State Supreme Court: N.H. places great emphasis on preserving parent-child relationships
A pair of rulings from the state Supreme Court this month illustrates just how powerful New Hampshire considers a parent’s connection to their child-to-be, even if the parent is absent or pays little for their child’s upkeep.
On Wednesday, the court upheld the parental rights of a woman whose daughter, 9, and twin sons, 5, have lived with their legal guardians for most of their lives. The mother, who delivered the first child while in high school, pays $68 a month in child support and has supervised visits with the children but is otherwise not involved in their lives, according to court records.
And earlier this month, the court reversed a Franklin family court decision to terminate the parental rights of a father who is a stranger to his 4-year-old daughter because he went to prison on drug charges shortly after she was born.
He wrote his daughter at least 16 letters from prison, but the mother withheld them from the girl. And because the father has been largely unemployed since his release, he’s paid almost nothing in child support, according to court records.
In both cases, termination petitions were brought so the children could be adopted – by the guardians in the first case and by the mother’s fiance in the second. The state Supreme Court concluded that neither set of circumstances was enough to end what is considered a precious and protected connection between parent and child.
“New Hampshire places a greater emphasis than do many other States on preserving family relationships,” the court wrote in the first case. “And we have underscored that imperfect parenting, particularly when caused by lack of financial means, is an insufficient basis for terminating a parent’s parental rights.”
There are no hard numbers to illustrate how often courts terminate parental rights. The court files and hearings associated with the cases are private, and while most cases are handled by the state Division for Children, Youth and Families because they involve abuse and neglect, many cases, like the two above, are handled privately.
Attorney Joshua Gordon of Concord represented the mother in the second case who is raising her daughter with her fiance and hoped he could adopt the girl. Gordon won his case at the lower court but saw it reversed by the high court.
“It’s certainly clear that this court sets a really high bar for termination,” Gordon said. “If it were just a heartfelt type of determination, maybe termination would have happened. But the bar is high and the court is keeping the bar high.”
In Gordon’s case, the state Supreme Court noted that the father took parenting classes in prison and sought visitation rights with his daughter upon his release. And while the girl refers to her mother’s fiance as “Daddy,” the biological father does not object and thinks the girl’s relationship with the mother’s fiance was good for her, the court said.
The father’s lack of a regular job and limited ability to pay child support was not enough to terminate his rights as a father, the court ruled. Nor was the fact that there will be confusion for the girl when she learns of her biological father, the court said.
“We note that trial courts have broad discretion in managing visitation and a child contact with noncustodial parents,” the court said. “This discretion affords trial courts various means by which to protect a child from the difficulty and confusion associated with reunification, short of terminating parental rights. As we have said before, termination of a parent’s legal bond to a child is a solemn and irreversible event of constitutional import.”
Terminating parental rights is difficult, even in cases where children have been abused or neglected, said Maggie Bishop, director of DCYF.
Of the 200 to 300 abuse and neglect cases her department closes each year, in 2011, only 2 percent ended with the termination of a parent’s rights, she said. Last year, it was less than 2 percent, she said.
State law allows termination petitions to be filed on several grounds:
∎ The child has been abandoned.
∎ The child has been in an out-of-home placement for 12 of the last 22 months.
∎ The parents have failed to correct the problems that led to the out-of-home placement.
∎ The parent is not paying for the child’s support even though he or she has the means.
∎ The parent is knowingly or willfully causing severe harm to the child.
∎ Because of mental deficiency or illness, the parent is and will continue to be unable to care for the child.
∎ The parent has been convicted of murder or felony assault on the child or another family member.
But in some of those cases, like out-of-home placements, the law requires the state to try to support families through difficult times in hopes they can stay together. Bishop said the majority of cases end with families being reunified or with children being placed with guardians.
“For us, we sometimes (hear), ‘Why do you keep trying to reunify (the family)?’ ” said Bishop. “The reality is we have to. Children and parents deserve the right to be a parent and child together as long as you can keep the child safe.”
Concord attorney Ken Barnes handles family cases and said the balancing required in these cases is interesting and difficult.
“Both sides of the argument are very powerful,” Barnes said. “One is that not just New Hampshire, but the United States Supreme Court, gives a very high priority to keeping families together and to (letting) a parent raise his or her child and have some influence. But on the other side of the coin is the best interest of the child. And that is something we care about greatly.”
Bedford attorney Kysa Crusco has handled about 60 termination cases and is also the chairwoman of the New Hampshire Bar Association’s family law section. She has represented parents facing the termination of their rights in DCYF cases, as well as children in these cases.
Often, her representation of a parent comes down to whether the parent in an abuse and neglect case made enough improvement to be reunited with his or her child. In those cases, the state is required to make a “reasonable” effort to provide the parent help with their problems such as alcohol or drug abuse.
Cursco said she thinks the state does work hard to reunify families but still feels most termination petitions are granted. “I’ve done 10 to 12 (state) Supreme Court appeals for termination of parental rights,” she said. “They always affirm the termination.”
Crusco said she was surprised to see the state Supreme Court reverse the lower court’s decision in Gordon’s case and allow the father to maintain parental rights to his daughter.
“What struck me about (Gordon’s) case was that the court took a strong stance on best interest,” she said. “That was really important that these termination cases should not be easy. It should be a very last resort. I took that first case . . . as being very protective of parents’ rights.”
(Annmarie Timmins can be reached at 369-3323, firstname.lastname@example.org or on Twitter @annmarietimmins.)