Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2020-544 and 2020-0554

October 20, 2021

Affirmed in Part, Reversed in Part, Vacated in Part and Remanded.

 

  • Whether the trial court erred in entering a neglect finding while also holding that the minor child’s adoptive parents did not neglect her?

 

The circuit court entered a finding of neglect but failed to attribute the neglect to the child’s adoptive parents who refused to take the child home after a hospitalization following the child’s act of physical aggression toward a caretaker because they did not feel safe with the child in their home.  The court awarded legal custody to DCYF and ordered the child to be placed in foster care temporarily while DCYF sought out a residential placement for the child.  At the dispositional hearing, the trial court declined to order reunification as the primary case plan goal but ordered conditions the parents were required to meet before the child could be returned to their custody and ordered guardianship with an appropriate party as the concurrent plan without identifying a prospective guardian.  DCYF appealed the circuit court’s order arguing that the court erred in interpreting RSA 169-C:3, XIX(b) as allowing the court to enter a neglect finding without assigning that neglect finding to any action taken by the child’s adoptive parents and that the court also erred in finding that the child’s adoptive parents did not neglect the child when they refused to take her home following her discharge from the hospital.  CASA, the child’s court appointed Guardian ad Litem, and DCYF together also argued that the circuit court erred by failing to identify legally permissible primary and concurrent case plans.  CASA also argued that the circuit court erred when ordering the child to be placed in an out of state residential treatment facility rather than less restrictive options in New Hampshire.  The Court held that the circuit court erred as a matter of law in finding that the adoptive parents did not neglect the child when they refused to retrieve her from the hospital.  The Court did not address DCYF’s argument about whether a neglect finding could be made without attributing fault for the neglect to actions of the parents.  The Court referenced the child’s medical providers who had identified out of state institutions that would best service the child’s significant needs in finding that the record supported the circuit court’s finding that the out of state residential treatment facility was the least restrictive and most appropriate placement.  Despite this finding, the Court agreed with DCYF and CASA that the circuit court failed to identify a legally permissible primary and concurrent case plan in the dispositional orders.  The Court explained that absent a finding that it would be vain to pursue reunification, the circuit court should not have rejected reunification as a primary case plan goal when it had determined that reunification remained a possibility.  The Court vacated both the primary and concurrent case plans and remanded for the issuance of another dispositional order because the circuit court failed to identify a legal permissible primary case plan.

 

John M. Formella, Attorney General (Laura E. B. Lombardi, senior assistant attorney general on the brief and orally), for the New Hampshire Division for Children, Youth and Families.  Nixon Peabody of Manchester (Mark Tyler Knights and W. Daniel Deane on the brief and Nathan P. Warecki on the brief and orally) and CASA of New Hampshire (Betsy Paine, Caroline Delaney and Sarah E. Warecki on the brief) for Court Appointed Special Advocates of New Hampshire.  Bianco Professional Association of Concord (James J. Bianco, Jr. and Lisa M. Bianco on the brief and Brendan L. Wile on the brief and orally) for the respondents.