In re Adam R.

• Decision Date: 10 March 2010
• Docket Number: No. 2008–900.,2008–900.
• Court: New Hampshire Supreme Court
• Parties: In re ADAM R.

159 N.H. 788

992 A.2d 697

In re ADAM R.

No. 2008–900.

Supreme Court of New Hampshire.

Argued: Sept. 23, 2009.

Opinion Issued: March 10, 2010.

Smith–Weiss, Shepard & Durmer, P.C., of Nashua (Robert M. Shepard on the brief and orally), for the respondent.

Law Offices of Randall E. Wilbert, PLLC, of Nashua (Lucinda Hopkins on the brief and orally), for the petitioners.

Kelly A. Ayotte, attorney general (Naomi N. Butterfield, assistant attorney general, on the brief), for the State of New Hampshire, as amicus curiae.

BRODERICK, C.J.

The respondent, K.B., appeals the order of the Hillsborough County Probate Court (O'Neill, J.) granting the petition to terminate her parental rights over her son, Adam R. See RSA 170–C:5, IV (2002). We affirm.

I

The record supports the following. Adam R. (Adam) was born to K.B. (mother) and A.R. (father) in November 2004. Adam's father has cognitive limitations, and his mother has significant cognitive limitations and emotional difficulties. She also is afflicted with a suspected severe language-based learning disability. Adam has been diagnosed with Pervasive Developmental Disorder

, speech and language delays, muscle apraxia, a seizure disorder, and a form of autism. His many special needs require extensive medical care.

From shortly after his birth, Adam and his parents lived in Nashua with the petitioners, J.R. and F.R., his paternal grandparents (grandparents). When Adam was approximately three months old, his father moved out, leaving Adam and his mother with his grandparents. Since that time, the father has had little involvement in Adam's life, and consented to the termination of his parental rights and to Adam's adoption by the grandparents.

Concerned that the division for children, youth and families (DCYF) might intervene and place Adam in a foster home because of certain behavior between his parents, the grandparents petitioned the probate court in late February 2005 for a temporary guardianship over their grandson. Specifically, they requested that the probate court grant them "temporary custody of [Adam] until [K.B.] is on med[ication]s and stable per a doctor[']s report." The Hillsborough County Probate Court (Cloutier, J.) granted the petition in April, and ruled that it would not terminate the guardianship until the mother underwent drug and alcohol evaluations and psychological counseling, took parenting and domestic violence courses, secured proper housing, and found employment. Further, the probate court ruled that visitation between Adam and his mother would be at the grandparents' discretion until the mother had taken positive steps to correct her problems for a minimum of six months. The mother did not appeal.

In October 2007, the grandparents petitioned for the termination of parental rights (TPR), alleging that the mother had abandoned Adam, failed to support, educate, or care for him, and that she suffered from a mental deficiency or mental illness. A guardian ad litem (GAL) was appointed to evaluate whether the mother had complied with the outstanding guardianship order. The same GAL was appointed in the termination case in November.

In October 2008, pursuant to RSA 170–C:5, IV, the probate court granted the petition, stating:

[T]he court finds beyond a reasonable doubt ... that because of mental deficiency[, the mother] is and will continue to be incapable of giving Adam ... proper parental care and protection for a longer period of time than would be wise or prudent to leave the child in an unstable or impermanent environment. This is especially true based upon Adam's own developmental issues and needs.

The court further finds beyond a reasonable doubt that it is in the best interest of the minor to grant this petition as the [grandparents] are desirous of adopting Adam which would provide him with a stable and permanent family and with parents who have proven that they can fully address[ ] Adam's special needs.

As the court has found that the petitioners have satisfied their burden under RSA 170–C:5 [,] IV, it will not address the other grounds alleged by the petitioners.

The probate court denied the mother's motion for stay and reconsideration. This appeal followed.

The mother argues that the probate court erred in terminating her parental rights because: (1) there was no evidence that her cognitive limitations, emotional difficulties, and language-based learning disability had any detrimental effect upon Adam; instead, both the witnesses and the probate court "merely speculated" that such harm would result; (2) one psychologist did not meet with her, neither doctor observed her with Adam, and neither doctor testified to their conclusions "beyond a reasonable doubt"; and (3) she never had a chance to parent Adam due to the grandparents' guardianship, had substantially complied with the guardianship order, had a relationship with Adam and a regular schedule of contact with him, and there was no evidence of present or future danger to Adam if the termination petition was denied.

