In Re Diana P. , 120 N.H. 791 ( 1980 )

DOUGLAS, J.

The central issue in this case is whether people who receive children into their homes through the New Hampshire Division of Welfare’s foster parent program have standing to bring a proceeding under RSA ch. 170-C to terminate the rights of the natural parents. We hold that they do.

Diana P., the third of three children of Edgar and Beverly P., was born on October 30, 1973. At the time of Diana’s birth, Beverly and Edgar were separated. Responding to several complaints about Beverly’s ability to care properly for her children, the division filed a neglect petition in Laconia District Court in March 1974. The court found that Beverly had neglected the children and awarded temporary custody of tlj© children to the division. With Beverly’s consent, the division placed the children in a foster home. Because this home became unsatisfactory after four months, the division moved Diana’s brothers to a second foster home and placed Diana, who was then eleven months old, in the home of Anne and Bruce B., the plaintiffs in this case.

Although Beverly was incapable of caring for Diana at the time the division gained custody of her children, she remained in contact with the division and visited Diana only irregularly. There is evidence, however, that by 1977 Beverly had acquired certain mothering and homemaking skills that she previously lacked. In late 1977, therefore, the division informed Diana’s foster parents that it intended to return Diana to Beverly’s care. On December 19, 1977, Anne and Bruce B. filed a petition for termination of parental rights under RSA ch. 170-C in Belknap County Probate Court. On October 25, 1978, the Probate Court (Burlingame, J.) terminated Beverly’s and Edgar’s parental rights with respect to Diana. Beverly and the division appealed pursuant to RSA 170-C:15, and all questions of law were reserved and transferred to this court.

The key issue in this case is whether Anne and Bruce B. may bring a proceeding to terminate the parental rights of Beverly. RSA 170-C:4 II provides: “A petition for termination of the parent-child relationship may be filed by . . . [t]he guardian of the person or the legal custodian of the child or the person standing in loco parentis to the child.”

In their termination petition the plaintiffs alleged that they stood in loco parentis to Diana, conceding that the division was her legal custodian. In its final order, the probate court found that the plaintiffs stood in loco parentis to Diana and therefore had standing to petition for termination of Beverly’s parental rights under RSA 170-C:4 II. We agree.

Generally, courts interpret words and phrases that are defined in the common law according to their common-law meanings, unless defined by the statute in which they appear. 2A C. Sands, Sutherland Statutory Construction § 50.03 (4th ed. 1973). Because RSA ch. 170-C does not define “in loco parentis”, we will apply the generally accepted common-law definition. Under the common law as it now stands, and as it stood in 1973 when the General Court enacted the statute, a person in loco parentis is one who intentionally accepts the rights and duties of natural parenthood with respect to a child not his own. See Niewiadomski v. United States, 159 F.2d 683, 686 (6th Cir.), cert. denied, 331 U.S. 850 (1947); 59 Am. Jur. 2d Parent and Child § 88 (1971).

The existence of the parental relationship is a factual question. Dodd v. United States, 76 F. Supp. 991, 995 (W.D. Ark. 1948). The fact that a child is placed by an agency with foster parents may weigh against a finding that the foster parents stand in loco parentis to the child, but it is not conclusive. D’Auria v. Liposky, 197 Pa. Super. Ct. 271, 274, 177 A.2d 133, 134 (1962). The ultimate determination depends upon a consideration of all the facts.

Providing for a child’s financial support is one of the duties of parenthood. The record indicates that the division has paid to the plaintiffs eighty-one dollars per month for Diana’s support. While some courts have held that the mere receipt of public money bars in loco parentis status, Miller v. Davis, 49 Misc. 2d 764, 268 N.Y.S.2d 490 (1966), others have taken a broader view, Lorden v. United States, 83 F. Supp. 822 (D. Mass. 1949). The amount paid to the B.’s is hardly sufficient to demonstrate that the primary responsibility for Diana’s support is the division’s and not the foster parents’. The cost of properly feeding, clothing, transporting, housing, and caring for a growing child Diana’s age clearly exceeds twenty dollars per week. See, e.g., How Much Does a Kid Really Cost?, PHILADELPHIA Magazine, Oct. 1978, at 171; (estimating expenses of $29,585 for raising a child from age one through five); Hyatt, Costs of Being a Parent Keep Going Higher, Wall St. J.,Oct. 2, 1980, at 33, Col. 3.

