the court for a “Bill F” hearing. The hearing is titled after the New Hampshire Supreme Court case, In Re Bill F, in which the court held that parents who have not been charged with abuse or neglect must be afforded, upon demand, a hearing regarding their request for custody. At the Bill F hearing, a parent must show that he or she has the ability to provide care for the child. If shown, the court shall award custody unless the State demonstrates, by a preponderance of the evidence, that he or she has abused or neglected the child or is otherwise unfit to perform his or her parental duties.

Right to an attorney

A parent who has been accused of abuse or neglect has the right to have an attorney represent him or her throughout the case, and if they cannot afford an attorney, one will be appointed to represent them. Not so for the non-accused, non-household parent. Although you will have the right to hire an attorney at your own expense, RSA 169-C:10, specifically prohibits the court from appointing an attorney to represent you. The New Hampshire Supreme Court affirmed in the case of In Re Father, holding that the statute prohibiting the appointment of an attorney to represent a non-accused, non-custodial parent does not violate the Due Process Clause of the State Constitution.

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“Surely there can be few loses more grievous than the abrogation of parental rights.” Those words are as true today as they were when Supreme Court Justice Blackmun first wrote them in Lassiter v. Department of Social Services in 1981. Unfortunately, there are times, however grievous, when it is necessary to terminate parental rights against a parents wishes. There are also times when rigorous defense against a petition to terminate parental rights is warranted.

The United States Supreme Court has long recognized the right and the heavy responsibility of the states to terminate the parent-child relationship when there is cause to do so. In New Hampshire, RSA 170-C provides for involuntary termination of parental rights, and the probate courts, and now also the family divisions, have exclusive jurisdiction over such termination of parental rights matters. If the court orders a termination of parental rights, the effect is to sever all legal rights, privileges and duties between the parent and the child. The two become legal strangers in the eyes of the law, with neither parent or child owing any obligations to the other at any point in the future.

A termination petition may be filed, pursuant to RSA 170-C:4 by:

a.       Either parent;

b.      The child’s guardian or legal custodian;

c.       The child’s foster parent if the child has resided with that foster parent continuously for 24 months; or

d.      An “authorized agency,” which in termination of parental rights petitions would be the Division for Children, Youth and Families, or DCYF.

Additionally, the statute sets forth limited conditions on which such a petition may be brought. RSA 170-C:5 lists six circumstances under which a petition for termination of parental rights will be granted:

a.       The parents have abandoned the child

b.      The parents have substantially and continuously neglected to provide the child with the care necessary for mental, emotional, or physical health when they are financially able to do so

c.       The parent(s) have failed to correct conditions that lead to a violation of the Child Protection Act, within twelve months of such a finding

d.      The parent is, and will continue to be, mentally incapable, either by deficiency or illness, of caring for the child

e.       The parent knowingly or willingly caused, or allowed to be caused, severe sexual, physical, emotional or mental abuse of the child

f.       The parent has been convicted of any of the following crimes:

a.       The murder of another child of the parent, a sibling or step-sibling of the child, or the child's other parent;

b.      The manslaughter of another child of the parent, a sibling or step-sibling of the child, the child's other parent;

c.       Attempted murder of the child, step-child, sibling or other parent; or

d.      A felony assault which resulted in injury to the child, a sibling or step-sibling of the child, or the child's other parent.

Courts will consider the best interest of the child in rendering a decision, sometimes appointing a Guardian Ad Litem to represent that interest. However, even if the court determines that the child’s best interests are served by terminating a parent’s rights, that finding alone is not sufficient to order termination. A court must make an explicit finding under the statute that one or more of the above criteria has been satisfied. The United States Supreme Court states: in Santosky v. Kramer:

The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the 14th Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.

The Santosky court also held that, except for clear cases of abuse, the government should not separate children from their families or countermand parental authority.

