In re Deven O: Father rebutted presumption of abandonment in termination of parental rights

The Supreme Court issued In Re Deven O. on November 7, 2013.

The Facts

Deven was born in June 2006 and lived with his parents until they split up in December 2006. Deven lived with his mother and visited with his father a few days each month until December 2007, when father was arrested and incarcerated for armed robbery. Mother visited father in prison, but Deven visited just once. When father was released to a half-way house in June 2010, father visited with Deven multiple times per week over the next three months. In September 2010, mother told father that she did not want him visiting with Deven until he “straightened out his life.”

In October 2010, mother filed a petition to change Deven’s name. Although she knew father had been released from prison, she listed father’s address as the prison. Father found out about the name change in December 2010 after she posted about it online. Father contacted mother that month to arrange for Christmas gifts. In March 2011, father began to attempt to arrange for parenting time with Deven by calling mother. He also contacted mother’s father for help try to arrange visits. When these efforts failed, he filed a parenting petition in December 2011. Mother countered by filing a petition to terminate father’s parental rights.

Following a trial, the court terminated the father’s parental rights on the grounds of abandonment and failure to support, and made a finding that the termination was in Deven’s best interest. 

The Appeal

The father appealed the trial court’s decision, arguing that the evidence was insufficient to show, beyond a reasonable doubt, that there were grounds to terminate his parental rights. The father also asserted that he had no legal obligation to support the child because he was not listed on the birth certificate and there was no child support order. 

The Holding

The Supreme Court held that the mother failed to sustain her heavy burden and that there was insufficient evidence to support the termination of father’s parental rights. Parental rights are a fundamental liberty interest that cannot be pushed aside because a person has not been a model parent. The Court emphasized that a finding that six months passed without communication between the parent and child is only the first step in the analysis, and the trial court must consider the totality of the circumstances to determine whether the presumption of abandonment has been rebutted. The Supreme Court reminded trial courts to consider whether the parent's conduct "evidences a willingness to take on responsibility and concern for the child's physical and emotional care and well-being." Here, although there was a six month period without contact, the evidence of father’s repeated efforts to make contact with Deven prior to his filing of a parenting petition rebutted the presumption.

The Court also considered the mother’s refusal to allow access to the child. The Court looked to its opinion in In Re Sheena B., where the court determined that there could be no abandonment where the separation between a parent and child was caused solely by the other parent. Thus, the Court held, when considering the father's efforts to see Deven and the mother's refusal to allow the contact, that there was “insufficient evidence to support a finding of a settled purpose to abandon the child.”

The Supreme Court notes that the statute does not define, nor has the Court addressed, what it means to be “financially able” to provide a child with necessary subsistence, education or other care as RSA 170-C:5,II. However, here, the Court did not need to address this issue because it found that the evidence was insufficient to prove, beyond a reasonable doubt, that father was financially able but failed to support Deven.

The Takeaway

Deven O. was third in a string of termination of parental rights cases the New Hampshire Supreme Court issued opinions on in 2013. See In re Sophia-Marie H. & In re Faith T. All were private terminations where a parent or guardian sought termination of the rights of a parent (as opposed to DCYF initiated case). In each case, the Supreme Court emphasized that parental rights are “natural, essential, and inherent” within the meaning of the Constitution of New Hampshire and refused to terminate parental rights. Parental rights cannot be ignored because a person has not been an ideal parent.  These three cases act as a large neon caution sign for trial courts in termination proceedings.

Best Interest Considerations for a Parenting Schedule

New Hampshire’s “best interests” statute lists out several factors that the court should use to determine best interests. Many of the factors are little wordy, and as a whole the statute misses some of the very basic issues that must be considered when creating a parenting plan that is in the child’s best interest.

