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                 THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________


9th Circuit Court-Nashua Family Division
No. 2017-0626


                                     IN RE O.D.;

                                     IN RE B.D.;

                                     IN RE G.D.

                                Argued: June 27, 2018
                           Opinion Issued: October 23, 2018

      Gordon J. MacDonald, attorney general (Thomas Broderick, assistant
attorney general, on the brief and orally), for New Hampshire Division for
Children, Youth and Families.


      Law Office of Kathy Ann Cellamare, of Nashua (Kathy Ann Cellamare on
the brief and orally), for Mother.


      Law Office of Dawn E. Worsley, of Nashua (Dawn E. Worsley on the brief
and orally), for Father.

       HANTZ MARCONI, J. The parents of O.D., B.D., and G.D. appeal an
order of the Circuit Court (Quigley, J.) terminating their parental rights over
their children, on the ground that they failed to correct the conditions leading
to a finding of neglect. See RSA 170-C:5, III (2014). They argue that the circuit
court violated their due process rights by terminating their parental rights
without requiring the New Hampshire Division for Children, Youth and
Families (DCYF) to file new abuse or neglect petitions against them after the
court issued an ex parte order removing the children from their home during
ongoing neglect proceedings and by failing to appoint counsel for them during
the neglect proceedings. We affirm.

                                        I

       The record supports the following facts. Mother and Father are the
biological parents of the three children. Prior to January 2015, the children
were living with their grandmother, who was their legal guardian. After
receiving reports that the grandmother was homeless and that she had been
arrested for shoplifting while in the company of one of the children, DCYF
obtained an ex parte order in January 2015 removing the children from her
custody and care. The children were placed in an out-of-home placement.
Thereafter, DCYF filed three neglect petitions alleging that the grandmother
neglected each of the children. See RSA 169-C:7 (2014). The affidavit of the
child protective service worker attached to the petitions alleged that the
grandmother neglected the children due to her: (1) failure “to secure safe and
appropriate housing for the children”; (2) arrest for shoplifting in the presence
of O.D. and endangering the welfare of a child; (3) inability to “provide basic
medical care for the children”; and (4) inability “to meet [O.D.]’s mental health
needs.” Mother and Father were not living with the children at the time the
petitions were filed. In February 2015, after holding an adjudicatory hearing
on the neglect petitions, the Circuit Court (Moore, J.) found that the children
were neglected. See RSA 169-C:18, V (2014). In its order, and in its order
following the dispositional hearing, the court required DCYF to provide services
to the grandmother, the parents, and the children. See RSA 169-C:21 (2014).
DCYF developed a case plan; the first objective included that the parents “will
locate and secure appropriate housing for the children” and “[c]reate a plan
addressing how [they] will protect their children from exposure to substance
abuse and domestic conflict.”

      In August 2015, the Circuit Court (Quigley, J.) terminated the
grandmother’s legal guardianship over the children, at DCYF’s request, after
finding that the guardianship was “no longer in the best interests of the three
minor children.” The grandmother was dismissed from the RSA chapter 169-C
proceedings.

      The Circuit Court (Moore, J.) held review hearings in June, September,
and December of 2015 to assess the parents’ compliance with the dispositional
order and case plan conditions. The court determined that Mother and Father
were “in partial compliance” at each hearing. The children remained in an out-
of-home placement.


                                        2
       In an order issued after a permanency hearing in March 2016, the
Circuit Court (Moore, J.) found that DCYF had discussed “parental surrender
with both parents.” The court further found: “Both parents have indicated
their desire to continue to participate in case plan services to work towards the
proposed goal of reunification prior to a termination of parental rights trial
being conducted.” The court also found that the parents could not
“demonstrate that the children would not be endangered in the manner
adjudicated on the initial petition, if returned home” because they could not
“demonstrate that the children will not be exposed to domestic violence and
substance abuse.” See RSA 169-C:23 (2014) (setting forth standard for return
of child in placement pursuant to RSA chapter 169-C). The court found that it
was anticipated that reunification between the children and the parents would
be achieved in June 2016, and continued the children’s out-of-home
placement.

