Katherine E. Hedges
An associate at Hage Hodes in Manchester practicing civil litigation and corporate law.

No. 2017-0626
Oct. 23, 2018

  • The Court considered whether DCYF was required to file abuse or neglect petitions against the parents prior to terminating parental rights when they were not named in a previous abuse and neglect petition regarding the children.


The parents of O.D., B.D., and G.D. appealed a Circuit Court order terminating their parental rights for failing to correct conditions leading to a finding of neglect. They argued the Circuit Court violated their due process rights by terminating parental rights without requiring the New Hampshire Division for Children, Youth and Families (DCYF) to file new abuse or neglect petitions after the court issued an ex parte order removing the children form their home during ongoing neglect proceedings that they had not been named in and by failing to appoint counsel for them during the neglect proceedings.

DCYF was providing services to the parents and children as part of a Court Order issued in 2015 in a RSA 169-C neglect proceeding that terminated the grandmother as the legal guardian of the children. The children remained in an out-of-home placement, and the court ordered the parents to locate and secure appropriate housing for the children and to make a plan to protect them from exposure to substance abuse and domestic conflict. At a permanency hearing held a few months later, the Circuit Court found that the parents had not met the standard for the return of children, but the goal was still unification. A few months later, the court approved DCYF’s motion to reunify the children with their parents after the parents demonstrated compliance with the court orders.

The parents resided in Massachusetts, and Massachusetts DCYF began receiving concerning reports about the children’s living situation, which were reported to DCYF. DCYF then sought ex parte removal of the children, citing the Mother’s drug use and escalating arguments between the parents. The Court granted the ex parte removal request, and it ordered DCYF to file abuse and neglect petitions within 72 hours. DCYF never filed them. DCYF argued that it was not required to file the petitions because the dispositional orders in the 2015 case still governed. At the next permanency hearing, the court ordered DCYF to file petitions to terminate parental rights (TPR) because the children had resided out of the home for about 21 of the prior 25 months. The parents were appointed counsel for the TPR hearing. The court granted the TPR, finding that DCYF proved statutory grounds for termination beyond a reasonable doubt, it was in the best interests of the children, and DCYF was not required to file new abuse or neglect petitions. The court also ruled against the parents’ arguments that they should have been appointed counsel for the underlying abuse and neglect proceedings.

On appeal, the Supreme Court affirmed prior holdings that RSA 170-C:5 permits the court to terminate parental rights of an individual who has not been named as a respondent in a RSA 169-C abuse and neglect petition. The Court also noted that neither party was challenging the merits of the Circuit Court’s dispositive ruling that the parents failed to correct the conditions that led to the finding of neglect and that they failed to comply with the court’s orders for reunification. The record supported that finding. The Court also affirmed that DCYF was not required to file new abuse and neglect petitions because returning the children to the parents’ home for a short period of time did not resolve the question of whether the neglect conditions found the original RSA 169-C proceeding had been corrected.

Finally, the Court declined to rule on the parents’ argument that they were entitled to appointed legal counsel at the original neglect proceeding because neither parent sought appellate review of any of those orders. Those orders already became binding and final.


Gordon J. MacDonald, attorney general (Thomas Broderick, assistant attorney general), for New Hampshire Division for Children, Youth and Families. Kathy Ann Cellamare, Nashua, for Mother. Dawn E. Worsley, Nashua, for Father.