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THE SUPREME COURT OF NEW HAMPSHIRE
Dover Family Division
IN RE MICHAEL E. & a.
Submitted: July 13, 2011
Opinion Issued: September 22, 2011
Michael A. Delaney, attorney general (Jeanne P. Herrick, attorney, on the
memorandum of law), for the petitioner, New Hampshire Division for Children,
Youth and Families.
Burns Legal Services, of Portsmouth (Christopher R. Burns on the brief),
for the respondent.
DALIANIS, C.J. The respondent, Debra D., appeals an order of the Dover
Family Division (Ashley, J.) terminating her parental rights over her sons,
Michael E. and Andre E., for failure to correct conditions leading to a finding of
neglect. See RSA 170-C:5, III (2002). We affirm.
The record reveals the following facts. On April 3, 2009, the trial court
granted an ex parte neglect petition filed by the petitioner, the New Hampshire
Division for Children, Youth and Families (DCYF), seeking out-of–home
placement for Michael E. and Andre E. On May 26, 2009, following
adjudicatory and dispositional hearings, the trial court issued a final
dispositional order finding that the respondent had neglected Michael E. and
Andre E. by selling drugs from her home and in their presence. See RSA 169C:19 (Supp. 2010). DCYF was awarded legal custody of the children. The final
dispositional order set forth conditions the respondent had to meet before the
children could safely be returned to her. These conditions, which were
intended to correct those that led to the finding of neglect, included: (1)
refraining from drug and alcohol use; (2) attending individual counseling; (3)
working cooperatively with a parent aide; and (4) undergoing a neurological
evaluation. To help the respondent meet these requirements, the court also
ordered DCYF to provide her with a parent aide and to implement drug
screening, as well as to provide assistance in setting up the neurological
evaluation and locating counseling services and parenting classes. The
respondent did not appeal this order. For ease of reference, we will refer to the
dispositional hearing and the final dispositional order as “the neglect case.”
On August 25, 2009, the court held a three-month review hearing and
found that the respondent was in partial compliance with its order. The
respondent was also determined to be in partial compliance with the court’s
order at the six-month review hearing. At the respondent’s nine-month review
hearing on February 10, 2010, however, she was found not to be in compliance
with the court’s order because she missed visitation with her children, did not
work cooperatively with the parent aide, did not undergo drug tests and
admitted to using cocaine. At all review hearings, DCYF was ordered to
continue to provide the respondent with case management and a parent aide
and to assist her with accessing community services.
On May 26, 2010, twelve months after the final dispositional order was
issued in the neglect case, the court held a permanency hearing and found that
the respondent was not in compliance with its order. The court found that the
respondent did not complete counseling or parenting classes and was noncompliant with the parent aide. The court also noted that the respondent’s
numerous incarcerations rendered her unable to have regularly scheduled
visitation with her children or to maintain a safe and stable residence for them.
Additionally, the court found that the respondent failed to remain free of drugs
and alcohol, as she missed numerous drug screens and admitted to using
cocaine and alcohol. Accordingly, the court ordered DCYF to file a termination
of parental rights (TPR) petition.
DCYF then sought to terminate the respondent’s parental rights alleging,
among other things, that she failed to correct the conditions leading to a
finding of neglect. After a hearing on the TPR petition, the trial court found
that DCYF had proved, beyond a reasonable doubt, that the respondent failed
to correct the conditions leading to the finding of neglect. See RSA 170-C:5, III.
The court also determined that it was in the best interest of the children to
terminate the respondent’s parental rights because “she has no current ability
to care for her children and no track record to suggest she could properly care
for them when released from jail.” This appeal followed.
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 Jack L., 161 N.H. 611, 614 (2011). RSA 170-C:5, III
provides for termination where “[t]he parents, subsequent to a finding of child
neglect or abuse under RSA 169-C, have failed to correct the conditions leading
to such a finding within 12 months of the finding despite reasonable efforts
under the direction of the . . . court to rectify the conditions.” See RSA 490D:2, IV, VII (2010) (allowing family division to hear RSA chapter 169-C cases).