       In July 2016, DCYF filed an assented-to motion to modify custody,
requesting reunification of the children with the parents. DCYF represented
that Mother and Father “ha[d] been participating in extensive parenting time,”
which had been “going well,” and that they “ha[d] been able to provide for all
the needs of the children,” including maintaining “stable housing that is safe
and appropriate for the children.” DCYF also represented that the parents
“ha[d] been compliant with Court orders and . . . achieving their case plan
goals.” The Circuit Court (Leary, J.) granted the motion and transferred legal
and physical custody of the children to Mother and Father; DCYF maintained
legal supervision and was ordered to provide referrals and support services,
and to perform monthly home assessments. The children were reunified with
the parents at the parents’ home in Massachusetts on July 11, 2016.

       Thereafter, the Massachusetts Department of Children and Families
(MDCF) received “reports of concerns” about the children while they resided
with the parents, which MDCF shared with DCYF. In November 2016, a DCYF
family services worker went to the parents’ home to evaluate whether it was
safe for the children. After consulting with MDCF, DCYF filed an ex parte
motion in the pending RSA chapter 169-C case in New Hampshire, requesting
removal of the children from the parents’ Massachusetts home. DCYF alleged,
in part, that “[g]iven the drug use by [M]other and ongoing and escalating
arguments between the parents[,] the children are not safe in the home.”

      The Circuit Court (Moore, J.) ordered the ex parte removal of the children
from the parents’ Massachusetts home on November 16, 2016. The three
children were again placed in an out-of-home placement. In its ex parte order,
the court ordered DCYF to file abuse or neglect petitions within 72 hours.
DCYF concedes that these petitions were never filed, and argues on appeal that
it was not required to file them because the conditions imposed upon the
parents in the March 2015 dispositional order “still governed.”



                                        3
       The court held another permanency hearing in February 2017. After
finding that the children had been in an out-of-home placement for
approximately 21 of the prior 25 months, the Circuit Court (Moore, J.) ordered
DCYF to file termination of parental rights (TPR) petitions against Mother and
Father. See RSA 169-C:24-a, I(a) (2014) (requiring DCYF to file TPR petitions
when a child has been in an out-of-home placement “for 12 of the most recent
22 months”). DCYF subsequently filed the petitions citing RSA 170-C:5, III,
which authorizes the termination of parental rights if a parent is found to have
failed to correct the conditions leading to a finding of child abuse or neglect
within 12 months of the finding despite reasonable efforts under the direction
of the circuit court to rectify the conditions. The court appointed counsel to
represent each parent in the TPR proceeding. See RSA 170-C:10 (2014)
(amended 2017).

       The Circuit Court (Quigley, J.) held a hearing on the TPR petitions and,
in October 2017, ordered the termination of Mother’s and Father’s parental
rights. The court rejected the parents’ argument that the TPR petitions should
be dismissed because they were not provided with an attorney during the
underlying abuse and neglect proceeding, ruling that they were not statutorily
entitled to counsel during the RSA chapter 169-C proceedings because they
were both “non-offending parents.” See RSA 169-C:10, II(a) (2014) (specifying
the conditions under which the court “shall” and “may” appoint an attorney to
represent an indigent parent in a “case of neglect or abuse brought pursuant to
this chapter”). The court also rejected the parents’ argument that DCYF was
required to file abuse or neglect petitions against them after the children were
removed from the parents’ home in November 2016. The court found that
DCYF had proved the statutory ground for termination of parental rights
beyond a reasonable doubt. See RSA 170-C:5, III. The court also found that
terminating the parents’ rights was in the children’s best interests. See In re
C.M., 166 N.H. 764, 773 (2014) (if statutory ground is established, trial court
must then consider whether termination is in child’s best interest). This
appeal followed.

