PROTOCOLS RELATIVE TO ABUSE AND NEGLECT CASES AND PERMANENCY PLANNING

NEW HAMPSHIRE DISTRICT COURT
COURT IMPROVEMENT PROJECT
IN COOPERATION WITH
THE FAMILY DIVISION
AND
N.H. PROBATE COURT

Revised April 2003

INTRODUCTION AND ACKNOWLEDGMENTS

     The Protocols Relative to Abuse and Neglect Cases and Permanency Planning were made possible through a federal grant received by the New Hampshire Administrative Office of the Courts from the U.S. Department of Health and Human Services, Administration for Children and Families. 

     This exciting grant opportunity allowed the New Hampshire District Court to develop and oversee the Court Improvement Project (CIP).  Members of the CIP worked tirelessly on the creation of this manual, which began with a careful review of the Resource Guidelines for Improving Court Practice in Child Abuse & Neglect Cases produced by the National Council of Juvenile and Family Court Judges. 

     The Protocols are the result of a significant collaboration among the District Court, Family Division, Probate Court and Superior Court, as well as representatives from the Bar, Legislature, CASA, the Division for Children, Youth and Families, Judicial Council, law enforcement and the Attorney General's Office.  Foster parents and service providers also contributed to this endeavor.  We owe a debt of gratitude to members of the New Hampshire Court Improvement Project's Advisory Committee and Protocol Committees, who gave most generously of their time, knowledge and expertise in the development and review of these protocols.

     Special thanks are also extended to Lauren Thorn, Pam Neville, Jim O'Neil, Diane Hufstader, Janice Boynton and Marge Therrien from the Office of the Administrative Judge of the District Court.  Their steadfast efforts, and untold hours of drafting and redrafting, formatting and reformatting, are greatly appreciated.

     Insofar as these protocols suggest any interpretation of the law, the reader should bear in mind that the interpretation of the law, as it applies to any given case, is within the sole province of the trial judge, subject to the ultimate review of the New Hampshire Supreme Court.  The Protocols do not create substantive rights that do not currently exist and should not be considered as superseding any constitutional or statutory rights of parties to abuse and neglect proceedings. 

     We strongly encourage the use of the Protocols Relative to Abuse and Neglect Cases and Permanency Planning in the District Court, Family Division, and Probate Court and hope that each of us will improve, in some small way, our handling of these most important cases.   

Edwin W. Kelly
Administrative Judge
District Court
Susan B. Carbon
Supervisory Judge
Grafton County
Family Division
John R. Maher
Administrative Judge
Probate Court

NEW HAMPSHIRE COURT IMPROVEMENT PROJECT

COMMITTEE MEMBERS

HONORABLE EDWIN W. KELLY, CHAIR*
Administrative Judge
NH District Court

HONORABLE SUSAN B. CARBON, CO-CHAIR*
Supervisory Judge
Grafton County Family Division

KRISTIN A. LAMONT, ESQ.*
Permanency Planning Coordinator

Representative David C. Allison*
NH House of Representatives

Cathy Atkins*
DCYF

Honorable Thomas E. Bamberger*
Nashua District Court

James J. Bianco, Jr.
Attorney

Ray Bilodeau
DCYF

Sherry Bisson*
Family Division

Debbie Blake, Esq.*
Foster Parent

Dr. Suzanne Boulter
Concord Hospital

Heidi Boyack, Esq.
Family Division

David Braiterman
Attorney

Representative Julie M. Brown
NH House of Representatives

Honorable Gary R. Cassavechia*
Strafford County Probate Court

Joan Bishop Clark
NH Superior Court

Honorable Robert L. Cullinane
Dover District Court

Jo Davidson, M.S.
The Green House Group

Gail DeGoosh*
DCYF

Roger Desrosiers*
DCYF

Representative Patricia A. Dowling*
NH House of Representatives

Nina Gardner*
NH Judicial Council

Donald D. Goodnow, Esq.
Administrative Office of the Courts

Linda J. Grey*
Grafton County Family Division

Marge Hallyburton*
Attorney

Honorable Richard A. Hampe
Merrimack County Probate Court

Cynthia Herman
Child and Family Services

Chief Scott Hilliard
Northfield Police Department

Elizabeth L. Hodges, Esq.
Administrative Office of the Courts

Representative Lionel W. Johnson
NH House of Representatives

Representative Constance A. Jones
NH House of Representatives

Sheriff Chet Jordan
Merrimack County Sheriff

Pamela Kozlowski*
Claremont District Court

Honorable Paul H. Lawrence*
Goffstown District Court

Jack Lightfoot, Esq.*
Child and Family Services

Representative L. Randy Lyman*
NH House of Representatives

Mariellen J. MacKay*
NH Foster and Adoptive Parents' Association

Administrative Judge John R. Maher*
NH Probate Court

Honorable Willard G. Martin*
Laconia District Court

Sandra Matheson
Office of the Attorney General

Chief James McLaughlin
New Boston Police Department

Professor Suzanne McMurphy*
UNH Department of Social Work

Honorable F. Graham McSwiney*
New London District Court

Veronica Melendez
US Department of H&S/ACF

Associate Justice Joseph P. Nadeau
NH Supreme Court

Pamela B. Neville*
Office of the Administrative Judge

James F. O'Neil
Office of the Administrative Judge

Honorable Christina M. O'Neill*
Belknap County Probate Court

Senator Debora B. Pignatelli
NH Senate

Representative Irene A. Pratt*
NH House of Representatives

Representative Barbara Hull Richardson*
NH House of Representatives

Honorable Michael J. Ryan
Goffstown District Court

Patrick Ryan*
Keene District Court

Cindy Sadler, Esq.
Manchester County Attorney's Office

David Sandberg, Esq.*
CASA of New Hampshire

Honorable Brackett L. Scheffy*
Henniker District Court

Rosemary Shannon*
Health & Human Services

Ellen Shemitz, Esq.*
Children's Alliance of NH

Marcia Sink*
CASA of New Hampshire

Kelly Smith, M.S.W.*
Casey Family Services

Honorable Michael F. Sullivan*
Concord District Court

Barbara Sweet*
Concord District Court

Lauren V. Thorn, Esq.*
Office of the Administrative Judge

Martha Wagner*
NH Probate Court

David J. Wajda*
Salem District Court

Senator Katherine W. Wheeler
NH Senate

Joan Whitfield*
DCYF

Laura Whitlock
NH Foster and Adoptive Parents' Association

Heidi York-Lake*
DCYF

Howard J. Zibel
NH Supreme Court

Dana Zucker
Belknap County Superior Court

*Members of the Protocol Subcommittees

 

 

TABLE OF CONTENTS

Page
CHAPTER 1A BILL F. HEARING

PROTOCOL 1

SCHEDULING A BILL F. HEARING

1

PROTOCOL 2 

ATTENDANCE RECOMMENDED AT A BILL F. HEARING

2

PROTOCOL 3 

CONDUCTING A BILL F. HEARING

2

PROTOCOL 4 

THE COURT'S ORDER FOLLOWING A BILL F. HEARING

3

CHAPTER 1  GENERAL PROVISIONS

PROTOCOL 1

REFERENCED DAYS

6

PROTOCOL 2

CONTINUANCES

6

PROTOCOL 3

COURTROOM

6

PROTOCOL 4

HEARINGS NOT OPEN TO THE PUBLIC

6

PROTOCOL 5

CONFIDENTIALITY

7

PROTOCOL 6

ATTENDANCE BY ATTORNEYS, CASEWORKERS, AND GUARDIANS AD LITEM (GAL) OR COURT-APPOINTED SPECIAL ADVOCATES (CASA GAL)

7

PROTOCOL 7

PRESENCE OF WITNESSES: SUBPOENA POWER

7

PROTOCOL 8

PUTATIVE FATHER

8

PROTOCOL 9

CONFERENCE CALLS AND VIDEO-CONFERENCING WITH PARENTS

8

PROTOCOL 10

RECORD

8

PROTOCOL 11

EVIDENCE

8

PROTOCOL 12

BURDEN OF PROOF

9

PROTOCOL 13

TESTIMONY BY PARENTS

9

PROTOCOL 14

SERVICE PROVIDERS

9

PROTOCOL 15 

PARENT AND RELATIVE DEFINED

9

PROTOCOL 16

OUT-OF-HOME PLACEMENT DEFINED

10

PROTOCOL 17

PROTECTIVE ORDERS ISSUED AND VIOLATION OF SUCH ORDERS

11

COURT FORM

• Order of Protection (AOC 334-048)

CHAPTER 2  PETITION, SUMMONS, COURT'S APPOINTMENT OF COUNSEL FOR  PARENTS, GAL OR CASA GAL AND COUNSEL FOR CHILD

PROTOCOL 1

JURISDICTION

13

PROTOCOL 2

PETITION

14

PROTOCOL 3

THE COURT'S ISSUANCE OF SUMMONS AND REQUESTS TO LAW ENFORCEMENT

14

PROTOCOL 4

THE COURT'S APPOINTMENT OF COUNSEL FOR PARENTS

15

PROTOCOL 5

THE COURT'S APPOINTMENT OF A GUARDIAN AD LITEM (GAL) OR COURT APPOINTED SPECIAL ADVOCATE (CASA GAL)

16

PROTOCOL 6

THE COURT'S APPOINTMENT OF COUNSEL FOR A CHILD

17

COURT FORMS

•Notice to Accused Parent (AOC-326-048)

•Notice to Non-Accused Parent Who is a Household Member (AOC-327-048)

•Notice to Non-Accused, Non-Household Parent (AOC-328-048)

CHAPTER 3 PROTECTIVE CUSTODY BY THE POLICE AND THE 24-HOUR   PROTECTIVE CUSTODY HEARING  

PROTOCOL 1

PROTECTIVE CUSTODY BY THE POLICE

18

PROTOCOL 2

REQUEST BY POLICE FOR COURT ORDER FOR CONTINUED PROTECTIVE CUSTODY

19

PROTOCOL 3

SCHEDULING THE 24-HOUR PROTECTIVE CUSTODY HEARING

20

PROTOCOL 4  

NOTICE OF THE 24-HOUR PROTECTIVE CUSTODY HEARING

21

PROTOCOL 5

SUBMISSION OF POLICE AFFIDAVIT AND/OR POLICE REPORT AT THE 24-HOUR PROTECTIVE CUSTODY HEARING

21

PROTOCOL 6

THE COURT'S INQUIRY AT THE 24-HOUR PROTECTIVE CUSTODY HEARING

21

PROTOCOL 7  

THE COURT'S WRITTEN ORDER FOLLOWING THE 24-HOUR PROTECTIVE CUSTODY HEARING

22

COURT FORMS

•Protective Custody Telephonic Ex Parte Order (AOC-338-048)

•24-Hour Protective Custody Hearing Order (AOC-324-048)

CHAPTER 4 EX PARTE REQUEST BY DCYF OR A POLICE OFFICER

PROTOCOL 1

REQUEST FOR EX PARTE ORDER BY DCYF OR A POLICE OFFICER

24

PROTOCOL 2

EVIDENCE REQUIRED TO BE PRESENTED WHEN EX PARTE ORDER REQUESTED

25

PROTOCOL 3

THE COURT'S INQUIRY

25

PROTOCOL 4

THE COURT'S EX PARTE ORDER

27

COURT FORM

• Ex Parte Order (AOC-318-048)

CHAPTER 5 PRELIMINARY HEARING

PROTOCOL 1

SCHEDULING THE PRELIMINARY HEARING IN REMOVAL CASES

31

PROTOCOL 2

SCHEDULING THE PRELIMINARY HEARING IN NON-REMOVAL CASES

31

PROTOCOL 3

ATTENDANCE REQUIRED AT THE PRELIMINARY HEARING

32

PROTOCOL 4

THE COURT'S REQUIREMENT OF DCYF TO MAKE SPECIAL EFFORTS TO LOCATE A NON-ACCUSED, NON-HOUSEHOLD PARENT AND/OR PUTATIVE FATHER(S) AND TO SUBMIT AN AFFIDAVIT DESCRIBING ITS EFFORTS

33

PROTOCOL 5

ATTENDANCE RECOMMENDED AT THE PRELIMINARY HEARING

34

PROTOCOL 6

THE COURT'S DETERMINATION THAT EACH PARENT UNDERSTANDS THE POSSIBLE CONSEQUENCES TO HER/HIS PARENTAL RIGHTS

34

PROTOCOL 7

THE COURT'S INQUIRY AT THE PRELIMINARY HEARING

35

PROTOCOL 8

THE COURT'S WRITTEN ORDER FOLLOWING THE PRELIMINARY HEARING

38

COURT FORMS

•Acknowledgement of Possible Consequences to Parental Rights in Abuse and Neglect Cases (AOC-304-048)

•Preliminary Hearing Order (AOC-315-048)

•Financial Affidavit

•Right to an Attorney in an Abuse or Neglect Case (AOC-328-048)

•Order of Protection (AOC-334-048)

CHAPTER 6 CONSENT DECREE

PROTOCOL 1

FILING A CONSENT DECREE

42

PROTOCOL 2

REQUIREMENTS FOR SUBMISSION OF A CONSENT DECREE

42

PROTOCOL 3

REQUIREMENTS OF THE COURT BEFORE APPROVING A CONSENT DECREE

44

PROTOCOL 4

SOCIAL STUDY

49

COURT FORMS

•The Effect of a Consent Order on Your Constitutionally and Statutorily Protected Rights, Including Your Parental Rights
(AOC-302-048)

•The Effect of a Consent Without a Finding
(AOC-336-048)

CHAPTER 7 ADJUDICATORY HEARING

PROTOCOL 1

SCHEDULING THE ADJUDICATORY HEARING

53

PROTOCOL 2

TRIAL MANAGEMENT CONFERENCE

54

PROTOCOL 3

CONTINUANCES

54

PROTOCOL 4

PARTIES WHO MUST BE SENT NOTICE AND WHO MUST ATTEND THE ADJUDICATORY HEARING

55

PROTOCOL 5

THE COURT'S REQUIREMENT OF DCYF TO MAKE SPECIAL EFFORTS TO LOCATE A NON-ACCUSED, NON-HOUSEHOLD PARENT AND/OR PUTATIVE FATHER(S) AND TO SUBMIT AN AFFIDAVIT DESCRIBING ITS EFFORTS

56

PROTOCOL 6

CONDUCTING THE ADJUDICATORY HEARING

56

PROTOCOL 7

THE COURT'S WRITTEN ORDER FOLLOWING THE ADJUDICATORY HEARING

57

PROTOCOL 8

SOCIAL STUDY

61

COURT FORMS

•Adjudicatory Hearing Order (AOC-316-048)

•Order of Protection (AOC-334-048)

CHAPTER 8 DISPOSITIONAL HEARING

PROTOCOL 1

SCHEDULING THE DISPOSITIONAL HEARING

65

PROTOCOL 2

NOTICE

66

PROTOCOL 3

SUBMISSION OF COURT REPORTS

67

PROTOCOL 4

THE COURT'S REQUIREMENT OF DCYF TO MAKE SPECIAL EFFORTS TO LOCATE A NON-ACCUSED, NON-HOUSEHOLD PARENT AND/OR PUTATIVE FATHER(S) AND TO SUBMIT AN AFFIDAVIT DESCRIBING ITS EFFORTS

68

PROTOCOL 5

SOCIAL STUDY

68

PROTOCOL 6

CONTENT OF THE DCYF REPORT

70

PROTOCOL 7

THE COURT'S INQUIRY AT THE DISPOSITIONAL HEARING

72

PROTOCOL 8

THE COURT'S APPOINTMENT OF COUNSEL FOR A CHILD

76

PROTOCOL 9

DISPOSITION OF AN EDUCATIONALLY DISABLED CHILD

77

PROTOCOL 10

THE COURT'S WRITTEN ORDER FOLLOWING THE DISPOSITIONAL HEARING

77

PROTOCOL 11

MODIFICATION OF OR ADDITIONS TO THE DISPOSITIONAL ORDERS

79

COURT FORM

•Dispositional Hearing Order (AOC-317-048)

CHAPTER 9 APPEAL OF FINAL DISPOSITIONAL ORDER

PROTOCOL 1

TIMING OF APPEAL

80

PROTOCOL 2

WHO MAY APPEAL

80

PROTOCOL 3

EFFECT OF APPEAL ON ORDERS OF THE DISTRICT COURT OR FAMILY DIVISION AND THE PERMANENCY HEARING

81

PROTOCOL 4

DE NOVO APPEAL

81

CHAPTER 10 REVIEW HEARING

PROTOCOL 1

SCHEDULING THE REVIEW HEARING

82

PROTOCOL 2 

NECESSARY PARTIES AT THE REVIEW HEARING

84

PROTOCOL 3 

OTHERS WHO MAY ATTEND THE REVIEW HEARING

85

PROTOCOL 4 

SUBMISSION OF COURT REPORTS

87

PROTOCOL 5 

DCYF'S AFFIDAVIT AND THE CONTENT OF THE DCYF REPORT

87

PROTOCOL 6 

LETTER OR REPORT FROM FOSTER PARENTS, PRE-ADOPTIVE PARENTS OR RELATIVE CAREGIVERS

90

PROTOCOL 7 

THE COURT'S INQUIRY AT THE REVIEW HEARING

90

PROTOCOL 8

THE COURT'S WRITTEN ORDER FOLLOWING THE REVIEW HEARING

93

COURT FORM

•Review Hearing Order (AOC-330-048)

CHAPTER 11 PERMANENCY HEARING

PROTOCOL 1

OPTIONS FOR PERMANENCY

97

PROTOCOL 2

SCHEDULING THE 12-MONTH PERMANENCY HEARING

99

PROTOCOL 3

CONTINUANCES

101

PROTOCOL 4

NOTICE

101

PROTOCOL 5

PRESENCE OF AGE-APPROPRIATE CHILDREN AT THE PERMANENCY HEARING

104

PROTOCOL 6

SUBMISSION OF COURT REPORTS

105

PROTOCOL 7

DCYF'S AFFIDAVIT AND THE CONTENT OF THE DCYF REPORT

106

PROTOCOL 8

GUARDIAN AD LITEM (GAL) OR CASA GUARDIAN AD LITEM (CASA GAL) REPORT

114

PROTOCOL 9

REPORTS FROM OTHER PARTIES

114

PROTOCOL 10

LETTER OR REPORT FROM FOSTER PARENTS, PRE-ADOPTIVE PARENTS OR RELATIVE CAREGIVERS

114

PROTOCOL 11

EVIDENCE

115

PROTOCOL 12

THE COURT'S INQUIRY AT THE PERMANENCY HEARING

115

PROTOCOL 13

THE COURT'S WRITTEN ORDER FOLLOWING THE PERMANENCY HEARING

122

PROTOCOL 14 

THE POST-PERMANENCY HEARINGS

124

PROTOCOL 15

THE 30-DAY PERMANENCY HEARING

125

COURT FORMS

• Permanency Hearing Order (AOC-325-048)

• Post-Permanency Hearing Order (AOC-331-048)

CHAPTER 12  RELINQUISHMENT OF PARENTAL RIGHTS

PROTOCOL 1 

REQUIREMENTS FOR A RELINQUISHMENT OF PARENTAL RIGHTS

127

PROTOCOL 2 

EFFECT OF A RELINQUISHMENT OF PARENTAL RIGHTS

129

PROTOCOL 3 

COURT'S REQUIREMENT THAT DCYF TRANSFER RELINQUISHMENT CASES TO THE ADOPTION UNIT

129

PROTOCOL 4 

WITHDRAWAL OF RELINQUISHMENT

129

PROTOCOL 5 

POST-RELINQUISHMENT CASE REVIEW HEARING

130

PROTOCOL 6 

SUBMISSION OF STATUS REPORT BEFORE POST- RELINQUISHMENT CASE REVIEW HEARING

130

COURT FORMS

•Relinquishment of Parental Rights (AOC-82B-003)

•Medical Information on Birth Parents (AOC-200-003)

•Affidavit (AOC-82F-003)

CHAPTER 13  TERMINATION OF PARENTAL RIGHTS HEARINGS

PROTOCOL 1

JURISDICTION

134

PROTOCOL 2

WHO MAY FILE A PETITION FOR TERMINATION OF PARENTAL RIGHTS (TPR)

134

PROTOCOL 3

IF DCYF IS ORDERED AT THE PERMANENCY HEARING TO FILE A TPR PETITION

135

PROTOCOL 4

CONTENTS OF THE TPR PETITION

135

PROTOCOL 5

STATUTORY GROUNDS FOR FILING A TERMINATION PETITION

137

PROTOCOL 6

THE SOCIAL STUDY AND WRITTEN REPORT TO THE COURT

139

PROTOCOL 7

NOTICE BY THE COURT TO THE PETITIONER

140

PROTOCOL 8

NOTICE BY THE PETITIONER TO THE PARENTS AND ORDER OF NOTICE

140

PROTOCOL 9

NOTICE BY THE PETITIONER TO OTHERS

142

PROTOCOL 10

APPOINTMENT OF COUNSEL

142

PROTOCOL 11

APPOINTMENT OF GUARDIAN AD LITEM (GAL)

143

PROTOCOL 12

MENTAL HEALTH EVALUATIONS

144

PROTOCOL 13

CONTINUANCES

145

PROTOCOL 14

SCHEDULING THE INITIAL HEARING

146

PROTOCOL 15

THE COURT'S INQUIRY AT THE INITIAL HEARING

146

PROTOCOL 16

STRUCTURING CONFERENCE

148

PROTOCOL 17

PRE-TRIAL CONFERENCE

148

PROTOCOL 18

FINAL HEARING ON THE MERITS

149

PROTOCOL 19

THE COURT'S INQUIRY AT THE FINAL HEARING ON THE MERITS

149

PROTOCOL 20

THE COURT'S WRITTEN FINAL ORDER

150

PROTOCOL 21

EFFECT OF THE COURT DECREE

153

PROTOCOL 22

APPEALS

153

PROTOCOL 23

POST-TERMINATION CASE REVIEW HEARINGS

153

PROTOCOL 24

SUBMISSION OF STATUS REPORT BEFORE POST-TERMINATION CASE REVIEW HEARING

154

CHAPTER 14  ADOPTION HEARING

PROTOCOL 1

JURISDICTION

155

PROTOCOL 2

FILING THE PETITION FOR ADOPTION

156

PROTOCOL 3

NOTICE OF PETITION

157

PROTOCOL 4

INVESTIGATION

157

PROTOCOL 5

SCHEDULING THE ADOPTION HEARING

158

PROTOCOL 6

WHO MUST BE PRESENT AT THE ADOPTION HEARING

159

PROTOCOL 7

ISSUES FOR THE COURT TO CONSIDER AT THE ADOPTION HEARING

159

PROTOCOL 8

INTERLOCUTORY DECREE AND FINAL DECREE

160

PROTOCOL 9

COURT'S NOTIFICATION OF ADOPTION BY DCYF

161

PROTOCOL 10

APPEALS AND VALIDATION OF ADOPTION DECREES

161

APPENDIX LEAD CASES

TABLE OF CONTENTS

CHAPTER 1A - BILL F. HEARING

Page

PROTOCOL 1

SCHEDULING A BILL F. HEARING

1

PROTOCOL 2 

ATTENDANCE RECOMMENDED AT A BILL F. HEARING

2

PROTOCOL 3 

CONDUCTING A BILL F. HEARING

2

PROTOCOL 4 

THE COURT'S ORDER FOLLOWING A BILL F. HEARING

3

 

CHAPTER 1A - BILL F. HEARING

 

STATUTORY REFERENCE: RSA 169-C:19-e, Custody Hearing for Parent Not Charged with Abuse or Neglect

LEAD CASE: In re Bill F., 145 N.H. 267, 761 A.2d 470 (2000), parents who have not been charged with abuse or neglect must be afforded, upon request, a full hearing in district court or family division regarding their ability to obtain custody.

PROTOCOL 1 SCHEDULING A BILL F. HEARING

Consistent with In re Bill F. and RSA 169-C:19-e, the court shall schedule, as soon as possible, a Bill F. hearing when there is an open abuse/neglect case against one parent and:

(1) The other birth parent or adoptive parent does not reside with the accused/offending parent and wants to obtain physical custody of his/her child to prevent an out-of-home placement for the child or to terminate such a placement;

(2) The other parent has not been charged with abuse/neglect (hereinafter non-accused parent) of the child for whom custody has been requested;

(3) The non-accused parent requests custody orally or in a written motion to the court; and

(4) The Division for Children, Youth and Families (DCYF) or another party objects to the request for custody or the court wants to hear evidence from the non-accused parent pertaining to his/her ability to care for the child before the court rules on the request for custody.

