In re J.B. , 2024 N.H. 63 ( 2024 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
5th Circuit Court-Newport Family Division
Case No. 2024-0229
Citation: In re J.B., 2024 N.H. 63IN RE J.B.; IN RE L.B.
Argued: September 25, 2024
Opinion Issued: November 8, 2024
Elliott, Jasper, Shklar, Ranson & Beaulac, LLP, of Newport (Alice C.
Ranson on the brief and orally), for the respondent.
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Mary A. Triick, senior assistant attorney general, on the brief and
orally), for the New Hampshire Division for Children, Youth and Families.
MACDONALD, C.J.
[¶1] The respondent, the mother of J.B. and L.B., appeals an order of the
Circuit Court (Swegart, J.) issued following a hearing terminating her parental
rights over her children for failing to correct the conditions that led to findings
of child neglect within twelve months. See RSA 170-C:5, III (2022). The
respondent argues that the trial court erred in terminating her parental rights
because: (1) she was provided less than twelve months to correct the conditions
that led to the finding of neglect; (2) no social study was completed; and (3) the
New Hampshire Division for Children, Youth and Families (DCYF) failed to
provide reasonable efforts to address her mental health or to provide visitation
with her children. We affirm.
I. Background
[¶2] The record supports the following facts. J.B. was born in 2013 and
L.B. was born in 2020. In June 2022, the children, during a hospital
examination, disclosed that their father, who is not a party to this appeal,
physically abused the respondent in the children’s presence. DCYF filed
neglect petitions against both parents.
[¶3] In July 2022, the trial court held an adjudicatory hearing on the
neglect petitions. By notice of decision dated August 8, 2022, the court issued
an order finding that the children were neglected by the respondent by
exposing them to ongoing domestic violence. As part of its order, the court
scheduled a permanency hearing for August 2, 2023.
[¶4] A six-month review hearing was held in March 2023. In its order,
the court expressed concern about the respondent’s recent marriage to a
former associate of the children’s father. The court observed that the
respondent’s new husband had multiple convictions for violent crimes and a
history of drug involvement. The court was “far from convinced” that exposing
the children to this new relationship would not result in additional harm or
trauma.
[¶5] A nine-month review hearing was held in June 2023. The court
noted that the respondent had sold her home in New Hampshire and moved to
Maine with her husband. The court found that the respondent was in partial
compliance with the dispositional order requiring her to maintain a safe and
appropriate residence. Related to this finding, the court noted that DCYF was
uncomfortable with the respondent’s husband being around the children, the
husband had an “extensive criminal history,” and he was a drug user. The
court ordered DCYF to continue to provide services to the respondent including
case management, counseling, in-home services, and random drug screening.
[¶6] A permanency hearing was held on August 2, 2023. By notice of
decision on August 7, 2023, the court issued an order on permanency. The
court found that DCYF had made reasonable efforts to finalize the permanency
plan of reunification. The court also found that the respondent failed to meet
the statutory standard for the children to be returned to her because she was
only partially compliant with the outstanding dispositional orders. See RSA
169-C:23 (2022).
[¶7] The court denied the respondent’s request for a ninety-day extension
under RSA 169-C:24-b, IV (2022). In denying the request, the court observed
that: (1) the respondent’s move to northern Maine had reduced visits to virtual-
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only; (2) the respondent had “married a person who reported at the
permanency hearing to have used fentanyl within the last 90 days,” and who
“was never approved by [DCYF] to be around children and is a former prison
associate of [the children’s father]”; and (3) the respondent testified that “life
could not be better” and that “she is looking forward to moving on with her
life.” The court stated that “[t]hese facts do not support a finding that [the
respondent] is working diligently towards reunification.” The court found that
granting an extension would not be in the children’s best interests as it would
“subject the children to the continued uncertainty surrounding both parents”
and expose them to “the potential of re-traumatization.”
[¶8] The court ordered that adoption become the permanency plan for the
children and directed DCYF to file a termination of parental rights petition
against the respondent. In September 2023, DCYF filed petitions to terminate
the respondent’s parental rights. The respondent moved to dismiss the
petitions because she was “not afforded at least twelve months to correct the
conditions” that led to the finding of neglect. The court held a final hearing on
January 24, 2024. In March 2024, the court issued an order denying the
motion to dismiss and terminating the respondent’s parental rights pursuant
to RSA 170-C:5, III, for failing to correct the conditions that led to the finding of
neglect. The respondent unsuccessfully moved for reconsideration. This
appeal followed.
II. Analysis
[¶9] Before a court may order the termination of a parent’s rights, the
petitioning party must prove a statutory ground for termination beyond a
reasonable doubt. In re H.J., 171 N.H. 605, 608 (2018). One statutory ground
is the parent’s failure “to correct the conditions leading to [a neglect] finding
[under RSA chapter 169-C] within 12 months of the finding despite reasonable
efforts under the direction of the court to rectify the conditions.” RSA 170-C:5,
III. “To rely upon RSA 170-C:5, III as grounds for termination, DCYF must
demonstrate that: (1) the circuit court made a finding of child neglect or abuse
under RSA chapter 169-C; (2) the parent failed to correct the conditions of
abuse or neglect within 12 months of the finding; and (3) DCYF made
reasonable efforts under the direction of the court to rectify or correct the
conditions.” In re C.O., 171 N.H. 748, 756 (2019).
[¶10] We will affirm the circuit court’s order unless it is unsupported by
the evidence or erroneous as a matter of law. In re E.R., 176 N.H. 54, 60
(2023). In reviewing its findings, we are mindful that the trial court is in the
best position to assess and weigh the evidence before it, and that our task is
not to determine whether we would have found differently, but whether a
reasonable person could have found as the trial judge did. In re S.A., 174 N.H.
