In re R.H.
| Decision Date | 02 July 2021 |
| Docket Number | No. 2020-0436,2020-0436 |
| Parties | IN RE R.H. |
| Court | New Hampshire Supreme Court |
Office of the Attorney General (Laura E. B. Lombardi, senior assistant attorney general, on the memorandum of law and orally), for the New Hampshire Division for Children, Youth and Families.
Barbara L. Parker, of Newport, by brief and orally, for Father.
Father appeals an order of the Circuit Court (Mace, J.) terminating his parental rights over his minor child, R.H., on the ground that he failed to correct, within 12 months, the conditions that led to the circuit court's finding under RSA chapter 169-C that R.H. was neglected by R.H.’s mother (Mother), who had sole physical custody of the child. See RSA 170-C:5, III (2014). This appeal presents a narrow question: when does the 12-month period to correct the conditions of neglect or abuse under RSA 170-C:5, III begin to run against a non-accused, non-custodial parent? On appeal, Father argues that the 12-month period does not begin until a non-accused, non-custodial parent is provided actual notice of the neglect or abuse finding. The New Hampshire Division for Children, Youth and Families (DCYF) counters that the 12-month statutory period begins to run from the date of that finding, regardless of actual notice. Because we agree with Father that the 12-month period begins when a non-accused, non-custodial parent receives constitutionally-adequate notice of both the abuse or neglect finding and the possible impact on parental rights of a failure to correct the conditions leading to that finding, we vacate and remand.
The following facts are supported by the record or are not in dispute. On December 19, 2018, DCYF filed a petition in the circuit court alleging that Mother had neglected R.H. See RSA 169-C:7 (2014). The petition contained no allegations of neglect or abuse against Father, making him a non-accused parent. When the petition was filed, Mother had physical custody of R.H. Father's address and telephone number were "unknown," and, consequently, Father was not served with the neglect petition. On December 27, R.H. was removed from Mother's home and transitioned to an out-of-home placement with a relative.
On January 15, 2019, the circuit court held an adjudicatory hearing. See RSA 169-C:18 (Supp. 2020). Father did not receive notice of the hearing and was not present. Shortly thereafter, on January 23, the circuit court issued an adjudicatory order finding that Mother neglected R.H. by failing to maintain a safe and clean household and by exposing R.H. to the risk of physical abuse by Mother's significant other.
On February 21, the circuit court held a dispositional hearing. See RSA 169-C:19 (2014). Father was not present, and the court found that his "whereabouts [were] unknown." The parties dispute whether Father received notice of the hearing. Following the hearing, the court issued a final dispositional order, which found that Mother neglected R.H. and continued R.H.’s out-of-home placement, see RSA 169-C:21, I (2014). The court established reunification as the permanency plan for R.H. It set forth the conditions Mother had to meet to regain custody of R.H. and separate conditions for Father to meet to achieve reunification. Specifically, the court required that Father work cooperatively with DCYF and service providers, meet with DCYF to complete a social study and case plan, and sign necessary release forms. See RSA 169-C:21, II (2014). The court also listed services that DCYF should provide to Father, including case management and coordination services, individual counseling, child health support, transportation, and daycare. See id.
In May and August, the court held three-month and six-month review hearings. See RSA 169-C:24, I (2014). Father was not present at the three-month hearing, and the record is unclear as to whether Father was present at the six-month hearing. At both hearings, DCYF reported to the court regarding its efforts to contact Father, which included sending him letters, leaving voicemails, and checking with local law enforcement about his whereabouts. Following both hearings, the circuit court found Father not in compliance with the dispositional order because he had not made adequate contact with DCYF, and, as a result, had not cooperated effectively with DCYF or completed a social study or case plan.
On November 26, the court held a nine-month review hearing at which Father was present. In its nine-month review order, the court again found Father out of compliance with the dispositional order. It noted that Father had not contacted DCYF until November 18, when he told DCYF that he had been visiting with R.H. and expressed an interest in spending more time with his child. The court also ordered DCYF to serve Father "with all orders in addition to the petitions" and inform Father "of his right to have a Bill F. hearing upon request." See In re Bill F., 145 N.H. 267, 274, 761 A.2d 470 (2000) (); RSA 169-C:19-e, I (2014) (providing non-accused parent the right to request a full hearing regarding his or her ability to obtain custody). On December 31, DCYF mailed Father copies of the neglect petition and the court orders issued in the neglect proceeding.
On February 21, 2020, the circuit court held a permanency hearing, see RSA 169-C:24-b, I (2014), at which Father appeared. The court found Father not in compliance with the dispositional order because he had "not maintained consistent contact with [DCYF] throughout the past 12 months." The court observed that DCYF had "made ongoing efforts" to contact Father during the pendency of the proceedings. By contrast, the court highlighted Father's lack of contact with DCYF prior to the nine-month review hearing. It also noted Father's failure to fully engage with DCYF by completing a social study and his failure to request a Bill F. hearing. Because the court also found Mother out of compliance with the dispositional order, it modified the permanency plan for R.H. from reunification to adoption, directed DCYF to cease reunification efforts, and ordered DCYF to file termination of parental rights petitions against both parents. See RSA 169-C:24-a, I(a) (2014).
On March 2, DCYF filed a petition for termination of Father's parental rights based on his failure to correct the conditions leading to the neglect finding against Mother. See RSA 170-C:5, III. Under RSA 170-C:5, III, the circuit court may order termination when:
The 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 [circuit] court to rectify the conditions.
Id.; see RSA 490-D:2, IX (2010) (granting judicial branch family division jurisdiction to terminate parental rights); RSA 490-F:3 (Supp. 2020) (granting circuit court jurisdiction conferred upon former judicial branch family division and former district courts).
At the hearing on the petition, Father moved to dismiss and argued that DCYF had not proved that it had afforded him a full 12 months to correct the conditions leading to the neglect finding. He asserted that the 12-month period did not begin to run until he received notice of the neglect proceedings and his associated rights. On August 6, the circuit court issued a final order terminating both parents’ rights over R.H. It concluded that DCYF had "carried its burdens of proof" and that termination was in the best interest of R.H. The court did not specifically address Father's notice argument. Father filed an unsuccessful motion to reconsider, and this appeal followed. Mother is not a party to this appeal.
On appeal, Father argues that the circuit court erred when it terminated his parental rights under RSA 170-C:5, III despite the fact that he did not have a full 12 months to correct the conditions of neglect. His argument is premised upon his contention that the 12-month period does not begin to run with respect to a non-accused, non-custodial parent, like himself, until that parent has received actual notice of the abuse or neglect finding regarding his or her child. DCYF counters that the plain language of RSA 170-C:5, III does not require "that a parent have actual knowledge of the neglect proceeding throughout the entire twelve-month statutory period," and asserts that the 12-month period starts on the date of the circuit court's adjudicatory finding of neglect. Accordingly, we must determine when the 12-month period under RSA 170-C:5, III begins to run with respect to a non-accused, non-custodial parent.1
Resolving this issue requires that we engage in statutory interpretation. We review the trial court's statutory interpretation de novo. See In re C.M., 166 N.H. 764, 773-74, 103 A.3d 1192 (2014). We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. at 774, 103 A.3d 1192. We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole. Id. This approach enables us to better discern the legislature's intent and to interpret the statutory language in light of the policy or purpose sought to be...
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