In re C.O.

• Decision Date: 01 February 2019
• Docket Number: No. 2018-0269,2018-0269
• Citation: 203 A.3d 870,171 N.H. 748
• Parties: IN RE C.O.; In re G.L.
• Court: New Hampshire Supreme Court

171 N.H. 748

203 A.3d 870

IN RE C.O.; In re G.L.

No. 2018-0269

Supreme Court of New Hampshire.

Argued: November 13, 2018

Opinion Issued: February 1, 2019

Gordon J. MacDonald, Concord, attorney general (Lindsey B. Courtney, attorney, on the memorandum of law and orally), for the petitioner.

McSwiney, Hankin-Birke, Wood & Christie, P.C., of New London (Sarah D. Christie on the brief and orally), for the respondent.

DONOVAN, J.

The respondent appeals an order of the Circuit Court (Carbon, J.) terminating her parental rights over her two minor children, C.O. and G.L., on the ground that she failed to correct the conditions that led to the circuit court's finding that she neglected both children and abused G.L. See RSA 170-C:5, III (2014). She argues that the circuit court erred in finding that: (1) the New Hampshire Division for Children, Youth and Families made reasonable efforts to reunify her with her children after it terminated visits with her children; and (2) she failed to correct the conditions that led to the court's finding of abuse and neglect because one of the circuit court's conditions, that she accept responsibility for the underlying abuse, violated her constitutional right against self-incrimination. We affirm.

The record supports the following facts. The respondent is the biological mother of C.O. and G.L. The children have different biological fathers. Prior to March 2016, the children resided with the respondent and their maternal grandparents in Manchester.

In December 2015, DCYF received information that C.O.'s biological father, who is not a party to this appeal, sexually abused G.L. while the family lived in Tennessee. Pursuant to RSA 169-C:38, DCYF informed the Manchester Police Department of these allegations. Subsequently, a Manchester detective received multiple images of child pornography from Tennessee police, which were recovered from C.O.'s father's computer hard drive. Some of these images depicted the respondent and G.L. engaging in behavior that appeared to be sexual in nature.

Based upon this information, DCYF filed an ex parte petition in March 2016 to remove the children from the respondent's custody and C.O. from her father's custody. See RSA 169-C:6-a, I (Supp. 2018). DCYF also filed three abuse and neglect petitions against the respondent, alleging that she neglected both children and abused G.L., and two abuse and neglect petitions against C.O.'s father, alleging that he neglected C.O. and abused G.L. See RSA 169-C:7 (2014). The Circuit Court (Emery, J.) granted the ex parte petition, ordering DCYF to place the children in out-of-home placement. Following a preliminary hearing, the Circuit Court (Carbon, J.) found reasonable cause to believe that the children were abused and neglected by the respondent and C.O.'s father and ordered the children to remain in out-of-home placement. See RSA 169-C:15, I, III (2014).

In May, DCYF informed the circuit court that the State of Tennessee had indicted the respondent in April on charges stemming from the images referenced in DCYF's original petitions. Shortly thereafter, the Circuit Court (Emery, J.) held an adjudicatory hearing and concluded that the evidence substantiated the allegations of abuse and neglect set forth in DCYF's petitions against the respondent and C.O.'s father. See RSA 169-C:18, V (Supp. 2018). The court awarded legal custody of C.O. to DCYF and ordered her to remain in out-of-home placement. As for G.L., the court awarded legal supervision over her to DCYF but placed her in the physical custody of her biological father.

Pursuant to RSA 169-C:18, VII, the Circuit Court (Emery, J.) then held a dispositional hearing. See also RSA 169-C:19 (2014). Following the hearing, the court issued an order setting forth conditions the respondent must meet before the children could be returned to her care, as well as the services that DCYF must provide to the children and the respondent.¹ See RSA 169-C:21, II (2014). The order required the respondent to "demonstrate an ability to parent [the children] in a safe, age-appropriate and consistent manner ... [,] address outstanding criminal matters," and "accept responsibility for her conduct (bearing in mind her substantive and procedural due process rights in the underlying criminal matter)." The circuit court also ordered that the respondent "shall not discuss any aspect of the criminal case with [G.L.] or [C.O.], except as otherwise authorized by [DCYF] in consultation with the child(ren)'s therapist(s)." The order also required her to participate in visits and any necessary parenting education directed by DCYF, obtain counseling, and participate in G.L.'s medical, dental, educational, or therapy visits.

