In re Craig T.

• Decision Date: 24 May 2002
• Docket Number: No. 2000–748.,2000–748.
• Citation: 147 N.H. 739,800 A.2d 819
• Court: New Hampshire Supreme Court
• Parties: In re CRAIG T. and Megan T.

147 N.H. 739

800 A.2d 819

In re CRAIG T. and Megan T.

No. 2000–748.

Supreme Court of New Hampshire.

Argued March 6, 2002.

Opinion Issued May 24, 2002.

Brian P. McEvoy, of Laconia, by brief and orally, for the respondent, Jo Ann T.

Philip T. McLaughlin, attorney general (Laura E.B. Lombardi, attorney, on the brief and orally), for the State.

DUGGAN, J.

The respondent, Jo Ann T., appeals a Belknap County Probate Court (O'Neill , J.) order terminating her parental rights over her children, Craig T. and Megan T. See RSA 170–C:5, III,:10 (1994 & Supp.2001). On appeal, she argues that the probate court applied the wrong legal standard when it granted the petition to terminate her parental rights. She also contends the evidence was insufficient to support the probate court's findings. We affirm.

In February 1998, the petitioner, the New Hampshire Division for Children, Youth and Families (DCYF), filed two neglect petitions in Laconia District Court against the respondent on behalf of her children, Craig T. and Megan T. See RSA ch. 169–C (1994 & Supp.2001). In the first petition, DCYF alleged that the respondent was present and failed to intervene when Todd T., her husband and the children's father, was observed shaking and violently striking Craig, then age three. In the second petition, DCYF alleged that she failed to protect Megan, then age five, from witnessing that traumatic event, which was likely to cause substantial harm to Megan's physical, mental and emotional health. The accounts that provided the factual basis for the neglect petitions are more fully described in In re Craig T., 144 N.H. 584, 744 A.2d 621 (1999).

Following an adjudicatory hearing in April 1998, the district court found that the respondent had neglected the children. See RSA 169–C:18, :21. After the final dispositional hearing, the district court ordered custody of the children to remain with DCYF while permitting the respondent visitation supervised by a parent aide. See RSA 169–C:19, II(a)(2), III(a) (Supp.2001). The parent aide was to schedule regular meetings with the respondent to discuss the goals and status of visitation. The district court also ordered the respondent to complete a psychological evaluation, see RSA 169–C:16, III, to participate in counseling to address family violence issues, see RSA 169–C:19, IV, and to cooperate with DCYF in scheduling and keeping appointments related to the court order.

The respondent maintained supervised visitation with the children weekly from May 1998 through June 18, 1998. Following her June 18, 1998 visit, the respondent's parent aide sent her a letter informing her that her visits were suspended until she scheduled a meeting with her DCYF caseworker and her parent aide. The respondent called her parent aide the following day to report that she would not be able to schedule a meeting with her DCYF caseworker until her caseworker returned to the office at the end of June. Weekly visits resumed on July 10, 1998.

On July 28, 1998, the respondent failed to confirm a visit that she had specially requested to celebrate Megan's birthday. Because she failed to confirm the visit, the children were not transported to the visitation site. When the respondent learned that she would not be able to visit with the children that day, she expressed her frustration to her parent aide and stated that she was going out of town for a while but would call upon her return.

The respondent's parent aide sent her a letter on July 30, 1998, requesting that she call to schedule a meeting to discuss the status of visitation. The respondent did not respond. On August 12, 1998, the respondent's parent aide sent her another letter requesting that she set up a meeting to discuss the status of visitation. Again, the respondent did not respond. Finally, the respondent's parent aide and her DCYF caseworker scheduled a meeting and notified the respondent of the meeting by letter sent August 18, 1998. The respondent did not attend the meeting. On August 31, 1998, the respondent's parent aide sent a letter notifying her that the parent aide agency was suspending her supervised visits with the children because she failed to attend the meeting.

The respondent called her DCYF caseworker on October 2, 1998, and scheduled a meeting for the next week. At the meeting, the respondent expressed her desire to resume visitation. Her DCYF caseworker requested that she first make an effort to comply with the court orders by obtaining a psychological evaluation and participating in counseling before resuming visitation. Her DCYF caseworker testified that she made these requests because she was concerned about the respondent's commitment to the children, given the amount of time that had passed since the last visit, as well as her commitment to correcting the conditions that led to the neglect findings. The respondent, with her DCYF caseworker's assistance, made an appointment for a psychological evaluation, but then did not appear at the appointed time.

