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In New Hampshire,RSA 170-C provides for involuntary termination of parental rights, and the probate courts, and now also the family divisions, have exclusive jurisdiction over such termination of parental rights matters. If the court orders a termination of parental rights, the effect is to sever all legal rights, privileges and duties between the parent and the child. The two become legal strangers in the eyes of the law, with neither parent or child owing any obligations to the other at any point in the future.
A termination petition may be filed, pursuant to RSA 170-C:4 by:
a. Either parent;
b. The child’s guardian or legal custodian;
c. The child’s foster parent if the child has resided with that foster parent continuously for 24 months; or
d. An “authorized agency,” which in termination of parental rights petitions would be DCYF.
Additionally, the statute sets forth limited conditions on which such a petition may be brought. RSA 170-C:5 lists six circumstances under which a petition for termination of parental rights will be granted:
a. The parents have abandoned the child
b. The parents have substantially and continuously neglected to provide the child with the care necessary for mental, emotional, or physical health when they are financially able to do so
c. The parent(s) have failed to correct conditions that lead to a violation of the Child Protection Act, within twelve months of such a finding
d. The parent is, and will continue to be, mentally incapable, either by deficiency or illness, of caring for the child
e. The parent knowingly or willingly caused, or allowed to be caused, severe sexual, physical, emotional or mental abuse of the child
f. The parent has been convicted of any of the following crimes:
a. The murder of another child of the parent, a sibling or step-sibling of the child, or the child's other parent;
b. The manslaughter of another child of the parent, a sibling or step-sibling of the child, the child's other parent;
c. Attempted murder of the child, step-child, sibling or other parent; or
d. A felony assault which resulted in injury to the child, a sibling or step-sibling of the child, or the child's other parent.
Courts will consider the best interest of the child in rendering a decision, sometimes appointing a Guardian ad Litem to represent that interest. However, even if the court determines that the child’s best interests are served by terminating a parent’s rights, that finding alone is not sufficient to order termination. A court must make an explicit finding under the statute that one or more of the above criteria has been satisfied.
The United States Supreme Court states: in Santosky v. Kramer:
The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the 14th Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.
The Santosky court also held that, except for clear cases of abuse, the government should not separate children from their families or countermand parental authority.
Because termination affects a fundamental constitutional right for parents to raise their children as they see fit, New Hampshire courts have increased the burden on the petitioner to prove that TPR is appropriate. In State v. Robert H., the New Hampshire Supreme Court made it clear that for the termination of parental rights, the standard to be imposed is proof beyond a reasonable doubt that 170-C:5 has been satisfied. It is fitting that the petitioner must meet this highest burden as “the rights of parents (over the family) are held to be natural, essential and inherent rights, within the meaning of the New Hampshire Constitution,” the New Hampshire Supreme Court states. “The permanent termination of the rights of parents over their children is even more final than involuntary commitment or delinquency proceedings” both of which require that heightened standard; no other standard would be appropriate.
The New Hampshire Supreme Court also notes that the statute does not define, nor has the Court addressed, what it means to be “financially able” to provide a child with necessary subsistence, education or other care.
Therefore, while you are entitled to file a motion to terminate parental rights, it is very, very difficult to do. There are a string of cases in New Hampshire (and I am sure other states) where the court has found that just because a person isn't an ideal parent isn't a sufficient basis to terminate a parent's rights. Courts want a child to have at least the option of having both parents in their life, so are going to be naturally reluctant to take those rights away permanently. My personal opinion is that not having contact (or very limited contact) and rarely, if ever paying child support is not sufficient enough for a court to remove those rights. If it were, there would be a lot of parents whose rights are terminated. It seems courts land on the side of the fence that says "don't take their rights away because one day they may decide they do want visitation" and once the rights are gone, they're gone.
If you need clarification or additional information, please REPLY and I'll be happy to assist you. Thank you.