COMMENT

A non-accused parent may request custody of his/her child at any point after a petition has been filed against the other parent and a Bill F. hearing must be held whenever DCYF or another party objects to this request. If, however, DCYF or another party does not object to the custody but the court wishes to explore the placement plans more fully, the court may, in its discretion, schedule a hearing to consider whether the non-accused parent is otherwise unfit to perform his/her parental duties with respect to the named child.

PROTOCOL 2 ATTENDANCE RECOMMENDED AT A BILL F. HEARING

The following people must receive notice and should be present at a Bill F. hearing; however, failure of the non-accused parent and his/her attorney, if any, to attend the hearing shall result in dismissal of the request for custody absent a showing of good cause to reschedule the hearing:

(1) non-accused parent;

(2) attorney for non-accused parent, if any;

(3) accused/offending parent;

(4) attorney for accused/offending parent;

(5) DCYF attorney;

(6) DCYF caseworker;

(7) GAL or CASA GAL, if appointed; and

(8) others as may be determined by the court.

COMMENT

Pursuant to RSA 169-C:10, II(a), the court is not permitted to appoint an attorney to represent a non-accused parent unless "the parent is a household member and such independent legal representation is necessary to protect the parent's interests." In cases involving a Bill F. hearing, the non-accused parent will not be a household member and therefore will not be entitled to a court-appointed attorney.

PROTOCOL 3 CONDUCTING THE BILL F. HEARING

Pursuant to In re Bill F. and RSA 169-C:19-e, a non-accused parent shall be afforded a full hearing in the district court or family division regarding the ability to obtain physical custody of his/her child. At a full hearing, the court should afford all parties the opportunity to be heard and to present and cross-examine witnesses. At the hearing, known as a Bill F. hearing, the court should consider the following:

(1) If DCYF or another party objects to a parent's request for custody, the party must demonstrate, by a preponderance of the evidence, that the parent requesting custody is otherwise unfit to perform his/her parental duties or has abused/neglected the child. The parent requesting custody shall be provided the opportunity to present evidence pertaining to his/her ability to provide for the child.

If the court does not find, by a preponderance of the evidence, that a parent is otherwise unfit to perform his/her parental duties or has abused/neglected the child, the parent shall be awarded physical custody of his/her child.

(2) If a party does not object to a parent's request for custody but the court wants to hear evidence from the parent pertaining to his/her ability to care for the child, the parent will present this evidence. The parent may also want to present evidence regarding the frequency and nature of contact, if any, between the parent and child, including visits, telephone calls and gifts.

If a parent fails to show credible evidence pertaining to his/her ability to provide for the care of the child, the request for custody will be denied.

COMMENT

Although both case law and RSA 169-C:19-e permit the court at a Bill F. hearing to consider whether a parent has abused/neglected the named child, best practice is for the court to consider current or recent allegations of abuse/neglect only with the support of a petition. Therefore as a practical matter, because a Bill F. hearing is held to address only physical custody and placement issues, it should focus on whether a parent is unfit to perform his/her parental duties. In making this determination, the court may consider evidence about previous allegations and/or petitions of abuse/neglect with respect to the child for whom custody has been requested and/or siblings of that child.

PROTOCOL 4 THE COURT'S ORDER FOLLOWING A BILL F. HEARING

Pursuant to In re Bill F., the court shall make findings of fact supporting its decision, and should consider the following:

(1) How much weight it will give to existing superior court or family division orders relating to custody and visitation; and

(2) Not focus exclusively on whether granting custody to a parent is in the child's best interests, but rather should also consider whether the parent is otherwise unfit to care for his/her child or has engaged in abusive or neglectful conduct.

COMMENT

If a non-accused parent is awarded physical custody after a Bill F. hearing, the child would not be considered to be in an out-of-home placement. A child placed with a biological/adoptive parent is never considered to be in substitute care, even if the child and parent have had little or no contact. In such a case, legal supervision should be awarded to DCYF by the court.

When a child is removed from one parent and placed with another, the court should provide the offending parent with twelve months to correct the conditions that led to the finding of abuse or neglect. If the child during this time resides with the other biological/adoptive parent, it will be on a temporary basis.

If an offending parent is given a twelve-month opportunity to correct the conditions that led to the abuse or neglect, DCYF will be required to make reasonable efforts to reunify the child and offending parent. During this time, the court should conduct a dispositional hearing and periodic review hearings. Additionally, the court should conduct a final review hearing, twelve months from the finding of abuse or neglect. The final review hearing should be distinguished from a permanency hearing, which is only appropriate, pursuant to the Adoption and Safe Families Act of 1997 (ASFA) when a child has remained in an out-of-home placement for an extended period of time.

At a 12-month review hearing, the court should determine whether the offending parent has corrected the conditions that led to the finding of abuse or neglect, whether the child may safely be returned to that parent's custody and whether return of custody is in the child's best interest. In making this determination, the court should refer for guidance to the Standard for Return of a Child, pursuant to RSA 169-C:23, I, II and III.

If the court determines that the child should not be returned to the offending parent but should remain with the other biological/adoptive parent, the court should consider closing the case. This would permit either parent to pursue custody in the superior court or family division.


TABLE OF CONTENTS

CHAPTER 1 - GENERAL PROVISIONS

 

Page

PROTOCOL 1

REFERENCED DAYS

6

PROTOCOL 2

CONTINUANCES

6

PROTOCOL 3

COURTROOM

6

PROTOCOL 4

HEARINGS NOT OPEN TO THE PUBLIC

6

PROTOCOL 5

CONFIDENTIALITY

7

PROTOCOL 6

ATTENDANCE BY ATTORNEYS, CASEWORKERS, AND GUARDIANS AD LITEM (GAL) OR COURT-APPOINTED SPECIAL ADVOCATES (CASA GAL)

7

PROTOCOL 7

PRESENCE OF WITNESSES: SUBPOENA POWER

7

PROTOCOL 8

PUTATIVE FATHER

8

PROTOCOL 9

CONFERENCE CALLS AND VIDEO-CONFERENCING WITH PARENTS

8

PROTOCOL 10

RECORD

8

PROTOCOL 11

EVIDENCE

8

PROTOCOL 12

BURDEN OF PROOF

9

PROTOCOL 13

TESTIMONY BY PARENTS

9

PROTOCOL 14

SERVICE PROVIDERS

9

PROTOCOL 15 

PARENT AND RELATIVE DEFINED

9

PROTOCOL 16

OUT-OF-HOME PLACEMENT DEFINED

10

PROTOCOL 17

PROTECTIVE ORDERS ISSUED AND VIOLATION OF SUCH ORDERS

11

COURT FORM

• Order of Protection (AOC 334-048)

 

CHAPTER 1 - GENERAL PROVISIONS

 

STATUTORY REFERENCES: •RSA 169-C:3,XIV-a, Definitions, Household Member

•RSA 169-C:3,XXI, Definitions, Parent

•RSA 169-C:3, XXVI, Definitions, Relative

•RSA 169-C:11, Subpoena

•RSA 169-C:12, Evidence

•RSA 169-C:12-a, Testimony During Abuse and Neglect Proceedings

•RSA 169-C:13, Burden of Proof

•RSA 169-C:14, Hearings Not Open to the Public

•RSA 169-C:14-a, Recordings of Hearings

•RSA 169-C:19,II(a),(b), Dispositional Hearing

•RSA 169-C:21-a, Violation or Protective Order; Penalty

•RSA 169-C:23, Standard for Return of Child in Placement

•RSA 169-C:25, Confidentiality

•RSA 169-C:26, Continuances

•RSA 170-G:8-a, Record Content; Confidentiality; Rulemaking

•RSA 516, Witnesses

CROSS REFERENCE: •District Court Administrative Order 98-02 and Procedures for a Record dated July 1998

COURT FORM: •Order of Protection (AOC-334-048)

LEAD CASES:In re Gina D., 138 N.H. 697, 645 A.2d 61 (1994), requires that opinion evidence be material and relevant.

In re Melissa M., 127 N.H. 710, 506 A.2d 324 (1986), the court is entitled to the best information available in deciding whether and when a child should be returned to his or her parents.

In re Tracy M., 137 N.H. 119, 624 A.2d 963 (1993), relates to the standard of preponderance of the evidence.

The State of New Hampshire v. Harold J. Baird, 133 N.H. 637, 581 A.2d 1313 (1990), relates to the confidentiality provision of RSA 169-C.

PROTOCOL 1 REFERENCED DAYS

Except where specifically noted, all referenced days in these protocols refer to calendar days.

PROTOCOL 2 CONTINUANCES

Continuances are strongly discouraged and should only be granted, consistent with RSA 169-C:26, for good cause shown, such as unforeseen circumstances. Requests for continuances should not be presumed to be granted, including continuances to which all parties have assented; to the contrary, they should be presumed to be denied absent a showing of good cause.

COMMENT

With the exception of scheduling the initial hearing, all subsequent hearings shall be scheduled by the court, in the courtroom, with all parties in concurrence, and once scheduled, shall remain fixed except for good cause shown and due to unforeseen circumstances. Unforeseen circumstances would include such circumstances as illness or family emergency, and other events which could not possibly be foreseen at the time of scheduling the hearing.

By scheduling hearings with all parties present and committing to the date, there should be no need for continuances based upon a party's scheduling conflict. This saves unnecessary time and money in filing motions to continue, and ensures that these important cases remain on track.

PROTOCOL 3 COURTROOM

RSA 169-C:14 provides that hearings, whenever possible, shall be held in rooms not used for criminal trials. In deciding whether to utilize a courtroom for such hearings, the judge should consider the availability of an electronic record, court security, accommodations of the parties and witnesses, the ability to limit access to the room during the conduct of such hearings, and other relevant considerations.

PROTOCOL 4 HEARINGS NOT OPEN TO THE PUBLIC

Pursuant to RSA 169-C:14, the general public shall be excluded from any hearing under RSA 169-C. Only the parties, their witnesses, counsel, and representatives of the agencies present to perform their duties shall be admitted. The court may exercise its discretion in determining whether to allow anyone other than the immediate parties, counsel, guardians ad litem, and representatives of the Division for Children, Youth and Families (DCYF) to remain in the courtroom at times other than when their presence is needed for testimony. Additionally, the court may exercise its discretion in determining whether to allow other family members, friends, or residential providers to attend the proceedings on a limited basis to provide support to the parents or child.

COMMENT

Effective May 17, 2002, a pilot project in the Grafton County Courts was established in which abuse and neglect cases may be opened to the public "absent a finding that opening the hearing or that disclosure of some or all of the evidence would be contrary to the best interests of the child or would cause unreasonable harm to one or more of the parties." The pilot project shall be in effect until June 30, 2004.

PROTOCOL 5 CONFIDENTIALITY

All parties, witnesses, and others present shall be advised by the court, pursuant to RSA 169-C:25 II, that it shall be unlawful to disclose information concerning the hearing that may identify a child or parent who is involved in the hearing without the permission of the court. Any person who knowingly violates this provision shall be guilty of a misdemeanor.

PROTOCOL 6 ATTENDANCE BY ATTORNEYS, CASEWORKERS, AND GUARDIANS AD LITEM (GAL) OR COURT APPOINTED SPECIAL ADVOCATES (CASA GAL)

The court should consider issuing standard orders to counsel, the guardian ad litem (GAL) or Court Appointed Special Advocate (CASA GAL), and DCYF representatives to appear at the courthouse sufficiently in advance of the commencement of the hearing to allow for the review of court documents, conference with clients, and discussions among all parties.

PROTOCOL 7 PRESENCE OF WITNESSES: SUBPOENA POWER

To ensure that parents, custodians, and other witnesses are present during court hearings, special efforts may be required. RSA 169-C:11 provides that a subpoena may be issued requiring the production of papers and the attendance of any person whose presence is required by the child, the parents or guardian, or any other person whose presence, in the opinion of the court, is necessary. A subpoena may be issued pursuant to RSA 516 upon application of a party or upon the motion of the court.

PROTOCOL 8 PUTATIVE FATHER

The court must order a paternity test for any putative father, defined as the individual who is commonly regarded as a child's father. Pending the results, the court should exercise its discretion in determining what portion of the hearing, if any, the putative father will attend.

PROTOCOL 9 CONFERENCE CALLS AND VIDEO-CONFERENCING WITH PARENTS

If a parent cannot be found or voluntarily absents himself/herself from any hearing, the hearing should proceed without the parent. It is, however, extremely important that putative fathers and non-accused, non-household parents participate in RSA 169-C proceedings and the court must ensure that all available efforts have been made by DCYF to locate these parents. In addition to serving as potential valuable resources for purposes of placement, if putative fathers and non-accused, non-household parents are not brought into the early stages of a case, it is likely a later termination proceeding, if there is one, will be delayed as a result. Where necessary, the court should make every effort to provide for meaningful participation by parents, including the use of conference calls and video conferencing.

PROTOCOL 10 RECORD

CROSS REFERENCE:

•District Court Administrative Order 98-02 and Procedures for a Record dated July 1998

Consistent with District Court Administrative Order 98-02 and the Procedure for a Record dated July 1998, and without regard to whether any party makes a specific request, all hearings conducted pursuant to RSA 169-C must be electronically recorded. Furthermore, pursuant to RSA 169-C:14-a, the court shall notify the parties that a record of the hearing is being preserved and will be made available to them at their request.

PROTOCOL 11 EVIDENCE

Pursuant to RSA 169-C:12, the court is not bound by the technical rules of evidence in any hearing under RSA 169-C and may admit any evidence that it considers relevant and material. Although there is a relaxed evidentiary standard in neglect and abuse proceedings under RSA 169-C:12, and even though the evidence is considered by the court as opposed to a jury, opinion evidence nevertheless must be material and relevant. In re Gina D., 138 N.H. 697, 645 A.2d 61 (1994).

The confidentiality provision of RSA 169-C cannot reasonably be interpreted to prevent relevant evidence relating to a prior action under the statute from being introduced in the criminal prosecution of a party to the earlier juvenile proceeding for a crime arising out of that prior proceeding. The State of New Hampshire v. Harold J. Baird, 133 N.H. 637, 581 A.2d 1313 (1990).

The court is entitled to the best information available in deciding whether and when a child should be returned to his or her parents. In re Melissa M., 127 N.H. 710, 506 A.2d 324 (1986). See In re Brenda H., 119 N.H. 382, 402 A.2d 169 (1979).

PROTOCOL 12 BURDEN OF PROOF

Pursuant to RSA 169-C:13, the petitioner in an abuse or neglect proceeding has the burden of proving the allegations by a preponderance of the evidence.

The supreme court found no constitutional error in the legislature's decision to adopt the preponderance of the evidence standard as the burden of proof in child abuse and neglect cases. In re Tracy M., 137 N.H. 119, 624 A.2d 963 (1993).

PROTOCOL 13 TESTIMONY BY PARENTS

RSA 169-C:12-a provides that testimony by parents who are the subject of an abuse or neglect petition and who are alleged to have abused or neglected a child shall not be admissible against them in criminal proceedings relating to the abuse or neglect allegation. However, the court should carefully advise unrepresented parents, on the record, that any testimony they offer can be used in the course of the abuse and neglect proceedings themselves.

PROTOCOL 14 SERVICE PROVIDERS

The court should encourage parties to fully cooperate with all service providers, either directly or through a motion to the court.

PROTOCOL 15 PARENT AND RELATIVE DEFINED

The term "parent" as used in these protocols shall be defined, pursuant to RSA 169-C:3, XXI, to mean mother, father, adoptive parent, but shall not include a parent as to whom the parent-child relationship has been terminated by judicial decree or voluntary relinquishment.

A relative shall be defined, consistent with RSA 169-C:3, XXVI, as a grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, niece, nephew and first or second cousin.

PROTOCOL 16 OUT-OF-HOME PLACEMENT DEFINED

A. COURT PROCESS WHEN A CHILD IS PLACED IN AN OUT-OF-HOME PLACEMENT

A child is considered to be in an out-of-home placement if the child, as the result of an abuse or neglect petition, is removed from a biological/adoptive parent and placed in substitute care with someone other than a biological/adoptive parent of the child. In such a case, the Division for Children, Youth and Families (DCYF) will be awarded legal custody by the court.

If there is a finding of abuse or neglect and a child is placed in an out-of-home placement, the offending parent will be given twelve months to correct the conditions that led to the finding. During that time, DCYF will be required to make reasonable efforts to reunify the child and offending parent. The court will conduct a dispositional hearing and periodic review hearings.

If a child remains in an out-of-home placement for at least twelve months, the court will conduct a permanency hearing twelve months from the finding. A permanency hearing, pursuant to the Adoption and Safe Families Act of 1997 (ASFA), is designed to address permanency for children and is only appropriate when there is a finding of abuse or neglect AND a child has been in an out-of-home placement for an extended period of time.

B. COURT PROCESS WHEN A CHILD IS NOT PLACED IN AN OUT-OF-HOME PLACEMENT

A child is not considered to be in an out-of-home placement if, as the result of an abuse or neglect petition, the child is removed from one biological/adoptive parent and placed with another biological/adoptive parent. A child placed with a biological/adoptive parent is never considered to be in substitute care, even if the child and parent have had little or no contact. In such a case, legal supervision should be awarded to DCYF by the court.

When a child is removed from one parent and placed with another, the court should provide the offending parent with twelve months to correct the conditions that led to the finding of abuse or neglect. If the child during this time resides with the other biological/adoptive parent, it will be on a temporary basis.

If an offending parent is given a twelve-month opportunity to correct the conditions that led to the abuse or neglect, DCYF will be required to make reasonable efforts to reunify the child and offending parent. During this time, the court should conduct a dispositional hearing and periodic review hearings. Additionally, the court should conduct a final review hearing twelve months from the finding of abuse or neglect.

At a 12-month review hearing, the court should determine whether the offending parent has corrected the conditions that led to the finding of abuse or neglect, whether the child may safely be returned to that parent's custody and whether return of custody is in the child's best interest. In making this determination, the court should refer for guidance to the Standard for Return of a Child, pursuant to RSA 169-C:23, I, II and III.

If the court determines that the child should not be returned to the offending parent but should remain with the biological/adoptive parent, the court should consider closing the case. This would permit either parent to pursue custody in the superior court or family division.

PROTOCOL 17 PROTECTIVE ORDERS ISSUED AND VIOLATION OF SUCH ORDERS

COURT FORM:

• Order of Protection (AOC-334-048)

A. PROTECTIVE ORDERS ISSUED BY A COURT

Pursuant to RSA 169-C:16, I(d)(1) and RSA 169-C:19, II(a)(1), an order of protection may be issued setting forth conditions of behavior by a:

1) parent;

2) relative;

3) sibling;

4) guardian;

5) custodian, or

6) household member.

A household member, pursuant to RSA 169-C:3, XIV-a, means any person living with the parent, guardian, or custodian or the child from time to time or on a regular basis, who is involved occasionally or regularly with the care of the child.

If an order is made affecting such a person not before the court, it shall be served on such person by a law enforcement officer. A hearing to challenge the order may be requested in writing and shall be held within five (5) days of the request. A request for a hearing shall not stay the effect of the order.

B. VIOLATION OF A PROTECTIVE ORDER AND PENALTY

Pursuant to RSA 169-C:21-a, a person shall be guilty of a Class A misdemeanor if such person knowingly violates a protective order issued under RSA 169-C:16, I(d)(1) or RSA 169-C:19, II(a)(1).

1) Arrest and Detention Procedure

When a person subject to a protective order under RSA 169-C:16, I(d)(1) or RSA 169-C:19, II(a)(1) violates a protective order issued or enforced under this chapter, peace officers shall arrest the defendant and ensure that the defendant is detained until arraignment. Such arrests may be made within six (6) hours without a warrant upon probable cause, whether or not the violation is committed in the presence of a peace officer.

2) Seizure of Firearms, Ammunition and Deadly Weapons

Subsequent to an arrest, the peace officer shall seize any firearms and ammunition in the control, ownership, or possession of the defendant and any deadly weapons which may have been used, or were threatened to be used, during the violation of the protective order.

3) Enhanced Penalties

Any person convicted of knowingly violating a protective order issued under this chapter, or who has been convicted in another jurisdiction of violating a protective order enforceable under the laws of the state, who, within six (6) years of such conviction or the completion of the sentence imposed for such conviction, whichever is later, subsequently commits and is convicted of one or more offenses under this chapter may be charged with an enhanced penalty for each subsequent offense.


TABLE OF CONTENTS

CHAPTER 2 - PETITION, SUMMONS, COURT'S APPOINTMENT OF
COUNSEL FOR PARENTS, GAL OR CASA GAL AND COUNSEL FOR CHILD

 

Page

PROTOCOL 1

JURISDICTION

13

PROTOCOL 2

PETITION

14

PROTOCOL 3

THE COURT'S ISSUANCE OF SUMMONS AND REQUESTS TO LAW ENFORCEMENT

14

PROTOCOL 4

THE COURT'S APPOINTMENT OF COUNSEL FOR PARENTS

15

PROTOCOL 5

THE COURT'S APPOINTMENT OF A GUARDIAN AD LITEM (GAL) OR COURT APPOINTED SPECIAL ADVOCATE (CASA GAL)

16

PROTOCOL 6

THE COURT'S APPOINTMENT OF COUNSEL FOR A CHILD

17

COURT FORMS

•Notice to Accused Parent (AOC-326-048)

•Notice to Non-Accused Parent Who is a Household Member (AOC-327-048)

•Notice to Non-Accused, Non-Household Parent (AOC-328-048)

 

CHAPTER 2 - PETITION, SUMMONS, COURT'S APPOINTMENT OF
COUNSEL FOR PARENTS, GAL OR CASA GAL AND COUNSEL FOR CHILD

 

STATUTORY REFERENCES: •RSA 169-C:3,XIV-a, Definitions, Household Member

•RSA 169-C:4, Jurisdiction, Continued Jurisdiction, Modification

•RSA 169-C:7,I, Petition

•RSA 169-C:8, Issuance of Summons and Notice

•RSA 169-C:10,I, Attorneys and Guardians ad Litem

•RSA 169-C:10,II, II(a), Attorneys and Guardians ad Litem

•RSA 169-C:15,III(a), Preliminary Hearing

CROSS REFERENCES: •District Court Rule 3.8C, Amendments

•Chapter 5, Preliminary Hearing

COURT FORMS: •Notice to Accused Parent (AOC-326-048)

•Notice to Non-Accused Parent Who is a Household Member (AOC-327-048)

•Notice to Non-Accused, Non-Household Parent  (AOC-328-048)

LEAD CASE:In re Shelby R., 148 N.H. 237, 804 A.2d 435 (2002), due process requires the appointment of counsel for a stepparent accused of abuse or neglect under RSA Chapter 169-C.

PROTOCOL 1 JURISDICTION

Pursuant to RSA 169-C:4, the district court shall have exclusive original jurisdiction over all proceedings alleging the abuse or neglect of a child, except in Grafton and Rockingham counties, where the family division's jurisdiction shall include abuse and neglect cases.

PROTOCOL 2 PETITION

CROSS REFERENCE:

•District Court Rule 3.8C, Amendments

Pursuant to RSA 169-C:7,I, a 169-C proceeding is originated by any person filing a petition alleging abuse or neglect, with a judge or clerk in the judicial district in which the child is found or resides. The petition shall be verified under oath by the petitioner.

To be legally sufficient, the petition shall set forth the facts alleged to constitute abuse or neglect, and the statutory grounds upon which the petition is based. The petition shall also include, to the extent known, the following:

(1) the name, birth date, and address of the child;

(2) the name and address of any custodial parent;

(3) the name and address of any other individual or agency having custody of the child;

(4) the name of any non-custodial parent; and

(5) the name of any household member who is subject to the order. A household member, pursuant to RSA 169-C:3,XIV-a, means any person living with the parent, guardian, or custodian of the child from time to time or on a regular basis, who is involved occasionally or regularly with the care of the child.

COMMENT

Pursuant to District Court Rule 3.8C, amendments in matters of substance may be made on such terms as justice may require.

