Termination of Parental Rights

“All human beings have three lives: public, private, and secret.” 
― Gabriel Garcí­a Márquez, Gabriel García Márquez: a Life

The public thirsts for gossip, apparent in websites like TMZ and Perz Hilton. Celebrity splits are big news such as Tom Cruise and Katie Holmes to Mariah Carey and Nick Cannon. While most of us do not enjoy celebrity status, the small town rumor mill can be just as virulent as celebrity gossip. Divorce litigants should beware the rules regarding public access to their divorce file. Anyone can head down to the local courthouse and view all the happenings in the neighbor’s divorce or co-worker’s custody battle.  

The prominent case on this issue is the Petition of Keene Sentinel issued by the New Hampshire Supreme Court on August 27, 1992. During the 1990 political campaign for New Hampshire’s Second congressional seat, The Keene Sentinel sought to gain access to one of the incumbent’s, Charles Douglas III’s divorce records. The clerk granted the Keene Sentinel only some of the divorce records, citing privacy concerns. The Keene Sentinel brought suit and Charles Douglas III sought to intervene, asking the Superior Court to dismiss the suit. The Superior Court ultimately denied the Keene Sentinel’s request.

The Keene Sentinel appealed, arguing that “disclosure should have been permitted pursuant to RSA chapter 91-A, the Right to Know Law.” The Supreme Court held that a party in a divorce proceeding cannot have the records sealed simply for the sake of general privacy concerns.  The Court held that “[b]efore a document is ordered sealed, the trial judge must determine that no reasonable alternative to nondisclosure exists.” If a trial judge does make such a determination, it must use the least restrictive means available to secure the parties’ privacy rights.

This generally requires that the orders, pleadings and other materials in the file are open to the public for viewing. An exception is a financial affidavit. A party is required by the court to complete and submit a sworn financial affidavit, detailing all income, property and debts. This document usually contains very personal information such as social security numbers, bank information and paystubs. Family Division Rule 2.16 and RSA 458:15-b requires financial affidavits to be confidential for non-parties. In practice, this means that the court file contains an envelope which the clerk will remove if you are not a party to the case. Financial affidavits filed in divorce, legal separation, annulment, or parenting petition cases shall be confidential to non-parties. Access to such financial affidavits shall be pursuant to Family Division Rule 1.30. However, a person not otherwise entitled to access may file a motion under Family Division Rule 1.30 to gain access to the financial affidavit. 

The Associated Press v. NH gives some context to the rule regarding financial affidavit confidentiality. The New Hampshire Supreme Court issued its holding in this case on December 30, 2005.   After RSA 458:15-b took effect on August 10, 2004, which, inter alia, made financial affidavits in divorce proceedings only accessible to parties to the proceeding and their attorneys of record, the Associated Press filed suit claiming the law was unconstitutional. The Associated Press argued that the law “violated the public’s right of access to court records” under the State Constitution, and that it was an impermissible restraint on freedom of speech per the State and Federal Constitutions.  The trial court determined that the law was not unconstitutional, and dismissed The Associated Press’ suit. The Associated Press appealed the trial court decision, arguing that the trial court erred in finding that the law was constitutional.

 The Supreme Court agreed with the trial court, and finding RSA 458:15-b constitutional. The Court ruled that although the public has a right to access government documents, including court documents, the right is not unlimited.  It opined that "the right of access may be overcome when a sufficiently compelling interest for nondisclosure is identified,” which included the compelling interest to prevent exposing divorce litigants to identify theft and fraud. The Court’s ruling was narrow, however, and only applied to keeping financial affidavits sealed. 

In general, the Court may upon request consider keeping confidential case-related materials for collateral cases that are already confidential pursuant to New Hampshire law. These include termination of parental rights, adoption, juvenile criminal records and abuse/neglect cases and DCYF records.  

 

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.

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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Before your final trial, the court will conduct a pretrial hearing. Learn here what will happen at the hearing and what needs to be prepared and filed at the hearing. 

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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.

