In re Jessie E.

627 A.2d 591, 137 N.H. 336, 1993 N.H. LEXIS 80
CourtSupreme Court of New Hampshire
DecidedJune 30, 1993
DocketNo. 92-111
StatusPublished
Cited by14 cases

This text of 627 A.2d 591 (In re Jessie E.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jessie E., 627 A.2d 591, 137 N.H. 336, 1993 N.H. LEXIS 80 (N.H. 1993).

Opinion

Brock, C.J.

Michelle E. is the natural mother of Jessie E. Since 1986, Jessie has been under the full-time care and custody of Ann J., who is Jessie’s aunt and guardian. Michelle appeals the decision by the Grafton County Probate Court (O’Neill, J.) terminating her parental rights and continuing Ann’s guardianship over Jessie. We affirm in part, vacate in part, and remand.

Jessie was born on July 7,1985, to Michelle and Jeffrey E. At the time of Jessie’s birth, Michelle and Jeffrey were not married, but they were living together in Canaan. Jeffrey suffered from an alcohol problem. Michelle, who was then seventeen years old, was solely responsible for the household’s income. Beginning in September 1985, Ann, who is Jeffrey’s sister, began assisting in Jessie’s care while Michelle was at work.

Jeffrey and Michelle petitioned the probate court in April 1986 to appoint Ann as Jessie’s guardian, though in May 1986, Michelle sought to withdraw from the petition. The court ordered a hearing, at which it continued the matter, ordered the New Hampshire Division for Children and Youth Services (DCYS) to complete a home study, and appointed Richard E. Mullaly as guardian ad litem (GAL) for Jessie. Mullaly recommended that Ann be appointed guardian of Jessie. Ann’s attorney drafted the guardianship stipulation, and Michelle and Jeffrey signed it without being represented by legal counsel.

On December 2, 1986, pursuant to the stipulation, the probate court appointed Ann as Jessie’s guardian. Approximately one month later, Ann assumed responsibility for the full-time care and custody of Jessie, while Michelle retained visitation rights. This arrangement [338]*338was intended to help Michelle improve her financial situation. Michelle testified that she believed initially that the purpose of the guardianship was to allow Ann to make medical decisions for Jessie, to include the child on Ann’s medical plan, and to care for her until Michelle could improve her personal and financial situation. The record is unclear as to what occurred between January 1987 and June 1987.

On June 10, 1987, Michelle, without the assistance of counsel, wrote to the probate court seeking assurance that she would be able to continue to visit Jessie. As a result, the court appointed legal counsel to represent Michelle. Michelle and Ann, through counsel, negotiated a stipulation for visitation, which was approved by the court on September 10, 1987. In accordance with the stipulation, Michelle provided Ann with a schedule of the days in September when she planned to visit Jessie. On five of the seven days for which visits had been scheduled, Michelle neither appeared for the visit nor telephoned Ann to cancel or reschedule the meeting. There were no visits scheduled for October 1987. On November 14, 1987, Michelle contacted Ann to arrange six visits with Jessie for the remainder of November. Michelle had two visits with Jessie during mid-November. Ann cancelled the Thanksgiving Day visit because Jessie was ill. Michelle then cancelled the visit for the day after Thanksgiving and did not appear for, or cancel, the final visit, which had been set for November 28,1987. Ann testified that “as far as the rest of the dates, I don’t remember whether or not they were shows or no shows.” Ann also testified that she and Jessie moved to Ann’s father’s house during the summer of 1986, and admitted that Michelle was forbidden from entering the house, so that Michelle would have to wait for Jessie at the end of the driveway. Ann also admitted that she unlisted her telephone number sometime around January 1988 when her father died. After the Thanksgiving cancellation until June 1988, Michelle had virtually no contact with Jessie.

On or about June 16, 1988, Michelle, without notifying her appointed counsel, petitioned the probate court to terminate Ann’s guardianship over Jessie. She testified that she acted without her attorney because she felt that her attorney “wasn’t really doing her job.” In response, Ann petitioned the court to terminate Michelle’s parental rights. Thereafter, Michelle’s original court-appointed attorney withdrew, and the court appointed a different attorney. The parties’ petitions spawned numerous hearings and visitation orders. In August 1988, Richard Mullaly, as GAL, recommended to the probate court that Ann’s guardianship continue, and that Michelle’s visitation rights continue.

[339]*339In June 1989, the probate court ordered that visitation between Michelle and Jessie be held in the presence of Rise P., who is Michelle’s sister. Rod J., Ann’s current husband, became a joint supervisor sometime during or after 1989. Rise supervised between twenty and twenty-five visits. In February 1990, the probate court, responding to complaints filed by Ann, ordered that Michelle “specifically refrain from discussing with Jessie ... the relationship of herself or any other party with respect to Jessie,” and vested the GAL with the authority to suspend visitation. In November 1990, the GAL filed a notice of suspension of Michelle’s visitation rights, to which Michelle objected, because she violated the visitation order by discussing her relationship with Jessie. Michelle testified that she did reveal to Jessie that she is her natural mother, but that this occurred before the court order prohibiting such discussion. The probate court upheld the suspension. In May 1991, Michelle, through counsel, filed a motion for a hearing on visitation. A hearing was held on September 25, 1991. On November 1, 1991, the probate court again upheld the suspension of visitation. Pursuant to court order, Michelle has not visited Jessie since the suspension. Ann and Rod wish to adopt Jessie upon the termination of Michelle’s parental rights.

None of the court orders required Michelle to contribute toward the financial support of Jessie, nor did Michelle make such financial contributions. The record indicates that Michelle has had limited financial means throughout this period of time, but that her employment situation has improved.

In January 1992, following a hearing on the petitions, the probate court denied Michelle’s petition to terminate Ann’s guardianship and granted Ann’s petition to terminate Michelle’s parental rights. This appeal followed.

The termination of parental rights is a severe measure that divests “the parent and the child of all legal rights, privileges, duties and obligations.” RSA 170-C:12; see State v. Robert H., 118 N.H. 713, 716, 393 A.2d 1387, 1389 (1978) (“The loss of one’s child can be viewed as a sanction more severe than imprisonment.”). The rights of inheritance, however, “shall not be divested until the adoption of said child.” RSA 170-0:12. Recognizing parental rights as fundamental under our State Constitution, see N.H. Const, pt. I, art. 2; Robert H., 118 N.H. at 715, 393 A.2d at 1389, this court has held that any party seeking to terminate parental rights “must prove the statutory ground for termination [under RSA chapter 170-C] beyond a reasonable doubt.” Stanley D. v. Deborah D., 124 N.H. 138, 142, 464 A.2d 249, 251 (1983). After finding that one of the statutory grounds for [340]*340termination has been satisfied, see RSA 170-C:5 (1990), “the court must consider whether it is in the child’s best interest to terminate the rights of the parent in question.” In re Matthew G., 124 N.H. 414, 416, 469 A.2d 1365, 1366-67 (1983).

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Bluebook (online)
627 A.2d 591, 137 N.H. 336, 1993 N.H. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jessie-e-nh-1993.