II

Parental rights are "natural, essential, and inherent" within the meaning of Part I, Article 2 of the New Hampshire Constitution. In re Antonio W., 147 N.H. 408, 412, 790 A.2d 125 (2002). Nevertheless, the fundamental rights of parents are not unassailable, and terminations of parental rights will be upheld if applicable due process requirements have been met. Id. The dominant consideration in termination proceedings under RSA chapter 170–C (2002 & Supp. 2009) is the welfare of the child, which prevails over the interests of the parents. Id. Before a probate court may order the termination of parental rights, the petitioning party must prove a statutory ground for termination beyond a reasonable doubt. Id.; RSA 170–C:5.

If a statutory ground is established, the probate court must then consider whether termination is in the child's best interest. Antonio W., 147 N.H. at 412, 790 A.2d 125. The calculation of a child's best interest is not an evidentiary fact, however, and need not be established "beyond a reasonable doubt." In re Shannon M., 146 N.H. 22, 28, 766 A.2d 729 (2001).

The probate court, as the trier of fact, is in the best position to assess and weigh the evidence before it. In re Craig T., 144 N.H. 584, 585, 744 A.2d 621 (1999). It has the benefit of observing the parties and their witnesses. Id. The findings of fact of a probate court are final unless they are so plainly erroneous that they could not reasonably be made. RSA 567–A:4 (2007). We will not disturb a probate court's decree unless it is unsupported by the evidence or plainly erroneous as a matter of law. Antonio W., 147 N.H. at 412, 790 A.2d 125.

The posture of this private action and the circumstances presented, while not necessarily unique, differ significantly from those usually seen in a TPR case. Most often, termination actions are brought by DCYF after a finding of abuse or neglect under RSA chapter 169–C. Here, there has been no finding of abuse or neglect. Notwithstanding the grandparents' concern over possible DCYF intervention in this case, DCYF has not been involved.

The process for correcting conditions of abuse and neglect and reunification under RSA chapter 169–C is not at issue here. Instead, this case involves the termination of parental rights under RSA 170–C:5, IV, where, because of mental deficiency or mental illness, a parent is incapable of providing proper parental care and protection.

RSA 170–C:5, IV provides that a TPR petition may be granted where the probate court finds the following:

Because of mental deficiency or mental illness, the parent is and will continue to be incapable of giving the child proper parental care and protection for a longer period of time than 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 2 licensed psychiatrists or clinical psychologists or one of each acting together.

III

We address each of the mother's arguments in turn.

A

The mother first argues that the probate court erred because there was no evidence that her cognitive limitations, emotional difficulties, and language-based learning disability had any detrimental effect on Adam. She contends that both the witnesses and the probate court "merely speculated" that such harm would result. The factual findings in a TPR case, to which we owe deference, are critical to our review. In re Doe, 123 N.H. 634, 637, 465 A.2d 924 (1983). Consequently, we note the factual background of this case and the testimony leading to the probate court's decision. See id.

The probate court heard testimony from two clinical and forensic psychologists, Catherine Howe, Ph.D., and Eric G. Mart, Ph.D. Dr. Howe testified that she conducted an evaluation of the mother by reviewing her past cognitive testing, academic testing from 1997 to 2004, and multiple incident reports and descriptions of her interactions with the GAL and the Greater Nashua Visitation Center from 2004 to September 2008.

Among Dr. Howe's conclusions were that: (1) the mother had a total intelligence quotient (IQ) of approximately fifty, generally referred to as "moderately mentally retarded" or an "intellectual disability"; (2) the mother's cognitive, emotional, and social development had leveled off at that of an eight-year-old; (3) the mother's reactions, responses, general functioning, and logic were all at the level of an eight-year-old; (4) the mother's inability to follow the very specific, but simple, rules of the visitation center, or to learn from her mistakes regarding those rules, called into question her ability to keep Adam safe, consequently placing him in an unsafe position; (5) the mother's inability "to place herself in [Adam's] shoes" and understand the priority of his needs over hers, especially given Adam's significant disabilities and diminished ability to provide feedback to a parental figure, was concerning; (6) the mother was unable...