Doe, In re

Decision Date31 August 1983
Docket NumberNo. 82-014,82-014
PartiesIn re John and Jane DOE.
CourtNew Hampshire Supreme Court

Dickson, Fauver & Cooper, North Conway (Randall F. Cooper, North Conway, on the brief and orally), for the New Hampshire Division of Welfare.

McManus & Johnson, Dover (Anthony A. McManus, Dover, on the brief and orally), for John and Jane Doe.


This appeal was brought seeking to reverse an order of the Strafford County Probate Court (Shea, J.) approving a master's report recommending that the parental rights of John and Jane Doe, with respect to their two minor children, Sally and Joe, be terminated, and that legal custody be vested in the New Hampshire Division of Welfare. For the reasons which follow, we vacate the court's ruling in part, and remand for findings in regard to Jane Doe which are in accordance with this opinion.

The factual findings in cases involving the termination of parental rights are critical to the appellate review process. See generally C. Douglas, 3 New Hampshire Practice, Family Law, ch. 20 (1982). A recapitulation of the important factual findings, although not necessarily enlarging the precedential scope of cases such as this, may provide guidance for future examination by triers of fact in this difficult area of law. Accordingly, we note the unfortunate factual background of this case.

I. Facts

John and Jane Doe were married in November 1975. Their first child, Sally, was born in February 1977. The record reveals that in July 1977, Sally, then five months old, was admitted to a hospital emergency room suffering from an abrased throat. According to the emergency room notes, Mr. Doe admitted that while washing Sally's face he had become angry and forced a washcloth into the baby's throat. At that time, a child abuse report on the incident was filed with the division of welfare. Although Sally was returned to her parents' custody, Mr. and Mrs. Doe assured the division investigator that they would arrange for outside care for Sally while they resolved their problems through counseling. Nevertheless, Sally remained with her parents.

Five months later, on December 31, 1977, the local police department forwarded a complaint to the division regarding another incident of abuse at the Doe home. The complaint alleged that Mr. Doe broke Sally's arm and refused to take her to the hospital for treatment. The investigation that followed revealed that Mrs. Doe was not home at the time of the incident, that when she returned home Sally was screaming in her crib, and that upon lifting the child she discovered that one of Sally's arms was completely limp. Mrs. Doe stated that Mr. Doe was angry about her discovery and would not permit her to take the child to the hospital. After this incident, a local police officer and a worker from the division of welfare visited the Doe home, and Sally was taken into police custody pursuant to section 5 of chapter 502 of the 1975 session laws (current version at RSA 169-C:6 (Supp.1981)). In January 1978, an emergency custody hearing was held which resulted in Sally being placed in the custody of the division of welfare, and she was transferred to a licensed foster home. The division has retained custody of Sally since that date.

Joe Doe was born on March 13, 1978. Mr. and Mrs. Doe made arrangements prior to Joe's birth to have him placed in foster care rather than to bring him home from the hospital. Except for a few visits with his parents, Joe has lived in a foster home since his release from the hospital.

Ostensibly, the decision to relinquish custody of Joe was based upon a plan by the Does to continue counseling in order to rehabilitate the family in the future. The record indicates that over the next two years Mr. and Mrs. Doe took part in various types of counseling and parent training, including psychotherapy with a licensed psychiatrist, Doctor Carolyn Dixon. A report, for which Mr. and Mrs. Doe signed releases to the division of welfare was prepared by Dr. Dixon and was used as support for the master's decision to terminate parental rights pursuant to RSA 170-C:5, IV (Supp.1981).

The record reveals that since January 1978 the division of welfare has made efforts to return the children to the parents and has provided, or attempted to provide, applicable services toward that result. Those efforts failed. Custody of Joe and Sally was never returned to their parents, and visitations have been erratic. In late 1979 the division of welfare instituted petitions against the Does to terminate parental rights on the basis of neglect. See RSA 170-C:5, III. Although the record before us is not clear in this regard, the neglect petitions were not pursued to final disposition, apparently to afford Mr. and Mrs. Doe the opportunity to improve their abilities to be capable parents.