PROTOCOL 3 THE COURT'S ISSUANCE OF SUMMONS AND REQUESTS TO LAW ENFORCEMENT

CROSS REFERENCE:

•Chapter 5, Preliminary Hearing

When a petition is filed, the clerk shall, consistent with RSA 169-C:8:

(1) issue a summons, by the end of the next business day, to all persons named in the petition and such others who may be necessary;

(2) give the petition, summons and Notice Form (Notice to Accused Parent, Notice to Non-Accused Parent Who is a Household Member or Notice to Non-Accused, Non-Household Member) to the appropriate law enforcement authority with a request to serve it personally, or if this is not possible, at the usual place of abode, upon those named in the petition within 24 hours; and

(3) give instructions to the law enforcement authority to fax or deliver to the court the return of service immediately upon completion of service. If the return of service is faxed, the original should be subsequently mailed to the court.

COMMENT

When neither personal service nor service at the usual place of abode is possible, courts are encouraged to order service by certified mail to the parent's last known address or publication once a week for two successive weeks in a newspaper of general circulation in the area where that person was last domiciled.

PROTOCOL 4 THE COURT'S APPOINTMENT OF COUNSEL FOR PARENTS

A. MANDATORY APPOINTMENT OF COUNSEL

In any case where it is alleged that a parent has abused or neglected his/her child, the clerk shall provide an affidavit of financial resources for appointment of counsel to the named parent or parents.

Upon receipt of a completed financial affidavit, the clerk shall immediately:

(1) determine eligibility for counsel;

(2) contact counsel by telephone and forward all pertinent documents and pleadings by fax; and

(3) inform the parent of counsel's name, address, and telephone number. In the first instance, the clerk should attempt to reach the parent by telephone. In all cases, the clerk should follow-up with notice to the parent by the end of that business day.

COMMENT

Pursuant to In re Shelby R., 148 N.H. 237, 804 A.2d 435 (2002), due process requires the appointment of counsel to a stepparent accused of abuse or neglect under RSA Chapter 169-C.

B. DISCRETIONARY APPOINTMENT OF COUNSEL

Consistent with RSA 169-C:10,II(a), the court may, in its discretion, appoint counsel for an indigent parent who is not accused of abusing or neglecting his/her child if the parent is a household member and such independent legal representation is necessary to protect that parent's interest. This protocol makes such an appointment mandatory if the parent qualifies financially for such counsel. In such cases and when instructed by a judge, the clerk shall provide an affidavit of financial resources for appointment of counsel to such person.

Upon receipt of the financial affidavit and request, the clerk shall immediately:

(1) determine eligibility for counsel;

(2) contact counsel by telephone and forward all pertinent documents and pleadings by fax; and

(3) inform the parent of counsel's name, address, and telephone number. In the first instance, the clerk should attempt to reach the parent by telephone. In all cases, the clerk should follow-up with notice to the parent by the end of that business day.

Pursuant to RSA 169-C:10, II (a), the court may not appoint an attorney to represent any other persons involved in a case brought under RSA 169-C, including, but not limited to, a non-accused, non-household parent.

PROTOCOL 5 THE COURT'S APPOINTMENT OF A GUARDIAN AD LITEM (GAL) OR COURT APPOINTED SPECIAL ADVOCATE (CASA GAL)

Immediately upon the filing of a petition, the clerk shall appoint a guardian ad litem (GAL) or court appointed special advocate (CASA GAL). The clerk shall:

(1) determine whether a GAL or CASA GAL has been appointed for the child named in the petition for other purposes, including prior abuse or neglect cases involving this family; and, if so, shall appoint the same GAL or CASA GAL in the abuse and neglect case;

(2) telephonically notify the GAL or CASA GAL program of the appointment; and

(3) fax copies of all pertinent documents and pleadings to the GAL or CASA GAL program before the end of the business day on which the petition is filed.

COMMENT

RSA 169-C:10,I, requires that in every case brought pursuant to the Child Protection Act, the court shall appoint a GAL or CASA GAL. This protocol reflects the mandatory appointment of a guardian ad litem and sets forth the procedure to be followed by a clerk when making such an appointment. Clerks are strongly encouraged to appoint a CASA GAL to abuse and neglect cases whenever possible. When such an appointment is made, the court should ensure that the CASA GAL receives discovery in a timely manner.

Although RSA 169-C:15,III(a) calls for the appointment of a guardian ad litem for the child upon a finding of reasonable cause that the child is abused or neglected, this protocol requires that the guardian ad litem be appointed immediately and, if possible, be present at the preliminary hearing.

PROTOCOL 6 THE COURT'S APPOINTMENT OF COUNSEL FOR A CHILD

Pursuant to RSA 169-C:10,II(a), in cases involving an abused or neglected child, where the child's expressed interests conflict with the recommendation for dispositional orders of the GAL or CASA GAL, the court may appoint an attorney to represent the interests of the child.


TABLE OF CONTENTS

CHAPTER 3 - PROTECTIVE CUSTODY BY THE POLICE AND THE 24-HOUR
PROTECTIVE CUSTODY HEARING

 

Page

PROTOCOL 1

PROTECTIVE CUSTODY BY THE POLICE

18

PROTOCOL 2

REQUEST BY POLICE FOR COURT ORDER FOR CONTINUED PROTECTIVE CUSTODY

19

PROTOCOL 3

SCHEDULING THE 24-HOUR PROTECTIVE CUSTODY HEARING

20

PROTOCOL 4  

NOTICE OF THE 24-HOUR PROTECTIVE CUSTODY HEARING

21

PROTOCOL 5

SUBMISSION OF POLICE AFFIDAVIT AND/OR POLICE REPORT AT THE 24-HOUR PROTECTIVE CUSTODY HEARING

21

PROTOCOL 6

THE COURT'S INQUIRY AT THE 24-HOUR PROTECTIVE CUSTODY HEARING

21

PROTOCOL 7  

THE COURT'S WRITTEN ORDER FOLLOWING THE 24-HOUR PROTECTIVE CUSTODY HEARING

22

COURT FORMS

•Protective Custody Telephonic Ex Parte Order (AOC-338-048)

•24-Hour Protective Custody Hearing Order (AOC-324-048)

 

 

CHAPTER 3 - PROTECTIVE CUSTODY BY THE POLICE AND THE 24- HOUR
PROTECTIVE CUSTODY HEARING

 

STATUTORY REFERENCES: •RSA 169-C:6, Protective Custody

•RSA 169-C:6,I,II, III & IV, Protective Custody

•RSA 169-C:6-a, Emergency Interim Relief

•RSA 169-C:7, Petition

CROSS REFERENCE: •Chapter 5, Preliminary Hearing

COURT FORMS: •Protective Custody Telephonic Ex Parte Order
(AOC-338-048)

•24-Hour Protective Custody Hearing Order
(AOC-324-048)

INTRODUCTION

The procedure for commencing a court action under the Child Protection Act (RSA 169-C) will depend upon whether the child has been removed from the home because of emergency circumstances (RSA 169-C:6 and 6-a) or remains in the home at the time the abuse and/or neglect petition is filed (RSA 169-C:8).

This Chapter is designed to outline cases that involve a child who has been removed from home and taken into protective custody by a police officer, pursuant to RSA 169-C:6, before the court is contacted.

Chapter 4 addresses cases that involve an ex parte request by DCYF or a police officer before a child is removed from the home because of emergency circumstances, pursuant to RSA-C:6-a.

Chapter 5 is designed to outline cases in which a child remains in the home at the time the petition is filed, pursuant to RSA 169-C:8.

PROTOCOL 1 PROTECTIVE CUSTODY BY THE POLICE

RSA 169-C:6,I, provides that a child may be taken into protective custody by the police without the consent of the parents, if:

(a) the child is in such circumstances or surroundings as would present imminent danger to the child's health or life unless immediate action is taken; and

(b) there is not enough time to petition the court for an ex parte order.

Requirements of Police After a Child is Taken Into Custody

If a police officer removes a child, pursuant to RSA 169-C:6, II(a) and (d), the police officer shall:

(1) inform the court immediately, whereupon continued protective custody pending a hearing may be ordered by the court;

(2) when the child is removed from an individual other than a parent, make every effort to inform the parent where the child has been taken; and

(3) at the beginning of the next business day, fax to the judge the officer's affidavit and/or copy of the police report.

COMMENTS

A police officer who removes a child may, pursuant to RSA 169-C:6 II(b) and (c), take a child to a DCYF social worker or may place the child in a foster home. If a child is placed directly in a foster home, DCYF shall be notified of the incident and where the child is placed within 24 hours, unless there is a physician involved and treating the child, and the child is or will be taken to and admitted to a hospital.

Pursuant to RSA 169-C:6, III, an individual acting in good faith pursuant to this section, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as a result of such removal or placement.

Although the statute permits a juvenile probation and parole officer (JPPO) to take a child into protective custody, in practice it is discouraged.

PROTOCOL 2 REQUEST BY POLICE FOR COURT ORDER FOR CONTINUED PROTECTIVE CUSTODY

COURT FORM:

•Protective Custody Telephonic Ex Parte Order (AOC-338-048)

Request by Police for Court Order

When a police officer takes a child into protective custody, pursuant to RSA 169-C:6, the police officer must contact a judge immediately to request an order allowing the continued protective custody of the child. In most cases, this contact will be made by telephone and will result in a telephonic ex parte order from the court. At the beginning of the next business day, the police officer must fax to the judge a copy of the officer's affidavit and/or police report.

Court's Order to Continue Protective Custody

If a judge allows for and orders the continued protective custody of a child, the judge shall, by the beginning of the next business day:

(1) notify the clerk that a 24-hour protective custody hearing must be scheduled; and

(2) memorialize in writing the reasons given for the initial removal and why continuation in the home is contrary to the child's welfare. In most cases contact in these cases will have been made by telephone and will result in a telephonic ex parte order. This order will be reviewed at the 24-hour protective custody hearing.

If a judge makes an order for a court other than the judge's court, the written telephonic ex parte order (and the officer's affidavit and/or copy of the police report) shall be faxed to the court with jurisdiction at the judge's first opportunity on the next business day. Upon receipt, the clerk shall immediately fax a copy of the judge's order (and the officer's affidavit, and/or copy of the police report) to the DCYF district office.

PROTOCOL 3 SCHEDULING THE 24-HOUR PROTECTIVE CUSTODY HEARING

When a child is taken into protective custody and the court orders the continued protective custody of the child, a hearing must be held, pursuant to RSA 169-C:6, IV, within 24 hours of taking the child into protective custody, Sundays and holidays excluded. This hearing is the 24-hour protective custody hearing.

For a child taken into protective custody on Friday evening, the 24-hour protective custody hearing should be scheduled as follows:

(1) If a child is taken into protective custody before midnight on Friday, the 24-hour protective custody hearing should be held on Saturday morning; and

(2) If a child is taken into protective custody after midnight on Friday, the 24-hour protective custody hearing should be held on Monday.

PROTOCOL 4 NOTICE OF THE 24-HOUR PROTECTIVE CUSTODY HEARING

Pursuant to RSA 169-C:6, IV, notice of the 24-hour protective custody hearing shall be given to all parties designated by the petitioner or the court. The police officer shall notify the child's parents and DCYF about the hearing.

PROTOCOL 5 SUBMISSION OF POLICE AFFIDAVIT AND/OR POLICE REPORT AT THE 24-HOUR PROTECTIVE CUSTODY HEARING

If not already done, the police officer who took a child into protective custody shall submit at the 24-hour protective custody hearing an affidavit and/or a copy of the police report supporting the reasons for removal.

If the police officer does not attend the 24-hour protective custody hearing but DCYF does, DCYF shall submit a copy of the police affidavit and/or a copy of the police report supporting the reasons for removal if not already submitted to the court.

PROTOCOL 6 THE COURT'S INQUIRY AT THE 24-HOUR PROTECTIVE CUSTODY HEARING

The focus of the 24-hour protective custody hearing is limited to determining whether sufficient facts exist to continue the protective custody order, a consideration of alternatives to removal, and consideration of placement with family members. The court should consider at this hearing the court's order from the previous night, the police officer's affidavit and/or a copy of the police report supporting the reasons for removal.

The following questions should be considered by the court at the 24-hour protective custody hearing:

1. Do the child's circumstances or surroundings present an imminent danger to the child's health or life?

2. Is continuation in the home contrary to the welfare of the child?

3. Will the child remain in the protective custody of the State and if so, will the child continue to be placed? Is the placement the least disruptive one that meets the needs of the child?

4. What are the immediate needs of the child (medical, dental, emotional, other)? Are orders needed for examinations, evaluations, or immediate services for the child? Also, are authorizations from a parent required for medical procedures, including a parent's insurance information?

5. Are orders appropriate which would limit access to the child or which would remove the alleged perpetrator from the home?

6. Are there any outstanding bail conditions in any pending criminal matters?

COMMENT

Under the current statutory scheme, the issues discussed at the 24-hour protective custody hearing will be revisited at the preliminary hearing five (5) days later in much more detail when counsel and the GAL or CASA/GAL are expected to be present. The intervening five (5) days should give DCYF an opportunity to decide whether there are services it can offer to assure the safety of the child without needing to retain the child in protective custody and determine if there are alternatives to foster care.

PROTOCOL 7 THE COURT'S WRITTEN ORDER FOLLOWING THE 24-HOUR PROTECTIVE CUSTODY HEARING

COURT ORDER:

•24-Hour Protective Custody Hearing Order (AOC-324-048)

CROSS REFERENCE:

Chapter 5, Preliminary Hearing

The court's order shall be written in language which allows all parties to fully understand the findings of fact and orders, which should include the following:

FINDINGS OF FACT:

(1) specify whether there continues to be reasonable cause to believe that the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life; and

(2) specify whether continuation of the child in the home is contrary to the child's welfare.

 

COMMENT

If the court does not make a "contrary to the welfare" determination, as federal law requires, in its first court ruling that sanctions, even temporarily, the removal of a child from her/his home, the child will be ineligible for Title IV-E foster care maintenance payment for her/his ENTIRE STAY IN FOSTER CARE. Additionally, the court may want to make a determination with regard to reasonable efforts to prevent removal of a child from the home. A reasonable efforts determination must be made within 60 days of a child's removal from the home. If such a determination is not made, the child will be ineligible for Title IV-E foster care maintenance payments for her/his entire stay in foster care.

ORDERS:

(1) describe whether the child shall remain in the protective custody of the State and whether DCYF shall be awarded legal custody and if so, where the child is to be placed and whether it is the least disruptive placement that meets the needs of the child;

(2) describe whether DCYF shall be awarded legal supervision and whether the child will be permitted to remain in his/her home or will be placed in the physical custody of the other biological/adoptive parent. The child shall not be considered to be in an out-of-home placement if placed with the other biological/adoptive parent since a child placed with a parent is never considered to be in substitute care, even if the child and parent have had little or no contact;

(3) specify any additional medical treatment or other health care services (medical, dental, emotional, other) needed to address the immediate needs of the child;

(4) if a petition is to be filed, require that it be filed, pursuant to RSA 169-C:7, within 72 hours of the order, Sundays and holidays excluded; and

(5) set the date and time of the preliminary hearing, which shall be scheduled, consistent with RSA 169-C:6-a, III, no later than five (5) days from the date of the telephonic ex parte order, excluding Saturdays, Sundays and holidays.


TABLE OF CONTENTS

CHAPTER 4 - EX PARTE REQUEST BY DCYF OR A POLICE OFFICER

 

Page

PROTOCOL 1

REQUEST FOR EX PARTE ORDER BY DCYF OR A POLICE OFFICER

24

PROTOCOL 2

EVIDENCE REQUIRED TO BE PRESENTED WHEN EX PARTE ORDER REQUESTED

25

PROTOCOL 3

THE COURT'S INQUIRY

25

PROTOCOL 4

THE COURT'S EX PARTE ORDER

27

COURT FORM

• Ex Parte Order (AOC-318-048)

 

CHAPTER 4 - EX PARTE REQUEST BY DCYF OR A POLICE OFFICER

 

STATUTORY REFERENCES: •RSA 169-C:6,V, Protective Custody

•RSA 169-C:6-a,I, Emergency Interim Relief

•RSA 169-C:6-a,III&IV, Emergency Interim Relief

•RSA 169-C:7, Petition

•RSA 490:27-a, Validity of Faxed Warrants and Orders

CROSS REFERENCE: •Chapter 5, Preliminary Hearing

COURT FORM: •Ex Parte Order (AOC-318-048)

INTRODUCTION

An ex parte request may be made by DCYF or a police officer when it is believed there is an imminent danger to a child's health or life and where there is not sufficient time to notify the child's parent, guardian or custodian prior to the order.

PROTOCOL 1 REQUEST FOR EX PARTE ORDER BY DCYF OR A POLICE OFFICER

Pursuant to RSA 169-C:6, V, if a child is found by DCYF to be in imminent danger in such circumstances or surroundings and where immediate removal appears necessary to protect the child, DCYF must contact a court immediately for an order to remove the child. Ex Parte means that due to the emergency circumstances that a child is in, DCYF makes a request of the court to remove a child without the involvement of and/or notification to the child's parents.

A police officer may also petition the court for an ex parte order, pursuant to RSA 169-C:6-a, I.

A. FACSIMILE TRANSMISSION PERMITTED OF EX PARTE REQUEST AND ORDER

Pursuant to RSA 490:27-a, ex parte placement orders, pursuant to RSA 169-C, may be applied for and granted by facsimile transmission and courts are encouraged to accept such ex parte requests.

PROTOCOL 2 EVIDENCE REQUIRED TO BE PRESENTED WHEN EX PARTE ORDER REQUESTED

Consistent with RSA 169-C:6, V and RSA 169-C:6-a,I, the DCYF caseworker or police officer seeking an ex parte order shall, to the extent known, present the following evidence to the court in writing with sworn signature or orally under oath:

(1) a statement of the specific danger requiring either immediate placement of the child or the removal of the alleged perpetrator;

(2) why there is not sufficient time to notify the parent, guardian, or custodian prior to the ex parte order;

(3) the names and addresses of custodial parents, non-household parents, putative fathers, legal custodians, other custodians of the child, and any other person responsible for the welfare of the child at the time of removal; and

(4) when removal of the child is requested, those alternatives to an out-of-home placement which were considered, such as removal of the alleged perpetrator or placement of the child with relatives or others with whom the child is familiar.

PROTOCOL 3 THE COURT'S INQUIRY

The court must hear evidence through offers of proof to evaluate the danger to the child and to examine whether there are any other means of protecting the child without removal. The following inquiries should be made by the court when there is a request for ex parte orders:

1. Is there reasonable cause to believe that the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life? Is continuation in the home contrary to the welfare of the child?

2. Is there reasonable cause to believe that the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life, which require the immediate removal of the alleged perpetrator?

Are restraining orders or orders expelling an allegedly abusive parent from home appropriate?

It may be that the child can be placed safely with the non-offending parent. In such a case, the child would not be considered to be in an out-of-home placement since a child placed with a biological/adoptive parent is never considered to be in substitute care, even if the child and parent have had little or no contact.

3. Are there any appropriate relatives available?

The court should make specific inquiry into the availability of an appropriate relative placement. Any proposed caretaker for the child, including any relative or kin, should be assessed for child maltreatment, domestic violence, substance abuse and a criminal record. To conduct a criminal record check, DCYF will need to have a release signed.

4. Is the placement proposed by DCYF the least disruptive and most family-like setting that meets the needs of the child?

In order of preference, after a family or relative, are foster family placements. Children should generally not be placed in group home shelters; however, if the most appropriate placement is not immediately available, the court should make certain that appropriate referrals are made so that the child can be moved to a preferred placement when one becomes available.

5. What are the immediate needs of the child (medical, dental, emotional, other)? Are orders needed for examinations, evaluations, or immediate services for the child? Also, are authorizations from a parent required for medical procedures, including a parent's insurance information?

The court shall inquire as to whether the child, parents, guardian or custodian subject to the ex parte order should submit to a mental health evaluation, or undergo a physical examination or treatment. If such evaluations or examinations are necessary to assess, among other considerations, the child's need for immediate treatment or to determine the fitness of a parent to provide immediate care for the child, the court should order the evaluations and/or examinations.

A written assessment of the evaluations and/or examinations shall be provided to the court, through DCYF. DCYF's report shall include copies of reports in their entirety from all service providers for the child and family with whom DCYF has contracted for services.

The court shall also inquire whether additional orders are needed concerning the conduct of the parents or DCYF's efforts to provide services.

6. Are there any outstanding bail conditions in any pending criminal matters?

COMMENTS

1. The Child Protection Act (RSA 169-C) recognizes that in certain emergency situations, it may be necessary to take immediate steps to protect a child. It may be necessary to immediately remove a child from the home or to expel from the home a parent who is alleged to have abused or neglected the child. The act counterbalances this recognition with the caution that while quick and decisive action is sometimes necessary for the protection of the child, removal can have a drastic impact upon the family. Precipitous and unplanned removal of the child from home or forcible removal of a parent is always traumatic. Once such action is taken, it is difficult to reverse.

The procedure established by statute and refined by these protocols requires that the court:

(a) act quickly to ensure the protection of the child;

(b) provide prompt procedural protection for parents consistent with the safety of the child;

(c) move proceedings forward as quickly as possible; and

(d) make as careful and considered a decision as emergency circumstances allow.

2. These issues will be revisited at the preliminary hearing that will be held no later than five (5) days in much more detail when counsel and the GAL or CASA GAL are expected to be present. The intervening five (5) days should give the State an opportunity to decide whether there are services it can offer to assure the safety of the child without needing to continue the placement.

PROTOCOL 4 THE COURT'S EX PARTE ORDER

COURT FORM:

•Ex Parte Order (AOC-318-048)

CROSS REFERENCE:

•Chapter 5, Preliminary Hearing

Consistent with RSA 169-C:6-a, the court shall make the following findings of fact and orders:

FINDINGS OF FACT:

(1) specify whether there is reasonable cause to believe that the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life, which require the immediate placement of the child;

(2) specify whether there is reasonable cause to believe that the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life, which require the immediate removal of the alleged perpetrator; and

(3) specify whether continuation in the home is contrary to the welfare of the child.

COMMENT

If the court does not make a "contrary to the welfare" determination, as federal law requires, in its first court ruling that sanctions, even temporarily, the removal of a child from her/his home, the child will be ineligible for Title IV-E foster care maintenance payment for her/his ENTIRE STAY IN FOSTER CARE. Additionally, the court may want to make a determination with regard to reasonable efforts to prevent removal of a child from the home. A reasonable efforts determination must be made within 60 days of a child's removal from the home. If such a determination is not made, the child will be ineligible for Title IV-E foster care maintenance payments for her/his entire stay in foster care.

ORDERS:

(1) describe whether DCYF shall be awarded legal custody and if so, where the child is to be placed and whether it is the least disruptive placement that meets the needs of the child;

(2) describe whether DCYF shall be awarded legal supervision and whether the child will be permitted to remain in his/her home with the accused parent or placed in the physical custody of the other biological/adoptive parent. A child shall not be considered to be in an out-of-home placement if placed with a biological/adoptive parent since a child placed with a parent is never considered to be in substitute care, even if the child and parent have had little or no contact;

(3) describe whether the alleged perpetrator shall be immediately removed from the home and/or required to stay away from the child and not have any contact with the child;

(4) specify any medical treatment or other health care services (medical, dental, emotional, other) deemed necessary;

(5) if a petition is to be filed, pursuant to RSA 169-C:7, it must be filed within 72 hours of the issuance of the ex parte order, Sundays and holidays excluded; and

(6) a preliminary hearing must be scheduled no later than five (5) days from the date of the ex parte orders, excluding Saturdays, Sundays and holidays.

COMMENT

The court may issue its order orally by telephone, in person or by facsimile transmission.