                                       II

       Mother and Father raise two issues on appeal. First, they argue that the
trial court violated their due process rights when it failed to require DCYF to
file new neglect petitions when the children were removed from their home in
November 2016. They contend that the filing of new petitions would have
entitled them to both an additional twelve months to correct the conditions
leading to the finding of neglect and to the appointment of counsel. DCYF
asserts that because the original neglect case remained open and the court had
already imposed conditions upon them in its March 2015 dispositional order, it
was unnecessary to file new petitions. Mother and Father also argue that they
were entitled to counsel in the neglect proceedings.



                                       4
       The parents’ arguments raise issues of both statutory construction and
constitutional law. We first address whether RSA 170-C:5, III authorizes a trial
court to terminate the parental rights of an individual who has not been named
as a respondent in an abuse and neglect proceeding if the conditions giving rise
to the abuse or neglect finding are not corrected within the requisite twelve
months. RSA 170-C:5, III provides that a petition for termination of the
parent-child relationship may be granted if the trial court finds:

              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.

We have previously held that RSA 170-C:5, III “does not provide that a parent
must have been the named respondent in an RSA chapter 169-C neglect
proceeding before that parent’s rights can be terminated. It requires rather
that the parent in question have ‘failed to correct the conditions leading to
such a finding within 18 months1 of the finding,’ despite the [circuit] court’s
efforts to rectify conditions.” In re Tricia H., 126 N.H. 418, 422 (1985).

       We continued to recognize the distinction between RSA chapter 169-C
proceedings and RSA chapter 170-C proceedings in In re Bill F., 145 N.H. 267
(2000). In that case, the father of Bill F. appealed an order of the trial court,
issued during the neglect proceedings, that authorized DCYF to cease
reunification efforts between the child and his parents. In re Bill F., 145 N.H.
267, 268 (2000). We observed that the issue in Bill F. was the process to be
afforded a non-offending parent in a neglect proceeding in contrast to “a
proceeding to terminate parental rights, [in which] a parent’s failure to correct
conditions leading to a finding of abuse or neglect is a specific statutory ground
for termination of the parent-child relationship.” Id. at 273.

       We endorsed the continuing validity of our holding in In re Tricia H. in In
re Juvenile 2006-674, where the respondent father argued that his parental
rights could not be terminated because “he had nothing at all to do with the
underlying factors” that led to the abuse and neglect proceedings and because
two trial courts “expressly found that he neither abused nor neglected his son.”
In re Juvenile 2006-674, 156 N.H. 1, 5 (2007) (quotation omitted). We rejected
his due process argument, observing that “although not the subject of the
original neglect petition, the respondent has been a knowing participant in the
abuse and neglect proceedings from the beginning” and “under continuing
orders” of the trial court. Id. at 6. After detailing the services that he had been
provided during the neglect proceedings, we concluded that our holding in

1In 1999, the legislature reduced the period of time from 18 months to 12 months. Laws 1999,
133:2.


                                              5
Tricia H. applied with equal validity to the facts in that case. Id. at 7; see also
In the Matter of Jeffrey G. & Janette P., 153 N.H. 200, 204 (2006) (biological
parents are presumed to be fit until found unfit in either RSA chapter 169-C or
RSA chapter 170-C proceedings).

      Having determined that RSA 170-C:5 does not require that the parents
have been identified as offending parents in the original neglect petition, we
turn to the merits of the trial court’s ruling that, despite the reasonable efforts
by DCYF to reunify the children, the parents failed to correct the conditions
leading to a finding of neglect. The parents were represented by counsel at the
hearing held on the petitions to terminate their parental rights. Notably,
neither parent contests the trial court’s dispositive ruling:

      [T]he court finds beyond a reasonable doubt that [the parents]
      have failed to correct the conditions that led to the finding of
      neglect and have not completed the tasks required by the court for
      the return of the children to the parents’ care and custody. Even
      now, [they] remain unable to provide the primary care, custody
      and support of the child. The parents have not demonstrated an
      ability to parent their children to meet their physical and emotional
      needs. The parents were unable or unwilling to address substance
      abuse, domestic violence and parenting deficits within the time
      frame required by the statute.

