In re K.H. , 167 N.H. 766 ( 2015 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
2nd Circuit Court - Haverhill Family Division
No. 2014-642
IN RE K.H.
Argued: May 21, 2015
Opinion Issued: June 19, 2015
Joseph A. Foster, attorney general (Laura E.B. Lombardi, senior assistant
attorney general, on the memorandum of law and orally), for the petitioner.
James R. Laffan, of Lebanon, by brief and orally, for the respondent.
DALIANIS, C.J. The respondent, D.H., appeals an order of the Circuit
Court (Cyr, J.) granting the petition of the petitioner, the New Hampshire
Division for Children, Youth and Families (DCYF), to terminate his parental
rights over his son, K.H., on the ground that he failed to correct, within 12
months, the conditions leading to a finding of neglect. See RSA 170-C:5, III
(2014). On appeal, the respondent argues that: (1) the trial court admitted
hearsay evidence in violation of RSA 170-C:10 (2014); and (2) there was
insufficient evidence to support the court’s finding that he failed to correct the
conditions leading to the original neglect finding and its determination that
terminating his parental rights was in the child’s best interests. We affirm.
I. Background
The trial court found, or the record contains, the following facts. The
child was born in February 2008. On September 17, 2009, a petition for
abuse/neglect was brought against the respondent and the child’s mother. At
that time, the respondent was incarcerated in a county jail in connection with
an incident in which he had punched the child’s mother in the stomach in the
child’s presence. The petition was based upon domestic violence between the
parents, the failure of the parents to maintain a safe, clean, and sanitary home
for their child, and their failure to address their respective mental health
issues. The affidavit in support of the petition alleged, among other things,
that DCYF was “concerned with the decisions that the parents are making
regarding their son” because it was “apparent that there are anger issues,
domestic violence, and parenting issues,” including issues related to “the home
environment, supervision of [the child] and [the respondent] being incarcerated
for assault.”
Thereafter, the parents consented to a finding of neglect. The trial court
approved their consent decree on September 23, 2009. Pursuant to the decree,
the child was placed with his mother, the respondent was granted supervised
visitation with him, and DCYF was awarded legal custody of him.
The child remained in his mother’s physical custody until March 2010,
when the court awarded DCYF protective supervision of the child because the
mother had failed to supervise him properly and had placed him at risk of
harm. The trial court placed the child with his current foster family, where he
remained until June 22, 2011, when he was placed with the respondent.
Between June 22, 2011, and September 13, 2012, the original neglect
case remained open, and DCYF continued to provide services. However, in
approximately early September 2012, assessment workers and the guardian ad
litem visited the respondent’s home to investigate a report that he had
physically abused and emotionally neglected the child (a report that was never
confirmed). They found the child’s behavior to be out of control, observing him
choking and hitting the respondent. The respondent had to be prompted to tell
the child to stop. The respondent told an assessment worker that he did not
discipline the child when the child acted out. The child told the worker that he
hits the respondent because the respondent does not listen to him.
During the week after this initial visit, the child again acted out
aggressively. At one point, he struck the respondent in the groin with a bar,
causing bleeding. On another occasion, the respondent called the police twice
in one evening because the child was hitting and throwing things. On still
another occasion, the police were called because the child was in a car,
throwing things. The police were able to get the child out of the car, and they
took him to the emergency room. Later, the respondent told police officers that
he could no longer have the child in his home.
The next weekend, DCYF approved placing the child with his current
foster family for respite care. The respondent and his girlfriend, who is not the
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child’s mother, reported that, after the child returned from his foster family’s
home, he was like a different child. However, within days of the child’s return
to the respondent’s home, a parenting support worker, who was at the
respondent’s home at the time providing services, called DCYF because the
respondent again said that he could not “do this anymore,” meaning that he
could no longer take care of his son. The child was again taken to his foster
family for respite care.
On September 13, 2012, DCYF filed an ex parte motion to change the
child’s placement from his father’s care to that of a licensed foster parent. In
its motion, DCYF stated that it sought a change in placement for the child
because “[t]here is reasonable cause to believe that [the child] is in a potentially
unsafe environment with his father who is unable to maintain [the child’s]
behaviors in the home.” The trial court granted the motion, and the child was
placed, again, with his current foster family. Upon his return to the foster
family, the child’s aggressive behaviors lessened.
DCYF prepared, and the respondent signed, an initial case plan, which
stated that among the tasks for him to accomplish were “[m]aintaining
structure and a predictable schedule,” and “[s]upervision and discipline” of the
child, who was now a preschooler. The plan stated that the respondent was
“often challenged to regulate his emotions” and that he did “not understand the
effects that a lack of consistency can have on his son.”
To address these concerns, the plan provided that the respondent would
continue in counseling with his then counselor and that he would participate
in family therapy with his girlfriend and the child. Moreover, under the plan,
DCYF provided a parent aide to supervise visits between the respondent and
the child and provide the respondent with information about child development
and parenting skills. Pursuant to the plan, the child was evaluated by medical
professionals, who concluded that his aggressive behavior was not related to
any organic cause, but appeared to be the result of his living environment.