TABLE OF CONTENTS

CHAPTER 5 - PRELIMINARY HEARING

 

Page

PROTOCOL 1

SCHEDULING THE PRELIMINARY HEARING IN REMOVAL CASES

31

PROTOCOL 2

SCHEDULING THE PRELIMINARY HEARING IN NON-REMOVAL CASES

31

PROTOCOL 3

ATTENDANCE REQUIRED AT THE PRELIMINARY HEARING

32

PROTOCOL 4

THE COURT'S REQUIREMENT OF DCYF TO MAKE SPECIAL EFFORTS TO LOCATE A NON-ACCUSED, NON-HOUSEHOLD PARENT AND/OR PUTATIVE FATHER(S) AND TO SUBMIT AN AFFIDAVIT DESCRIBING ITS EFFORTS

33

PROTOCOL 5

ATTENDANCE RECOMMENDED AT THE PRELIMINARY HEARING

34

PROTOCOL 6

THE COURT'S DETERMINATION THAT EACH PARENT UNDERSTANDS THE POSSIBLE CONSEQUENCES TO HER/HIS PARENTAL RIGHTS

34

PROTOCOL 7

THE COURT'S INQUIRY AT THE PRELIMINARY HEARING

35

PROTOCOL 8

THE COURT'S WRITTEN ORDER FOLLOWING THE PRELIMINARY HEARING

38

COURT FORMS

•Acknowledgement of Possible Consequences to Parental Rights in Abuse and Neglect Cases (AOC-304-048)

•Preliminary Hearing Order (AOC-315-048)

•Financial Affidavit

•Right to an Attorney in an Abuse or Neglect Case (AOC-328-048)

•Order of Protection (AOC-334-048)

 

CHAPTER 5 - PRELIMINARY HEARING

 

STATUTORY REFERENCES: •RSA 169-C:6,IV, Protective Custody

•RSA 169-C:6-a, Emergency Interim Relief

•RSA 169-C:6-a,III&IV, Emergency Interim Relief

•RSA 169-C:7, Petition

•RSA 169-C:8, Issuance of Summons and Notice

•RSA 169-C:8,I, Issuance of Summons and Notice

•RSA 169-C:15, Preliminary Hearing

•RSA 169-C:15,III(a),IV&V, Preliminary Hearing

•RSA 169-C:16, Preliminary Disposition

•RSA 169-C:16,I(a)(b)(c)(d)&IV, Preliminary Disposition

•RSA 169-C:20, Disposition of Educationally Disabled Child

•RSA 169-C:28, Appeals

COURT FORMS: •Acknowledgement of Possible Consequences to Parental Rights in Abuse and Neglect Cases (AOC-304-048)

•Preliminary Hearing Order (AOC-315-048)

•Financial Affidavit

•Right to an Attorney in an Abuse or Neglect Case (AOC-328-048)

•Order of Protection (AOC-334-048)

INTRODUCTION

This Chapter sets forth the procedure to be followed in preliminary hearings. Although RSA 169-C:8 on its face seems to instruct the court on the procedure to be followed in both non-removal and removal cases, that section of the statute, if read in that manner, would be inconsistent with RSA 169-C:6,IV, which clearly requires that if a child is placed in protective custody, a hearing must be held within 24 hours. Furthermore, RSA 169-C:6-a,III and IV clearly set forth time frames for the filing of a petition and scheduling of a preliminary hearing in removal cases. Therefore, these protocols treat the time standards set forth in RSA 169-C:8 as applying only to those cases where the child has not been removed from the home by protective custody or an ex parte order.

PROTOCOL 1 SCHEDULING THE PRELIMINARY HEARING IN REMOVAL CASES

The court shall schedule the preliminary hearing in removal cases as follows:

(1) no later than five (5) days from the date of the telephonic ex parte orders, excluding Saturdays, Sundays and holidays, when a child is taken into protective custody by the police; and

(2) no later than five (5) days from the date of the ex parte orders, excluding Saturdays, Sundays and holidays, when DCYF or the police request ex parte orders to remove a child or an alleged perpetrator from the home.

Based on national guidelines, the approximate length of time for a preliminary hearing is 60 minutes.

COMMENT

In light of the fact that in these cases, a petition, pursuant to RSA 169-C:7, may not have been filed until 72 hours after the court's orders, this protocol suggests that the preliminary hearing be held near the end of the 5-day period.

PROTOCOL 2 SCHEDULING THE PRELIMINARY HEARING IN NON-REMOVAL CASES

Pursuant to RSA 169-C:8,I, the clerk shall:

(1) schedule the preliminary hearing no later than seven (7) calendar days after the petition is filed, Sundays and holidays excluded; or

(2) if service cannot be completed within 24 hours of receipt by law enforcement, the clerk shall revert to scheduling the preliminary hearing under the parameters set forth by RSA 169-C:8, i.e., measure the time for the hearing from the date of return of service.

Based on national guidelines, the approximate length of time for a preliminary hearing is 60 minutes.

 

COMMENT

This protocol is designed to encourage the speedy scheduling of preliminary hearings in non-removal cases. Under the current statute (RSA 169-C:8), the preliminary hearing is required to be set not less than 24 hours, nor more than 7 days, after return of service of the petition. Thus, the "clock" for scheduling the preliminary hearing in these cases does not begin to run until the date of return of service. Read literally, this would require the court to wait for the police to return service before scheduling the preliminary hearing in order to assure the time frames were met. Theoretically, under RSA 169-C:8, a non-removal petition once filed, if not acted upon by the clerk for a period of time, will have no impact on the statutory time frames. This protocol intentionally shifts the starting "clock" to the date of filing in order to be consistent with the overall goal of the speedy resolution of these matters.

The practice in the district court and family division has been for the clerk to set the date for the preliminary hearing before delivering the petition to the police for service. Working cooperatively, the law enforcement community and the court have ensured that service is made in a timely manner. This protocol adopts that general practice and anticipates that the clerk will consult with the process serving police agency before setting the preliminary hearing date to ensure that the date set will allow sufficient time for service of process within the statute's parameters.

It should also be noted that this protocol requires that law enforcement attempt service as quickly as possible after receipt of the petition and within 24 hours. It is intended that this speedy service of process will allow the family and others to be prepared for the preliminary hearing.

PROTOCOL 3 ATTENDANCE REQUIRED AT THE PRELIMINARY HEARING

COURT FORMS:

•Financial Affidavit

•Right to an Attorney in an Abuse or Neglect Case (AOC-328-048)

The following people must be present at the preliminary hearing; however, their inability to attend the hearing should not delay the hearing:

(1) accused parent;

(2) non-accused parent who is a household member;

(3) non-accused, non-household parent, including incarcerated parents;

(4) putative father(s);

(5) legal guardians of the child; and

(6) DCYF caseworker.

At the preliminary hearing, the clerk shall provide each parent with a Financial Affidavit and a Right to an Attorney in an Abuse or Neglect Case (AOC-328-048).

COMMENT

Consistent with RSA 169-C:15, it is critical that all parents, including non-accused, non-household parents and incarcerated parents, be involved with the court case as early as possible. Where necessary, and if possible, the court should make every effort to provide for meaningful participation by parents, including the use of conference calls and video conferencing. Putative fathers who have not been involved in a child's life should also be brought into the court process as soon as possible. Timely attention to paternity issues is essential to further case processing.

For parents who are incarcerated in New Hampshire, the clerk should do a transport order to ensure the parent's participation at the preliminary hearing.

PROTOCOL 4 THE COURT'S REQUIREMENT OF DCYF TO MAKE SPECIAL EFFORTS TO LOCATE A NON-ACCUSED, NON-HOUSEHOLD PARENT AND/OR PUTATIVE FATHER(S) AND TO SUBMIT AN AFFIDAVIT DESCRIBING ITS EFFORTS

Where a non-accused, non-household parent and/or a putative father(s) has not been identified, the court shall require DCYF to submit an affidavit describing its efforts to locate these parents.

COMMENT

If a parent cannot be found or voluntarily absents himself/herself from the hearing, the hearing should proceed without the parent. It is, however, extremely important that putative fathers and non-accused, non-household parents participate in RSA 169-C proceedings and the court must ensure that all available efforts have been made by DCYF to locate these parents. In addition to serving as potential valuable resources for purposes of placement, if putative fathers and non-accused, non-household parents are not brought into the early stages of a case, it is likely a later termination proceeding, if there is one, will be delayed as a result.

PROTOCOL 5 ATTENDANCE RECOMMENDED AT THE PRELIMINARY HEARING

The following people should be present, if possible, at the preliminary hearing; however, their inability to attend the hearing should not delay the hearing:

(1) attorney for the accused parent;

(2) attorney for DCYF;

(3) GAL or CASA GAL; and

(4) parent's mental health provider, if applicable and appropriate.

COMMENT

Although RSA 169-C:15,III(a) calls for the appointment of a guardian ad litem (GAL) for the child upon a finding of reasonable cause that the child is abused or neglected, this protocol requires that the GAL or CASA GAL be appointed immediately and, if possible, be present at the preliminary hearing.

Due to the speed with which the preliminary hearing must be held, it may not be possible to have a parent's attorney present. This protocol suggests that it is more important to conduct a hearing than to wait for a time when an attorney can be present. Notwithstanding this, however, every effort required by the protocols must be made by the court to have the parent's attorney present at the preliminary hearing.

PROTOCOL 6 THE COURT'S DETERMINATION THAT EACH PARENT UNDERSTANDS THE POSSIBLE CONSEQUENCES TO HER/HIS PARENTAL RIGHTS

COURT FORM:

•Acknowledgement of Possible Consequences to Parental Rights in Abuse and Neglect Cases (AOC-304-048)

The court shall distribute to parents and review Court Form AOC-304-048, "Acknowledgement of Possible Consequences to Parental Rights in Abuse and Neglect Cases" and, pursuant to RSA 169-C:15,IV, the court shall determine whether each parent summoned understands the possible consequences to parental rights should the court find that the child is abused and/or neglected. Consistent with RSA 169-C:15, IV, each parent shall sign the abuse form stating that he/she understands the consequences to parental rights in abuse and neglect cases.

PROTOCOL 7 THE COURT'S INQUIRY AT THE PRELIMINARY HEARING

The purpose of a preliminary hearing is to determine, based on offers of proof, whether reasonable cause exists to believe that a child has been abused and/or neglected.

The inquiry at the preliminary hearing should include the court's consideration of the following:

1. Has the petitioner demonstrated reasonable cause to believe the child has been abused or neglected? Has the petitioner demonstrated that the child's circumstances or surroundings present an imminent danger to the child's health or life? Would continuation in the home be contrary to the welfare of the child?

2. If a child has been removed prior to the preliminary hearing, should the child be returned home immediately prior to the adjudicatory hearing?

A. What services will allow the child to remain safely at home? Will the parties voluntarily agree to participate in such services? Does each parent wish to participate in a plan to reunify the family?

The court should be made aware of available services in the community such as emergency homemakers, day care or in-home baby sitters or other intensive home-based services where professionals spend long periods of time in the home.

B. Are restraining orders or orders expelling an allegedly abusive parent from home appropriate?

In cases where it is alleged the child has been abused or neglected by only one parent, it may be that the child can remain safely with the non-offending parent with certain protective orders, pursuant to RSA 169-C:16,I, IV, in place.

C. Are orders of protection necessary, pursuant to RSA 169-C:16,I(d), setting forth conditions of behavior by a parent, relative, guardian, custodian or household member (See RSA 169-C:21-a, Violation of Protective Order and Penalty)? Such orders may require any such person to:

(1) stay away from the premises, another party, or the child

(2) permit a parent or other named person to visit the child at stated periods and under such circumstances as the court may order;

(3) abstain from harmful conduct with respect to the child or any person to whom custody of the child is awarded;

(4) correct specified deficiencies in the home that make the home a harmful environment for the child; or

(5) refrain from specified acts of commission or omission that make the home a harmful environment for the child.

3. Has DCYF made reasonable efforts to prevent the child's removal and placement?

The court must inquire specifically into what efforts have been made, including those mentioned above. DCYF shall submit a statement to the court which outlines these efforts.

COMMENT

If at the preliminary hearing the court sanctions for the first time the removal of the child from her/his home, federal law requires that the court's order must include a determination that continuation in the home would be contrary to the welfare of the child. If such a determination is not included in the court's first ruling that sanctions the removal of a child, the child will be ineligible for Title IV-E foster care maintenance payments for her/his ENTIRE STAY IN FOSTER CARE. Additionally, the court may want to make a determination with regard to reasonable efforts to prevent removal of a child from the home. If such a determination is not made, the child will again be ineligible for Title IV-D foster care maintenance payment for her/his entire stay in foster care. A reasonable efforts determination must be made within 60 days of a child's removal from the home.

4. Where a non-accused, non-household and/or putative father is not present at the preliminary hearing, the court shall review DCYF's affidavit in which DCYF describes its efforts to locate these parents.

5. Are there any appropriate relatives available?

The court should make specific inquiry into the availability of an appropriate relative placement with whom the child is acquainted. Any proposed caretaker for the child, including any relative or kin, should be assessed for the child maltreatment, domestic violence, substance abuse and a criminal record. To conduct a criminal record check, DCYF will need to have a release signed.

6. Is the placement proposed by DCYF the least disruptive and most family-like setting that meets the needs of the child?

In order of preference, after a family or relative are foster family placements. Children should generally not be placed in group home shelters; however, if the most appropriate placement is NOT immediately available, the court should make certain that appropriate referrals are made so that the child can be moved to a preferred placement when one becomes available.

7. Is parental visitation appropriate and, if so, what should be the terms and conditions of visitation with each parent?

The court shall make an initial decision concerning whether parental visitation is appropriate and, if so, the frequency, duration and terms of visitation for each parent, including whether visitation should be supervised or unsupervised.

8. Is sibling visitation appropriate and, if so, what should be the terms and conditions for such visitation?

The court shall make an initial decision concerning the frequency, duration and terms of visitation with siblings.

9. What consideration has been given to financial support of the child?

The court shall inquire about all potential sources of financial support for the child, including support for health services, and appropriate authorizations allowing DCYF to obtain those services, special educational or developmental needs, and basic child support.

10. What are the immediate needs of the child (medical, dental, emotional, other)? Are there orders needed for examinations, evaluations, or immediate services for the child? Also, are authorizations from a parent required for medical procedures, including a parent's insurance information?

The court shall inquire as to whether the child, parents, guardian or custodian subject to the petition or ex parte order should submit to a mental health evaluation, or undergo a physical examination or treatment. If such evaluations or examinations are necessary to assess, among other considerations, the child's need for immediate treatment or to determine the fitness of a parent to provide immediate care for the child, the court should order the evaluations and/or examinations.

A written assessment of the evaluations and/or examinations shall be provided to the court, through DCYF. DCYF's report shall include copies of reports in their entirety from all service providers for the child and family with whom DCYF has contracted for services.

The court shall also inquire whether additional orders are needed concerning the conduct of the parents or DCYF's efforts to provide services.

11. Are there any outstanding bail conditions in any pending criminal matters?

PROTOCOL 8 THE COURT'S WRITTEN ORDER FOLLOWING THE PRELIMINARY HEARING

COURT FORM:

•Preliminary Hearing Order (AOC-315-048)

•Order of Protection (AOC-334-048)

The court's order shall be written in language which allows the parents and all parties to fully understand the written findings of fact and orders.

If a petition is dismissed, the court should include reasons for the dismissal in its order. Pursuant to RSA 169-C:28, an appeal from the district court or family division may be taken to the superior court within thirty (30) days of the final dispositional order, which includes a dismissal of a petition for abuse or neglect by the court.

If the court makes a finding of reasonable cause that the child is abused or neglected, consistent with RSA 169-C:15, III and RSA 169-C:16, the court shall:

FINDINGS OF FACT:

(1) specify the efforts made by DCYF to locate any non-accused, non-household parent and putative father(s) who were not present at the hearing as well as specify the efforts DCYF must continue to make to locate any absent parents. If any such parents were served but did not attend the hearing, it should be reflected in the court's order;

(2) specify whether there is reasonable cause to believe that the child is abused or neglected;

(3) specify whether the child's circumstances or surroundings present imminent danger to the child's health or life;

(4) if a child is to be removed, specify why continuation of the child in the home would be contrary to the child's welfare;

(5) specify whether reasonable efforts have been made by DCYF to prevent the child's removal and placement, including a brief description of what services, if any, were provided and why placement is necessary;

(6) determine, pursuant to RSA 169-C:15, IV, whether each parent summoned, having custody or control of the child, understands the possible consequences to parental rights; and

(7) specify whether the Indian Child Welfare Act of 1978 (ICWA) is applicable with respect to the child.

ORDERS:

(1) describe whether DCYF shall be awarded legal custody and if so, where the child is to be placed and whether it is the least disruptive placement that meets the needs of the child;

(2) describe whether DCYF shall be awarded legal supervision. Pursuant to RSA 169-C:16,I(a),(b) and (c), the court may transfer legal supervision to a child placing agency and may permit the child to remain with the parent, relative, guardian, or other custodian, subject to such conditions and limitations as the court may prescribe. Legal supervision may also be awarded and a child placed in the physical custody of the other biological/adoptive parent. A child shall not be considered to be in an out-of-home placement if placed with a biological/adoptive parent since a child placed with a parent is never considered to be in substitute care, even if the child and parent have had little or no contact;

(3) specify the terms of visitation with a child and each parent;

(4) specify the terms of visitation with a child and her/his siblings;

(5) specify any agency services to the child and parent that have been agreed upon;

(6) specify any additional services needed to address the immediate needs of the child;

(7) specify any necessary orders of protection, pursuant to RSA 169-C:16,I and IV and violation of orders and penalties, pursuant to RSA 169-C:21-a (AOC-334-048);

(8) join the legally liable school district(s), pursuant to RSA 169-C:20;

and

(9) set the date and time of the adjudicatory hearing, which shall be within thirty (30) days of the filing of the petition.

COMMENT

The court may request parties to submit proposed findings and orders.


TABLE OF CONTENTS

CHAPTER 6 - CONSENT DECREE

Page

PROTOCOL 1

FILING A CONSENT DECREE

42

PROTOCOL 2

REQUIREMENTS FOR SUBMISSION OF A CONSENT DECREE

42

PROTOCOL 3

REQUIREMENTS OF THE COURT BEFORE APPROVING A CONSENT DECREE

44

PROTOCOL 4

SOCIAL STUDY

49

COURT FORMS

•The Effect of a Consent Order on Your Constitutionally and Statutorily Protected Rights, Including Your Parental Rights
(AOC-302-048)

•The Effect of a Consent Without a Finding
(AOC-336-048)

 

CHAPTER 6 - CONSENT DECREE

 

STATUTORY REFERENCES: •RSA 169-C:3,XXVI, Definitions, Relative

•RSA 169-C:17, Consent Order

•RSA 169-C:17,I&II, Consent Order

•RSA 169-C:18,V, Adjudicatory Hearing, Social Study

•RSA 169-C:18,VI, Adjudicatory Hearing, Social Study

•RSA 169-C:19,III(a), Dispositional Hearing

•RSA 169-C:23, Standard for Return of Child in Placement

COURT FORMS: •The Effect of a Consent Order on Your Constitutionally and Statutorily Protected Rights, Including Your Parental Rights (AOC-302-048)

•The Effect of a Consent Without a Finding (AOC-336-048)

LEAD CASES:In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985), petition to terminate parental rights based on a failure to correct does not require that a parent has been the named respondent in an RSA 169-C proceeding before that parent's rights can be terminated so long as there is ample evidence of the non-respondent parent's failure to correct the conditions which led to the abuse and/or neglect finding.

Petition of Kerry D., 144 N.H. 146, 737 A.2d 662 (1999), all parents, whether named or unnamed in the petition, need to be informed and need to acknowledge that they understand the consequences of the consent order, including, but not limited to, the loss of physical and/or legal custody of their child and/or the termination of their parental rights.

INTRODUCTION

An adjudicatory hearing, or trial, may be waived, pursuant to RSA 169-C:17,I, and a consent decree filed with the court. The court's approval of a consent decree that includes a finding of true will have the same force and effect as if the court had determined at an adjudicatory hearing that a child had been abused and/or neglected and had entered a finding of true.

PROTOCOL 1 FILING A CONSENT DECREE

Pursuant to RSA 169-C:17,I, at any time after the filing of the petition and prior to an order of adjudication, the court may suspend the proceedings and consider a consent decree submitted by the parties.

COMMENT

Whenever possible, DCYF should send any proposed consent decrees to all parties in advance of the adjudicatory hearing.

PROTOCOL 2 REQUIREMENTS FOR SUBMISSION OF A CONSENT DECREE

COURT FORMS:

•The Effect of a Consent Order on Your Constitutionally and Statutorily Protected Rights, Including Your Parental Rights (AOC- 302-048)

•The Effect of a Consent Order Without a Finding (AOC-336-048)

The following requirements must be met before a consent decree may be approved by the court:

(1) be set forth in writing and signed by all parties, including the accused parent and his/her attorney, the non-accused parent, if present, DCYF and the GAL or CASA GAL on behalf of the child;

(2) accurately record the reasons for State intervention, including a finding of abuse and/or neglect and, wherever appropriate to provide protection or services to the child, name the individual responsible for the abuse and/or neglect;

(3) include a provision, pursuant to RSA 169-C:18,V, that DCYF will conduct a social study;

(4) include a copy of AOC-302-048, The Effect of a Consent Order on Your Constitutionally and Statutorily Protected Rights, Including Your Parental Rights, signed by the accused parent and his/her attorney and the non-accused parent, if present in court. By signing this form, parents acknowledge, pursuant to RSA 169-C:17, II and Petition of Kerry D., that they are informed of the consequences of the consent order and that they voluntarily and intelligently consent to the terms and conditions of the order; and

(5) set the date for the dispositional hearing within thirty (30) calendar days of the consent order.

COMMENTS

1. Court Form AOC-302-048 that accused parents and their attorneys and non-accused parents, if present in court, must sign and submit with all consent decrees, memorializes each parent's understanding of his/her constitutionally and statutorily protected rights. Additionally, by signing this form each parent acknowledges that he/she is informed of the consequences of the consent order and that he/she has voluntarily and intelligently consented to the terms and conditions of the order, pursuant to RSA 169-C:17,II and Petition of Kerry D., 144 N.H. 146, 737 A.2d 662 (1999).

2. If a proposed consent order is signed by an accused parent and the non-accused parent is present in court, but unwilling to sign it, the consent decree should not be approved by the court. Instead, the court should conduct an abbreviated adjudicatory hearing based on offers of proof. At that hearing, the non-accused parent should be given an opportunity to be heard since his/her parental rights may be at risk if there is a finding against the accused parent and there is ample evidence of the non-accused parent's failure to correct the conditions which led to the abuse and/or neglect finding. In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985).

3. This protocol favors the identification of the perpetrator responsible for the abuse and/or neglect. There are extraordinary circumstances, however, where that identification will not be possible. In those cases, a consent order is not precluded as the identification of the perpetrator is not a requirement for a finding that a child has been abused and/or neglected.

4. Effective January 1, 2003, RSA 169-C:17, II, allows that a consent order "may" include a finding of abuse and neglect and is not required to include one "except where the consent order provides for out-of-home placement of the child." In practice, courts are strongly discouraged from approving consent decrees without a finding, even in cases in which a child is permitted to remain at home and legal supervision is awarded to DCYF. A consent decree that does not include a finding creates the following difficulties:

i) Without a finding, there is nothing to trigger the start of a parent's 12-month "clock" to correct conditions and thus, the court is simply monitoring the consent decree and its requirements;

ii) Without a finding, the court is unable to conduct a permanency hearing and approve a permanency plan for a child since the scheduling of this hearing is 12 months from a finding of abuse or neglect for a child who has remained in an out-of-home placement for an extended period of time; and

iii) Without a finding, the court may not authorize a child's removal from his/her home. RSA 169-C:17, II, requires a finding when a consent order provides for an out-of-home placement of a child. Thus, for a child to be removed from his/her home, the court may require that there be new allegations of abuse or neglect against a parent and a new petition filed.

PROTOCOL 3 REQUIREMENTS OF THE COURT BEFORE APPROVING A CONSENT DECREE

COURT FORMS:

•The Effect of a Consent Order on Your Constitutionally and Statutorily Protected Rights, Including Your Parental Rights (AOC-302-048)

•The Effect of a Consent Order Without a Finding (AOC-336-048)

Before approving a consent decree, and consistent with RSA 169-C:17,II, the court must:

(1) ensure that all parties have signed the consent decree, including the accused parent and his/her attorney, the non-accused parent, if present, DCYF and the GAL or CASA GAL on behalf of the child;

(2) ensure that the consent decree includes a finding that the child has been abused and/or neglect;

(3) ensure that the consent decree includes a provision that DCYF will conduct a social study;

(4) review the consent order and AOC-302-048, The Effect of a Consent Order on Your Constitutionally and Statutorily Protected Rights, Including Your Parental Rights, and engage in a colloquy with the accused parent and the non-accused parent, if present in court, to ensure that he/she is, pursuant to RSA 169-C:17, II and Petition of Kerry D., informed of the consequences of the consent and its effect on constitutionally protected rights, including parental rights. The court must also determine, pursuant to RSA 169-C:17, II, that each parent has voluntarily and intelligently consented to the terms and conditions of the consent.