When I had the chance to reread a wonderful guide from the Massachusetts Association of Family and Conciliation Courts titled Planning for Shared Parenting: A Guide for Parents Living Apart, I loved the way that the factors were presented so simply. If I had the opportunity to rewrite RSA 461-A:6, I would use the AFCC's language:

  • The age, temperament and social adjustment of each child.
  • Any special needs of each child (medical, developmental, educational, emotional or social).
  • The quality of relationships between siblings and any other extended family members.
  • Each child’s daily schedule.
  • Caregiving responsibilities of each parent before the separation.
  • How you would like to share responsibilities both now and in the future.
  • Availability of each parent as a caregiver.
  • Potential flexibility of each parent’s work schedule.
  • Distance between each parent’s home, workplace and children’s schools.
  • The ability of parents to communicate and cooperate with each other.
  • The ability and willingness of each parent to learn basic caregiving skills such as feeding, changing and bathing a young child; preparing a child for daycare or school; taking responsibility for helping with homework; assessing and attending to each child’s special emotional and social needs.

Here are two good examples of why the basics can be so important in the determination of best interests:

1)      Both parents are good caregivers and share responsibilities for the children both before the separation and after. However, the parents live forty-five minutes from each other. Although each parent is able to adequately provide and care for the children, the distance that they live from each other prevents implementing a shared schedule during the school year. It usually is not feasible to have a parent making a forty-five minute commute with the children to school.

2)      Parents are both good parents and caregivers, each dedicated to the children and able to appropriately care for them. One parent works from 8:00 am to 4:00 pm Monday through Friday, with flexibility to work from home if the children are sick or have the day off from school. The other parent works second shift, from 2:00 pm to 10:00 pm with little flexibility to take time off from work or be available for the children during work hours. The children’s best interests require that they be with the parent who is available after school and in the evenings to prepare dinner, help with homework, and oversee baths and bedtime.

Neither of these scenarios endorses the parenting of one parent over the other or concludes that one parent is unfit; rather, it is a finding that one parent’s work schedule makes them more available or that the distance between the two homes is too much to allow for a shared schedule.

Of course, under RSA 461-A:6 courts have the ability to consider any other factor not listed that the court finds relevant, but I think that these factors from the AFCC provide a plainer picture of the considerations that a GAL might use to make recommendations, or the court might use in crafting a parenting plan

Muchmore & Jaycox: A parenting plan may not be modified solely on "best interests"

The New Hampshire Supreme Court issued an opinion on December 4, 2009 in the case of In the Matter of Adam Muchmore and Amy Jaycox, a domestic relations case pertaining to the modification of a parenting plan. In Muchmore & Jaycox, the Court holds that a parenting plan cannot be modified solely based on the best interests of the child, and instead the modification must comport with the statutory scheme laid out in RSA 461-A:11. The decision is disappointing, though not unexpected since the Court simply strictly applied the statute, because it prevents parents from modifying a parenting plan for issues such as a new schedule for the transition into kindergarten. Based on this decision, it will be important for the legislature to take action to allow modifications to a parenting schedule that do not rise to the level of the factors enumerated in the statute.

As background, Adam Muchmore and Amy Jaycox are parents of a minor child born in 2006. They previously resided in Vermont but have each since moved to New Hampshire. A June 2007 Vermont Order granted Amy Lecroix “primary legal and physical parental rights and responsibilities” for the child and allowed the petitioner, Adam Muchmore, regular weekly contact with the child.

In July 2008, Muchmore petitioned the Lebanon Family Division to modify the parenting plan pursuant to RSA 461-A:11, claiming that (1) Jaycox had “repeatedly, intentionally, and without justification” interfered with his parental responsibilities for the child and modification would be in the child’s best interests; (2) that there was clear and convincing evidence that the child’s present environment was harmful to her; and (3) because of the respondent’s conduct, the original allocation of parental rights and responsibilities was not working.

The Lebanon Family Division ruled that Muchmore had failed to meet his burden of proof with regard to each of the reasons for modification he cited, pursuant to 461-A:11; I(b), I(c), and I(d). The court went on to hold, however, that Muchmore’s petition was “sufficient to establish that modifying the parties’ parenting schedule would be in the child’s best interests, and that, pursuant to RSA 461-A:4 (Supp. 2008), proof that modification was in the child’s best interests was all that was required.” Jacox appealed to the Supreme Court.