298, 300 (2021).
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[¶11] The respondent first argues that the trial court erred in terminating
her parental rights because she was provided less than twelve months to
correct the conditions that led to the finding of neglect. The respondent argues
that the earliest she could have had notice of the adverse neglect finding was
August 8, 2022, when the notice of decision was issued to her. The respondent
asserts that because her compliance was evaluated at the permanency hearing
on August 2, 2023, “six days shy of the twelve month mark,” she was not
provided the full twelve months to correct the conditions that led to the finding
of neglect.
[¶12] The termination of parental rights statute, RSA 170-C:5, III,
requires a determination that the parents “failed to correct the conditions
leading to [a] finding” of neglect or abuse under RSA chapter 169-C “within 12
months of the finding.” RSA 170-C:5, III. The date of the permanency hearing
under RSA chapter 169-C is immaterial to the court’s analysis under RSA 170-
C. Thus, when the trial court ruled on the termination petition on March 1,
2024, it could consider the entire twelve-month period beginning on August 8,
2022. In fact, the trial court considered a much longer period. It found in its
March 2024 order that “the conditions as they existed in August 2023 at the
time of the permanency hearing continue to exist today, almost 6 months
later.” The record supports the trial court’s conclusion.
[¶13] The respondent asserts that “RSA 170-C:5, III only allows
termination if [DCYF] has provided reasonable efforts over the twelve months.”
We disagree with the respondent’s interpretation of the statute. By its plain
terms, RSA 170-C:5, III does not require a finding of reasonable efforts made by
DCYF on every day of the twelve-month period. The trial court ordered, by
notice of decision on August 7, 2023, that DCYF was no longer required to
make reasonable efforts to facilitate reunification between the children and the
respondent. Therefore, DCYF had from August 8, 2022, the date the initial
neglect order was issued to the parties, until August 7, 2023, to provide
reasonable efforts to facilitate reunification. Although this period of time was
only 364 days, our review of the record reveals that DCYF nevertheless
provided “reasonable efforts under the direction of the court to rectify the
conditions” that led to the finding of neglect. RSA 170-C:5, III; see C.O., 171
N.H. at 756; cf. In re G.F., 175 N.H. 583, 586 (2023) (concluding that DCYF
failed to meet its burden in a termination of parental rights case because the
trial court did not order DCYF to make reasonable efforts beyond the first nine
months of the neglect case). Accordingly, we affirm the trial court’s order
denying the respondent’s motion to dismiss. We observe that, had the trial
court scheduled the permanency hearing for August 8, 2023, rather than
August 2, the respondent would not have had the factual predicate for her
argument regarding RSA 170-C:5, III. Consequently, trial courts should
schedule permanency hearings at least twelve months from the time the court
issues the notice of decision of an abuse or neglect finding. See RSA 170-C:5,
III.
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[¶14] Next, the respondent argues that the trial court erred in issuing
dispositional orders in the neglect case without reviewing a social study, noting
that no social study was submitted to the court, or the parties, during the RSA
chapter 169-C proceeding. See RSA 169-C:18, V (2022) (“No disposition order
shall be made by a court without first reviewing the social study.”). DCYF
argues that the respondent’s argument is not properly before us. We agree
with DCYF.
[¶15] While “an initial petition alleging abuse and neglect often sets in
motion a series of hearings that may ultimately result in termination of
parental rights, abuse and neglect proceedings and [termination of parental
rights] proceedings are separate cases.” C.O., 171 N.H. at 759 (quotations
omitted). Accordingly, we have declined to review challenges to an abuse and
neglect proceeding in an appeal from the subsequent termination of parental
rights proceeding. See id; see also In re C.M., 166 N.H. 764, 781-82 (2014)
(concluding that father’s argument in an appeal of a termination of parental
rights decision that he was entitled to counsel in the original neglect
proceeding was barred by res judicata because the trial court’s dispositional
order became final and binding when he did not appeal it). Because the
respondent could have appealed the trial court’s dispositional orders in the
neglect case, see RSA 169-C:28 (2022) (“[a]n appeal under this chapter may be
taken to the supreme court . . . within 30 days of the final dispositional order”),
but did not, we conclude that the respondent’s argument is not properly before
us in this appeal of the termination of parental rights order. See C.O., 171
N.H. at 760.
[¶16] Finally, the respondent argues that DCYF failed to provide
reasonable efforts to address her mental health or to provide visitation with her
children. In determining whether DCYF has made reasonable efforts to assist a
parent in correcting the conditions that led to a finding of abuse or neglect, the
court must consider whether the agency provided services that were accessible,
available, and appropriate. Id. at 756; see RSA 169-C:24-a, III(c), IV (2022).
We have recognized that DCYF’s ability to provide adequate services is
constrained by its staff and financial limitations. C.O., 171 N.H. at 756. Thus,
DCYF must make reasonable efforts given its available staff and financial
resources to maintain the legal bond between parent and child. Id. The word
“reasonable” is the linchpin on which DCYF’s efforts in a particular set of
circumstances are to be judged. See id.[¶17] The trial court found that “[DCYF]’s efforts were reasonable under
the circumstances” and that DCYF “provided visitation support, case
management, multiple different service providers, and offered access to therapy
with the children.” Upon our review of the record, we conclude that the trial
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court’s finding is not unsupported by the evidence or plainly erroneous as a
matter of law. See Michael E., 162 N.H. at 523.
Affirmed.
BASSETT, DONOVAN, and COUNTWAY, JJ., concurred.
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