“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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