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.

Proving your New Hampshire Petition to Terminate Parental Rights

The New Hampshire Supreme Court has often reiterated that parental rights are “natural, essential, and inherent." Such fundamental liberty interests are not easily swept aside. It is therefore imperative to understand the law and procedures for a termination of parental rights. Check out the latest You Tube video about proving your petition for termination of parental rights.

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Termination of Parental Rights or Surrender of Parental Rights: What's the Difference?

I have received many questions about the similarities and differences between a surrender of parental rights and a termination of parental rights. While the end result is often the same when the parental rights and responsibilities of a parent are permanently severed, there many differences to be aware of. 

Similarities

• Both are proceedings that can end in the permanent severing of all parental rights and responsibilities of a parent.

• Parents who are surrendering or may have their parental rights terminated are entitled to an attorney, and if they cannot afford one the court will appoint an attorney to represent them.

• Both proceedings are confidential.

Differences

• In a surrender of parental rights, all the parties agree to terminate the rights of a parent; a termination of parental rights can be either contested or uncontested. A TPR petition does not always result in a termination of one or both parents parental rights. 

• A parent in a surrender is entitled to counseling at the expense of the petitioning party about the parent’s decision to place the child up for adoption.

• The court is required to appoint a guardian ad litem to represent the best interests of the child in a termination proceeding; a surrender petition does not require the appointment of a guardian ad litem.

• A surrender of parental rights requires that there be a pending adoption, where a termination of parental rights does not. An adoption does not always follow a termination of parental rights case.  

• A termination proceeding requires that the court make a finding, beyond a reasonable doubt, that grounds exist to terminate the parental rights of a parent and that it is in the best interests of the child. A surrender does not require such findings, only the agreement of the parties that the surrender take place.

• TPR cases are heard in the Circuit Court- Family Division, and surrender cases are either in the Circuit Court – Family Division or the Circuit Court – Probate Division depending on the specific facts of the case.

The Facts about Petitions to Terminate Parental Rights

Petitions to terminate parental rights involve fundamental parental rights and responsibilities. Because the statutory grounds to terminate must be proved beyond a reasonable doubt, and the judge must also find that it is in the child's best interests, it is important to understand the legalities and make sure that your case is well-presented. For more information, call Crusco Law Office, PLLC at 603-627-3668.

Representation of Accused Parents is Fundamental Right

Republished here, my opinion from the recent Bar News regarding the appointment of counsel for parents in abuse and neglect proceedings:

Few rights can be argued to be more fundamental then the right to raise and care for one’s children. In recognition of that right, New Hampshire has long appointed counsel to represent indigent parents in abuse and neglect proceedings who face the removal of their children from their care by the State. The NH Supreme Court recognized in Shelby R. that "abuse and neglect proceedings can harm, and in some cases irreparably damage, family and marital relationships."

Despite the constitutional protections afforded to parents, recent passage of HB2 [the budget "trailer bill"] and the issuance of Circuit Court Administrative Order 2011-01 deprives indigent parents accused of abuse and neglect of the statutory right to be represented by an attorney at all stages of the proceedings. The Administrative Order prohibits any new appointments of counsel after July 1, 2011, and orders the automatic withdrawal of counsel after the issuance of dispositional orders for attorneys appointed prior to July 1, 2011. However, legislative enactments cannot override a constitutional protection and the Courts have an affirmative duty to invalidate a statute that violates a person’s constitutional rights.

Fundamental fairness requires government conduct to conform to the community’s sense of justice, decency and fair play. Without the protections of counsel, a parent facing allegations under the Child Protection Act stands little chance of defending himself against the state. As the U.S. Supreme Court wrote in Gideon v. Wainwright, "even an intelligent and educated layman has small and sometimes no skill in the science of law." Oftentimes the parents involved in abuse and neglect cases are uneducated, unsophisticated, frightened and do not have the wherewithal to understand the process. They have no skills in asking questions, raising objections, or admitting evidence. They lack knowledge of the law and are at an extreme disadvantage when questions of law arise.

On the other hand, the State, in presenting its case, has the ability, funds and know-how to subpoena witnesses, hire expert witnesses, obtain medical or psychological evaluations of the children or the parents, and investigate the claims and allegations involved in a petition. The State employs attorneys to put on the State’s case and act on its behalf. The parent’s fundamental, natural and essential rights require that counsel be appointed to assist a parent in mounting their defense and protecting their rights.

Additionally, abuse and neglect proceedings can have the most serious of consequences to parental rights: the termination of parental rights. As the NH Supreme Court wrote in State v. Robert H., "the loss of one’s children can be viewed as a sanction more severe than imprisonment." The abuse and neglect proceedings become the grounds upon which the state relies on in a termination of parental rights proceeding. The finding of abuse or neglect, the parent’s progress throughout the case, the status of the parent’s compliance with the dispositional orders, and the alleged failure of a parent to correct the conditions that led to the finding of neglect are the framework of the state’s TPR case. Without counsel guiding and protecting the parent in the underlying abuse and neglect proceeding, appointing counsel in the TPR is too little too late to safeguard the parent’s constitutional rights.

In contrast to other state cuts that have drawn the attention of the media and the public, the prohibition on appointed abuse and neglect counsel for indigent parents has captured little notice. Few of us can imagine the state coming into our home and removing our children, and not having the financial ability to protect our rights and family and advocate for the return of our children. The elimination of parent attorneys is shameful act by a legislature willing to sacrifice justice for the bottom line. As this opinion goes to publication, abuse and neglect parent attorneys across the state are mounting a challenge, and the support of the Bar and the public is crucial to its success. In the meantime, parents will have to navigate the abuse and neglect system without advice of counsel and try their best to advocate for themselves and their children.

UCCJEA Now Effective

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) went into effect on December 1, 2010 in New Hampshire. Following the lead of 46 other states, the UCCJEA replaces the old UCCJA, which is still the law in Massachusetts and Vermont. The act affects almost every case that involves parental rights and responsibilities, including divorce, parenting petitions, child abuse and neglect, guardianships of minors, termination of parental rights, and domestic violence petitions where minor children are involved.   

 

Important points about the new law:

  • Requires that once the “home state” of the child has been determined, and child custody orders have been issued, that state has “exclusive continuing jurisdiction” for so long as the child or either parent reside there.
  • Eliminates the confusing “best interests” standard included in the UCCJA, which some courts interpreted as a mandate to consider best interests factors over and above jurisdictional matters.
  • Adds enforcement tools including a role for public authorities, such as prosecutors, to enforce custody orders and the ability for the court to issue a emergency relief such as a warrant to take possession of a child should the court be concerned that the parent with control over the child may flee.

The new law brings about a slew of new and revised forms. For petitioners, forms such as a Petition for Divorce, Petition for Guardianship over Minor, or a Domestic Violence Petition have been modified to include required information. For respondents, the court has developed a separate form titled a UCCJEA Affidavit to complete in response to an initial petition.

 

Navigating the requirements of the UCCJEA can be overwhelming for those involved in cases of parenting rights and responsibilities. It is important to retain competent legal counsel to assist you. Contact Crusco Law Office, PLLC for more information.

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.