Lisa H., In re, 90-056

• Decision Date: 26 April 1991
• Docket Number: No. 90-056,90-056
• Citation: 134 N.H. 188,589 A.2d 1004
• Parties: In re LISA H.
• Court: New Hampshire Supreme Court

Page 1004

589 A.2d 1004

134 N.H. 188

In re LISA H.

No. 90-056.

Supreme Court of New Hampshire.

April 26, 1991.

Hughes, Miller & Candon, Norwich, Vt. (Jane H. Davison, on the brief and orally), for Sharon G., the mother of Lisa H.

Daschbach, Kelly & Cooper, Lebanon (Deborah J. Cooper, on the brief, and Timothy Caldwell, orally), as guardian ad litem for Lisa H John P. Arnold, Atty. Gen. (Claire L. Gregory, Asst. Atty. Gen., on the brief and orally), for the State.

THAYER, Justice.

By petition to the Grafton County Probate Court, the New Hampshire Division for Children and Youth Services (DCYS) sought the termination of Sharon G.'s parental rights over her natural daughter, Lisa H., under RSA chapter 170-C. After a full hearing on the merits of the petition, the Court (Boyle, J.) allowed the petition in accordance with the recommendation of the guardian ad litem. The respondent, Sharon G., has essentially made three claims of error. She first contends that the probate court erred in finding that the evidence produced at the hearing established abandonment beyond a reasonable doubt. The respondent's second contention is that the probate court abused its discretion and erred as a matter of law in finding that DCYS used its "best efforts" to rehabilitate her as a parent. The respondent also claims that the probate court's findings as to DCYS's efforts are contrary to the evidence produced below. We affirm.

Lisa H. was born to the respondent and Stephen H. on February 25, 1975, and is now sixteen years old. Lisa's parents were divorced in 1982, and Stephen H. subsequently died in 1984. That same year the respondent was remarried to Francis G., and from 1984 to 1987 Lisa and her older sister, Tracy H., lived with the respondent and Francis G. in Meriden. In March, 1987, Lisa alleged that she had been sexually abused by her stepfather. On May 26, 1987, the Claremont District Court entered a finding of abuse against Francis G. and neglect against the respondent for her refusal to protect Lisa. Thereafter, Lisa was placed in a foster home, where she remained until her maternal aunt and uncle, Penny and Timothy P., discovered her plight and requested that Lisa be placed in their custody. On July 12, 1987, Lisa was placed in the care of Penny and Timothy P., and she has been living with them continuously since that date. In its dispositional order, the district court ordered counseling and therapy for Lisa, psychological evaluations for the respondent and Francis G., and visitation to be arranged as frequently as possible and at reasonable times. Neither the respondent nor Francis G. has complied with the ordered evaluations, although Lisa has undergone extensive counseling.

In April, 1989, Lisa requested that she be adopted by Penny and Timothy P. Because termination of Sharon's rights was a prerequisite to adoption, DCYS filed a petition on May 22, 1989, for the termination of Sharon's parental rights over Lisa. The petition alleged that the respondent had abandoned her daughter between December, 1987 and December, 1988. Pursuant to the probate court's initial hearing order, an independent social study regarding Lisa was performed. The probate court then held another hearing on November 9, 1989, at which the respondent was present with counsel. Following the hearing, the probate court found that the respondent "made only minimal efforts to communicate with Lisa H." The court also agreed with the results of the social study and the report of the guardian ad litem, and found that termination of the respondent's parental rights was in Lisa's best interests; accordingly, the court granted the request.

Evaluation of the respondent's contentions requires a review of the structure of RSA chapter 170-C. This statute provides that one of the conditions described in RSA 170-C:5 (Supp.1990) must be established before a court may order the termination of parental rights. These conditions may arise out of a parent's disability or his or her wrongful act or omission. One such wrongful act is abandonment of the child by the parent. RSA 170-C:5, I.

Although RSA 170-C:5 does not comprehensively define "abandonment," it does provide examples of factual circumstances which create a presumption of abandonment. A parent's failure to communicate with his or her child for a period of six months is one such example. The statute and our prior decisions make it clear that a determination of abandonment is essentially factual. See, e.g., In re Matthew G., 124 N.H. 414, 416, 469 A.2d 1365, 1366 (1983). This determination has been delegated to the probate court by statute, and we will not disturb the court's decree unless it is unsupported by the evidence or plainly erroneous as a matter of law. RSA 567-A:4 (Supp.1990); see also In re Kristopher B., 125 N.H. 678, 684, 486 A.2d 277, 282 (1984). Moreover, our prior cases have established that the State must prove its case under RSA chapter 170-C beyond a reasonable doubt. In re Jessica B., 121 N.H. 291, 294, 429 A.2d 320, 322 (1981). Therefore, our analysis begins with the record, and a determination as to whether the evidence produced below proves abandonment beyond a reasonable doubt.

Our inquiry focuses on the period of time between December, 1987 and December, 1988, because the petition alleges that the respondent abandoned Lisa during this period. The probate court found that, from December, 1987 until June, 1988, the respondent lived approximately twenty minutes away from Lisa. During that time, it is undisputed that the respondent had transportation and regular employment. She asserts that she visited her daughter on two occasions during this period of time, and sent a birthday card and three pairs of socks to Lisa in February, 1988. DCYS contends that no visitation has taken place between mother and daughter since March or April, 1988. The record shows that in January, 1988, DCYS obtained an order from the superior court that required regular visitation between Lisa and her sister, Tracy H. The court also ordered the respondent to return all personal belongings to Lisa and required social security payments available to Lisa to be paid to Timothy and Penny P. for Lisa's support.

In June, 1988, the respondent moved to Virginia. Whether she informed Lisa of the move is disputed. Nevertheless, it is clear that the respondent has never given her daughter, Timothy and Penny P. or DCYS her unlisted telephone number in Virginia. Lisa testified that she only learned of her mother's whereabouts after her sister, Tracy H., called her several months after the respondent had moved to Virginia. The respondent did not see or communicate with Lisa throughout the period between June, 1988 and December, 1988. Lisa received no card, telephone call or gift from her mother during the Christmas season in 1988, nor did she get a card, telephone call, or gift on her fourteenth birthday in February, 1989.

Moreover, DCYS sent three letters to the respondent during the summer of 1988 in order to solicit her input on a permanent plan for Lisa, and to determine what support and visitation arrangements she was considering for her daughter's future. However, it was not until January, 1989, that the respondent sent a letter to DCYS in response. This letter professed her love for Lisa, but failed to address her plans for the future support, visitation and care of her daughter. In April, 1989, Lisa requested that her mother's parental rights be terminated in order to accommodate Lisa's adoption by Penny and Timothy P.

The record is replete with evidence that proves beyond a reasonable doubt that Lisa was abandoned within the meaning of RSA 170-C:5. We recognize the sanctity of the family relationship; the custody, care and nurture of the child reside first with the parent. But a parent's authority is not only a natural and essential right which is prior to the State itself, it is an obligation. Generally, neither the State nor this court will interfere with the fulfillment of these parental obligations. See State v. Robert H.--, 118 N.H. 713, 715, 393 A.2d 1387, 1388 (1978). Nonetheless, when a parent's conduct "evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child," the State is forced to determine how to fill this critical vacuum in the child's life. In re Jessica B., 121 N.H. at 295, 429 A.2d at 323 (quoting Fortino v. Timko, 110 N.H. 200, 263 A.2d 663, 664 (1970)).

In the case before us, the contact between mother and daughter has been minimal at best. The statute provides that abandonment may...