Unbundled legal services, also known as limited scope representation, allow you to hire a lawyer to do certain parts of your case, instead of the traditional soup to nuts representation. Some clients choose unbundled services because they cannot afford full representation, and some advice is better than no advice. Other clients feel capable of handling certain parts of the case, but need assistance with other portions.

Unbundled services can be customized to fit your needs, and can include

  • Representation at a specific hearing, such as a temporary hearing
  • Draft proposed orders or pleadings
  • Attending mediation
  • Assisting with discovery preparations
  • Consulting during your case to provide assistance and advice  

Payment arrangements for unbundled services can be tailored to the specific service. For example, paying a small retainer for ongoing advice, or paying for an hour at the end of a meeting to prepare documents.

Lawyers providing unbundled services will ask the client to sign a consent form that clearly spells out what services are, and are not, going to be provided, in addition to a fee agreement. 

The New Hampshire Supreme Court issued an opinion In the Matter of Reena D. on December 28, 2011. 

The Facts

In 2002, mother and father petitioned the court to grant guardianship of their twenty-two month old daughter Reena to the paternal grandfather and his wife. The purpose of the guardianship was to allow mother and father to travel to India to start a tile business and visit with the mother’s family. The court appointed the grandfather and his wife as Reena’s guardians.

In 2003, the grandfather died and his wife was appointed as sole guardian of Reena. Later that year, the mother and father petitioned to terminate the guardianship, and then entered into a temporary stipulation with the guardian allowing the guardianship to continue while the father obtained an alcohol assessment. A hearing on the motion to terminate would be held two months after the submission of the assessment.

Six months later, the guardian moved to dismiss the motion to terminate, and the court denied the termination of the guardianship without prejudice. In 2007, the parents renewed their motion to terminate the guardianship. A trial was conducted in 2009, where the father submitted the required alcohol assessment on the first day. The trial court placed the burden of proof, by a preponderance of the evidence, on the parents to show “that substitution or supplementation of parental care and supervision [was] no longer necessary to provide for [their daughter’s] essential physical and safety needs” and that terminating the guardianship would not “adversely affect [their daughter’s] psychological well-being.” The court determined that the parents had failed to meet their burden and denied the termination of the guardianship.   

The Appeal

The father appealed the decision denying the termination of the guardianship over his daughter. He argues that the trial court violated his state and federal constitutional rights by requiring him and his wife to bear the burden of proof to terminate the guardianship. He asserts that it is the respondent who should have the burden of proving by clear and convincing evidence that the guardianship was necessary to provide for Reena’s essential physical and safety needs and to prevent significant psychological harm to her.

The Holding

In a guardianship established by consent, the guardian bears the burden of proof by clear and convincing  “that substitution or supplementation of parental care and supervision” is “necessary to provide for the essential physical and safety needs of the minor” and that terminating the guardianship will “adversely affect the minor’s psychological well-being.” The court determined that a fit parent, that is one who has not been adjudicated unfit, is entitled to the Troxel presumption that a fit parent will act in the best interests of their child. Thus, where a guardianship has been established by consent, a parent remains a fit parent and it is the guardian who must carry the burden of proof articulated in RSA 463:15, V. The court held that the clear and convincing standard applies, which was in keeping with other holdings of the court in disputes between parents and nonparents over custody of a minor such as In the Matter of R.A. & J.M. and In re Guardianship of Nicholas P.

Because the trial court applied the incorrect burden of proof, the Supreme Court vacated the order denying the termination of the guardianship and remanded it for further proceedings.

The Takeaway

When establishing a guardianship, the parent who consents to the guardianship will have an easier path to terminating the guardianship.

An interesting issue will occur for a guardianship established by consent and adjudication. It is often the case where one parent consents to the guardianship, while the other objects and the guardianship is granted over the objection. In a proceeding to terminate the guardianship, the parent who contested the guardianship must carry the burden of proof, where the parent who consented shifts the burden to the guardian. Having different burdens in the same matter will make things interesting.  

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.

