Sara S., In re

Decision Date02 August 1991
Docket NumberNo. 90-322,90-322
Citation134 N.H. 590,593 A.2d 1166
PartiesIn re SARA S.
CourtNew Hampshire Supreme Court

John P. Arnold, Atty. Gen. (Charles T. Putnam, Asst. Atty. Gen., on the brief and orally), for the State.

Elliot & Jasper, (Bruce R. Jasper, on the brief and orally), Newport, for defendant.

Randall L. Pease, by brief and orally, as guardian ad litem.

BROCK, Chief Justice.

This is an appeal from a decree of the Sullivan County Probate Court (Spanos, J.) granting the division for children and youth services' (D.C.Y.S.) petition to terminate the parental rights of the defendant, Gwendolyn S., over her minor daughter, Sara S. The defendant contends on appeal that she did not abandon her daughter so as to justify termination of her parental rights. For the following reasons, we affirm.

In January 1983, in Hanover, Sara S. was born to the defendant, who at the time was a mental health patient at Mary Hitchcock Hospital. The child was placed in the temporary custody of D.C.Y.S. by order of the Hanover District Court in February, 1983, finding that she was a neglected child, see RSA 169-C:3, and was placed with a foster family in March, 1983 with which she has resided since that time. The child was placed with the family in a town nearby the one in which the defendant was residing, in order to make visitation more convenient. Approximately four months after the child's birth, the defendant moved to New York and thereafter to Connecticut.

The D.C.Y.S. attempted to reunite the child and the defendant, who was residing in New York, but the efforts were unsuccessful because the defendant failed to supply necessary information about her ability to provide for the child. In response to an order of the Hanover District Court in September, 1988, the D.C.Y.S. filed a petition with the Sullivan County Probate Court seeking to terminate the defendant's parental rights, alleging abandonment.

The evidence presented to the court showed that during the period between April, 1987 and May, 1988, the defendant had made three visits to see her daughter. After the petition was filed, the defendant visited her daughter four or five times between January and November, 1989, when D.C.Y.S. cancelled a visit scheduled for November 13th. D.C.Y.S. cancelled the visit in response to the recommendation of Sara S.'s treating therapist that it was in the child's best interest to discontinue visitation with the defendant. Throughout 1989, and until April 1990, the defendant sporadically telephoned her daughter and sent a few letters, cards, and small gifts. The defendant provided no financial support for the child.

After a hearing on the merits, at which the defendant failed to appear, the probate court concluded in its order terminating parental rights that it was proven beyond a reasonable doubt pursuant to RSA 170-C:5, I, that the defendant had abandoned her child on the basis that she has made minimal efforts to support or communicate with the child.

The defendant admits that RSA 170-C:5, I, creates a presumption of abandonment if the court determines, beyond a reasonable doubt, that the parent has made minimal efforts to support or communicate with the child. She argues, however, that the evidence upon which the probate court based its decision does not support such a finding. She claims that the child was involuntarily taken away at birth. She asserts that although she lived so far away from the child and had limited financial resources, she continually made an effort to keep in contact by telephone and through the sending of letters, cards, and gifts. She relies upon the cases of In re Jessica B., 121 N.H. 291, 429 A.2d 320 (1981) (no contact for a period of two years found to establish abandonment), cert. denied sub nom. Beverly P. v. Anne B., 452 U.S. 964, 101 S.Ct. 3116, 69 L.Ed.2d 976 (1981), and In re Diana P., 120 N.H. 791, 424 A.2d 178 (1980) ('flicker of interest' is not sufficient to bar a finding of abandonment) in contending that her contact with her child was not so minimal as to justify a finding of abandonment. She also relies upon Fortino v. Timko, 110 N.H. 200, 263 A.2d 663 (1970) to support her assertion that the court must be convinced that the " 'parent's conduct evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child....' " Id. at 200, 263 A.2d at 664 (quoting Wallace v. Lougee, 107 N.H. 251, 254, 221 A.2d 780, 783 (1966)).

RSA 170-C:5, I, provides that a petition for termination of parental rights may be granted when the court finds:

"The parent has abandoned the child. It shall be presumed that the parent intends to abandon the child who has been left by his parent without provision for his identification or who has been left by his parent in the care and custody of another without any provision for his support, or without communication from such parent for six months. If in the opinion of the court the evidence indicates that such parent has made only minimal efforts to support or communicate with the child, the court may declare the child to be abandoned."

(Emphasis added.) The D.C.Y.S. has the burden of proving abandonment beyond a reasonable doubt. In re Lisa H., 134 N.H. 188, 589 A.2d 1004, 1006 (citing In Re Jessica B., supra 121 N.H. at 294, 429 A.2d at 322). "[A] determination of abandonment is essentially factual." In re Matthew G., 124 N.H. 414, 416, 469 A.2d 1365, 1366 (1983). "The determination of fact constituting abandonment rests squarely within the province of the probate court," In the Matter of Doe, 118 N.H. 226, 229, 385 A.2d 221, 223 (1978), and we will not overturn its decree "unless it is unsupported by the evidence or plainly erroneous as a matter of law." In re Lisa H. supra; see RSA 567-A:4 (Supp.1990). "A parent abandons his child when his conduct 'evidences a...

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6 cases
  • In re Brittany L.
    • United States
    • New Hampshire Supreme Court
    • 30 Agosto 1999
    ... ... (quotation omitted). Considering the totality of the circumstances, see In re Jessie E., 137 N.H. at 342, 627 A.2d at 595, the probate court may find abandonment if it determines that the parent has made "only minimal efforts to support or communicate with the child," In re Sara S., 134 N.H. 590, 144 N.H. 143 593, 593 A.2d 1166, 1168 (1991) (quotations omitted), or shown only a mere "flicker of interest" in the child, id ...         During the hearing, Deborah C. testified that Ernest L. had physically abused her during her pregnancy and had spent very little time ... ...
  • In re Brittany L.
    • United States
    • New Hampshire Supreme Court
    • 30 Agosto 1999
    ... ... (quotation omitted). Considering the totality of the circumstances, see In re Jessie E. , 137 N.H. at 342, 627 A.2d at 595, the probate court may find abandonment if it determines that the parent has made "only minimal efforts to support or communicate with the child," 144 N.H. 143 In re Sara S ., 134 N.H. 590, 593, 593 A.2d 1166, 1168 (1991) (quotations omitted), or shown only a mere "flicker of interest" in the child, id .During the hearing, Deborah C. testified that Ernest L. had physically abused her during her pregnancy and had spent very little time with his daughter after she was ... ...
  • Masse v. Commercial Union Ins. Co.
    • United States
    • New Hampshire Supreme Court
    • 17 Febrero 1993
  • Jessie E., In re
    • United States
    • New Hampshire Supreme Court
    • 30 Junio 1993
    ... ...         Although the record is replete with conflicting testimony as to why Michelle did not visit Jessie between late November 1987 and June 1988, a reasonable person could find beyond a reasonable doubt that there was no communication during this ... time period. See In re Sara S., 134 N.H. 590, 593, 593 A.2d 1166, 1168 (1991). We, therefore, defer to the probate court's finding on this issue ...         The finding of no communication for a period of at least six months, however, is only a first step in finding abandonment under RSA 170-C:5, I. By its terms, ... ...
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