If the court is satisfied that each parent is informed of the consequences of the consent and has voluntarily and intelligently consented to its terms and conditions, the judge shall sign Court Form AOC-302-048 for each parent.

(5) If a proposed consent order is signed by an accused parent and the non-accused parent is present in court, but unwilling to sign it, the consent decree should not be approved by the court. Instead, the court should conduct an abbreviated adjudicatory hearing based on offers of proof. At that hearing, the non-accused parent should have an opportunity to be heard since his/her parental rights may be at risk if there is a finding against the accused parent and there is ample evidence of the non-accused parent's failure to correct the conditions which led to the abuse and/or neglect finding. In re Tricia and Trixie H., 126 N.H. 418, 493 A. 2d 1146 (1985).

(6) review the consent order and engage in a colloquy with the guardian or custodian and the child, the latter through the GAL or CASA GAL, and inform them of the consequences of the order. The court must also determine, pursuant to RSA 169-C:17, II, that the child, through the GAL or CASA GAL, has voluntarily and intelligently consented to the terms and conditions of the order;

(7) ensure that the date for the dispositional hearing is set within thirty (30) calendar days of the consent order; and

(8) determine whether the child is in an out-of-home placement, as outlined below, and identify the court hearings that will follow the approval of the consent decree:

A. CHILD IS PLACED IN AN OUT-OF-HOME PLACEMENT

A child is considered to be in an out-of-home placement if the child, as the result of an abuse or neglect petition, is removed from a biological/adoptive parent and placed in substitute care with someone other than a biological/adoptive parent of the child. In such a case, the Division for Children, Youth and Families (DCYF) will be awarded legal custody by the court.

If there is a finding of abuse or neglect and a child is placed in an out-of-home placement, the offending parent will be given twelve months to correct the conditions that led to the finding. During that time, DCYF will be required to make reasonable efforts to reunify the child and offending parent. The court will conduct a dispositional hearing and periodic review hearings.

If a child remains in an out-of-home placement for at least twelve months, the court will conduct a permanency hearing twelve months from the finding. A permanency hearing, pursuant to the Adoption and Safe Families Act of 1997 (ASFA), is designed to address permanency for children and is only appropriate when there is a finding of abuse or neglect AND a child has been in an out-of-home placement for an extended period of time.

B. CHILD IS NOT PLACED IN AN OUT-OF-HOME PLACEMENT

A child is not considered to be in an out-of-home placement if, as the result of an abuse or neglect petition, the child is removed from one biological/adoptive parent and placed with another biological/adoptive parent. A child placed with a biological/adoptive parent is never considered to be in substitute care, even if the child and parent have had little or no contact. In such a case, legal supervision should be awarded to DCYF by the court.

When a child is removed from one parent and placed with another, the court should provide the offending parent with twelve months to correct the conditions that led to the finding of abuse or neglect. If the child during this time resides with the other biological/adoptive parent, it will be on a temporary basis.

If an offending parent is given a twelve-month opportunity to correct the conditions that led to the abuse or neglect, DCYF will be required to make reasonable efforts to reunify the child and offending parent. During this time, the court should conduct a dispositional hearing and periodic review hearings. Additionally, the court should conduct a final review hearing twelve months from the finding of abuse or neglect.

At a 12-month review hearing, the court should determine whether the offending parent has corrected the conditions that led to the finding of abuse or neglect, whether the child may safely be returned to that parent's custody and whether return of custody is in the child's best interest. In making this determination, the court should refer for guidance to the Standard for Return of a Child, pursuant to RSA 169-C:23, I, II and III.

If the court determines that the child should not be returned to the offending parent but should remain with the biological/adoptive parent, the court should consider closing the case. This would permit either parent to pursue custody in the superior court or family division.

COMMENTS

1. Effective January 1, 2003, RSA 169-C:17, II, allows that a consent order "may" include a finding of abuse and neglect and is not required to include one "except where the consent order provides for out-of-home placement of the child." In practice, courts are strongly discouraged from approving consent decrees without a finding, even in cases in which a child is permitted to remain at home and legal supervision is awarded to DCYF. A consent decree that does not include a finding creates the following difficulties:

i) Without a finding, there is nothing to trigger the start of a parent's 12-month "clock" to correct conditions and thus, the court is simply monitoring the consent decree and its requirements;

ii) Without a finding, the court is unable to conduct a permanency hearing and approve a permanency plan for a child since the scheduling of this hearing is 12 months from a finding of abuse or neglect for a child who has remained in an out-of-home placement for an extended period of time; and

iii) Without a finding, the court may not authorize a child's removal from his/her home. RSA 169-C:17, II, requires a finding when a consent order provides for an out-of-home placement of a child.

Thus, for a child to be removed from his/her home, the court may require that there be new allegations of abuse or neglect against a parent and a new petition filed.

Although courts are strongly discouraged from approving a consent decree without a finding, before approving one, a court must review the consent order and The Effect of a Consent Order Without a Finding (AOC-336-048), and engage in a colloquy with the parent to ensure that he/she is, pursuant to RSA 169-C:17, II and Petition of Kerry D., informed of the consequences of the consent. The court must also determine, pursuant to RSA 169-C:17, II, that the parent has voluntarily and intelligently consented to the terms and conditions of the consent.

If the court is satisfied that the parent is informed of the consequences of the consent and voluntarily and intelligently consented to its terms and conditions, the judge shall sign Court Form AOC-336-048.

2. A consent order that includes a finding shall have the same force and effect as an adjudicatory finding.

Pursuant to RSA 170-C:5, III, Grounds for Termination of the Parent-Child Relationship, a parent's failure to correct the conditions which led to a finding of child abuse or neglect under RSA 169-C, does not require that the parent must have been the named respondent in an RSA 169-C proceeding, before the parent's rights can be terminated, so long as there is ample evidence of the non-respondent parent's failure to correct the conditions which led to the abuse and/or neglect finding. In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985).

3. All parents, whether accused or not accused of abuse/neglect of their children, need to be informed and need to acknowledge that they understand the consequences of the consent order, including, but not limited to, the loss of physical and/or legal custody of their child and/or the termination of their parental rights. Petition of Kerry D.,144, N.H. 146, 737 A.2d 662 (1999).

4. If the court is presented with a proposed consent decree before paternity has been determined, the court should ask the putative father if he has considered signing the decree. If he does not wish to sign it, the court should nonetheless accept the consent.

If it is subsequently determined that the putative father is not the father, the court should dismiss him as a party to the case.

In the event the paternity test establishes that the individual is the father, the court should, as soon as practical, hold a hearing and review with the father his role in the case, including what will be required of him and what will happen if he fails to comply with the case plan and court orders.

PROTOCOL 4 SOCIAL STUDY

A. SOCIAL STUDY OF CHILD'S FAMILY REQUIRED AFTER FINDING

Pursuant to RSA 169-C:18,V, and V-a, if the court finds that a child has been abused or neglected, the court shall order a social study to be performed by DCYF and submitted to the court no later than five (5) calendar days before the dispositional hearing.

The social study shall include, but not be limited to, the following:

(1) home conditions;

(2) family background;

(3) financial assessment;

(4) school record; and

(5) mental, physical and social history of the family, including sibling relationships and residences for appropriateness of preserving relationships between siblings who are separated as a result of placement.

A social study may also include an assessment for child maltreatment, domestic violence, substance abuse and a criminal background check. To conduct a criminal record check, DCYF will need to have a release signed.

The social study, pursuant to RSA 169-C:18,VI, will be used only after a finding of abuse or neglect and only as a guide for the court in determining an appropriate disposition for a child. The court shall share the report with the parties.

COMMENT

Although it would appear that the statute permits the waiver of the social study and by implication the waiver of the dispositional hearing, on a policy basis courts are discouraged from allowing the dispositional hearing to be waived and/or combined with the hearing on the consent decree. The purpose of the dispositional hearing is significantly different from the adjudicatory hearing, at which the court is required to make a finding of abuse or neglect. Between the adjudicatory and dispositional hearings, DCYF will have an additional opportunity to learn more about the family and at the dispositional hearing the court will review DCYF's social study and identify a specific plan that outlines what a parent must do to correct the conditions that led to the finding of abuse or neglect. Additionally, DCYF policy does not allow for a hearing on the consent to be combined with the dispositional hearing.

B. SOCIAL STUDY OF RELATIVE REQUIRED BEFORE PLACEMENT MADE

A child may be placed with a relative provided, however, that no child shall be placed with a relative as part of a dispositional order until a written social study of the relative's home is conducted by a child placing agency and submitted to the court.

For purposes of this section, a relative is defined, consistent with RSA 169-C:3,XXVI, as a grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, niece, nephew or first and second cousins.

The social study shall include, but not be limited to, the following:

(1) home conditions;

(2) family background;

(3) financial assessment;

(4) school record; and

(5) mental, physical and social history of the family, including sibling relationships and residences for appropriateness of preserving relationships between siblings who are separated as a result of placement.

A social study may also include an assessment for child maltreatment, domestic violence, substance abuse and a criminal background check. To conduct a criminal record check, DCYF will need to have the relative sign a release.

The social study, pursuant to RSA 169-C:18,VI, will be used only after a finding of abuse or neglect and only as a guide for the court in determining an appropriate disposition for a child. The court shall share the report with the parties.

COMMENT

In the event the social study has not been completed for the proposed relative placement at the time of the dispositional hearing, the hearing may be continued but not beyond fourteen (14) calendar days.


TABLE OF CONTENTS

CHAPTER 7 - ADJUDICATORY HEARING

Page

PROTOCOL 1

SCHEDULING THE ADJUDICATORY HEARING

53

PROTOCOL 2

TRIAL MANAGEMENT CONFERENCE

54

PROTOCOL 3

CONTINUANCES

54

PROTOCOL 4

PARTIES WHO MUST BE SENT NOTICE AND WHO MUST ATTEND THE ADJUDICATORY HEARING

55

PROTOCOL 5

THE COURT'S REQUIREMENT OF DCYF TO MAKE SPECIAL EFFORTS TO LOCATE A NON-ACCUSED, NON-HOUSEHOLD PARENT AND/OR PUTATIVE FATHER(S) AND TO SUBMIT AN AFFIDAVIT DESCRIBING ITS EFFORTS

56

PROTOCOL 6

CONDUCTING THE ADJUDICATORY HEARING

56

PROTOCOL 7

THE COURT'S WRITTEN ORDER FOLLOWING THE ADJUDICATORY HEARING

57

PROTOCOL 8

SOCIAL STUDY

61

COURT FORMS

•Adjudicatory Hearing Order (AOC-316-048)

•Order of Protection (AOC-334-048)

 

CHAPTER 7 - ADJUDICATORY HEARING

 

STATUTORY REFERENCES: •RSA 169-C:3,XXVI, Definitions, Relative

•RSA 169-C:12, Evidence

•RSA 169-C:12-a, Testimony During Abuse and Neglect Proceedings

•RSA 169-C:15,III(d), Adjudicatory Hearing Within Thirty Days of the Filing of the Petition

•RSA 169-C:16, Preliminary Disposition

•RSA 169-C:16,III, Preliminary Disposition

•RSA 169-C:17, Consent Order

•RSA 169-C:18, Adjudicatory Hearing

•RSA 169-C:18,II,III,V,VI, Adjudicatory Hearing

•RSA 169-C:19,III(a), Dispositional Hearing

•RSA 169-C:23, Standard for Return of Child in Placement

•RSA 169-C:26, Continuances

•RSA 169-C:28, Appeals

CROSS REFERENCES: •Chapter 1, General Provisions, Protocol 10, Record

•Chapter 1, General Provisions, Protocol 11, Evidence

•Chapter 1, General Provisions, Protocol 12, Burden of Proof

•Chapter 1, General Provisions, Protocol 13, Testimony by Parents

•Chapter 6, Consent Decree

•Chapter 8, Dispositional Hearing

•Chapter 11, Permanency Hearing, Protocol 2, Scheduling the 12-Month Permanency Hearing

COURT FORMS: •Adjudicatory Hearing Order (AOC-316-048)

•Order of Protection (AOC-334-048)

LEAD CASES:In re Ethan H., 135 N.H. 681, 609 A.2d 1222 (1992), children's bruises may in future cases be by nature prima facie evidence of harm or threatened harm in child abuse cases.

In re Gina D., 138 N.H. 697, 645 A.2d 61 (1994), requires that opinion evidence be material and relevant.

Petition of Jane Doe, 132 N.H. 270, 564 A.2d 433 (1989), proper finding of child abuse must include a determination of whether the alleged abusive act was committed under circumstances indicating harm or threatened harm to the child's life, health or welfare.

In re Melissa M., 127 N.H. 710, 506 A.2d 324 (1986), there is no constitutional right to a stay of a civil proceeding pending disposition of a related criminal case.

In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985), petition to terminate parental rights based on a failure to correct does not require that a parent has been the named respondent in an RSA 169-C neglect proceeding before that parent's rights can be terminated so long as there is ample evidence of the non-respondent parent's failure to correct the conditions which led to the abuse and/or neglect finding.

The State of New Hampshire v. Harold J. Baird, 133 N.H. 637, 581 A.2d 1313 (1990), relates to the confidentiality provision of RSA 169-C.

INTRODUCTION

The adjudicatory hearing, or trial, is the stage at which the court determines, by a preponderance of the evidence, whether or not the allegations in the petition that a child has been abused and/or neglected are sustained by the evidence. The importance of assuring the presence of all necessary parties cannot be overstated.

A finding of true is the legal basis for continued court and agency intervention and marks the start of the twelve (12) month period that parents are afforded to correct the conditions that led to the finding. Such intervention may include placement of the child, service provision to the child and family and ongoing judicial and agency oversight of the case progress.

The court must exercise great care in drafting its findings, which must be detailed enough to justify agency and court choices for services. Adjudicatory findings will serve as the basis upon which improvement is measured. A finding will also impact on permanency for children as the court's finding will begin the 12 month "clock" that parents have to correct and will drive the scheduling of the 12-month permanency hearing for children in out-of-home placements. In the event of failure by parents to correct the conditions that led to a finding, the court may order DCYF to file a termination of parental rights petition.

PROTOCOL 1 SCHEDULING THE ADJUDICATORY HEARING

Pursuant to RSA 169-C:15,III(d), the adjudicatory hearing shall be held within thirty (30) calendar days of the filing of the petition.

Based on national guidelines, the approximate length of time for an adjudicatory hearing is 30 minutes.

COMMENTS

1. It is imperative that the adjudicatory hearing be held within thirty (30) calendar days of the filing of the petition and that there be a finding within five (5) days of this hearing. If the court makes a finding of true, this finding triggers when the 12-month "clock" for parents to correct begins. Additionally, a finding of true, together with a child placed in an out-of-home placement, determines when the 12-month permanency hearing will be held. The permanency hearing is in many ways the heart and soul of RSA 169-C proceedings and must therefore not be delayed by either an adjudicatory hearing that is not held according to statutory requirements or a finding that is not made within a timely manner.

2. Although normally the adjudicatory hearing should be scheduled close to the 30-day mark in order to give the parties adequate time to prepare, there are circumstances under which the hearing should be scheduled sooner, for example, in those cases where the child has been removed from the home and the parents are unable to avail themselves of visitation.

3. In the event the judges of the court are unavailable to sit within the time frames set forth by RSA 169-C or this protocol, the clerk should contact the Administrative Judge to receive an assignment for an acting judge.

4. The adjudicatory hearing shall be scheduled and held within thirty (30) calendar days of the filing of the petition, even if there is a related pending criminal proceeding arising from the same facts. RSA 169-C:12-a provides that testimony by parents, who are the subject of an abuse or neglect petition and who are alleged to have an abused or neglected child, which is given during proceedings under RSA 169-C, shall not be admissible in criminal proceedings relating to the abuse or neglect allegations.

There shall be no constitutional right to a stay of a civil proceeding pending disposition of a related criminal case. In re Melissa M., 127 N.H. 710, 506 A.2d 324 (1986).

5. Normally, the adjudicatory hearing will be completed well before DCYF must hold, within six (6) months of a child's removal according to Section 475(5)(B) of PL 96-272 and PL 106-89), its administrative review of the child's case. The focus of the administrative review is "to determine the safety of the child, the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, and the extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care, and to project a likely date by which the child may be returned to and safely maintained in the home or placed for adoption or legal guardianship." If the administrative review is held before the adjudicatory hearing, DCYF will send a report to the court concerning the current status of the child not later than five (5) days after the date of the review.

6. Conducting the adjudicatory hearing in a timely manner is also important since DCYF is required by federal law to develop a case plan no later than sixty (60) days from a child's removal from the home.

PROTOCOL 2 TRIAL MANAGEMENT CONFERENCE

Clerks are encouraged to conduct a telephonic trial management conference at least one (1) week before the adjudicatory hearing to determine case status and ensure trial preparation. At this time, the clerk should inquire as to the likelihood of a proposed consent decree.

PROTOCOL 3 CONTINUANCES

Continuances are strongly discouraged and should only be granted by the court, consistent with RSA 169-C:26, for good cause shown, such as unforeseen circumstances. Requests for continuances should not be presumed to be granted, including continuances to which all parties have assented; to the contrary, they should be presumed to be denied absent a showing of good cause.

In the rare event that a continuance is granted, the court's order must include a rescheduled date for the adjudicatory hearing that should not exceed fourteen (14) calendar days.

PROTOCOL 4 PARTIES WHO MUST BE SENT NOTICE AND WHO MUST ATTEND THE ADJUDICATORY HEARING

The judge shall identify the necessary parties to the adjudicatory hearing and instruct the clerk to provide notice of the scheduled hearing to each of them. Included among those who must receive notice of the adjudicatory hearing are the following:

(1) attorney for the accused parent;

(2) DCYF attorney;

(3) DCYF caseworker;

(4) GAL or CASA GAL;

(5) accused parent;

(6) any non-accused parent who is a household member;

(7) any non-accused, non-household parent, including incarcerated parents;

(8) putative father(s);

(9) relatives with legal standing or other custodial adults; and

(10) attorney for the child, if any.

COMMENT

This protocol anticipates that judges will insist upon notice to, and presence of, non-accused, non-household parents and putative fathers at the adjudicatory hearing. When these individuals are not brought into the process at this stage, children often remain in foster care longer, and potential placement options are ignored. Where necessary, and if possible, the court should make every effort to provide for meaningful participation by parents, including the use of conference calls and video conferencing. Putative fathers who have not been involved in a child's life should also be brought into the court process as soon as possible. Timely attention to paternity issues is essential to further case processing.

For parents who are incarcerated in New Hampshire, the clerk should do a transport order to ensure the parent's participation at the adjudicatory hearing.

PROTOCOL 5 THE COURT'S REQUIREMENT OF DCYF TO MAKE SPECIAL EFFORTS TO LOCATE A NON-ACCUSED, NON-HOUSEHOLD PARENT AND/OR PUTATIVE FATHER(S) AND TO SUBMIT AN AFFIDAVIT DESCRIBING ITS EFFORTS

Where a non-accused, non-household parent and/or a putative father(s) is not present at the adjudicatory hearing, the court shall require DCYF to submit an affidavit describing its efforts to locate these parents.

COMMENT

If a parent cannot be found or voluntarily absents himself/herself from the hearing, the hearing should proceed without the parent. It is, however, extremely important that putative fathers and non-accused, non-household parents participate in RSA 169-C proceedings and the court must ensure that all available efforts have been made by DCYF to locate these parents. In addition to serving as a potential valuable resource for purposes of placement, if putative fathers and non-accused, non-household parents are not brought into the early stages of a case, it is likely a later termination proceeding, if there is one, will be delayed as a result.

PROTOCOL 6 CONDUCTING THE ADJUDICATORY HEARING

CROSS REFERENCES:

•Chapter 1, General Provisions, Protocol 10, Record

•Chapter 1, General Provisions, Protocol 11, Evidence

•Chapter 1, General Provisions, Protocol 12, Burden of Proof

•Chapter 1, General Provisions, Protocol 13, Testimony by Parents

•Chapter 6, Consent Decree

Pursuant to RSA 169-C:18,III, the petitioner shall present witnesses to testify in support of the petition and any other evidence necessary to support the petition. The petitionee shall have the right to present evidence and witnesses on their own behalf and to cross-examine adverse witnesses.

Pursuant to RSA 169-C:12, the court is not bound by the technical rules of evidence in any hearing under RSA 169-C and may admit any evidence that it considers relevant and material. Although there is a relaxed evidentiary standard in neglect and abuse proceedings under RSA 169-C:12, and even though the evidence is considered by the court as opposed to a jury, opinion evidence nevertheless must be material and relevant. In re Gina D., 138 N.H. 697, 645 A.2d 61 (1994).

The confidentiality provision of RSA 169-C cannot reasonably be interpreted to prevent relevant evidence relating to a prior action under the statute from being introduced in the criminal prosecution of a party to the earlier juvenile proceeding for a crime arising out of that prior proceeding. The State of New Hampshire v. Harold J. Baird, 133 N.H. 637, 581 A.2d 1313 (1990).

A record of the adjudicatory hearing, pursuant to RSA 169-C:18,II, shall be preserved unless expressly waived in writing by the parties, and the parties shall be notified in writing of their right to appeal.

PROTOCOL 7 THE COURT'S WRITTEN ORDER FOLLOWING THE ADJUDICATORY HEARING

CROSS REFERENCE:

•Chapter 11, Permanency Hearing, Protocol 2, Scheduling the 12- Month Permanency Hearing

COURT FORMS:

•Adjudicatory Hearing Order (AOC-316-048)

•Order of Protection (AOC-334-048)

A. ISSUANCE OF COURT ORDER

After the adjudicatory hearing, written findings shall be entered by the court which accurately record the allegations that have been proved, admitted or not proved. A finding must be entered within five (5) business days of an adjudicatory hearing and may be met when the court completes the Adjudicatory Hearing Order Form (AOC 316-048) and indicates that the evidence does or does not substantiate the petition. In all cases where a finding of abuse or neglect is entered, a supplemental written order must follow within ten (10) business days.

B. PETITION DISMISSED

If the court does not find, by a preponderance of the evidence, that a child has been abused or neglected, it shall dismiss the petition. Whenever a petition is dismissed, the court should include reasons for this in its order.

Pursuant to RSA 169-C:28, an appeal from the district court or family division may be taken to the superior court within thirty (30) days of the final dispositional order, which includes a dismissal of a petition for abuse or neglect by the court.

C. FINDING OF ABUSE OR NEGLECT

If the court does find, by a preponderance of the evidence, that a child has been abused or neglected, it shall make a finding of true. The court's order should include the following:

FINDINGS OF FACT:

(1) identify the problems that must be corrected to allow the child to be safely returned home or to be safely maintained in the home;

(2) provide direction to DCYF for devising a service plan for the family;

(3) provide a starting point for determining whether the parents have adequately responded to the problems which caused court intervention; and

(4) determine whether the Indian Child Welfare Act of 1978 (ICWA) is applicable.

ORDERS:

(1) specify whether DCYF will be awarded legal custody or legal supervision and determine, based on this, whether the child is in an out-of-home placement, as outlined below, and determine the hearings that will follow the court's finding of abuse or neglect;

A. CHILD IS PLACED IN AN OUT-OF-HOME PLACEMENT

A child is considered to be in an out-of-home placement if the child, as the result of an abuse or neglect petition, is removed from a biological/adoptive parent and placed in substitute care with someone other than a biological/adoptive parent of the child. In such a case, the Division for Children, Youth and Families (DCYF) will be awarded legal custody by the court.

If there is a finding of abuse or neglect and a child is placed in an out-of-home placement, the offending parent will be given twelve months to correct the conditions that led to the finding. During that time, DCYF will be required to make reasonable efforts to reunify the child and offending parent. The court will conduct a dispositional hearing and periodic review hearings.

If a child remains in an out-of-home placement for at least twelve months, the court will conduct a permanency hearing twelve months from the finding. A permanency hearing, pursuant to the Adoption and Safe Families Act of 1997 (ASFA), is designed to address permanency for children and is only appropriate when there is a finding of abuse or neglect AND a child has been in an out-of-home placement for an extended period of time.

B. CHILD IS NOT PLACED IN AN OUT-OF-HOME PLACEMENT

A child is not considered to be in an out-of-home placement if, as the result of an abuse or neglect petition, the child is removed from one biological/adoptive parent and placed with another biological/adoptive parent. A child placed with a biological/adoptive parent is never considered to be in substitute care, even if the child and parent have had little or no contact. In such a case, legal supervision should be awarded to DCYF by the court.