Thus, in order to rely upon RSA 170-C:5, III as grounds for termination, DCYF
must demonstrate: (1) a finding of child neglect or abuse under RSA chapter
169-C; (2) a failure to correct the same within twelve months of the finding;
and (3) reasonable efforts under the direction of the court to rectify the
conditions. In re Zachary G., 159 N.H. 146, 153 (2009). We will not disturb
the trial court’s finding unless it is unsupported by the evidence or plainly
erroneous as a matter of law. Id.
The respondent first argues that “the [t]rial court’s conclusion that a
finding of neglect should be entered against [the respondent] was not
supported by the sufficiency of the evidence.” The court incorporated, without
objection, the record from the neglect case into the TPR proceedings. The court
then issued a decision granting the TPR petition, in which it relied upon and
recited the findings from the neglect case. The respondent moved for
reconsideration, arguing that there was insufficient evidence to support a
finding of neglect. Therefore, we understand the respondent’s argument to be
that the court in the TPR proceeding should not have relied upon the finding in
the neglect case, but should have reviewed the evidence presented in the
neglect case de novo, and in doing so, should have found that there was
insufficient evidence to support a finding of neglect.
DCYF asserts that collateral estoppel bars the respondent from
challenging the neglect case findings. We agree. Spurred by considerations of
judicial economy and a policy of certainty and finality in our legal system, the
doctrine of collateral estoppel has been established to avoid repetitive litigation
so that at some point litigation over a particular controversy must come to an
end. Id. at 151. Thus, the collateral estoppel doctrine bars a party to a prior
action from relitigating any issue or fact actually litigated and determined in
the prior action. Id. Three basic conditions must be satisfied before collateral
estoppel will arise: (1) the issue subject to estoppel must be identical in each
action; (2) the first action must have resolved the issue finally on the merits;
and (3) the party to be estopped must have appeared as a party in the first
action. Id. The burden of proving estoppel is on the party asserting it. Id.
DCYF has satisfied its burden of demonstrating collateral estoppel. The
respondent appeared as a party in the first action. The relevant issue, whether
the respondent neglected her sons under RSA chapter 169-C, is germane to
both the neglect case and the TPR case. See id. The court’s finding of neglect
was a “final dispositional order,” RSA 169-C:28 (2002); see In re Diane R., 146
N.H. 676, 678 (2001), and the respondent did not appeal that order to the
superior court for de novo review, see RSA 169-C:28; therefore, the issue of
neglect was resolved finally on the merits. Because DCYF has successfully
demonstrated the three conditions for collateral estoppel and the respondent
has not submitted any argument as to why we should relax this preclusive
doctrine, see In re Zachary G., 159 N.H. at 151-52, we conclude that collateral
estoppel bars the respondent from challenging the neglect case findings in the
The respondent next argues that there was insufficient evidence to
support the trial court’s conclusion that DCYF made reasonable efforts to
reunify her with her children. Specifically, the respondent contends that
because the “vast majority if not all of the services [she] utilized” were arranged
by the respondent and not DCYF, DCYF failed to make reasonable efforts.
DCYF cannot file a TPR petition if “[t]he state has not provided to the family of
the child, consistent with RSA 170-C:5, III, such services and reasonable
efforts as the state deems necessary for the safe return of the child to the
child’s home.” RSA 169-C:24-a, III(c) (2002). RSA 170-C:5, III provides that a
petition for termination of parental rights may be granted where the parents
have failed to correct the conditions leading to the finding of neglect “within 12
months of the finding despite reasonable efforts under the direction of the . . .
court to rectify the conditions.”