Despite these efforts, in December 1980 the division of welfare filed the amended petitions to terminate parental rights from which this appeal arises. These amended petitions alleged that "because of mental deficiency or mental illness, ... [John and Jane Doe] ... are and will continue to be incapable of giving to their natural children, [Sally and Joe], proper parental care and protection for a longer period of time than would be wise or prudent to leave these children in an unstable and impermanent environment." See RSA 170-C:5, IV (Supp.1981).

In the fall of 1981, hearings on the petitions were held before a Master (Lichman, J.) who was specially appointed pursuant to RSA 547:37. The division of welfare submitted both written and oral testimony by two psychiatrists which diagnosed both Mr and Mrs. Doe as suffering from personality disorders which prevented them from being able to provide proper parental care and protection.

Specifically, Mr. Doe was diagnosed as suffering from a schizoid disorder. It was conceded, however, that both parents are of at least average intelligence, and that Mr. Doe is capable of adequately supporting his family. Both parents are regular church members and participate in various church activities and programs. Neither parent is in need of hospitalization and neither parent is taking or is in need of medication.

Daniel Williams, a State-certified psychologist, appeared on behalf of the division in the hearings before the probate master, and testified that the child Sally suffered from behavioral problems allegedly resulting from her parents' inability to care properly for her due to the fact that they both suffered from mental illness. Williams' testimony also indicated that Joe, an otherwise happy and secure child, became upset to such an extent whenever he visited his parents that it was detrimental for him to do so. The division's testimony also suggested that the parents' conduct was inconsistent with a reliable and secure home environment, that the parents lacked stability, and that they feared the return of the children to their home.

The record in this case included a "social study" prepared by a division social worker who had been closely involved with the family. The conclusions of this study were that the children "have a tremendous need for long-term, permanent attachments to develop a sense of security and stability," and that both children were excellent candidates for adoption and that the best interests of the children would be served by terminating the Does' parental rights so that they may be placed in adoptive homes as soon as possible.

Moreover, the guardian ad litem for the children recommended that the status quo at the time of the hearing be preserved, that is, the children should remain outside their parents' home and in the custody of the division of welfare.

At the conclusion of these hearings, the master issued a report and recommended decree terminating the parental rights of John and Jane Doe. The decree was approved by the probate judge and the parents brought this appeal.

II. Law

Against this factual background we are called upon to make a determination as a matter of law whether this record supports the unequivocal termination of parental rights of both parents with respect to each child. The division's petitions in this case were based upon RSA 170-C:5, IV (Supp.1981), which provides that parental rights may be terminated if the court finds that:

"because of mental deficiency or mental illness a parent is and will continue to be incapable of giving a child proper parental care and protection for a longer period of time then would be wise or prudent to leave the child in an unstable or impermanent environment. Mental deficiency or mental illness shall be established by the testimony of either two licensed psychiatrists or clinical psychologists or one of each acting together."

John and Jane Doe contend that they do not suffer from mental illness as contemplated by the legislature when it enacted RSA 170-C:5, IV (Supp.1981). They urge us to construe the term "mental illness" in that statute to have the same meaning it has in RSA 135-B:2, XI (Supp.1981) regarding involuntary civil commitment to New Hampshire Hospital. That latter statutory section defines "mental illness" as follows:

"[A] substantial impairment of emotional processes, or of the ability to exercise conscious control of one's actions, or of the ability to perceive reality or to reason, which impairment is manifested by instances of extremely abnormal behavior or extremely faulty perceptions; it does not include impairment primarily caused by: (a) epilepsy; (b) mental retardation; (c) continuous or noncontinuous periods of intoxication caused by substances such as alcohol or drugs; (d) dependence upon or addiction to any substance such as alcohol or drugs."

The legislature, in enacting RSA 170-C:5, IV (Supp.1981) had the opportunity to adopt such a definition, but failed to do so. Nothing in the legislative history of RSA 170-C:5, IV (Supp.1981) or in the arguments advanced by the Does persuades us...

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