When a child is removed from one parent and placed with another, the court should provide the offending parent with twelve months to correct the conditions that led to the finding of abuse or neglect. If the child during this time resides with the other biological/adoptive parent, it will be on a temporary basis.

If an offending parent is given a twelve-month opportunity to correct the conditions that led to the abuse or neglect, DCYF will be required to make reasonable efforts to reunify the child and offending parent. During this time, the court should conduct a dispositional hearing and periodic review hearings. Additionally, the court should conduct a final review hearing twelve months from the finding of abuse or neglect.

At a 12-month review hearing, the court should determine whether the offending parent has corrected the conditions that led to the finding of abuse or neglect, whether the child may safely be returned to that parent's custody and whether return of custody is in the child's best interest. In making this determination, the court should refer for guidance to the Standard for Return of a Child, pursuant to RSA 169-C:23, I, II and III.

If the court determines that the child should not be returned to the offending parent but should remain with the biological/adoptive parent, the court should consider closing the case. This would permit either parent to pursue custody in the superior court or family division.

(2) specify the terms of visitation with a child and each parent;

(3) specify the terms of visitation with a child and her/his siblings;

(4) specify any agency services to the child and parent that have been agreed upon;

(5) specify any additional services needed to address the immediate needs of the child;

(6) consider whether, pursuant to RSA 169-C:16,III, the child, parents, guardian, custodian, or household member subject to the petition, should submit to a mental health evaluation, or undergo a physical examination or treatment, with a written assessment being provided to the court. Pursuant to RSA 169-C:18,VI, any psychiatric report shall be used by the court only after a finding of abuse or neglect unless such report is submitted for determination of competency;

(7) specify any necessary orders of protection, pursuant to RSA 169-C:16, I and IV, and violation of orders and penalties, pursuant to RSA 169-C:21-a (AOC-334-048);

(8) order DCYF to make an investigation and a social study; and

(9) set the date and time for the dispositional hearing within thirty (30) days of the court's order.

COMMENTS

1. The court may request parties to submit proposed findings and orders.

2. Pursuant to RSA 169-C:18,V preliminary orders, continued pursuant to RSA 169-C:16, may be entered or modified as appropriate until the dispositional hearing.

3. Section of termination of parental rights statute, listing as a ground for termination a failure to correct conditions which led to a finding of child abuse or neglect under RSA 169-C, does not provide that a parent must have been the named respondent in an RSA 169-C proceeding before the parent's rights can be terminated so long as there is ample evidence of the non-respondent parent's failure to correct the conditions which led to the abuse and/or neglect finding. In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985).

4. Petition of Jane Doe, 132 N.H. 270, 564 A.2d 433 (1989) and In re Ethan H., 135 N.H. 681, 609 A.2d 1222 (1992), address harm or threatened harm to a child alleged to have been physically abused.

PROTOCOL 8 SOCIAL STUDY

CROSS REFERENCE:

•Chapter 8, Dispositional Hearing

A. SOCIAL STUDY OF CHILD'S FAMILY REQUIRED AFTER FINDING

Pursuant to RSA 169-C:18,V and V-a, if the court finds that a child has been abused or neglected, the court shall order a social study to be performed by DCYF and submitted to the court no later than five (5) calendar days before the dispositional hearing.

The social study shall include, but not be limited to, the following:

(1) home conditions;

(2) family background;

(3) financial assessment;

(4) school record; and

(5) mental, physical and social history of the family, including sibling relationships and residences for appropriateness of preserving relationships between siblings who are separated as a result of placement.

A social study may also include an assessment for child maltreatment, domestic violence, substance abuse and a criminal background check. To conduct a criminal record check, DCYF will need to have a release signed.

The social study, pursuant to RSA 169-C:18,VI, will be used only after a finding of abuse or neglect and only as a guide for the court in determining an appropriate disposition for a child. The court shall share the report with the parties.

COMMENT

Although it would appear that the statute permits the waiver of the social study and by implication the waiver of the dispositional hearing, on a policy basis courts are discouraged from allowing the dispositional hearing to be waived and/or combined with the hearing on the consent decree. The purpose of the dispositional hearing is significantly different from the adjudicatory hearing, at which the court is required to make a finding of abuse or neglect. Between the adjudicatory and dispositional hearings, DCYF will have an additional opportunity to learn more about the family and at the dispositional hearing the court will review DCYF's social study and identify a specific plan that outlines what a parent must do to correct the conditions that led to the finding of abuse or neglect. Additionally, DCYF policy does not allow for a hearing on the consent to be combined with the dispositional hearing.

B. SOCIAL STUDY OF RELATIVE REQUIRED BEFORE PLACEMENT MADE

A child may be placed with a relative provided, however, that no child shall be placed with a relative as part of a dispositional order until a written social study of the relative's home is conducted by a child placing agency and submitted to the court.

For purposes of this section, a relative is defined, consistent with to RSA 169-C:3,XXVI, as a grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, niece, nephew or first and second cousins.

The social study shall include, but not be limited to, the following:

(1) home conditions;

(2) family background;

(3) financial assessment;

(4) school record; and

(5) mental, physical and social history of the family, including sibling relationships and residences for appropriateness of preserving relationships between siblings who are separated as a result of placement.

A social study may also include an assessment for child maltreatment, domestic violence, substance abuse and a criminal background check. To conduct a criminal record check, DCYF will need to have the relative sign a release.

The social study, pursuant to RSA 169-C:18,VI, will be used only after a finding of abuse or neglect and only as a guide for the court in determining an appropriate disposition for a child. The court shall share the report with the parties.

COMMENT

In the event the social study has not been completed for the proposed relative placement at the time of the dispositional hearing, the hearing may be continued but not beyond fourteen (14) calendar days.


TABLE OF CONTENTS

CHAPTER 8 - DISPOSITIONAL HEARING

 

Page

PROTOCOL 1

SCHEDULING THE DISPOSITIONAL HEARING

65

PROTOCOL 2

NOTICE

66

PROTOCOL 3

SUBMISSION OF COURT REPORTS

67

PROTOCOL 4

THE COURT'S REQUIREMENT OF DCYF TO MAKE SPECIAL EFFORTS TO LOCATE A NON-ACCUSED, NON-HOUSEHOLD PARENT AND/OR PUTATIVE FATHER(S) AND TO SUBMIT AN AFFIDAVIT DESCRIBING ITS EFFORTS

68

PROTOCOL 5

SOCIAL STUDY

68

PROTOCOL 6

CONTENT OF THE DCYF REPORT

70

PROTOCOL 7

THE COURT'S INQUIRY AT THE DISPOSITIONAL HEARING

72

PROTOCOL 8

THE COURT'S APPOINTMENT OF COUNSEL FOR A CHILD

76

PROTOCOL 9

DISPOSITION OF AN EDUCATIONALLY DISABLED CHILD

77

PROTOCOL 10

THE COURT'S WRITTEN ORDER FOLLOWING THE DISPOSITIONAL HEARING

77

PROTOCOL 11

MODIFICATION OF OR ADDITIONS TO THE DISPOSITIONAL ORDERS

79

COURT FORM

•Dispositional Hearing Order (AOC-317-048)

 

CHAPTER 8 - DISPOSITIONAL HEARING

 

STATUTORY REFERENCES: •RSA 169-C:3,XIV-a,XVII,&XXVI, Definitions, Household Member, Legal Custody and Relative

•RSA 169-C:10,II(a), Attorneys and Guardians ad Litem

•RSA 169-C:12-b, Filing Reports, Evaluations and Other Records

•RSA 169-C:18,V,VI,&VII, Adjudicatory Hearing

•RSA 169-C:19,I,II,II(a)(b),III(a),&V, Dispositional Hearing

•RSA 169-C:19-b, Presumption in Favor of In- State Placements

•RSA 169-C:19-c, Court Order for Services, Placements, and Programs Required for Minors from Certain Providers Qualified for Third-Party Payment

•RSA 169-C:19-d, Visitation with Siblings

•RSA 169-C:20, Disposition of Educationally Disabled Child

•RSA 169-C:21, Final Order

•RSA 169-C:22, Modification of Dispositional Orders

•RSA 169-C:28, Appeals

•RSA 170-A, Interstate Compact on the Placement of Children

•RSA 170-G:4,XVIII, Department; Powers, and Duties

•RSA 186-C, Special Education

CROSS REFERENCE: •Chapter 9, Appeal of Final Dispositional Order

COURT FORM: •Dispositional Hearing Order (AOC-317-048)

LEAD CASES:In re Melissa M., 127 N.H. 710, 506 A.2d 324 (1986), when no conditions exist under which reunification can safely occur, the court is not required to attempt to specify conditions under which a parent and child may be reunited.

In re Ryan G., 142 N.H. 643, 707 A.2d 134 (1998), if the court's order includes a non-certified placement for a child, DCYF must undertake the certification review process giving "proper weight" to the court's placement order. DCYF, however, has the exclusive power to certify placement facilities.

In re Thomas M. and Michael M., 141 N.H. 55, 676 A.2d 113 (1996), superior court must hear both the adjudicatory and dispositional aspects of the neglect case de novo.

In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985), petition to terminate parental rights based on a failure to correct does not require that a parent have been the named respondent in an RSA 169-C neglect proceeding before that parent's rights can be terminated so long as there is ample evidence of the non- respondent parent's failure to correct the conditions which led to the abuse and/or neglect finding.

INTRODUCTION

If the court finds that a child has been abused and/or neglected, it will conduct a dispositional hearing. The purpose of this hearing is to review the social study submitted by DCYF and to identify a specific plan which will outline what each parent must do to correct the conditions that led to the finding of abuse and/or neglect. Prior to the issuance of a final dispositional order, DCYF must submit its recommendations for the plan, which the court may use in whole or in part.

PROTOCOL 1 SCHEDULING THE DISPOSITIONAL HEARING

A hearing on final disposition must be held, pursuant to RSA 169-C:18,VII, within thirty (30) calendar days of a finding of abuse and/or neglect. The finding may be a court finding or a consent order that includes a finding.

Based on national guidelines, the approximate length of time for a dispositional hearing is 30 minutes.

 

COMMENT

Although it would appear that the statute permits the waiver of the social study and by implication the waiver of the dispositional hearing, on a policy basis, courts are discouraged from allowing the dispositional hearing to be waived and/or incorporating dispositional orders into a consent order. The purpose of the dispositional hearing is significantly different from the adjudicatory hearing, at which the court is only required to make a finding of abuse or neglect. Between the adjudicatory and dispositional hearings, DCYF will have an additional opportunity to learn more about the family and at the dispositional hearing the court will review DCYF's social study and identify a specific plan which outlines what a parent must do to correct the conditions that led to the finding of abuse or neglect. Additionally, DCYF policy does not allow for a hearing on a consent to be combined with a dispositional hearing.

PROTOCOL 2 NOTICE

A. PARTIES WHO MUST RECEIVE NOTICE AND WHO SHOULD ATTEND THE DISPOSITIONAL HEARING

The judge must identify the necessary parties to the dispositional hearing and instruct the clerk to provide notice of the scheduled hearing to those parties.

The following parties must receive notice and should be in attendance at the dispositional hearing:

(1) offending parent;

(2) non-accused parent who is a household member;

(3) attorney for the offending parent;

(4) DCYF attorney;

(5) DCYF caseworker; and

(6) GAL or CASA GAL.

COMMENT

A dispositional hearing should be held even if an accused parent chooses not to attend so long as his/her attorney is in attendance.

B. INDIVIDUALS WHO MUST RECEIVE NOTICE AND WHO MAY ATTEND THE DISPOSITIONAL HEARING

The judge should instruct the clerk to provide notice of the dispositional hearing to non-accused, non-household parents, including incarcerated parents. Putative fathers should also be provided notice of this hearing. Where necessary, and if possible, the court should make every effort to provide for meaningful participation by parents, including the use of conference calls and video conferencing.

For parents who are incarcerated in New Hampshire, the clerk should do a transport order to ensure the parent's participation at the dispositional hearing.

COMMENT

In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985), allows a petition for termination of parental rights to be filed against the parent who was not the named respondent in an RSA 169-C proceeding so long as there is ample evidence of the non-respondent parent's failure to correct the conditions which led to the abuse and/or neglect finding.

C. INDIVIDUALS WHO MAY RECEIVE NOTICE AND WHO MAY ATTEND THE DISPOSITIONAL HEARING

The judge may instruct the clerk to provide notice of the dispositional hearing to relatives with legal standing or other custodial adults.

D. OTHERS

Because the dispositional hearing focuses on a specific plan for the parents and child, it may be helpful to have persons present who may be called upon to care for the child or work with the family, including service providers and extended family members.

PROTOCOL 3 SUBMISSION OF COURT REPORTS

Consistent with RSA 169-C:12-b, all reports, evaluations, and other records of DCYF, counselors and the GAL or CASA GAL shall be filed with the court and all other parties at least five (5) calendar days prior to any hearing. Distribution of psychological evaluations and reports should be carefully monitored by the court and access to review limited to the parties the court believes require the information to perform their official functions or representation of their client. The court should consider motions requesting in camera review with attorneys and the GAL or CASA GAL.

PROTOCOL 4 THE COURT'S REQUIREMENT OF DCYF TO MAKE SPECIAL EFFORTS TO LOCATE A NON-ACCUSED, NON-HOUSEHOLD PARENT AND/OR PUTATIVE FATHER(S) AND TO SUBMIT AN AFFIDAVIT DESCRIBING ITS EFFORTS

Where a non-accused, non-household parent and/or a putative father(s) is not present at the dispositional hearing, the court shall require DCYF to submit an affidavit describing its efforts to locate these parents.

COMMENT

If a parent cannot be found or voluntarily absents himself/herself from the hearing, the hearing should proceed without the parent. It is, however, extremely important that putative fathers and non-accused, non-household parents participate in RSA 169-C proceedings and the court must ensure that all available efforts have been made by DCYF to locate these parents. In addition to serving as potential valuable resources for purposes of placement, if putative fathers and non-accused, non-household parents are not brought into the early stages of a case, it is likely a later termination proceeding, if there is one, will be delayed as a result.

PROTOCOL 5 SOCIAL STUDY

A. SOCIAL STUDY OF CHILD'S FAMILY AFTER A FINDING

Pursuant to RSA 169-C:18,V and V-a, if the court finds that a child has been abused or neglected, the court shall order a social study to be performed by DCYF and submitted to the court no later than five (5) calendar days before the dispositional hearing.

The social study shall include, but not be limited to, the following:

(1) home conditions;

(2) family background;

(3) financial assessment;

(4) school record; and

(5) mental, physical, and social history of the family including sibling relationships and residences for appropriateness of preserving relationships between siblings who are separated as a result of court-ordered placement.

A social study may also include an assessment for child maltreatment, domestic violence, substance abuse, and a criminal background check. To conduct a criminal record check, DCYF will need to have a release signed.

The social study, pursuant to RSA 169-C:18,VI, will be used only after a finding of abuse or neglect and only as a guide for the court in determining an appropriate disposition for a child. The court shall share the report with the parties.

COMMENT

Although it would appear that the statute permits the waiver of the social study and by implication the waiver of the dispositional hearing, on a policy basis courts are discouraged from allowing the dispositional hearing to be waived and/or combined with the hearing on the consent decree. The purpose of the dispositional hearing is significantly different from the adjudicatory hearing, at which the court is required to make a finding of abuse or neglect. Between the adjudicatory and dispositional hearings, DCYF will have an additional opportunity to learn more about the family and at the dispositional hearing the court will review DCYF's social study and identify a specific plan that outlines what a parent must do to correct the conditions that led to the finding of abuse or neglect. Additionally, DCYF policy does not allow for a hearing on the consent to be combined with the dispositional hearing.

B. SOCIAL STUDY OF RELATIVE REQUIRED BEFORE PLACEMENT MADE

A child may be placed with a relative provided, however, that no child shall be placed with a relative as part of a dispositional order until a written social study of the relative's home is conducted by a child-placing agency and submitted to the court.

For purposes of this section, a relative is defined, consistent with RSA 169-C:3, XXVI, as a grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, niece, nephew, or first and second cousins.

The social study shall include, but not be limited to, the following:

(1) home conditions;

(2) family background;

(3) financial assessment;

(4) school record; and

(5) mental, physical, and social history of the family, including sibling relationships and residences for appropriateness of preserving relationships between siblings who are separated as a result of court-ordered placement.

A social study may also include an assessment for child maltreatment, domestic violence, substance abuse, and a criminal background check. To conduct a criminal record check, DCYF will need to have the relative sign a release.

COMMENT

In the event the social study has not been completed for the proposed relative placement at the time of the dispositional hearing, the hearing may be continued but should not extend beyond fourteen (14) calendar days.

PROTOCOL 6 CONTENT OF THE DCYF REPORT

The Division shall submit a report including, but not limited to, the following:

1. identifying information about the child, including the child's age, his/her overall length in placement, whether the child is expected to remain in the current placement, and the total number of placements to date. The number and nature of contacts between the child and his/her parents, siblings, and the CPSW should also be outlined;

2. summary of the events leading to the petition;

3. recommendations for a case plan, which shall include, but will not be limited to, the following:

(a) identification of the problem(s) leading to a finding of abuse or neglect;

(b) identification of the services that DCYF will provide to the child;

(c) identification of the services that DCYF will provide to each parent;

(d) a statement of actions that are needed by each parent to correct the conditions that led to a finding of abuse and/or neglect, with timetables for accomplishing them;

(e) a statement of what each parent cannot do;

(f) a description of the outcomes that each parent must achieve to correct the conditions that led to a finding of abuse or neglect, before the child may be returned home;

(g) a description and status of the concurrent plan for the child, with as much specificity as possible, if reunification cannot be safely achieved in a timely manner; and

(h) the date the failure to correct "clock" began and when it will expire.

COMMENT

When no conditions exist under which reunification can safely occur, the court is not required to attempt to specify conditions under which a parent and child may be reunited. In re Melissa M., 127 N.H. 710, 506 A.2d 324 (1986).

4. when DCYF recommends an out-of-home placement for a child, the report should also address some additional key elements, including:

(a) pursuant to RSA 169-C:18, V-a, a description of efforts made by DCYF to avoid the need for placement and an explanation why these efforts were unsuccessful; and

an explanation why the child cannot be protected from the identified problems in the home even if services are provided to the child and family;

(b) a summary of the efforts made to identify and contact relatives about providing placement for the child;

(c) a description of the type of placement, its distance from the child's parents, and if it is the least disruptive and most family-like setting that meets the needs of the child;

(d) the placements of the child's siblings and, if they are to be apart, proposed arrangements for visitation;

COMMENT

Pursuant to RSA 169-C:19-d, the court shall, whenever reasonable and practical, and based on a determination of the best interests of the child, ensure that children who have an existing relationship with a sibling and who are separated from their siblings have access to and visitation rights with their siblings throughout the duration of their placement.

(f) the proposed arrangements for visitation between each parent and the child;

(g) any special needs of the child; and

(h) a status of the efforts made by DCYF to work with the county for financial support of the child.

5. a summary of the current circumstances of the child and each parent;

6. a summary of cost projections; and

7. any recommendations.

PROTOCOL 7 THE COURT'S INQUIRY AT THE DISPOSITIONAL HEARING

If the court finds that a child has been abused or neglected, the inquiry at the dispositional hearing should include the following:

1. Whether DCYF will be awarded legal supervision or legal custody of the child.

A. Legal Supervision - Child to Remain at Home

Pursuant to RSA 169-C:19,I, the court may award legal supervision to a child-placing agency and permit a child to remain with his/her parent, relative, guardian, or other custodian subject to further court order. A child may also be placed with another biological/adoptive parent and DCYF awarded legal supervision. In such a case, the child would not be considered to be in an out-of-home placement since a child is never considered to be in substitute care when the child is with a biological/adoptive parent, even if the child and parent have had little or no contact.

Pursuant to RSA 169-C:19,III(a), the court may place a child with a relative provided, however, that no child shall be placed with a relative until a written social study of the relative's home is conducted by a child-placing agency and submitted to the court. See Protocol 5, Social Study.

If the child is to remain at home, the court should consider available in-home services in the community and intensive monitoring of the household to assure the safety and well-being of the child.

Pursuant to RSA 169-C:19, I and II, the judge may impose specific conditions on the child, parents, relative, sibling, guardian, custodian, or a household member. The judge should determine what agency supervision will be needed for the child's protection and what services will be provided to the child and her/his parents.

Pursuant to RSA 169-C:21-a, a person shall be guilty of a class A misdemeanor if such person knowingly violates a protective order issued under RSA 169-C:19,II(a)(1). See Chapter 1, General Provisions, Protocol 15, Protective Orders Issued and Violation of Such Orders.

COMMENT

RSA 169-C:19,II(b) provides that if protective orders are made affecting a parent, relative, sibling, guardian, custodian, or household member who is not before the court, the order shall be served on such person by a law enforcement officer. A household member, as defined in RSA 169-C:3,XIV-a, means any person living with the parent, guardian, or custodian of the child from time to time or on a regular basis, who is involved occasionally or regularly with the care of the child. A hearing to challenge an order may be requested in writing and shall be held within five (5) days of the request. A request for a hearing shall not stay the effect of the order.

B. Legal Custody - Child to be Removed From the Home

If legal custody is awarded pursuant to RSA 169-C:3,XVII, the following rights and responsibilities would be transferred to the child- placing agency unless otherwise modified by a court order:

(a) the right to determine where and with whom the child shall live;

(b) the right to have the physical possession of the child;

(c) the right and the duty to protect and constructively discipline the child; and

(d) the responsibility to provide the child with food, clothing, shelter, education, emotional security and ordinary medical care provided that such rights and responsibilities shall be exercised subject to the power, rights, duties, and responsibilities of the guardian of the child and subject to residual parental rights and responsibilities if these have not been terminated by judicial decree.

The court must decide whether the type of placement proposed by DCYF is the least disruptive and most family-like setting and whether it meets the needs of the child. Pursuant to RSA 169-C:19-b, there shall be a presumption that an in-state placement is the least restrictive and most appropriate placement. Additionally, an out-of-state placement may only be ordered by the court upon an express written finding that there is no appropriate in-state placement available.

In order of preference, after a family or relative, are family foster placements. Children should generally not be placed in group homes. Group care or residential placements should only be considered if deemed necessary to meet the child's specific needs.

Factors that should be considered when assessing the suitability of an out-of-home placement, including one with the non-custodial parent, are as follows:

(a) the potential for the placement to facilitate timely reunification;

(b) the geographic proximity to the parent and other family members, schools, and friends;

(c) the maintenance of sibling groups in a single placement; and

(d) the primary language spoken by the child.

2. Does DCYF's proposed case plan address the problems and needs of the child and parent?

A key decision for the court to make at the dispositional hearing is whether to approve, disapprove, or modify the case plan proposed by DCYF. The case plan is designed to inform a parent of what he/she must do; and, thus, the court should actively review the case plan and determine:

(a) whether the plan is comprehensive in identifying all the problems that need to be addressed to meet the needs of the child and her/his parents;

(b) whether the plan defines clear objectives and measurable changes to be achieved by each parent, and conditions each parent must meet before the child is returned home; and

(c) the services the child-placing agency will provide to the child and family.

The court should take time in reviewing the plan to ensure that all parties understand the plan and what is expected of them. Each parent should be asked by the court whether he/she wishes to participate in the plan to try to reunify the family.

At the dispositional hearing, the judge should consider whether an order of protection is necessary, setting forth conditions of behavior by a parent, relative, sibling, guardian, custodian or a household member. Such order, pursuant to RSA 169-C:19,II(a), may require any such person to:

(1) stay away from the premises, another party, or the child;

(2) permit a parent or other named person to visit supervised or otherwise, or have contact with the child at stated periods and under such conditions as the court may order;

(3) abstain from harmful conduct with respect to the child or any person to whom custody of the child is awarded;

(4) correct specified deficiencies in the home that make the home a harmful environment for the child; and/or

(5) refrain from specified acts of commission or omission that make the home or contact with the child a harmful environment for the child.

If the judge, pursuant to RSA 169-C:19,V, orders services, placements, or programs different from the recommendations of DCYF, the judge shall include a statement of the costs of the services, placements, and programs that are ordered and why they are being ordered.

COMMENT

Pursuant to RSA 169-C:19-c, the court, whenever possible, shall order services, placements, and programs by providers certified pursuant to RSA 170-G:4,XVIII, who qualify for third-party payment under insurance covering the minor.

