In re Michael E.

34 A.3d 632, 162 N.H. 520
CourtSupreme Court of New Hampshire
DecidedSeptember 22, 2011
DocketNo. 2011-115
StatusPublished
Cited by11 cases

This text of 34 A.3d 632 (In re Michael 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 Michael E., 34 A.3d 632, 162 N.H. 520 (N.H. 2011).

Opinion

DALIANIS, C.J.

The respondent, Debra D., appeals an order of the Dover Family Division (Ashley, J.) terminating her parental rights over her sons, Michael E. and Andre E., for failure to correct conditions leading to a finding of neglect. See RSA 170-C:5, III (2002). We affirm.

The record reveals the following facts. On April 3, 2009, the trial court granted an ex parte neglect petition filed by the petitioner, the New Hampshire Division for Children, Youth and Families (DCYF), seeking out-of-home placement for Michael E. and Andre E. On May 26, 2009, [522]*522following adjudicatory and dispositional hearings, the trial court issued a final dispositional order finding that the respondent had neglected Michael E. and Andre E. by selling drugs from her home and in their presence. See RSA 169-C:19 (Supp. 2010). DCYF was awarded legal custody of the children. The final dispositional order set forth conditions the respondent had to meet before the children could safely be returned to her. These conditions, which were intended to correct those that led to the finding of neglect, included: (1) refraining from drug and alcohol use; (2) attending individual counseling; (3) working cooperatively with a parent aide; and (4) undergoing a neurological evaluation. To help the respondent meet these requirements, the court also ordered DCYF to provide her with a parent aide and to implement drug screening, as well as to provide assistance in setting up the neurological evaluation and locating counseling services and parenting classes. The respondent did not appeal this order. For ease of reference, we will refer to the dispositional hearing and the final dispositional order as “the neglect case.”

On August 25, 2009, the court held a three-month review hearing and found that the respondent was in partial compliance with its order. The respondent was also determined to be in partial compliance with the court’s order at the six-month review hearing. At the respondent’s nine-month review hearing on February 10, 2010, however, she was found not to be in compliance with the court’s order because she missed visitation with her children, did not work cooperatively with the parent aide, did not undergo drug tests and admitted to using cocaine. At all review hearings, DCYF was ordered to continue to provide the respondent with case management and a parent aide and to assist her with accessing community services.

On May 26, 2010, twelve months after the final dispositional order was issued in the neglect case, the court held a permanency hearing and found that the respondent was not in compliance with its order. The court found that the respondent did not complete counseling or parenting classes and was noncompliant with the parent aide. The court also noted that the respondent’s numerous incarcerations rendered her unable to have regularly scheduled visitation with her children or to maintain a safe and stable residence for them. Additionally, the court found that the respondent failed to remain free of drugs and alcohol, as she missed numerous drug screens and admitted to using cocaine and alcohol. Accordingly, the court ordered DCYF to file a termination of parental rights (TPR) petition.

DCYF then sought to terminate the respondent’s parental rights alleging, among other things, that she failed to correct the conditions leading to a finding of neglect. After a hearing on the TPR petition, the trial court found that DCYF had proved, beyond a reasonable doubt, that the respondent failed to correct the conditions leading to the finding of neglect. [523]*523See RSA 170-C:5, III. The court also determined that it was in the best interest of the children to terminate the respondent’s parental rights because “she has no current ability to care for her children and no track record to suggest she could properly care for them when released from jail.” This appeal followed.

Before a court may order the termination of a parent’s rights, the petitioning party must prove a statutory ground for termination beyond a reasonable doubt. In re Jack L., 161 N.H. 611, 614 (2011). RSA 170-C:5, III provides for termination where “[t]he 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 . . . court to rectify the conditions.” See RSA 490-D:2, IV, VII (2010) (allowing family division to hear RSA chapter 169-C cases). Thus, in order to rely upon RSA 170-C:5, III as grounds for termination, DCYF must demonstrate: (1) a finding of child neglect or abuse under RSA chapter 169-C; (2) a failure to correct the same within twelve months of the finding; and (3) reasonable efforts under the direction of the court to rectify the conditions. In re Zachary G., 159 N.H. 146, 153 (2009). We will not disturb the trial court’s finding unless it is unsupported by the evidence or plainly erroneous as a matter of law. Id.

The respondent first argues that “the [t]rial court’s conclusion that a finding of neglect should be entered against [the respondent] was not supported by the sufficiency of the evidence.” The court incorporated, without objection, the record from the neglect case into the TPR proceedings. The court then issued a decision granting the TPR petition, in which it relied upon and recited the findings from the neglect case. The respondent moved for reconsideration, arguing that there was insufficient evidence to support a finding of neglect. Therefore, we understand the respondent’s argument to be that the court in the TPR proceeding should not have relied upon the finding in the neglect case, but should have reviewed the evidence presented in the neglect case de novo, and in doing so, should have found that there was insufficient evidence to support a finding of neglect.

DCYF asserts' that collateral estoppel bars the respondent from challenging the neglect case findings. We agree. Spurred by considerations of judicial economy and a policy of certainty and finality in our legal system, the doctrine of collateral estoppel has been established to avoid repetitive litigation so that at some point litigation over a particular controversy must come to an end. Id. at 151. Thus, the collateral estoppel doctrine bars a party to a prior action from relitigating any issue or fact actually litigated and determined in the prior action. Id. Three basic conditions must be [524]*524satisfied before collateral estoppel will arise: (1) the issue subject to estoppel must be identical in each action; (2) the first action must have resolved the issue finally on the merits; and (3) the party to be estopped must have appeared as a party in the first action. Id. The burden of proving estoppel is on the party asserting it. Id.

DCYF has satisfied its burden of demonstrating collateral estoppel. The respondent appeared as a party in the first action. The relevant issue, whether the respondent neglected her sons under RSA chapter 169-C, is germane to both the neglect case and the TPR case. See id. The court’s finding of neglect was a “final dispositional order,” RSA 169-C:28 (2002); see In re Diane R., 146 N.H. 676, 678 (2001), and the respondent did not appeal that order to the superior court for de novo review, see RSA 169-C:28; therefore, the issue of neglect was resolved finally on the merits.

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Cite This Page — Counsel Stack

Bluebook (online)
34 A.3d 632, 162 N.H. 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-michael-e-nh-2011.