Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-260

                                      DECEMBER TERM, 2016

 In re A.H., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Orange Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 75-10-14 Oejv

                                                            Trial Judge: Howard A. Kalfus
                                                            Acting Superior Judge, Specially
                                                            Assigned

                          In the above-entitled cause, the Clerk will enter:

        Father appeals from a family court judgment terminating his parental rights to the minor
A.H. He contends: (1) the court violated his due process rights by relying on allegations of sexual
abuse that were not part of the Child in Need of Services (CHINS) stipulation or supported by the
evidence; (2) the evidence did not support the court’s finding of stagnation; and (3) the evidence
did not support the court’s conclusion that termination of his parental rights was in the child’s best
interests. We affirm.

       A.H. was born in September 2010, and was exposed to several years of neglect, domestic
violence, and physical abuse by father before she was removed from the home pursuant to an
emergency care order in October 2014, following a violent assault by father that left mother
unconscious.1 Father was arrested, incarcerated, and charged with aggravated domestic assault.
He eventually pled guilty to domestic assault and remained incarcerated until January 2016 after
serving the maximum sentence. Following the assault in October 2014, mother obtained a relief
from abuse order prohibiting father from having any contact with mother or A.H.; the order
remains in effect through January 2017.

        After her removal from the home, A.H. was placed in foster care for several months until
a kinship placement was arranged with mother’s stepsister and her family in Lebanon, N.H., where
A.H. continues to reside. The parents, who were not married, stipulated to an adjudication of
CHINS in January 2015, agreeing that “there was substantial domestic violence in the home, and
the parents were unable to protect the child from the effects of that domestic violence.”


        1
          Prior to the incident in October 2014, the Department for Children and Families (DCF)
had received earlier reports of severe neglect of A.H., as well as reports that father had engaged in
domestic violence and excessive discipline of A.H. In response, DCF provided intensive family
home-based services, but father reportedly was “completely disengaged with the program.”
       The initial disposition plan set forth concurrent goals of reunification and adoption and
enumerated a number of parental expectations, including requirements that father obtain
appropriate housing suitable for a child, engage in anger management and domestic violence
counseling, and undergo mental health and substance abuse assessments and treatment. Father
objected to a statement in the plan that he had sexually abused A.H., and the reference was stricken
and not repeated in subsequent plans.

         In November 2015, more than a year after A.H. came into DCF custody, the State filed
petitions to terminate parental rights (TPRs), and the permanency goal was changed to adoption.
The change was based on mother’s decision to voluntarily terminate her parental rights and father’s
failure to engage in any form of treatment or programming while incarcerated. Mother voluntarily
relinquished her parental rights that month. A hearing on the TPR as to father was held in June
2016.

        At the hearing, a Department for Children and Families (DCF) social worker testified that,
during father’s incarceration, he had not contacted A.H. or returned telephone calls from the social
worker. The social worker testified that she had not received any documentation showing that
father had engaged in anger management or other programming while in prison. An officer with
the Special Investigations Unit of the Orange County Sheriff’s Department corroborated the social
worker’s testimony, confirming that father had not engaged in any programming while
incarcerated.

        With respect to the case plan goals, the social worker stated that, with the exception of
finding employment, father had not made any significant progress since his release from prison.
Although father had met with a domestic violence and substance abuse counselor, the counselor’s
report was that father completely denied that he had ever physically abused mother or exhibited
any violent or physically abusive behavior toward A.H. Based on father’s unwillingness to take
any responsibility for his abusive conduct, the counselor concluded that he was not an appropriate
candidate for the Batterer’s Intervention Program.2 The social worker observed that father had
failed to acknowledge or address the behaviors that had placed A.H. at risk, as required by the case
plan, and believed that father continued to pose a significant risk to A.H.

        At the conclusion of the hearing, the trial court entered findings on the record. The court
found that, apart from having obtained some employment, father had fallen well short in every
category of the case plan. He had seen a counselor but was unwilling to address the issues that led
to his incarceration and A.H.’s removal; he had not taken responsibility for the violence inflicted
on mother or the abuse, both physical and emotional, inflicted on A.H.; and he had made no



       2
          The counselor’s report, admitted at trial, stated in part as follows: “The domestic violence
assessments revealed someone who completely denies ever physically abusing his partner. He
reports only raising his voice and using angry expressions or gestures.” The report noted that
father admitted only that he occasionally “swatted his daughter on the butt” for disciplinary
purposes. It concluded that, because father was “unwilling to take responsibility for his abusive
behavior towards his daughter or partner . . . he is not an appropriate candidate for and would not
be eligible for” a domestic violence program.
                                                  2
progress toward developing parenting skills. Accordingly, the court found a significant change of
circumstances based on stagnation.

        Applying the best-interests-of-the child criteria the court found that father had little or no
relationship with A.H. for almost two years; that his prior relationship with A.H. had been marked
by domestic violence and physical abuse, and that—given the considerable lack of progress under
the case plan—father could not resume parental responsibilities within a reasonable period of time
measured from the perspective of the child’s need for permanence and stability. The court also
noted the evidence that A.H. had bonded with her foster family, who were responsive to her special
medical and emotional needs, and was well adjusted to her home and community. Accordingly,
the court granted the petition. This appeal followed.