Because termination affects a fundamental constitutional right for parents to raise their children as they see fit, New Hampshire courts have increased the burden on the petitioner to prove that TPR is appropriate. In State v. Robert H., the New Hampshire Supreme Court made it clear that for the termination of parental rights, the standard to be imposed is proof beyond a reasonable doubt that 170-C:5 has been satisfied. It is fitting that the petitioner must meet this highest burden as “the rights of parents (over the family) are held to be natural, essential and inherent rights, within the meaning of the New Hampshire Constitution,” the New Hampshire Supreme Court states. “The permanent termination of the rights of parents over their children is even more final than involuntary commitment or delinquency proceedings” both of which require that heightened standard; no other standard would be appropriate.  

The above discussion merely scratches the surface of these intricate and complicated issues. Each case has its own set of unique facts and circumstances. The termination of parental rights is extremely serious, and for that reason, as well as those cited above, it is very important that you retain competent counsel if you are involved in a TPR action, whether as the parent or the petitioner. Contact Crusco Law Office, PLLC for further information. 

Crusco Law Office, PLLC law clerk, Daniel McLaughlin, contributed to this post.

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I had a conversation today in which the person stated that most Guardian ad Litem's are volunteers, and that it is very unusual to have a GAL who is paid for his services. I thought this topic was worth a blog post to clear up this misconception that seems to derive from the common mix up between a CASA and a GAL.

As discussed previously on this blog, a GAL is a professional appointed by the court to perform an independent investigation and to make recommendations to the court regarding the best interests of a child. A GAL may be appointed in all types of family law cases, from divorces to guardianships, and is paid for her services. GALs are not volunteers, although most GALs work for drastically reduced rates and work far more hours on a case than are billed.

On the other hand, a Court Appointed Special Advocate or CASA is a trained volunteer who serves as an advocate for children in abuse or neglect cases. An abuse or neglect case is a type of case brought to the court by the Division of Children, Youth and Families under the Child Protection Act to protect the health, safety and welfare of a child. Although a CASA's role is very similar to that of a GAL, a CASA only works on abuse or neglect cases or derivative termination of parental rights.

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The New Hampshire Supreme Court released In Re James N. on October 8, 2008 holding that the basis of a CHINS petition under the Child in Need of Services statute cannot be founded upon a delinquent act.

In 2007, the Mother filed a CHINS petition involving her 6 year old son James, who at the time was in DCYF’s custody. Mother alleged that he was a child in need of services for failing to obey the reasonable commands of his parent, guardian or custodian pursuant to RSA 169-D:2, II(b). The specific acts alleged in the petition were: threatening others with physical harm, threatening to set fire to a residence, harming his foster family’s dog, attempting to strangle his foster brother, head butting, biting, and placing glass “sharps” in others’ clothing.

At the hearing, James, joined by DCYF, moved to dismiss arguing that the alleged underlying facts are delinquent acts and may not be included in a CHINS petition. The court granted James’ motion finding that the petition failed because the acts alleged were delinquent acts.

The mother then filed four delinquency petitions alleging cruelty to animals, simple assault, and reckless conduct. James moved to dismiss arguing that a six-year old is presumed not to be competent to stand trial in delinquency proceedings and is presumed not to be capable of committing a crime due to his tender age. The court agreed with James and found that he could not consult with his attorney or have a rational understanding of the proceeding. Therefore, it would be a violation of his due process rights to make him stand trial.

The mother appeals to the NH Supreme Court and argues that the allegation of a delinquent act should not be fatal to a CHINS petition if the child cannot form the required mens rea (guilty mind). The court disagreed, and stated that the plain language of the statute does not allow delinquent acts to be included in a CHINS petition. Further, under the Mother’s interpretation the child would have to prove his guilt with respect to the act in order to show the act should be excluded from the petition. This would be an absurd result and the legislature would not pass an act leading to an absurdity. Additionally, the court points out that the definition of a child in need of services supports their interpretation because the definition does not overlap with the definition of a delinquent.

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.

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