The amount of time the child has lived with her foster parents is another factor in determining whether they stand in loco parentis. Although a biological family does not exist, a psychological one has arisen in the time that Diana has lived with the B.’s. It is the foster parents who would be at home when Diana gets off a school bus, prepare her meals, read to her, tuck her into bed at night, calm her fears, give her medicine, and hold her in their arms. It is they, and not the division of welfare, who take her on trips, answer her questions, bandage her cuts, and see that she is clean and dressed appropriately. In a factually similar case, we held that a couple who had raised an unrelated child from the age of four months to six years stood in loco parentis. See Durivage v. Vincent, 102 N.H. 481, 161 A.2d 175 (1960).

To conclude that foster parents can never stand in loco parentis to a child in their care would be unrealistic. The foster parents, however, should have had the child or children in their home long enough to have formed, a “psychological family”. While a few weeks would not be long enough, at least two or three years would seem sufficient to convert a temporary foster parent status into that of in loco parentis in the psychological bonding sense, although the time may vary in particular cases. The New York legislature, for example, has provided that foster parents have standing to petition to terminate parental rights if they have cared for the child for at least eighteen months. N.Y. Soc. Serv. Law § 392 (McKinney) (Supp. 1979-80).

Our finding in this case is reinforced by the legislative history of RSA chs. 170-B and 170-C. See Bianco, Chamberlain and DeGrandpre, The New Hampshire Adoption Statute: An Overview, 18 N.H.B.J. 199 (1977) (hereinafter Bianco). In 1973 the Governor’s Commission on Laws Affecting Children introduced to the General Court proposals for a new adoption law (RSA ch. 170-B) and a new termination statute (RSA ch. 170-C). The commission presented these pieces of legislation as “companion” bills. II N.H.H.R. JOUR. 1765-66 (1973). One reason for enacting these laws was to facilitate the adoption of children by removing “arbitrary and broad restrictions” on who could adopt and to enable the courts to respond to the varied circumstances of individual cases. Bianco, supra at 206.

RSA 170-B:4 IV provides foster parents with the right to petition the probate court to adopt a child who is in their care. The petitioner must show either that the child’s natural parents have consented to the adoption or that consent is not required, RSA 170-B:12 II, as in cases in which courts have terminated parental rights, RSA 170-B:6 II. The facts of this case demonstrate that the legislative purpose in enacting the statute could be frustrated by a narrow reading of RSA 170-C:4 II, because it would effectively preclude foster parents who have a statutory right to petition for adoption from doing so.

An apparent purpose of the foster family program is to encourage natural parents who are temporarily incapable of maintaining a proper home to consent to their children’s placement in foster care. The division asserts that depriving foster parents of termination rights is consistent with this objective. It is easy to see that caring natural parents who hope to reunite eventually with their children would be much less likely to consent to temporary foster care placement if they knew that the foster parents could bring an action to permanently dissolve the natural parent-child relationship. But after a long period of separation from the natural parent, a child may look upon his foster parent as his psychological parent. At that point, any change in custody based solely on a biological relationship might be emotionally harmful to the child. Note, Alternatives to “Parental Rights” in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151, 159 (1963).

This case presents a situation where the division of welfare is legal custodian of Diana, yet a status of in loco parentis has arisen out of the foster parents’ relationship as well. Usually there is no conflict because the division as an “authorized agency” would petition to terminate and the foster parents would then adopt under RSA 170-B:4 IV. The division in this instance did not seek termination and, in fact, planned to reunite mother and child. Not all foster families are interested in adopting their wards. In some cases, the children are old enough that the psychological bond with their natural parents continues. The real crisis is that hundreds of children remain in limbo between natural parents they rarely see and their foster homes. The cost in terms of emotionally disturbed children must be great. The division should be more aggressive (with sufficient legal manpower provided) to assure that cases get to court early enough so that a child may have some direction for his or her life.

Last year in New Hampshire, 58 foster children were adopted, and 188 were returned to their natural families. Over half of all foster children had been in foster care for at least two years, 29% for over five years. There were 973 children in foster care among 768 licensed family homes as of April 1980. It is clear that an inflexible rule holding that foster parents can never stand in loco parentis to a child does not promote the legislative efforts at striking a balance in this delicate and difficult area of human relationships. We are not holding that all foster parents have rights superior to those of anyone else; we conclude merely that these foster parents had standing to petition to terminate because of their lengthy role in loco parentis to this child. If we are in error in construing the two chapters at issue, the General Court may, of course, correct us or clarify this crucial area of the law. In light of the split opinions in this case, such legislation is obviously necessary.