At a review hearing in November 2012, DCYF reported to the court that
the child had “adjusted well to his return to foster care.” DCYF described the
child as “generally happy and . . . presently well[-]behaved.”
The joint counseling sessions went well for a period of time; however,
from mid-April through August 2013, it appears that the respondent either
cancelled or did not appear for the sessions. In August 2013, the mental
health agency that had been providing the counseling closed the respondent’s
case for non-attendance. Similarly, DCYF reported in its July 2013 review that
the respondent had “missed sessions of individual therapy.”
The use of a parent aide for supervised visits and to help the respondent
acquire better parenting skills followed a similar path. The parent aide testified
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that the respondent often did not stay focused upon parenting the child during
the visits and had to be prompted to discipline the child when necessary. The
respondent appeared more focused upon matters such as his employment
instead of upon learning about child development and gaining parenting skills.
After the respondent obtained employment requiring him to work outside
of the local area, the supervised visits between the respondent and the child
became less frequent. For some visits, the respondent’s girlfriend appeared in
his place. Other visits were cancelled. Cancelled visits upset the child.
In September 2013, DCYF reported to the court that the respondent’s
“participation in services designed to support reunification have diminished or
completely lapsed.” Accordingly, DCYF sought permission to file a petition to
terminate the respondent’s parental rights.
Following a permanency hearing in April 2014, the trial court ordered
DCYF to file a petition to terminate the respondent’s parental rights based
upon the court’s findings that: (1) the respondent had been inconsistent with
regard to having visitation with the child; (2) the respondent did not apprise
DCYF of significant changes in his employment and housing in a timely
manner; (3) the respondent had failed to participate meaningfully in therapy
and counseling with his son; (4) the respondent had not participated
meaningfully in parent education services; (5) the respondent had not
consistently attended individual therapy sessions; and (6) the respondent
remained “unable to provide proper parental care and protection” for his son,
despite numerous services provided to him.
Following a hearing on the merits of the petition to terminate the
respondent’s parental rights, the court found that DCYF had sustained its
burden of proof, beyond a reasonable doubt, that the respondent had failed to
correct the conditions that led to a finding of neglect, despite the numerous
services provided to him, and that termination of his parental rights was in the
child’s best interests. Accordingly, the trial court granted the petition, and this
appeal followed.
II. Analytical Framework
Before the trial court may terminate a parent’s rights, DCYF must prove
a statutory ground for terminating the parent’s rights beyond a reasonable
doubt. In re Juvenile 2006-674, 156 N.H. 1, 4 (2007). One such ground is the
parent’s failure, “subsequent to a finding of child neglect . . . under RSA 169-C,
. . . to correct the conditions leading to [the neglect] finding within 12 months
of the finding despite reasonable efforts under the direction of the [circuit
court] to rectify the conditions.” RSA 170-C:5, III; see RSA 490-D:2, IX (2010)
(granting family division of the circuit court jurisdiction to terminate parental
rights).
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If the circuit court finds a statutory ground for terminating a parent’s
rights, it must then consider whether terminating the parent’s rights is in the
child’s best interests. In re Zachary G., 159 N.H. 146, 157 (2009). Such a
determination requires assessing which of the possible alternative dispositional
orders is the most desirable, under a standard that gives priority to the child’s
assumed interest. See In re Shannon M., 146 N.H. 22, 28 (2001). We will
affirm the trial court’s order unless it is unsupported by the evidence or
erroneous as a matter of law. In re Haley K., 163 N.H. 247, 249 (2012).
III. Appeal Issues
A. Hearsay Evidence
Citing RSA 170-C:10, the respondent first argues that the trial court
erred when it admitted into evidence reports that contained hearsay
statements. The admissibility of evidence is committed to the sound discretion
of the trial court. In re Noah W., 148 N.H. 632, 637 (2002). We will not disturb
the trial court’s decision absent an unsustainable exercise of discretion. Id.
We have held that “[e]vidence forming the basis for termination of
parental rights shall be admitted when it complies with the statutory
safeguards of RSA 170-C:10.” Id. at 638. RSA 170-C:10 provides, in pertinent
part, that “relevant and material information of any nature, including that
contained in reports, studies or examinations, may be admitted and relied
upon to the extent of its probative value.” RSA 170-C:10 also provides that
“[w]hen information contained in a report . . . is admitted in evidence, the
person making such a report . . . shall be subject to both direct and cross-
examination if he or she is residing or working within the state, or if he or she
is otherwise reasonably available.”
Here, the respondent concedes that “the reports submitted in evidence
were generally offered while the purported author was on the stand and
therefore subject to cross examination.” The respondent argues, however, that
the trial court erred by admitting the reports because they contain the hearsay
statements of the child’s current foster mother, whom neither the respondent
nor DCYF called as a witness.