These findings are supported by the extensive record before us. See, e.g., In re
Zachary G., 159 N.H. 146, 153 (2009) (family division’s findings will not be
disturbed unless unsupported by the evidence or plainly erroneous as a matter
of law). Although the Mother argues that “DCYF relied upon a petition that
was not relevant to the work either parent was requested to perform,” her
argument is belied by the record. The order issued after the dispositional
hearing, held on March 24, 2015, reports that both parents were present at the
hearing. The order further identifies the “problems that need to be addressed
to meet the needs of the child(ren) as: “Safe and secure housing to ensure
physical safety and [freedom from] exposure to substance abuse and family
discord” and “[p]arenting that meets their safety, developmental and physical
needs.” The order also identifies problems to be addressed by each parent;
each is required to “provide a home that is safe and free from substance abuse
and domestic violence” and to “prevent substance addiction from impacting
quality parenting.”

      We are unpersuaded by the parents’ argument that DCYF’s failure to file
new neglect petitions when the children were removed from their custody in
November 2016 foreclosed the legal basis for the TPR petitions. RSA 169-C:3,
XIX (Supp. 2017) defines a neglected child to include a child:




                                         6
       Who is without proper parental care or control, subsistence,
       education as required by law, or other care or control necessary for
       the child’s physical, mental, or emotional health, when it is
       established that the child’s health has suffered or is likely to suffer
       serious impairment . . . .

RSA 169-C:24-a, I(a) (2014) requires the State to file a petition for termination
of parental rights when “a child has been in an out-of-home placement
pursuant to a finding of child neglect or abuse, under the responsibility of the
state, for 12 of the most recent 22 months.” RSA chapter 169-C contemplates
that neglect is not a static condition, and that the process of reunification will
take time. That the trial court authorized the return of the children to the
physical custody of the parents did not resolve the ultimate question of
whether the original neglect conditions had been corrected. Cf. In re Haley K.,
163 N.H. 247, 251 (2012). Indeed, the extensive support services provided to
the parents during the abbreviated reunification period and the continued legal
supervision by DCYF indicate that the trial court did not believe that the
conditions had been fully corrected. See In re C.M., 166 N.H. at 775 (holding
that where appeal to superior court in neglect proceeding did not result in a
“significantly different” dispositional order, the twelve-month period specified in
RSA 170-C:5, III continued to run from the date of the circuit court’s
adjudicatory order).

        The parents also contend that they were entitled to the appointment of
legal counsel at the original neglect proceeding. We note that neither parent
sought appellate review of any of the orders issued in the neglect proceedings,
including the February 27, 2017 order of the circuit court that directed DCYF
to file TPR petitions against them. Accordingly, to the extent that they attempt
to challenge in this appeal from the TPR proceeding deficiencies in the abuse
and neglect proceedings, their challenge is foreclosed. See, e.g., In re C.M., 166
N.H. 764, 781 (2014) (holding in appeal from TPR proceeding that failure to
appeal dispositional order in neglect case resulted in final and binding order as
to all issues raised and which could have been raised, including Father’s right
to have counsel appointed by court in neglect proceeding).2

                                                            Affirmed.

       LYNN, C.J., and HICKS, BASSETT, and DONOVAN, JJ., concurred.




2We note that although “due process does not require that indigent parents have a per se right to
appointed counsel in abuse or neglect proceedings under RSA chapter 169-C,” In re C.M., 163
N.H. 768, 777 (2012), once the children and parents became members of the same household, it
was within the trial court’s discretion whether to appoint counsel. See RSA 169-C:10, II(a).


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