        Father first contends that the trial court violated his right to due process “when it terminated
[f]ather’s rights based on his failure to admit allegations against him that were never proven by
competent evidence, and were not a part of any factual stipulation.” The claim is based on father’s
related claim that “[t]he trial court was swayed by the unsupported suggestion and innuendo that
[f]ather had sexually abused A.H., when there was no evidence of any sexual abuse.” He contends
that DCF engaged in “dishonest tactics” and violated his right to due process when it introduced
such evidence of sexual abuse because the allegation was not set forth in the CHINS stipulation.

        The predicate of the claim is entirely unsupported. Although the social worker testified
without objection that DCF had received reports suggesting that father had inappropriately touched
the child, the trial court here made no finding in this regard; indeed, the court made no reference
whatsoever to the allegations in the findings and conclusions that it entered on the record in support
of its decision to terminate parental rights. That decision, as noted, was based in large part on
father’s failure to acknowledge or address his physical violence toward mother and physical and
emotional abuse of A.H., but there was nothing in the court’s decision to indicate that it was
“swayed” by the reports of alleged sexual abuse, and father cites nothing in the record to suggest
otherwise. Accordingly, we find no merit to the claim.

        Father next contends that “DCF’s [f]abricated charges of ‘denial’ ” were unsupported by
the record and insufficient to show stagnation or support a conclusion that father could not resume
parental responsibilities within a reasonable period of time. The claim is based on father’s
assertion that the “only basis” for the court’s finding of stagnation was that father remained in a
“pre-contemplative stage” of addressing his domestic violence, i.e., that he was not willing to take
responsibility for his actions. This was improper, father argues, because “there was no requirement
in the case plan” that he do so.

        Again the claim is unsupported by the record. First, the trial court recited a number of
areas where father had failed to meet the case plan goals as a basis for its finding of stagnation.
Indeed, the finding that father refused to acknowledge his violent conduct was related to his
additional failure to engage in anger management or domestic violence counseling, and to obtain
suitable housing. Although the court acknowledged that father had obtained employment, this was
essentially the extent of his progress. There is no support in the record for father’s claim that he
had “completed anger management” while incarcerated.” As noted, two witnesses testified to the



                                                   3
contrary.3 Additionally, father’s argument that he had “enrolled in counseling for domestic
violence and substance abuse” after his release from prison fails to acknowledge that he refused to
take the fundamental first step by acknowledging any need to be in counseling.

        Furthermore, the case plan plainly obligated father to recognize and take responsibility for
the actions that had resulted in his incarceration and A.H.’s removal from the home. It required
that he “demonstrate an awareness of how his choices” had impacted A.H.; “acknowledge the
choices that he . . . made that have put [A.H.] in harm’s way,” demonstrate “an ability to make
[A.H.’s’] needs paramount by following through with treatment,” and “articulate” the changes
necessary to resume parental responsibilities. Accordingly, we find no merit to the claim.

        Father also asserts that the evidence failed to support a finding that he was “in denial.” As
noted, the trial court found that father had “not taken responsibility, other than [the] guilty plea,
for the domestic violence inflicted upon [mother] and the abuse, both emotional and physical, that
A.H. experienced and witnessed.” The evidence summarized and discussed earlier amply
supported this finding.

         Father further claims that the counselor’s opinion that father refused to accept
responsibility for his violent conduct was based on erroneous information provided to the
counselor by the social worker, specifically that father had been convicted of the charge of
aggravated assault when, in fact, he was convicted of the lesser offense of domestic assault. As a
result, father asserts that the counselor concluded that father was “in denial because the DCF case
worker greatly exaggerated and distorted the facts.” Indeed, father claims that “[t]his fundamental
misstatement of the facts involved in the domestic incident . . . became a critical piece in the
counselor’s later conclusion that father was not succeeding in treatment and formed the basis of
the [c]ourt’s later determination that [f]ather was not progressing.” Again, however, the claim is
unsupported. The counselor’s assessment was based on father’s failure to take responsibility for
the “severe, ongoing physical abuse” of mother; it was not the result of the social worker’s
mischaracterization of the specific offense for which father was convicted.

        Finally, father claims that the evidence did not support the court’s conclusion that
termination of his parental rights was in child’s best interests. The basis of the claim is two-fold.
First, he reasserts his earlier claim that the court’s findings concerning father’s failure to


       3
          In support of the claim, father cites the following exchange between father’s counsel and
the social worker during cross-examination:

               Q. And did you know that he [father] completed anger management
               when he was incarcerated?
               A. I know that he had reported that he had, but there was no
               documentation.

       To allege as a factual matter that “father completed anger management training” while
incarcerated based solely on this exchange is a rather remarkable stretch.



                                                 4
acknowledge and address his violent conduct was based on false information provided to the
domestic-violence counselor. As discussed, the claim lacks merit. Second, father reasserts the
claim that it was unfair for the trial court to rely on allegations of sexual misconduct. As noted,
however, the court made no findings on this subject, and there is no basis to conclude that it relied
on this evidence in its decision. Accordingly, we find no error, and no basis to disturb the
judgment.

       Affirmed.
                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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