The respondent did not contact her DCYF caseworker again until December 1998, when she called to arrange delivery of Christmas gifts for the children. Her DCYF caseworker scheduled a time for her to drop off the gifts and to discuss the status of the case. The respondent did not appear at the scheduled time, but instead dropped the gifts off at a time when her DCYF caseworker was not available. The respondent next contacted her DCYF caseworker in March 1999. At that time, she asked to resume visitation and reported that she had been attending a domestic violence batterer's group. She stated, however, that she did not see the point in attending and was going only to satisfy her caseworker.

In April 1999, the district court held a review hearing. See RSA 169–C:24. At the hearing, the court found that the respondent was "in non-compliance with the present District Court Dispositional orders." As a result, the court ordered DCYF to establish "[a] permanent plan ... for [the children]" and authorized DCYF to prepare "a social study for the Termination of Parental Rights." The court again ordered the respondent to complete a psychological evaluation, to participate in counseling to address family violence issues, and to cooperate with DCYF in scheduling and keeping appointments related to court orders. The court further ordered that "[v]isitation [was to] remain at the discretion of [DCYF] in consultation with [the guardian ad litem]." Upon DCYF deciding to resume visitation, the court ordered that "[r]egular meetings shall be established to discuss [the] goals and status of visitation" and that "visitation shall be supervised by a Parent Aide provider ... at the parent aide agency." The record does not contain any evidence that the respondent made any effort to comply with the district court orders after the April 1999 review hearing.

On September 22, 1999, DCYF submitted a permanent plan to the court that recommended freeing Craig and Megan for adoption. In October 1999, DCYF filed petitions in probate court to terminate the respondent's parental rights over Craig and Megan. See RSA 169–C:24 a; RSA 170–C:5, III. In the petitions, DCYF alleged that the respondent failed to: (1) cooperate in the visitation plan, which resulted in her not visiting with her children since July 1998; (2) complete a court-ordered psychological evaluation; and (3) follow through with a program to address issues of domestic violence. The probate court held a termination hearing on October 13, 2000. After the hearing, the court found beyond a reasonable doubt that the respondent failed to correct the conditions leading to the findings of neglect despite the State's reasonable efforts, and issued an order terminating the respondent's parental rights over Craig and Megan. The respondent thereafter filed this appeal.

On appeal, she first argues that the probate court applied the wrong legal standard in deciding to terminate her parental rights. The probate court applied the standard set forth in RSA 170–C:5, III, which provides:

The petition may be granted where the court finds that ... [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 district court to rectify the conditions.

The respondent argues that a showing of "reasonable efforts ... to rectify the conditions [leading to neglect]" places a lower burden on DCYF than is required by our case law. See State v. Robert H., 118 N.H. 713, 719, 393 A.2d 1387 (1978) ; see also In re Diana P., 120 N.H. 791, 798, 424 A.2d 178 (1980). Although the respondent states "[t]he legal standard underlying this issue is not precisely clear," she contends that this court enunciated a standard in Robert H. that requires DCYF to show that it made "every effort" to assist the parents to correct the conditions leading to neglect. See Robert H., 118 N.H. at 718–19, 393 A.2d 1387. The respondent's reliance on Robert H ., however, is misplaced.

In Robert H. , the court reviewed the burden of proof required before a court issues a termination order. See id. at 715–16, 393 A.2d 1387. Although the statute imposed a "clear and convincing" burden upon the division, see RSA 170–C:10 (1994), the court held that the division "must prove its case under chapter 170 C beyond a reasonable doubt before the permanent termination of liberty and natural rights of parents guaranteed under New Hampshire Constitution, part I, article 2 can occur." Robert H., 118 N.H. at 716, 393 A.2d 1387. Based on this constitutional ground, the court vacated the probate court's decision to terminate Robert H. 's parental rights.

The court then reviewed whether the division made an effort to assist and counsel Robert H. prior to seeking termination of his parental rights. See id. at 718, 393 A.2d 1387. The court observed that the division's own regulation stated...