We next consider the standard of proof required in proceedings to terminate parental rights. In State v. Robert H. _, we recognized that “the rights of parents over [the family] are . . . natural, essential, and inherent rights within the meaning of New Hampshire Constitution, part 1, article 2” and held that “the government must prove its case under chapter 170-C beyond a reasonable doubt before the permanent termination of liberty and natural rights of parents guaranteed under the New Hampshire Constitution . . . can occur.” 118 N.H. 713, 716, 393 A.2d 1387, 1389 (1978). For the reasons set forth in Robert H., all four justices sitting in this case reaffirm that holding.

The amicus curiae suggests that some children may be languishing in foster homes because the division cannot meet its burden under Robert H. It was never this court’s intention to obstruct the adoption process. We note, however, that the discussion in Robert H. relating to how the division must prepare its case might have confused both the division and the probate judges who must grapple with these difficult termination cases. Robert H. should not be read to require the division to do a perfect job in every termination case. In holding the division to its own regulations, in an RSA 170-C:5 III case, which require it to make “every effort” to build a record and to work with the natural parents to enable them to “provide a family for their own children”, we did not mean to impose on the division standards that it cannot meet. Judges must take into account the realities of the division’s staff and dollar limitations. Certainly there are not enough psychiatrists, psychologists, therapists and counselors available to the division to enable it to build the “perfect” case, and the division need not meet such a standard to make its termination case under Robert H. It must show, however, that it did the best that could be done with its own staff and resources and with the limited private resources available in this State to work with parents in an RSA 170-C:5 III case. Once the division has shown satisfactorily that it has made its best efforts to rehabilitate the parents and that such efforts have failed, the division may proceed to seek termination of the parents’ rights.

We have already held that the “dominant consideration of the court” in termination proceedings is the welfare of the child and that the welfare of the child must prevail over conflicting interests of the parent. In re Fay G., 120 N.H. 153, 156, 412 A.2d 1012, 1015 (1980); see In re Brenda H., 119 N.H. 382, 388-89, 402 A.2d 169, 173-74 (1979). Thus, although parental rights are to be protected, procedural safeguards, such as the burden of proof in termination proceedings, must not unduly interfere with the primary purpose of termination proceedings, determining the best interests of the child. See In re Lester, 417 A.2d 877, 880 (R.I. 1980); RSA 170-C:1.

Upon review of the record in this RSA 170-C:5 I “abandonment” case, we conclude that there was evidence during nine trial days upon which the probate judge could find beyond a reasonable doubt that an abandonment had occurred and that it was in the best interests of Diana to terminate Beverly’s parental rights. The foster parents are educated people who have operated a successful business and who have maintained a fine home for Diana and their natural children. Beverly is relatively unskilled, and she has had a history of violent “boyfriend” problems that demonstrate her immaturity.

Furthermore, there was evidence that despite the best efforts of a fine social worker, Beverly had abandoned Diana within the meaning of RSA 170-C:5 I and that it was in the best interests of the child to terminate parental rights. In this State a mere “flicker of interest” is not sufficient to bar a finding of abandonment. RSA 170-C:5 I does not require a court to find that a parent purposely sought to abandon a child before it may terminate parental rights. It may declare the child abandoned if it finds objectively that the parent has made “only minimal efforts to support or communicate with the child.” Id.; see In Interest of T. S. L., 409 A.2d 332 (Pa. 1979); Matter of Adoption of David C., 387 A.2d 804, 807 (Pa. 1978).

In 1974 Beverly did not even send Diana a Christmas or birthday card. Although she talked about getting Diana back, time with her boyfriend was more important to her. During a twenty-month period from 1974 to 1976, Beverly visited Diana only three times. In January 1977,' a new boyfriend started strangling Beverly and beat her. After a repeat bout in April, she broke up with him. Only then did she decide in earnest to seek Diana’s return. Because “the determination of fact constituting abandonment rests squarely within the province of the probate court” and is not “plainly erroneous”, we will not disturb it. In the Matter of Doe, 118 N.H. 226, 229, 385 A.2d 221, 223 (1978). Because of an equally divided court the ruling below is

Affirmed.

BOIS, J., did not sit; GRIMES, C.J., concurs in this opinion.