Family Law

Chantalle Forgues
Assistant Professor of Business Law at
Plymouth State University

No. 2018-0269
February 1, 2019

  • Whether the circuit court erred in finding that DCYF made reasonable efforts to assist a parent in correcting conditions that lead to a finding of abuse and neglect
  • Whether the circuit court’s condition that the parent accept responsibility in the abuse and neglect proceeding violated the parent’s right against self-incrimination

In this case, the circuit court found that the respondent neglected and abused her two children and removed the children from her care. In a subsequent dispositional hearing, the circuit court set forth conditions the respondent was required to meet before the children could be returned to her care, as well as services that the New Hampshire Division for Children, Youth and Families (DCYF) was required to provide to the children and respondent. Among other conditions, the circuit court required the respondent to “accept responsibility for her conduct (bearing in mind her substantive and procedural due process rights in the underlying criminal matter.)” The circuit court also ordered the respondent to refrain from discussing any aspect of the criminal matter with her children unless authorized by DCYF.

The respondent failed to comply with the two above conditions, and the court endorsed DCYF’s request to suspend the respondent’s visitation with her children. DCYF subsequently sought an order to terminate the respondent’s parental rights, which is the subject of this appeal. Specifically, on appeal the respondent argued (1) that the circuit court erred in finding that after her visitation was terminated, DCYF made reasonable efforts to assist her with correcting the conditions that led to the abuse and neglect finding; and (2) that the circuit court’s condition that she accept responsibility for the abuse and neglect violated her constitutional right against self-incrimination.

The Supreme Court first found that testimony from the pertinent hearing supported the circuit court’s finding that DCYF provided reasonable services to respondent given the court’s suspension of visits with her children. Specifically, DCYF communicated with respondent about her children and confirmed that she was attending counseling. Respondent did not need housing at that time, and did not articulate other services DCYF could have provided her. Moreover, contrary to respondent’s argument, DCYF need not show it had staffing or financial constraints that prevented it from providing additional services.

The Supreme Court declined to review the respondent’s second argument based on self-incrimination because it was not properly before the Court. The respondent’s self-incrimination argument was a challenge to the circuit court’s dispositional orders in her underlying abuse and neglect case, which was an entirely separate case based on different statutory authority from the proceeding before the Court on the termination of her parental rights. The respondent could have appealed the self-incrimination issue in the abuse and neglect case, or petitioned for certiorari in any post-dispositional orders in her abuse and neglect case.

Nevertheless, the Court did address the substance of the self-incrimination issue consistent with the Court’s supervisory role in the event another circuit court is confronted with the issue. To this end, the Court concluded that for the purpose of terminating parental rights, the circuit court may draw an adverse inference from a parent’s failure to acknowledge wrongdoing where it is relevant to determining whether a parent failed to correct the conditions that led to the abuse or neglect, even where the parent has invoked the right against self-incrimination. The circuit court’s consideration of the parent’s silence may be essential to protecting a child’s welfare. And, without the discretion to consider the parent’s silence, the court may be unable to determine meaningfully whether the parent has corrected the abusive or neglectful conditions.

Further, RSA 169-C:12-a provides that a parent’s testimony during an abuse and neglect proceeding shall not be admissible in a criminal proceeding relating to the abuse or neglect allegations against the parent. Indeed, a parent’s choice to remain silent in light of this statutory protection may have significant bearing on whether the parent has corrected the underlying abusive or neglectful conditions.


Gordon J. MacDonald, attorney general (Lindsey B. Courtney, attorney, on the brief and orally), for the petitioner. Sarah D. Christie, (on the brief and orally) of McSwiney, Hankin-Birke, Wood & Christie, for the respondent.