In September 2016, the Circuit Court (Emery, J.) held a three-month review hearing. See RSA 169-C:24, I (2014). The court found the respondent in partial compliance with the court's dispositional order, noting that she had participated in visits with the children, "[r]emained in regular and consistent contact with [DCYF]," and had "not discussed the criminal component of this case with the children." However, the court noted that her "criminal charges have not yet been resolved," and concluded that the circumstances leading to the finding of abuse and neglect had not yet been corrected. It ordered that G.L. remain under the supervision of DCYF and in the physical custody of her father and that C.O. remain in the custody of DCYF.

During the fall of 2016, the respondent participated in visits with the children. A parent educator contracted by DCYF supervised the visits. While both children initially attended the visits, eventually only G.L. attended because, according to the parent educator, C.O. refused to participate. Subsequently, during the respondent's visit with G.L., the parent educator overheard the respondent discuss the criminal case against C.O.'s father with G.L. and, even after the parent educator instructed her to stop, she continued to do so until G.L. became upset. Based upon this event and C.O.'s behavior surrounding visitation, DCYF determined that visits with the respondent were no longer in the children's best interests. Thereafter, on or around December 22, DCYF facilitated a holiday visit between G.L. and the respondent, which was the last visit between the respondent and either of her children.

In January 2017, the Circuit Court (Carbon, J.) held a six-month review hearing, where it heard from all parties about the events that had transpired. The court endorsed DCYF's decision to discontinue visits and ordered that visits "not be reinstated absent Court order" and "until further recommendation from [G.L.]'s new therapist." Additionally, the court found that the respondent was again in partial compliance with the court's dispositional orders. The court acknowledged that the respondent had attended each visit, remained in regular and consistent contact with DCYF, participated in individual counseling and in C.O.'s educational matters, and had refrained from speaking with C.O. about the criminal matter. However, the court found that her criminal charges remained unresolved, she failed to refrain from speaking about her criminal case to G.L., and she had "not demonstrated an awareness as to the wrongfulness of her conduct and its impact on both her children." The court's order also noted that the respondent did not believe that she "may say anything in these hearings due to the pending criminal court matters in Tennessee," even though " RSA 169-C:12-a provides that testimony in child protection proceedings shall not be admissible in criminal proceedings." According to the order, C.O. had, at some point, been placed with G.L.'s father. Accordingly, the court ordered both C.O. and G.L. to remain in his care.

In May, the Circuit Court (Carbon, J.) held a nine-month review hearing and found that the respondent was not in compliance with the court's dispositional orders, again noting that she had not resolved her criminal issues and had not demonstrated an awareness as to the wrongfulness of her conduct. The court ordered the children to remain in the care of G.L.'s biological father.

Finally, in June 2017, approximately 12 months after the original findings of abuse and neglect, the Circuit Court (Carbon, J.) held a permanency hearing. See RSA 169-C:24-b (2014). The court determined that the respondent had not met the standard to permit the return of the children to her custody. See RSA 169-C:23 (2014). The court found that the respondent was not in compliance with the outstanding dispositional orders because she had not "meaningfully participated in visits" due to their discontinuation "as a result of her repeated misconduct." See RSA 169-C:23, I. Furthermore, the court determined that she could neither demonstrate that the children would not be endangered nor that it was in the children's best interests to be reunited with her because, inter alia, she had not "demonstrated an awareness as to the wrongfulness of her conduct" or resolved her criminal issues. RSA 169-C:23, II-III. Accordingly, the circuit court ordered DCYF to file petitions to terminate the respondent's parental rights (TPR) as to both children, see RSA 169-C:24-a, I(a) (2014), awarded legal custody to DCYF as to C.O., and ordered the children to remain in the care of G.L.'s father and his wife, or, as to C.O., another placement at DCYF's discretion. Subsequently, DCYF and G.L.'s father filed TPR petitions to terminate the respondent's parental rights over C.O. and G.L., respectively. These petitions alleged that the respondent failed to correct within 12 months the conditions which led to the findings of abuse as to G.L. and neglect as to both children. See RSA 170-C:5, III (providing for termination of parental rights where the parent, "subsequent to a finding of child neglect or abuse under RSA 169-C, ha[s] failed to correct the conditions leading to such a finding within 12 months of the finding...