Grandparent’s rights vary from state to state. In New Hampshire, grandparent’s visitation rights are specifically designated by statute. However, obtaining visitation is not as easy as filing a petition and being granted time with one’s grandchildren. In order to comply with the U.S. Supreme Court’s holding in Troxel v. Granville, which struck down a breathtakingly broad Washington state statute that allowed any third party to sue for visitation over the objection of the parents and the outcome determined solely by the judge’s estimation of the child’s best interests, New Hampshire restricts the situations in which a grandparent can petition to establish visitation.

In order to pursue grandparent visitation, there must be an absence of a nuclear family, “whether divorce, death, relinquishment or termination of parental rights, or other cause.” Prior to the recent New Hampshire Supreme Court opinion In Re Athena D., it was unsettled whether a new nuclear family, brought about by the termination of parental rights and the adoption of the child, would cut off the rights of natural grandparents to visitation. The take away from Athena D. is that “petitions for grandparent visitation in the case of termination of parental rights are to be treated in the same manner as in the case of the death of a parent, stepparent adoption, or unwed parents.”

The Athena D. holding is especially important for the protection of society’s most vulnerable children. Children who are the subject of cases brought under the Child Protection Act, and subsequently state-action termination proceedings, may have indispensable bonds with their natural grandparents that must be preserved. While the children may need to be protected from the parents, and adopted into a new family, a child’s best interest may demand continued contact with the natural grandparents over the objection of the adoptive parents. This holding allows for that, so long as the grandparents meet the other requirements of a petition for grandparent’s visitation rights as set forth in RSA 461-A:13.

New Hampshire has long recognized that a parent’s right to raise and care for one’s child is a fundamental constitutional right. In recognition of that right, there has been a statutory right to counsel for parent’s facing termination of parental rights proceedings and in abuse and neglect cases. In addition to the statutory authority, the New Hampshire Supreme Court has held that stepparents who are accused of abuse or neglect, and are household members, have the right to counsel if they cannot afford one.

However, the state’s budget, which has passed the house and the senate and Governor Lynch has announced his intention to allow it to become law without his signature, changes the statutory authority and the ability of the state to pay for appointed counsel for parents in abuse and neglect cases. HB2, Section 79 strikes the portion of RSA 169-C:10, II(a) mandating the court appointment of an attorney for accused, indigent parents in abuse and neglect proceedings. On June 23, 2011, Judge Kelly, the administrative judge for the Family Division, issued an administrative order that orders as follows:

  • Until June 30, 2011, attorneys shall continue to be appointed to represent an indigent parent only where mandated by RSA169-C:10, II(a), i.e. in cases where an indigent parent is alleged to have neglected or abused his or her child.
  • Effective July 1, 2011, counsel shall not be appointed for indigent parents in abuse and neglect cases under RSA chapter 169-C.
  • Effective July 1, 2011, all appointments of counsel, including existing appointments, to represent indigent parents in abuse and neglect cases shall terminate upon the issuance of the dispositional order pursuant to RSA 169-C:19.

Though the legislature may believe that they can simply defund and eliminate the statute requiring appointed counsel for indigent parents, I would argue that they are wrong. In addition to the statutory protections that have been afforded to indigent parents in abuse and neglect case, the New Hampshire Constitution protects parents. The Shelby Court held that "due process requires the appointment of counsel to a stepparent accused of abuse or neglect under RSA chapter 169-C." The Court recognized that "abuse and neglect proceedings can harm, and in some cases irreparably damage, family and marital relationships." While the Court has consistently held that a natural parent’s role in family life is a fundamental liberty interest under the constitution, due to the statutory protections requiring the appointment of counsel for accused parents, the Court has not yet been called on to recognize the due process right of a parent to counsel in abuse and neglect proceedings. However, given the holding that accused stepparents are entitled counsel, it is difficult to imagine that a parent would not have the same due process right. 

What happens from here? I expect that a constitutional challenge will be brought, in one of a variety of methods, and the Supreme Court will be called upon to recognize a parent’s constitutional right to counsel in abuse and neglect proceedings. Until then, parents will have to navigate the abuse and neglect system without advice or counsel and try their best to advocate for themselves and their children.