RSA 170-C:10 requires only that “the person making [the] . . . report”
testify at trial, unless he or she is unavailable. It does not require testimony
from the individuals who provided the information that is contained in the
report. RSA 170-C:10 distinguishes between the report itself and the “relevant
and material information” that it contains. Accordingly, the fact that the
reports in this case arguably contained the hearsay statements of the foster
mother does not render them inadmissible under RSA 170-C:10. Indeed, we
have held that a trial court does not err by admitting relevant and material
evidence under RSA 170-C:10 even if the same evidence would have been
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inadmissible under the New Hampshire Rules of Evidence. Noah W., 148 N.H.
at 636. Thus, this fact fails to establish that the trial court unsustainably
exercised its discretion when it admitted the challenged reports into evidence.
B. Sufficiency of the Evidence
The respondent next asserts that the evidence was insufficient to support
the trial court’s finding that he failed to correct the conditions that led to a
finding of neglect. Here, the conditions leading to the neglect finding included
the respondent’s failure to maintain a safe home for the child and his failure to
address his own mental health issues. To correct those conditions, the
respondent was ordered to, among other things: (1) have visits with the child
supervised by a parent aide, who would provide the respondent with
information about child development and techniques; (2) “meaningfully
participate in individual counseling to learn to regulate his emotions”; and (3)
participate in joint counseling with his girlfriend “to address parenting issues.”
The trial court found, however, that the respondent either cancelled or
did not attend visits with his son. The court also found that the respondent
ceased attending family therapy sessions and that the mental health agency
that had provided this therapy closed the case for non-attendance. The court
also credited the testimony of a parent aide that the respondent failed to stay
focused upon parenting the child during his supervised visitation and failed to
take advantage of those visits to learn about child development and parenting
skills. The record supports these findings. Based upon the respondent’s
failure to comply with the above orders, the trial court determined that he had
failed to correct the conditions that led to a finding of neglect. See In re
Juvenile 2003-195, 150 N.H. 644, 648-49 (2004) (upholding determination that
father failed to correct conditions leading to neglect finding when he did not
comply with consent decree in abuse/neglect case); In re Craig T., 147 N.H.
739, 745-48 (2002) (upholding trial court’s finding that mother failed to correct
the conditions leading to the neglect and abuse findings when she failed to
comply with the court’s dispositional orders).
The respondent does not challenge the evidentiary support for these
findings. Instead, he asserts, based upon selective quotes from the hearing
transcript, that: (1) his son enjoyed spending time with him; (2) he parented
his son effectively when his son acted out aggressively; (3) his son acted
aggressively while living with his foster family; (4) he should have been credited
with his girlfriend’s actions in managing the child’s behavior; (5) the child’s
behavior might have had a neurological basis; and (6) because DCYF did not
authorize neurological testing of the child, and given that the child acted out
while in foster care, “it is mere conjecture to assert . . . that [the respondent’s]
style of parenting . . . is so inimical to [the child’s] welfare as to require the
termination of [the respondent’s] rights as his father.”
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The respondent misperceives our role on appeal. Our task on appeal is
not to determine whether we would have found differently than did the trial
court, but to determine “whether a reasonable person could have found as the
trial judge did.” In re Juvenile 2005-426, 154 N.H. 336, 339 (2006). Here,
given that the record supports the trial court’s findings, which it found beyond
a reasonable doubt, we cannot conclude that its determination that the
respondent failed to correct the conditions leading to the neglect finding was
either unsupported by the evidence or plainly erroneous as a matter of law.
Zachary G., 159 N.H. at 153.
The respondent next contends that the trial court erred by concluding
that terminating his parental rights was in the child’s best interests. The trial
court found that it was in the child’s best interests to terminate the
respondent’s parental rights because the child “has been in the same foster
home for most of his short life,” looks to his foster parents to meet his needs,
and sees them as his “[M]ommy . . . and Daddy.” The trial court also found
that the foster mother has indicated that she is willing to adopt the child. The
trial court further found, and the respondent does not dispute, that the child
“has responded well to [the foster family’s] consistency and directions.”
Moreover, the guardian ad litem observed that the child “has done extremely
well in his foster provider’s home,” and opined that the best interests of the
child “dictate that [he] live with [the foster family].” There was also testimony
that adoption was in the child’s best interests because of “the changes and
improvements in his behavior” since his foster home placement, “the
consistency he enjoys there, and the fact that he’s been there as long as he
has.” Upon this record, the trial court’s finding that terminating the
respondent’s parental rights was in the child’s best interests was neither
unsupported by the evidence nor plainly erroneous as a matter of law.
This is not a case, as argued by the respondent, where he has been
deprived of his right to parent his child “simply because ‘better parents’ have
been found.” Adam R., 159 N.H. at 801. Instead, we believe that the circuit
court’s decision properly recognized that keeping the child in a stable and
permanent environment was consistent with his best interests. See id.
All issues raised in the notice of appeal, but not briefed, are deemed
waived. See In re Estate of King, 149 N.H. 226, 230 (2003).
Affirmed.
HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.
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