State v. Robert H.

• Decision Date: 30 October 1978
• Docket Number: No. 78-090,78-090
• Citation: 393 A.2d 1387,118 N.H. 713
• Parties: The STATE of New Hampshire v. ROBERT H.
• Court: New Hampshire Supreme Court

Page 1387

393 A.2d 1387

118 N.H. 713

The STATE of New Hampshire v. ROBERT H.

No. 78-090.

Supreme Court of New Hampshire.

Oct. 30, 1978.

Thomas D. Rath, Atty. Gen. (David W. Marshall, Asst. Atty. Gen., orally), for the State.

Kenneth L. Robinson, Jr., Concord, by brief and orally, for Robert H.

DOUGLAS, Justice.

This is an appeal pursuant to RSA 567-A (Supp.1977) from a decision of the Merrimack County Probate Court terminating the parental rights of Robert H. over his three minor children on the grounds of failure to correct the conditions leading to a finding of neglect. RSA 170-C:5 III. We outline the standard to be applied in such cases and remand.

The three minor children of Irene and Robert H. were first found to be neglected and placed in the custody of the division of welfare in 1973. The Franklin District Court noted that the parents frequently changed residences, often moved into substandard housing, had an unstable marriage and failed to care properly for the children. In March 1975, the division of welfare petitioned the Merrimack County Probate Court to terminate the parental rights of Irene and Robert over the children. In December 1975, the probate court denied the petition and stated, "the evidence that . . . (the parents) have failed to remedy the conditions which led up to a finding of neglect . . . is neither clear nor convincing." In part the division of welfare was found to have failed to communicate adequately to the parents what was specifically required of them to regain custody of their children. The division was ordered to develop a specific plan for returning the children to their natural parents.

The plan submitted by the division in February 1976 called for the parents to continue their employment, reimburse Merrimack County for support of the children, establish a permanent home and seek and receive parenting counselling through a mental health clinic. Robert was told not to be involved in criminal activity. He subsequently changed employment, was divorced pursuant to a libel brought by Irene, lost his job, and was arrested for assault. In October 1976, the division filed new petitions seeking to terminate parental rights under RSA 170-C:5 III. One year later, following hearings in April and May 1977, the Merrimack County Probate Court issued a decree terminating the rights of Robert and Irene. Only Robert appealed, and his exceptions were transferred by Cushing, J.

RSA ch. 170-C was enacted to "provide for the involuntary termination of the parent-child relationship by a judicial process which will safeguard the rights and interests of all parties . . . ." RSA 170-C:1. A termination order must be based upon "clear and convincing evidence. . . ." RSA 170-C:10. The New Hampshire Constitution, part I, article 2, recognizes that "(a)ll men have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty . . . and . . . seeking and obtaining happiness." It is axiomatic that the State "does not need to grant parents authority they already have and which is, under our political theory, prior to the state itself." Hafen, Puberty, Privacy, and Protection: The Risks of Children's "Rights", 63 A.B.A.J. 1383, 1388 (1977).

This principle has been recognized by the United States Supreme Court in a number of decisions. In Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), the Court said "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." In Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 1541, 32 L.Ed.2d 15 (1972), the Court rested its holding in part on the constitutional right of parents to assume the primary role in decisions concerning the rearing of their children. That right is recognized because it reflects a "strong tradition" founded on the history and culture of Western civilization, and because the parental role is "now established beyond debate as an enduring American tradition." Appropriate limits come not from drawing arbitrary lines but rather from careful "respect for the teachings of history (and) solid recognition of the basic values that underlie our society . . . ." Griswold v. Connecticut, 381 U.S. 479, 501, 85 S.Ct. 1678, 1691, 14 L.Ed.2d 510 (1965) (Harlan, J., concurring). The role of parents in the life of a family has attained the status of a fundamental human right and liberty. "And it is now firmly established that 'freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.' " Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 555, 54 L.Ed.2d 511 (1978) citing and quoting from Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). In Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), a housing ordinance was struck down insofar as it infringed on "extended families" living together. Because it infringed on fundamental rights, the minimum rationality test was inappropriate. "Of course, the family is not beyond regulation." Id. at 499, 97 S.Ct. at 1936. However, "the Due Process Clause would be offended '(i)f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.' " Quilloin, supra at 255, 98 S.Ct. at 555, citing and quoting from Smith v. Organization of Foster Families, 431 U.S. 816, 862-63, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (Stewart, J., concurring).

On an international level, the United Nations Covenant on Civil and Political Rights holds that "the family is the natural and fundamental unit of society and the State." Art. 23, s. 1 (1966). Likewise the United Nations Covenant on Economic, Social and Cultural Rights recognizes that the "widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society . . . ." Art. 10, s. 1 (1966). The family and the rights of parents over it are held to be natural, essential and inherent rights within the meaning of New Hampshire Constitution, part I, article 2.

When dealing with legislative activity in the area of fundamental rights this court has applied the strict scrutiny test. Thus before the State may involuntarily confine a person in a psychiatric ward, we have required that a showing of that person's dangerousness be made by the State to the satisfaction of a judge beyond a reasonable doubt. Involuntary commitment proceedings, "whether civil or criminal", involve a deprivation of liberty " which constitutes a grievous loss." Gibbs v. Helgemoe, 116 N.H. 825, 828, 367 A.2d 1041, 1043 (1976), and State v. Gregoire, 118 N.H. ---, 384 A.2d 132 (1978). The same reasonable doubt standard applied as "an essential requirement of due process in adjudicatory juvenile delinquency proceedings." Gibbs, id. Features of neglect proceedings resemble those of a criminal prosecution; the loss of one's children can be viewed as a sanction more severe than imprisonment. Note: In the Child's Past Interest: Rights of the Natural Parents in Child Placement Proceedings, 51 N.Y.U.L.Rev. 446, 467 (1976); Danforth v. State Dep't of Health and Welfare, 303 A.2d 794, 800 (Me.1973). The permanent termination of the rights of parents over their children is even more final than involuntary commitment or delinquency proceedings. Therefore, the government 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. See also Alsager v. District Court of Polk County, Iowa, 406 F.Supp. 10 (S.D.Iowa 1975), Aff'd 545 F.2d 1137 (9th Cir. 1976) (Per curiam ) and Day, Termination of Parental Rights Statutes and the Void for Vagueness Doctrine: A Successful Attack on the Parens Patriae Rationale, 16 J. of Family Law 213 (1977-78).

The grounds for termination relating to neglect are set forth in RSA 170-C:5 II. The focus of subsections II and III appears to be on the actions or neglect of the parents, and lacks adequate focus on specific harm to the children. The American Bar Association Juvenile Justice Standards Project's Standards Relating to Abuse and Neglect (1977) endorse coercive State intervention "only when a child is suffering specific harms . . . ." Standard 1.1. This is because "(e)xtensive intervention carries a substantial risk of intervening to 'save' children of poor parents and/or minority cultures." Standards, Commentary at 37, Supra. In Smith v. Organization of Foster Families, 431 U.S. 816, 834, 97 S.Ct. 2094, 2105, 53 L.Ed.2d 14 (1977), the United...