If the court's order includes a non-certified placement for a child, DCYF must undertake the certification review process giving "proper weight" to the court's placement order. DCYF, however, has the exclusive power to certify placement facilities. In re Ryan G., 142 N.H. 643, 707 A.2d 134 (1998).

3. Whether DCYF has made reasonable efforts to prevent the child's removal and placement.

Reasonable efforts should be documented by the court at every stage of the process, including at the preliminary, dispositional and review hearings, at the permanency hearing and every 12 months thereafter.

At the dispositional hearing, the court should determine whether DCYF has made reasonable efforts to keep the family intact and prevent the child's removal and placement.

COMMENT

A judicial determination with regard to reasonable efforts to prevent the child's removal and placement must be made within sixty (60) days of a child's removal. If such a determination is not made, the child will be ineligible for Title IV-E foster care maintenance payments for his/her entire stay in foster care. All findings with respect to reasonable efforts must be explicit, specific, and made on a case-by-case basis.

4. What, if any, resources are available to help cover the cost of out-of-home care?

The court should inquire about all current child support orders and inquire as to the parents' ability to help cover the cost of out-of-home care.

5. In addition to the parties to the case, are there others who should receive notice of the 3-month review hearing, including, but not limited to, foster parents, pre-adoptive parents and relative caregivers?

PROTOCOL 8 THE COURT'S APPOINTMENT OF COUNSEL FOR A CHILD

Pursuant to RSA 169-C:10,II(a), in cases involving an abused or neglected child, where the child's expressed interests conflict with the recommendation for dispositional orders of the GAL or CASA GAL, the court may appoint an attorney to represent the interests of the child.

PROTOCOL 9 DISPOSITION OF AN EDUCATIONALLY DISABLED CHILD

Pursuant to RSA 169-C:20, at any point during the proceedings, the court may, either on its own motion or that of any other person, and if the court contemplates a residential placement, the court shall immediately join the legally liable school district for the limited purposes of directing the school district to determine whether the child is educationally disabled, pursuant to RSA 186-C, or of directing the school district to review the services offered or provided under RSA 186-C if the child has already been determined to be educationally disabled.

COMMENT

For purposes of this section, residential placement refers to any out-of-home placement including, but not limited to, foster care.

PROTOCOL 10 THE COURT'S WRITTEN ORDER FOLLOWING THE DISPOSITIONAL HEARING

CROSS REFERENCE:

•Chapter 9, Appeal of Final Dispositional Order

COURT FORM:

•Dispositional Order Form (AOC-317-048)

The dispositional orders should be sent to the parties within fourteen (14) calendar days of the hearing; and, consistent with RSA 169-C:21, the court's final order shall be clearly written so as to be easily understood by all parties. The dispositional order should include the following findings and orders:

FINDINGS OF FACT:

(1) enter, pursuant to RSA 169-C:21,I, a finding that the child has been abused or neglected, and, wherever possible, the name of the perpetrator;

(2) specify whether the Indian Child Welfare Act of 1978 (ICWA) is applicable;

(3) a specific plan which shall include, but is not limited to, the following:

(a) all the problems that need to be addressed to meet the needs of the child and each parent;

(b) clear objectives and measurable changes to be achieved by each parent and conditions each parent must meet before the child may be safely returned home; and

(c) the services the child-placing agency will provide to the child and family.

ORDERS:

(1) address the issue of legal supervision of the child or legal custody with a child-placing agency; and

(2) a consideration as to whether an order of protection, pursuant to RSA 169-C:19,II(a),(b), is necessary, setting forth conditions of behavior by a parent, relative, sibling, guardian, custodian, or household member;

(3) specify the terms of visitation with each parent;

(4) specify the terms of sibling visitation;

(5) specify parental responsibilities for reimbursement to the state for out-of-home costs and, if necessary, a directive to the parent to work with the county;

(6) an order continuing health insurance and authorization to access care for the child; and

(7) set the date and time of the 3-month review hearing and, for a child in an out-of-home placement, the date for the 12-month permanency hearing.

COMMENTS

1. The court may request the parties to submit proposed findings and orders.

2. Consistent with RSA 169-C:28, an appeal may be taken to the superior court within thirty (30) calendar days of the final dispositional order, which includes a dismissal of a petition for abuse or neglect by the court.

PROTOCOL 11 MODIFICATION OF OR ADDITIONS TO THE DISPOSITIONAL ORDERS

Pursuant to RSA 169-C:22, upon the motion of a child, parent, custodian, guardian, or DCYF alleging a change of circumstances requiring a different disposition, the court shall conduct a hearing and, pursuant to RSA 169-C:19, may modify a dispositional order; provided that the court may dismiss the motion if the allegations are not substantiated in the hearing.

If a dispositional order is modified and a parent is required for the first time to correct a new condition, the court should consider whether the parent's "clock" to correct should be extended. For example, while simply adding a new treatment should not extend the "clock" for a parent, requiring a parent six months after a finding to receive treatment to correct a new condition may extend the time available for that parent to correct.

COMMENT

A change of circumstances requiring a different or additional disposition contemplates substantive changes to the child's or a parent's circumstances, including, but not limited to, changes regarding a specified placement, custody, school, or treatment plan. In such cases, if all parties assent to the motion and the court approves, the hearing may be waived.


TABLE OF CONTENTS

CHAPTER 9 - APPEAL OF FINAL DISPOSITIONAL ORDER

Page

PROTOCOL 1

TIMING OF APPEAL

80

PROTOCOL 2

WHO MAY APPEAL

80

PROTOCOL 3

EFFECT OF APPEAL ON ORDERS OF THE DISTRICT COURT OR FAMILY DIVISION AND THE PERMANENCY HEARING

81

PROTOCOL 4

DE NOVO APPEAL

81

 

CHAPTER 9 - APPEAL OF FINAL DISPOSITIONAL ORDER

 

STATUTORY REFERENCE: •RSA 169-C:28, Appeals

LEAD CASE:In re Thomas M. and Michael M., 141 N.H. 55, 676 A.2d 113 (1996), superior court must hear both the adjudicatory and dispositional aspects of the neglect case de novo.

PROTOCOL 1 TIMING OF APPEAL

Pursuant to RSA 169-C:28, an appeal from the district court or family division may be taken to the superior court within thirty (30) calendar days of the final dispositional order. A final dispositional order includes the following:

(1) a dismissal of a petition for abuse or neglect by the court; or

(2) any ruling or order arising from an administrative hearing held or initiated by any administrative agency, including the department, in which a finding of child abuse or neglect is made.

The superior court shall hear the matter de novo, and shall give an appeal under RSA 169-C priority on the court calendar.

PROTOCOL 2 WHO MAY APPEAL

An appeal, pursuant to RSA 169-C:28, may be made by:

(1) the child or his/her authorized representative;

(2) any party having an interest, including the State; or

(3) any person subject to an administrative decision pursuant to RSA 169-C.

PROTOCOL 3 EFFECT OF APPEAL ON ORDERS OF THE DISTRICT COURT OR FAMILY DIVISION AND THE PERMANENCY HEARING

An appeal shall not suspend the order or decision of the district court or family division, pursuant to RSA 169-C:28, unless that court so orders. To avoid confusion, when the district court or family division receives notice of appeal, it is suggested the district court or family division make an order retaining jurisdiction. Additionally, an appeal does not stay the permanency hearing, which shall be held twelve (12) months from the district court's or family division's finding of abuse or neglect.

COMMENT

Although RSA 169-C:28 and case law are unclear about the supervision of a case during the pendency of appeal, the law and In re Thomas M. and Michael M., 141 N.H. 55, 676 A.2d 113 (1996), are clear that the district court and family division orders remain in effect unless the district court or family division vacates such orders.

PROTOCOL 4 DE NOVO APPEAL

The superior court must hear both the adjudicatory and dispositional aspects of the neglect case de novo. In re Thomas M. and Michael M., 141 N.H. 55, 676 A.2d 113 (1996). Following this, it is within the superior court's discretion whether or not it will refer the case back to the district court or family division for continued supervision, including conducting review hearings and a 12-month permanency hearing. If a case is referred to the district court or family division for supervision and management, any orders from the superior court should be forwarded.

COMMENT

If a case is returned to the district court or family division before the expiration of the 12-month "clock" that a parent has to correct the conditions that led to a finding of abuse or neglect, the district court or family division should schedule a permanency hearing twelve (12) months from its original finding so long as the court has continued, during the pendency of appeal, to conduct review hearings and has ensured that a parent has had an opportunity to receive services and to correct.

If, however, a case is returned to the district court or family division after the expiration of the 12-month "clock" that a parent has to correct the conditions that led to a finding of abuse or neglect, the district court or family division should schedule a permanency hearing as soon as possible, so long as the court, during the pendency of appeal, has continued to conduct review hearings and has ensured that a parent has had an opportunity to receive services and to correct.


TABLE OF CONTENTS

CHAPTER 10 - REVIEW HEARING

Page

PROTOCOL 1

SCHEDULING THE REVIEW HEARING

82

PROTOCOL 2 

NECESSARY PARTIES AT THE REVIEW HEARING

84

PROTOCOL 3 

OTHERS WHO MAY ATTEND THE REVIEW HEARING

85

PROTOCOL 4 

SUBMISSION OF COURT REPORTS

87

PROTOCOL 5 

DCYF'S AFFIDAVIT AND THE CONTENT OF THE DCYF REPORT

87

PROTOCOL 6 

LETTER OR REPORT FROM FOSTER PARENTS, PRE-ADOPTIVE PARENTS OR RELATIVE CAREGIVERS

90

PROTOCOL 7 

THE COURT'S INQUIRY AT THE REVIEW HEARING

90

PROTOCOL 8

THE COURT'S WRITTEN ORDER FOLLOWING THE REVIEW HEARING

93

COURT FORM

•Review Hearing Order (AOC-330-048)

 

CHAPTER 10 - REVIEW HEARING

 

STATUTORY REFERENCES: •RSA 169-C:12-b, Filing Reports, Evaluations, and Other Records

•RSA 169-C:19-d, Visitation with Siblings

•RSA 169-C:23, Standard for Return of Child in Placement

•RSA 169-C:24, Court Review of the Disposition

•RSA 169-C:24-a, III(c), Petition for Termination of Parental Rights Required; Reasonable Efforts to Reunify

•RSA 186-C, Special Education

COURT FORM: •Review Hearing Order (AOC-330-048)

INTRODUCTION

At a review hearing, the court will comprehensively review the status of a case and examine the progress made by the parties since the conclusion of the dispositional hearing or last review hearing. A review hearing also provides an opportunity for the court to correct and revise the case plan. The purpose of a review hearing is to ensure that a case progresses so that a child spends as short a time as possible in temporary placement.

Judicial review helps a case progress by requiring the parties to set time tables, take specific action, and make decisions. Review hearings provide a forum for parents and children, if appropriate, helping assure that their viewpoint is considered in case planning. The terms of the case plan must be specified so that all parties understand their obligations, and the court can assess progress and create a valuable record of the actions of each parent and agency.

PROTOCOL 1 SCHEDULING THE REVIEW HEARING

Review hearings must be scheduled by the court and held within three (3) months and nine (9) months of the dispositional hearing. The court is also strongly encouraged to conduct a review hearing within six (6) months of the dispositional hearing. The 6-month review hearing may be a "paper review," i.e., a review by the court of written reports submitted by DCYF and the other parties.

Additionally, the court is encouraged to request brief status letters from each party between 30 and 45 calendar days before each review hearing, as outlined below. The letters will be reviewed by the court to ensure that a case is progressing as planned.

Based on national guidelines, the approximate length of time for a review hearing is 30 minutes.

COMMENTS

Although RSA 169-C:24 requires only an annual review following the initial approval of the order or initial dispositional hearing, this protocol recognizes the implied authority of the court and is consistent with the current practice to conduct earlier and more frequent reviews, including status reviews, as part of the court's overall management of abuse and neglect cases.

Since the purpose of review hearings is to ensure that cases progress and decisions are made about a child's future at regular intervals, a review hearing must be held within three (3) months and nine (9) months of the dispositional hearing. Other hearings, including a 6-month court review and ongoing status reviews, should be held on a regular basis and in anticipation of the 12-month permanency hearing.

In an effort to ensure that parties follow through between hearings and thus make review hearings more meaningful, the court should consider conducting a status review 30-45 calendar days before each review hearing. A status review should be held as the case requires and as the court deems necessary. Cases that require parties to do a fair amount in a short period of time are one type of case in which a status review may be beneficial.

While any of the parties may submit a status letter to the court before the status review is held, DCYF and the GAL or CASA GAL may be required to do so 48 hours beforehand. Parties submitting a report shall send a copy of it to all parties of record. The letter shall outline, pursuant to the court's prior orders, the progress to date on the case.

Following the status review, the court should issue an order in which it outlines which reports were reviewed, if any reports are outstanding, or if any other requirements of the parties are pending.

If a party has concerns with the court order, it may request that a hearing be held immediately. The court may also choose to schedule and conduct a hearing on its own motion following its review of the reports.

PROTOCOL 2 NECESSARY PARTIES AT THE REVIEW HEARING

The judge must identify the necessary parties to each proceeding and instruct the clerk to provide notice of the review hearing to those parties.

The following parties must receive notice and should be in attendance at the review hearing:

(1) offending parent;

(2) non-accused parents, including household and non-household parents;

(3) putative father(s);

(4) attorney for the offending parent;

(5) DCYF attorney;

(6) DCYF caseworker (with a copy of the notice sent to her/his supervisor);

(7) GAL or CASA GAL;

(8) relatives with legal standing or representatives of placement facilities, or other custodial adults; and

(9) foster parents, pre-adoptive parents or relative caregivers.

COMMENT

Incarcerated Parents and Putative Fathers

For parents who are incarcerated in New Hampshire, the clerk should do a transport order to ensure the parent's participation at the review hearing. Where necessary, and if possible, the court should make every effort to provide for meaningful participation by parents, including the use of conference calls and video conferencing.

Putative fathers who have not been involved in a child's life should also be brought into the court process as soon as possible. Timely attention to paternity issues is essential to further case processing.

Absent Parent

If a parent is absent from the hearing, the hearing should proceed without him/her. Where a non-accused, non-household parent and/or putative father(s) is not present at the review hearing, however, the court shall, on the record, ask DCYF to submit an affidavit describing its efforts to locate these parents.

Foster Parents, Pre-Adoptive Parents or Relative Caregivers

Consistent with the Adoption and Safe Families Act of 1997 (ASFA), foster parents, pre-adoptive parents or relative caregivers must receive notice of the review hearing and should be strongly encouraged to attend the review hearing and present information on the status of the child. Foster parents, pre-adoptive parents or relative caregivers should be invited to offer information about the child, rather than to advance a particular position. Although vitally important, they are not "parties" to the case and, as such, do not have standing. They are not entitled to counsel, may not file pleadings, and may not offer or cross-examine witnesses. If a party does not believe it is appropriate for a foster parent, pre-adoptive parent or relative caregiver to attend the hearing, the party should raise it with the judge for the court to decide.

If not already provided at the dispositional hearing or previous review hearing, DCYF shall provide the court (or the clerk's office) with the current name, address, and telephone number of the foster parents, pre-adoptive parents or relative caregivers. In the court's discretion, if the child has recently been in placement with a different foster family, those persons may also be invited to participate. It is presumed that all such persons will be invited to the review hearing and will attend the entire hearing unless the court finds good cause to excuse anyone from any portion of the hearing. If the court finds such cause, the court should structure the review hearing so that those persons who will be excused from the hearing may address the court early in the hearing, rather than having to wait until the end.

PROTOCOL 3 OTHERS WHO MAY ATTEND THE REVIEW HEARING

Subject to the court's discretion, the following persons may be provided with notice and an opportunity to participate at the review hearing:

(1) service provider(s);

(2) non-party school representative(s);

(3) surrogate parents as defined under RSA 186-C;

(4) individual or family counselors, therapists, and/or psychologists;

(5) age-appropriate children; and

(6) others as may be determined by the court, including, but not limited to a DCYF nurse and a representative from the placement school district, as distinguished from a school representative, where a child is educationally disabled.

COMMENT

The list of persons permitted to attend shall be identified at the hearing immediately preceding the review hearing. The court shall determine whether they should be present for the entire hearing of if they should instead speak at the beginning of the hearing and then be excused from the balance of the hearing. Prior to a decision to allow anyone to attend, all parties shall be given an opportunity to address the court.

Generally, anyone the court believes might have relevant information to offer should be permitted to participate, either in person or in writing, at the review hearing. By inviting other, non-party individuals to attend, the court is expanding the horizon of people who can provide useful information about the parent and child. This invitation, however, does not imbue those persons with party status. Therefore, they are not provided with counsel or permitted to cross examine witnesses. Moreover, the court's decision on who should be allowed to attend shall not provide any substantive rights for appeal.

Age Appropriate Children

Age-appropriate children may be permitted to attend all or some portion of the review hearing, as the court may determine. No child shall be required to attend a review hearing. However, if a child wishes to attend, the issue will be resolved by the court at the hearing immediately preceding the review hearing. In such cases, the court will also determine by whom the child will be notified of the hearing. It may be appropriate for the GAL or CASA GAL to inform the child about his/her attendance at the review hearing.

The court may consider any number of factors in deciding whether a child should attend a review hearing. These factors may include, among others, the child's expressed wishes, the age of the child, the child's maturity, whether the child has attended prior hearings in the case, any recommendations of the child's therapist, and the input of the parties.

PROTOCOL 4 SUBMISSION OF COURT REPORTS

Consistent with RSA 169-C:12-b, all reports, evaluations, and other records of DCYF, counselors and the GAL or CASA GAL shall be filed with the court and all other parties at least five (5) calendar days prior to the review hearing. Distribution of psychological evaluations and reports should be carefully monitored by the court and limited to review by the parties the court believes require the information to perform their official functions or representation of their client. The court should consider motions requesting in camera review with attorneys and the GAL or CASA GAL. Reports from service providers shall be sent directly to DCYF and the court. It is within the court's discretion to decide if any non-parties, including foster parents, pre-adoptive parents or relative caregivers, may have access to any court order, in whole or in part.

COMMENT

Normally, only DCYF, counsel of record, parents, and the GAL or CASA GAL should have access to the psychological evaluations. There may, however, also be circumstances where it is appropriate for the schools to have access to assist with educational programming.

If a particular service provider is not available to attend the review hearing, the court should ensure that the DCYF caseworker has obtained detailed information on the participation and progress of the parents and/or status of the child in that service. Ideally, written reports from all service providers should be provided to DCYF and included in their entirety in the DCYF report. Service providers should also send a copy of their report to the court.

PROTOCOL 5 DCYF'S AFFIDAVIT AND THE CONTENT OF THE DCYF REPORT

A. DCYF'S AFFIDAVIT

Where a non-accused, non-household parent and/or a putative father(s) has not been identified, the court shall require DCYF to submit an affidavit describing its efforts to locate these parents.

B. CONTENT OF THE DCYF REPORT

At least five (5) business days prior to the review hearing, DCYF shall submit a report to the court and all other parties. The Division's report shall include copies of reports in their entirety from all service providers with whom DCYF has contracted for services for the child and family. This shall include, but not be limited to, counselors, residential service providers, treating psychologists, or therapists and others rendering services to the family under contract with DCYF. It shall be DCYF's responsibility to obtain such reports sufficiently in advance so that the 5-day deadline may be strictly adhered to.

DCYF shall submit a report, including, but not limited to, the following:

(1) identifying information about the child, including the child's age, his/her cumulative length of time in placement, and the total number of placements to date. The current placement status of the child should also be included in this information;

(2) summary of the family background, including identifying information about each parent;

(3) summary of the events leading to the petition;

(4) progress to date of each parent in complying with the case plan, including the following:

(a) a description of the court's dispositional order;

(b) a description of the services to date that DCYF has provided to the child and to each parent;

(c) whether each parent is in compliance with the outstanding dispositional order, what action each parent has taken in response to each dispositional order, and whether there has been meaningful participation by each parent with respect to each dispositional order;

(d) whether each parent has corrected the conditions that led to a finding of abuse or neglect. If not, a description of which conditions are outstanding; and

(e) whether each parent wishes to participate in a plan to reunify the family;

(5) whether the services set forth in the case plan and the responsibilities of the parties need to be clarified or modified due to the availability of additional information or changed circumstances;

(6) whether there is a need for continued placement of the child. In deciding whether the child can be safely reunited, the following should be considered:

(a) the extent to which each parent has engaged in and benefited from the services outlined in the case plan;

(b) the capacity and willingness of each parent to care for the child;

(c) the extent to which changed parental behavior allows for the child's safe return home;

(d) the extent to which parental behavior may continue to endanger the child;

(e) the appropriateness of interactions between each parent and child during visitation; and

(f) the recommendations of service providers.

COMMENT

If continued placement is recommended, the report should identify the additional progress that would allow a child to safely return home and the time frame that should be followed to achieve reunification. Also, it should include a statement about how much time is left for each parent to correct the conditions that led to a finding of abuse or neglect as well as the concurrent plan for the child if the conditions are not corrected and reunification is not possible in a timely manner.

(7) whether the child is in an appropriate placement which adequately meets all physical, emotional, and educational needs. The information should include the type of placement, its distance from the child's home, and how restrictive it is. Also, what specific services are being provided to meet the child's physical, emotional, and educational needs;

(8) a description of visitation between a child and each parent and between a child and his/her sibling(s) and whether the terms of visitation need to be modified;

(9) whether any additional court orders need to be made to move the case toward successful completion;

(10) a cost analysis, including each parent's ability to contribute to the care and support of the child; and

(11) any recommendations.

PROTOCOL 6 LETTER OR REPORT FROM FOSTER PARENTS, PRE-ADOPTIVE PARENTS OR RELATIVE CAREGIVERS

Consistent with the Adoption and Safe Families Act (ASFA), foster parents, pre-adoptive parents and relative caregivers may submit a letter or report to the court, whether or not that person plans to attend the review hearing. Written comments should be filed with the court at least fourteen (14) days in advance of the hearing. Upon receipt of such information, the court should determine who will be responsible for mailing the letter or report to all parties of record. The court may either photocopy the letter/report and mail it to all parties or may choose to send a copy of the letter/report to one of the parties and require that it be photocopied and mailed to all other parties.

The written comments submitted to the court should not advance a particular position or plan for the child but should instead focus on the status of the child(ren) in care. A letter or report may address the following:

(a) general observations about the behavior of the child(ren) while in a foster parent's, pre-adoptive parent's or relative caregiver's home and the relationship of the child(ren) with any members of the family;

(b) visits and/or connections between the biological parents and the child(ren) as well as any visits and connections with siblings;

(c) any educational, social, medical and/or mental health considerations concerning the child(ren) or any special problems experienced by the child(ren); and/or

(d) any other information that in a foster parent's, pre-adoptive parent's or relative caregiver's opinion affects the health, safety or well-being of the child(ren) in their care.

PROTOCOL 7 THE COURT'S INQUIRY AT THE REVIEW HEARING

The inquiry at the review hearing should include the court's consideration of the following:

1. If a parent is absent from the hearing, the hearing should proceed without him/her. Where a non-accused, non-household parent and/or putative father(s) has never been identified and is not present at the review hearing, however, the court shall require DCYF to submit an affidavit describing its efforts to locate these parents.

2. What progress to date has each parent made in complying with the case plan?

(a) What is the court's dispositional order?

(b) What services to date has DCYF provided to the child and to each parent?

(c) Is each parent in compliance with the outstanding dispositional order? What action has each parent taken in response to each dispositional order? Has there been meaningful participation by each parent with respect to each dispositional order?

(d) Has each parent corrected the conditions that led to a finding of abuse or neglect? If not, what conditions are outstanding?

(e) Does each parent wish to participate in a plan to reunify the family?

COMMENT

Each parent should be reminded of the prior orders and the time that remains on the 12-month "clock" to correct the conditions that led to a finding of abuse or neglect.

3. Do services set forth in the case plan and the responsibilities of the parties need to be clarified or modified due to the availability of additional information or changed circumstances?

It often becomes clear at a review hearing that the case plan should be revised to reflect changed circumstances or new information. Additional or different services may be needed from those identified in the original case plan.

4. Is there a need for continued placement of a child?

If a child is placed outside a parent's home, the court should determine the necessity of the placement. In deciding whether the child can be safely reunited, the court should determine, pursuant to RSA 169-C:23, the following:

(a) whether the parents are in compliance with the outstanding dispositional order;

(b) whether the child will not be endangered in the manner adjudicated on the initial petition, if returned home; and

(c) whether return of custody is in the best interests of the child. Upon showing the ability to provide proper parental care, it shall be presumed that a return of custody is in the child's best interests.