In assessing the State’s efforts, the court must consider whether the
services provided have been accessible, available and appropriate. In re
Juvenile 2006-833, 156 N.H. 482, 486 (2007); RSA 169-C:24-a, III(c). However,
we have recognized that the State’s ability to provide adequate services is
constrained by its staff and financial limitations. In re Juvenile 2006-833, 156
N.H. at 486. “Thus, the State must put forth reasonable efforts given its
available staff and financial resources to maintain the legal bond between
parent and child.” Id. (quotation omitted). “The word reasonable is the
linchpin on which the department’s efforts in a particular set of circumstances
are to be adjudged.” Id. (quotation and ellipsis omitted).
We conclude that the record supports the trial court’s finding that DCYF
made “reasonable efforts” under RSA 169-C:24-a, III(c) and RSA 170-C:5, III.
The trial court found that DCYF “developed a well-reasoned case plan” and
“provided case management, parent aide support, suggestions for counseling
and parenting classes, and drug screening.” The record supports these
The respondent argues that DCYF did not make reasonable efforts
because the caseworker did not enroll her in any of the services she obtained.
This, however, is not required. The State’s role is to “[p]rovide assistance to
parents to deal with and correct problems.” RSA 169-C:2, I(c) (2002); see In re
Juvenile 2006-833, 156 N.H. at 487. “Its role is not to assume the full weight
of the parents’ responsibilities.” In re Juvenile 2006-833, 156 N.H. at 487. A
parent must “make her own effort in conjunction with the efforts made by
DCYF.” Id. Here, the caseworker obtained information about the services
available in the respondent’s community and provided that information to her.
The caseworker also informed the respondent of the services available to her
while she was incarcerated. Taking into consideration DCYF’s limitations,
regarding both its staff and finances, the efforts made by DCYF to help the
respondent obtain necessary services were reasonable. See id.
To the extent that the respondent argues there was insufficient evidence
to prove, beyond a reasonable doubt, that her parental rights should be
terminated, we disagree. See RSA 170-C:5, III. As we have already determined
that there was sufficient evidence to prove that there was a finding of neglect
entered against the respondent and that reasonable efforts were made by DCYF
to assist her, we now consider only whether there was sufficient evidence to
prove that she failed to correct the conditions which led to the finding of
neglect. See id.
The trial court found that although she was given thirteen months to
correct the conditions that led to the original neglect finding, the respondent
“never acknowledged that there were any neglectful conditions to be corrected.”
The court found that the respondent “was largely uncooperative with the
parent aides assigned to assist her to reunify with her boys” and “did not
comply with the orders for drug screens.” Additionally, she “failed to establish
that she can refrain from illegal drug use when she is not incarcerated.” As the
record supports these findings, we uphold them. We conclude that, based
upon these findings, the trial court reasonably determined that the respondent
failed to correct the conditions leading to the neglect finding. Thus, we
conclude that there was sufficient evidence to prove, beyond a reasonable
doubt, that the respondent’s parental rights should be terminated.
DUGGAN, HICKS, CONBOY and LYNN, JJ., concurred.
Respondent Debra D. appealed a family court order that terminated her parental rights over her sons, Michael E. and Andre E., for failing to correct conditions leading to a finding of neglect. The court issued a final dispositional order finding that the Respondent had neglected Michael E. and Andre E. by selling drugs from her home and in their presence. The final order set forth conditions the Respondent had to meet before the children could safely be returned to her. These conditions, which were intended to correct those that led to the finding of neglect, included: (1) refraining from drug and alcohol use; (2) attending individual counseling; (3) working cooperatively with a parent aide; and (4) undergoing a neurological evaluation. Twelve months after the final dispositional order was issued in the neglect case, the court held a permanency hearing and found that Respondent was not in compliance with its order. Accordingly, the court ordered a termination of parental rights petition. Upon review, the Supreme Court found that there was sufficient evidence to prove beyond a reasonable doubt that Respondent's parental rights should have been terminated. The Court affirmed the family court's decision.Receive FREE Daily Opinion Summaries by Email