The Supreme Court acknowledged that the circumstances under which a parent may seek modification of an existing parenting plans is governed by RSA 461-A:11, and concluded that because Muchmore did not meet his burden under that statute that he is not entitled to a modification. Muchmore argued that even if he failed to meet his burden under 461-A:11, a parent should be allowed to modify a parenting plan when the modification is in the best interests of the child, citing 461-A:4 as support for his assertion. The court held that even though 461-A:4 referenced a “proceeding to establish or modify”, that statute was aimed at the initial construction of a parenting plan while 461-A:11 governed actual modifications. 

The Court recognized in its opinion that this result was somewhat regrettable in that it prevented a court from “reassessing the best interests of a child in circumstances where the parents are not interfering and where the child’s current environment is not detrimental,” those circumstances being the majority of cases in practice. However, the Court continues, “RSA 461-A:11, I, does not grant the court discretion to modify an existing plan under any other circumstances” and that it is not up to the court to solve that problem or “to speculate as to how the legislature might choose to do so.” (Emphasis added). Simply put, the court is saying that if the legislature wanted to include a provision for the best interests of the child in 461-A:11 it could have chosen to do so. The Court, in the end, relies on strict statutory interpretation and deference to the public policy decisions of the legislature to assert that their hands were effectively tied.

However, without a provision to allow for some limited modifications based on best interests, a parenting plan that addresses the needs of a toddler may have to do for a tween. The parenting plan form itself encourages parents to view the plan as a work in progress as the children grow and their needs change from infant to teen, but the statute itself does not allow for the changes except in the case that the parents agree or major issues develop as set forth in 461-A:11. It is certainly understandable that the legislature would not include a best interests standard for change in major categories such a primary residential responsibility, as this would just encourage more litigation and allow parents to petition the court for modification whenever they might have the upper hand. However, for routine and holiday schedule changes or other issues that do not call for a change in residential responsibility, there needs to be a mechanism to allow for modification based on best interests so that the court may tweak a parenting plan as the current needs of the child dictate.  

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

Termination of parental rights in New Hampshire

“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.

How do I relocate with my children out of state?

Q: I have primary residential responsibility for my children, and I want to move out of state with them, what do I need to do to move?

A: The relocation statute (NH RSA 461-A:12) requires that the relocating parent shall provide reasonable notice to the other parent of the move. While “reasonable notice” may vary depending on special factors present in your case, in most cases 60 days is presumed reasonable notice. This notice requirement applies in all parenting rights and responsibilities cases unless specifically addressed otherwise in the parties’ existing order or agreement. However, it does not apply when the relocation will move the parent and children closer to the other parent or within the same school district.

 

If the non-relocating parent objects, the court will hold a hearing on the matter at the request of either parent. Often, the court will appoint a guardian ad litem to investigate the issues and make a recommendation to the court regarding the relocation.

 

In order for the relocating parent’s request to be approved, that parent must show that their relocation is for a legitimate purpose and that the proposed relocation is reasonable in light of that purpose. In other words, if the relocating parent is moving to be near her family that lives in Florida, the proposed move should be to Florida and not North Dakota. A legitimate purpose may be for a variety of different reasons, including economic opportunities such as employment or the ability to be self-supportive, to be close to a support network of friends and family, or for an educational opportunity for the parent or children.

 

If the relocating parent proves, by a preponderance of the evidence (more probable than not), that the relocation is for a legitimate purpose, then the burden shifts to the non-relocating parent who must show the court that the proposed relocating is not in the best interests of the children. Even if the relocating parent has a legitimate purpose, and is not moving for nefarious purposes such as interfering in the other parent’s relationship with the children, the court may find that it is not in the children’s best interests and deny to relocation.

 

When considering the relocation, the court may consider several factors enumerated in the NH Supreme Court cases Tomasko and Pfeuffer:

 

·         Each parent’s reasons for seeking or opposing the move;

·         The quality of the relationships between the child and the custodial and noncustodial parents;

·         The impact of the move on the quantity and quality of the child's future contact with the noncustodial parent;

·         The degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally, and educationally by the move;

·         The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements;

·         Any negative impact from continued or exacerbated hostility between the custodial and noncustodial parents; and

·         The effect that the move may have on any extended family relations.

 

No single factor is presumed to be dispositive, and the court may consider additional factors as the case demands.