In making this determination, the following may be considered by the court:

(i) the extent to which each parent has engaged in and benefited from the services outlined in the case plan;

(ii) the capacity and willingness of each parent to care for the child;

(iii) the extent to which changed parental behavior allows for the child's safe return home;

(iv) the extent to which parental behavior may continue to endanger the child;

(v) the appropriateness of interactions between each parent and child during visitation; and

(vi) the recommendations of service providers.

If a court determines that a child should not be returned home at this time, the court should identify the additional progress that is necessary to allow a child to safely return home and the time frame that should be followed to achieve reunification. The court should also identify how much time is left for each parent to correct the conditions that led to a finding of abuse or neglect as well as the concurrent plan for the child if the conditions are not corrected and reunification is not possible in a timely manner.

5. Is the child in an appropriate placement which adequately meets all physical, emotional, and educational needs?

The court should review information on the behavior and overall adjustment of a child to his/her placement and school. The information should include the type of placement, its distance from the child's home, and how restrictive it is. The court should also be informed of the specific services being provided to meet a child's physical, emotional, and educational needs.

6. Do the terms of visitation between a child and each parent and between a child and his/her sibling(s) need to be modified?

The court should review the terms of visitation at the hearing to determine whether any of the terms and conditions of visits between a child and each parent and between a child and his/her sibling(s) should be modified.

7. Are any additional court orders necessary to move the case toward successful completion?

The court should consider if there are any additional court orders that may be necessary to move the case toward successful completion.

8. What time frame should be followed to achieve reunification or the concurrent plan for the child?

At the conclusion of the review hearing, the court should determine what additional actions are necessary to successfully complete the case plan goals and should determine reasonable time frames in which such actions should be completed. By setting deadlines, the court will emphasize the importance of time in the lives of children and clearly convey the court's expectations.

PROTOCOL 8 THE COURT'S WRITTEN ORDER FOLLOWING THE REVIEW HEARING

COURT FORM:

•Review Hearing Order (AOC-330-048)

The court's written findings and orders shall be mailed within fourteen (14) calendar days of the review hearing and should include the following findings of fact and orders:

FINDINGS OF FACT:

(1) specify the efforts made by DCYF to locate any non-accused, non-household parent and/or putative father(s) who were not present at the hearing, as well as specify the efforts DCYF must continue to make to locate any absent parents. If any such parents did receive notice of the hearing but did not attend, it should be reflected in the court's order;

(2) specify whether DCYF has made reasonable efforts to eliminate the need for placement, with specific findings as to what actions the agency has taken and continues to take. In determining whether DCYF has made reasonable efforts, the court shall consider, pursuant to RSA 169-C:24-a,III(c), whether services to the family have been accessible, available and appropriate;

(3) specify whether each parent is in compliance with any outstanding dispositional orders and the case plan and identify, specifically, what further actions each parent must complete and by when it must be completed before the child may be safely returned;

(4) specify why the child is in need of continued placement outside the home, including the specific risks to the child; and

(5) if applicable, set forth findings as to whether and why family reunification and an end to court supervision continues to be the permanency plan. Also, if reunification cannot be achieved in a timely manner, the court should identify a concurrent plan for the child.

ORDERS:

(1) specify whether DCYF will be awarded legal custody or legal supervision;

(2) specify the terms of visitation with each parent;

(3) specify the terms of sibling visitation;

(4) set forth the additional efforts required by DCYF that are necessary to meet the needs of each parent and child and move the case toward completion;

(5) approve proposed changes in the case plan and set forth any court-ordered modifications needed as a result of information presented at the review hearing;

(6) make other orders necessary to resolve the problems that are preventing reunification and/or the concurrent plan for the child;

(7) set forth a reminder for each parent about the time that is left on the 12-month "clock" for each parent to correct the conditions that led to a finding of abuse or neglect and, if a child is in an out-of-home placement, the date when the permanency hearing will be held; and

(8) set the date and time of the next hearing and determine if there are any non-parties to the case whom the court should send notice about the subsequent hearing, including, but not limited to, foster parents, pre-adoptive parents and relative caregivers.

COMMENTS

1. The court may request parties to submit proposed findings and orders.

2. Following the required 3-month review hearing, the court is strongly encouraged to conduct a 6-month review. The court must also conduct a 9-month review hearing.

3. At the 9-month review hearing, the court is permitted, if requested, to approve preparation of a TPR social study by DCYF as part of DCYF's concurrent plan for a child.


TABLE OF CONTENTS

CHAPTER 11 - PERMANENCY HEARING

Page

PROTOCOL 1

OPTIONS FOR PERMANENCY

97

PROTOCOL 2

SCHEDULING THE 12-MONTH PERMANENCY HEARING

99

PROTOCOL 3

CONTINUANCES

101

PROTOCOL 4

NOTICE

101

PROTOCOL 5

PRESENCE OF AGE-APPROPRIATE CHILDREN AT THE PERMANENCY HEARING

104

PROTOCOL 6

SUBMISSION OF COURT REPORTS

105

PROTOCOL 7

DCYF'S AFFIDAVIT AND THE CONTENT OF THE DCYF REPORT

106

PROTOCOL 8

GUARDIAN AD LITEM (GAL) OR CASA GUARDIAN AD LITEM (CASA GAL) REPORT

114

PROTOCOL 9

REPORTS FROM OTHER PARTIES

114

PROTOCOL 10

LETTER OR REPORT FROM FOSTER PARENTS, PRE-ADOPTIVE PARENTS OR RELATIVE CAREGIVERS

114

PROTOCOL 11

EVIDENCE

115

PROTOCOL 12

THE COURT'S INQUIRY AT THE PERMANENCY HEARING

115

PROTOCOL 13

THE COURT'S WRITTEN ORDER FOLLOWING THE PERMANENCY HEARING

122

PROTOCOL 14 

THE POST-PERMANENCY HEARINGS

124

PROTOCOL 15

THE 30-DAY PERMANENCY HEARING

125

COURT FORMS

• Permanency Hearing Order (AOC-325-048)

• Post-Permanency Hearing Order (AOC-331-048)

 

CHAPTER 11 - PERMANENCY HEARING

 

STATUTORY REFERENCES: •RSA 169-C:12-b, Filing Reports, Evaluations, and Other Records

•RSA 169-C:12, Evidence

•RSA 169-C:23, I,II,& III, Standard for Return of Child in Placement

•RSA 169-C:24-a, Petition for Termination of Parental Rights Required; Reasonable Efforts to Reunify

•RSA 169-C:24-a, I,III,&IV, Petition for Termination of Parental Rights Required; Reasonable Efforts to Reunify

•RSA 169-C:26, Continuances

•RSA 170-C:5,I,III,&VII, Grounds for Termination of the Parent-Child Relationship

•RSA 186-C, Special Education

•RSA 629:1, Attempt

•RSA 629:2, Criminal Solicitation

•RSA 629:3, Conspiracy

•RSA 630:1-a, First Degree Murder

•RSA 630:1-b, Second Degree Murder

•RSA 630:2, Manslaughter

•RSA 631:1, First Degree Assault

•RSA 631:2, Second Degree Assault

•RSA 632-A:2, Aggravated Felonious Sexual Assault

•RSA 632-A:3, Felonious Sexual Assault

COURT FORMS: •Permanency Hearing Order (AOC-325-048)

•Post-Permanency Hearing Order (AOC-331-048)

 

INTRODUCTION

A permanency hearing is a unique post-review hearing which takes place after a child has been in an out-of-home placement for an extended period of time. The purpose of this hearing is to make a final decision about the permanent placement of the child. At this hearing, the court will decide whether and when the child will be returned home or, if this is not possible, will order an alternative plan for the child's permanent living arrangement.

Permanency hearings are fundamentally different from review hearings. Review hearings typically measure the progress of parents toward compliance with a case plan, DCYF's compliance with the provision of court-ordered services, and the child's status. Review hearings are also for the purpose of adjusting and updating case plans, and providing the court with an opportunity to oversee case progress. Permanency hearings, by contrast, should result in a final decision concerning the child's permanent placement.

Consistent with the Adoption and Safe Families Act of 1997 (ASFA), these protocols only apply to cases in which there is a finding of abuse or neglect AND a child has been in an out-of-home placement for an extended period of time. Twelve (12) or more months would be considered an extended period of time.

A child is considered to be in an out-of-home placement if the child is removed from a biological/adoptive parent and placed in substitute care with someone other than a biological/adoptive parent of the child. By contrast, a child removed from one parent and placed with another biological/adoptive parent is not considered to be in an out-of-home placement. A child placed with a biological/adoptive parent is never considered to be in substitute care, even if the child and parent have had little or no contact.

PROTOCOL 1 OPTIONS FOR PERMANENCY

Consistent with ASFA, at the permanency hearing the court will consider from among (5) permanency options, listed in order of preference, and will make a final decision about whether:

1) the child is to be returned home immediately or by a date certain;

2) the child is expected to be returned home after a brief extension of her/his out-of-home placement;

3) the adoption of the child is contemplated, with a termination of parental rights (TPR) petition being filed;

4) a guardianship petition will be filed on behalf of a fit and willing relative or another appropriate party; or

5) the child will be placed in another planned permanent living arrangement, (APPLA) but only in cases where DCYF has documented to the court a compelling reason for determining that it would not be in the best interests of the child to follow one of the first four specified options.

COMMENTS

1. Courts are encouraged to conduct a timely permanency hearing, even in cases in which a parent is making progress but needs additional time to correct, such as cases involving parents with substance abuse or mental health issues. In such cases, the court has the discretion after conducting a permanency hearing to extend the time to implement a permanency plan for a child.

2. Adoption by a fit and willing relative or foster family with whom the child is living is preferred, or adoption by a family with whom the child has a positive existing relationship but is not living, including a fit and willing relative or former foster parent.

3. Pursuant to ASFA, when a guardianship is identified as the permanency plan for an abused or neglected child, the guardianship is intended to be permanent and self-sustaining. A guardianship is intended to create a home in which the child can grow and maintain a life long relationship with his/her caregiver and should transfer to the guardian certain parental rights with respect to the child, including protection, education, care and control of the child, custody of the child and decision making.

4. Another planned permanent living arrangement (APPLA) is, pursuant to ASFA, the least preferred permanency plan for an abused or neglected child. APPLA is not a catchall for whatever temporary plan is needed when none of the more permanent options are appropriate. Instead, APPLA is intended to be a planned and permanent arrangement that will endure for a child. The term "living arrangement" includes both the physical placement of the child and the quality of care, supervision, and nurture the child will receive.

APPLA is not long-term foster care, which ASFA explicitly prohibits as a permanency option for an abused or neglected child. Similarly, emancipation is not a permanency plan for a child since it lacks the permanency features of APPLA.

PROTOCOL 2 SCHEDULING THE 12-MONTH PERMANENCY HEARING

A permanency hearing must be scheduled by the court and held twelve (12) months from either the adjudicatory finding of abuse or neglect or the entry and approval of a consent decree that includes a finding for cases in which a child, consistent with ASFA, has remained in an out-of-home placement for an extended period of time. Twelve (12) or more months would be considered an extended period of time.

According to national guidelines, the approximate length of time for a permanency hearing is 60 minutes.

COMMENTS

1. A child is considered to be in an out-of-home placement if the child is removed from a biological/adoptive parent and placed in substitute care with someone other than a biological/adoptive parent of the child. In such a case, the Division for Children, Youth and Families (DCYF) will be awarded legal custody by the court.

A child is not considered to be in an out-of-home placement if the child is removed from one biological/adoptive parent and placed with another biological/adoptive parent. A child placed with a biological/adoptive parent is never considered to be in substitute care, even if the child and parent have had little or no contact. If a child is removed from one biological/adoptive parent and placed with another, legal supervision should be awarded to DCYF by the court.

When a child is removed from one parent and placed with another, the court should provide the offending parent with twelve months to correct the conditions that led to the finding of abuse or neglect. If the child during this time resides with the other biological/adoptive parent, it will be on a temporary basis.

If an offending parent is given a twelve-month opportunity to correct the conditions that led to the abuse or neglect, DCYF will be required to make reasonable efforts to reunify the child and offending parent. During this time, the court should conduct a dispositional hearing and periodic review hearings. Additionally, the court should conduct a final review hearing twelve months from the finding of abuse or neglect.

At a 12-month review hearing, the court should determine whether the offending parent has corrected the conditions that led to the finding of abuse or neglect, whether the child may safely be returned to that parent's custody and whether return of custody is in the child's best interest. In making this determination, the court should refer for guidance to the Standard for Return of a Child, pursuant to RSA 169-C:23, I, II and III.

If the court determines that the child should not be returned to the offending parent but should remain with the biological/adoptive parent, the court should consider closing the case. This would permit either parent to pursue custody in the superior court or family division.

2. Although RSA 169-C does not contain any reference to a permanency hearing as defined by ASFA, RSA 170-C:5,III, provides a parent with twelve (12) months to correct the conditions that led to a finding of abuse or neglect. At the end of this twelve (12) months, the court will conduct a permanency hearing, which will bring New Hampshire practice into compliance with the federal law.

For the permanency hearing to be a meaningful proceeding at which the permanency options are considered, this hearing must be held for cases in which a child has been in an-out-of-home placement for an extended period of time. Additionally, the scheduling of the hearing must be twelve (12) months from a finding of abuse or neglect, rather than fourteen (14) months from a child's removal, as ASFA requires if the removal date is the earlier of the two. In light of this, it is crucial that judges schedule and conduct the adjudicatory hearing within thirty (30) calendar days of the filing of a petition since the court's finding will determine the scheduling of the 12-month permanency hearing. Continuances of the adjudicatory hearing should not be granted since to do so would delay the permanency hearing.

3. If a case is appealed to the superior court, the district court or family division should continue to conduct review hearings and should schedule the 12-month permanency hearing.

If a case is returned to the district court or family division before the expiration of the 12-month "clock" that a parent has to correct the conditions that led to a finding of abuse or neglect, the district court or family division should schedule a permanency hearing twelve (12) months from its original finding so long as the court has continued, during the pendency of appeal, to conduct review hearings and has ensured that a parent has had an opportunity to receive services and to correct.

If, however, a case is returned to the district court or family division after the expiration of the 12-month "clock" that a parent has to correct the conditions that led to a finding of abuse or neglect, the district court or family division should schedule a permanency hearing as soon as possible, so long as the court, during the pendency of appeal, has continued to conduct review hearings and has ensured that a parent has had an opportunity to receive services and to correct.

NOTE THIS UNUSUAL CIRCUMSTANCE: This protocol anticipates that removal of the child will occur prior to or contemporaneously with the judicial finding of abuse or neglect. In the unlikely event the removal occurs several months into the case plan, the permanency hearing should be held twelve (12) months from the child's removal from the home. For example, if a finding is made in January but the child is not removed until June, the permanency hearing should be held the following June, not in January. Also, when there is a finding of abuse or neglect and a child comes in and out of care, a permanency hearing should be held when the child has been in an out-of-home placement, pursuant to RSA 169-C:24-a, I, for 12 of the most recent 22 months.

PROTOCOL 3 CONTINUANCES

Continuances are strongly discouraged and should only be granted by the court, consistent with RSA 169-C:26, for good cause shown, such as unforeseen circumstances. Requests for continuances should not be presumed to be granted, including continuances to which all parties have assented; to the contrary, they should be presumed to be denied absent a showing of good cause.

COMMENT

In most cases, a continuance should not be necessary if the court has scheduled the permanency hearing following the adjudicatory hearing for cases in which there is a finding of abuse or neglect AND a child is in an out-of-home placement.

PROTOCOL 4 NOTICE

A. PARTIES WHO MUST BE SENT NOTICE AND WHO MUST BE GIVEN THE OPPORTUNITY TO ATTEND THE PERMANENCY HEARING

The judge must identify the necessary parties to the permanency hearing and instruct the clerk to provide notice of the scheduled hearing to those parties.

The following parties must be in attendance at the permanency hearing:

(1) offending parent;

(2) attorney for the offending parent;

(3) DCYF attorney;

(4) DCYF caseworker;

(5) GAL or CASA GAL;

(6) attorney for the child, if any; and

(7) any individual or agency having legal custody of the child if other than DCYF.

COMMENT

A permanency hearing should be held even if a parent and/or the parent's attorney does not attend so long as the court finds that they were provided notice of the hearing.

B. INDIVIDUALS WHO MUST BE SENT NOTICE AND WHO SHOULD ATTEND THE PERMANENCY HEARING

The judge should instruct the clerk to provide notice of the permanency hearing to the following persons, who should attend the hearing:

(1) any non-accused parent who is a household member;

(2) any non-accused, non-household parent, including incarcerated parent(s) and putative father(s);

(3) relatives or adults with legal standing;

(4) foster parents, pre-adoptive parents, or relatives caring for the child;

(5) residential service providers; and

(6) any other person or entity joined as a party, such as a school district.

COMMENT

Typically at the last review hearing preceding the permanency hearing, the court will determine the list of all persons who should be present at the permanency hearing, and in what order they will present information. If necessary, the court may convene a separate pre-permanency hearing conference but such conference shall not delay the actual permanency hearing.

It is presumed that all such persons will attend the entire permanency hearing unless the court finds good cause to excuse anyone from any portion of the hearing. If the court finds such cause, the court should structure the hearing so that those persons who will be excused from the hearing may address the court early in the hearing, rather than having to wait until the end of it.

Incarcerated Parents

For parents who are incarcerated in New Hampshire, the clerk should do a transport order to ensure the parent's participation at the permanency hearing. Where necessary, and if possible, the court should make every effort to provide for meaningful participation by parents, including the use of conference calls and video conferencing.

Non-Accused, Non-Household Parent and/or Putative Father(s)

Where a non-accused, non-household parent and/or putative father(s) is not present at the permanency hearing, the court shall require DCYF to submit an Affidavit describing its efforts to locate these parents.

Foster Parents, Pre-Adoptive Parents or Relative Caregivers

Consistent with ASFA, foster parents, pre-adoptive parents or relatives caring for a child must receive notice of the permanency hearing and should be strongly encouraged to attend the hearing and present information on the status of the child. They should be invited to offer information about the child, rather than to advance a particular position or plan for the child. Although vitally important, they are not "parties" to the case and, as such, do not have standing. They are also not entitled to counsel, may not file pleadings, and may not offer or cross-examine witnesses.

If not already provided, DCYF shall provide the court (or clerk's office) with the current name, address and telephone number of the foster parents, pre-adoptive parents or relative caregivers. In the court's discretion, if the child has recently been in placement with a different foster family, those persons may also be invited to participate.

If a party does not believe it is appropriate for a foster parent, pre-adoptive parent or relative caregiver to attend the hearing, the party should raise it with the judge for the court to decide.

C. PERSONS WHO MAY BE SENT NOTICE AND WHO MAY ATTEND THE PERMANENCY HEARING

Subject to the court's discretion, the following persons may be provided with notice and an opportunity to participate at the permanency hearing:

(1) Service provider(s);

(2) Non-party school representative(s);

(3) Surrogate parents as defined under RSA 186-C;

(4) Individual or family counselors, therapists and/or psychologists;

(5) Extended (adult) family members; and

(6) Others as may be determined by the court.

COMMENT

Generally anyone whom the court believes might have relevant information to offer should be permitted to participate at the permanency hearing. By inviting other, non-party individuals to attend, the court is expanding the horizon of people who can provide useful information about the parent and child. This invitation, however, does not imbue those persons with party status. Therefore, they are not provided with counsel or permitted to cross-examine witnesses. Moreover, the court's decision on who should be allowed to attend shall not provide any substantive rights for appeal.

The list of persons permitted to attend should be identified at the hearing immediately preceding the permanency hearing. The court will determine whether or not these individuals should be present for the entire hearing or if they should instead speak only at the beginning of the hearing and then be excused.

PROTOCOL 5 PRESENCE OF AGE-APPROPRIATE CHILDREN AT THE PERMANENCY HEARING

Age-appropriate children may be permitted to attend all or some portion of the permanency hearing, as the court may determine.

COMMENT

No child shall be required to attend a permanency hearing. However, if a child wishes to attend, the issue will be resolved by the court at the hearing immediately preceding the permanency hearing. If it is determined that a child will attend the permanency hearing, the court will determine by whom the child will be notified of the hearing. In such cases, it may be appropriate for the GAL or CASA GAL to inform the child about his/her attendance at the permanency hearing.

The court may consider any number of factors in deciding whether a child may attend a permanency hearing. These factors may include, among others, the child's expressed wishes, the age of the child, the child's maturity, whether the child has attended prior hearings in the case, any recommendations of the child's therapist, and the input of the parties.

PROTOCOL 6 SUBMISSION OF COURT REPORTS

Consistent with RSA 169-C:12-b, all reports, evaluations and other records shall be filed with the court and all other parties at least five (5) calendar days prior to the permanency hearing. Distribution of psychological evaluations and reports should be carefully monitored by the court and limited to review by the parties the court believes require the information to perform their official functions or representation of their client. The court should consider motions requesting in camera review with attorneys and the GAL or CASA GAL.

Reports from service providers should be sent directly to DCYF and the court.

COMMENTS

1. Normally only DCYF counsel of record, parents and the GAL or CASA GAL should have access to the psychological evaluations. There may, however, also be circumstances where it is appropriate for the schools to have access to assist with educational programming.

2. If a particular service provider is not available to attend the permanency hearing, the court should ensure that the DCYF caseworker has obtained detailed information on the participation and progress of the parents in that service. Ideally, written reports from all service providers should be provided to the court.

 

PROTOCOL 7 DCYF'S AFFIDAVIT AND THE CONTENT OF THE DCYF REPORT

A. DCYF'S AFFIDAVIT

Where a non-accused, non-household parent and/or a putative father(s) has not been identified, the court shall require DCYF to submit an affidavit describing its efforts to locate these parents.

B. CONTENT OF THE DCYF REPORT

DCYF shall file a permanency report with the court and all other parties at least five (5) calendar days prior to the permanency hearing. DCYF's report shall include copies of reports in their entirety from all service providers with whom DCYF has contracted for services for the child and family. This shall include, but not be limited to, counselors, residential service providers, treating psychologists, or therapists and others rendering services to the family under contract with DCYF. It shall be DCYF's responsibility to obtain such reports sufficiently in advance so that the five-day deadline may be strictly followed.

DCYF's report shall address the following:

1. Whether DCYF has made reasonable efforts to finalize the permanency plan of reunification;

2. Pursuant to RSA 169-C:23,I, whether the parent is in compliance with the outstanding dispositional order, what action has the parent taken in response to each dispositional order, whether there has been meaningful participation by each parent with respect to each dispositional order, and whether the conditions or circumstances leading to the child's removal have been corrected.;

3. Pursuant to RSA 169-C:23,II, can the parent demonstrate that the child will not be endangered in the manner adjudicated on the initial petition, if returned home?;

4. Pursuant to RSA 169-C:23,III, can the parent demonstrate that return of custody is in the best interests of the child? Upon showing the ability to provide proper parental care, it shall be presumed that a return of custody is in the child's best interests; and

5. From the following list of five permanency options, which is DCYF recommending as the legal, permanent placement for the child? Also, why are the other permanency options inappropriate for the child?

I. THE CHILD IS TO BE RETURNED HOME IMMEDIATELY OR BY A DATE CERTAIN (NOT TO EXCEED 60 DAYS)

If a parent has met the standard for return of the child, then DCYF may recommend that a child be returned home. In such case, the child should be returned home immediately or, if there is a need for a plan to ease the child's transition, a date certain shall be recommended when the child will be returned home. The transition period shall not exceed sixty (60) days.

In addition to addressing questions 1 through 5 above, the DCYF permanency report shall also include the following:

a. a plan for the child's safe return home, including a schedule that continues to increase visitation between a child and parent and between a child and siblings, and a description of the post-reunification services that will be provided, and for what duration; and

b. the date certain when the child can be safely returned home, which shall not exceed sixty (60) days.

II. THE CHILD IS EXPECTED TO BE RETURNED HOME AFTER A BRIEF EXTENSION OF HER/HIS OUT-OF-HOME PLACEMENT (NOT TO EXCEED 90 DAYS)

If a parent has made significant, consistent and measurable progress toward meeting the standard for return of the child and, following a brief extension of the child's out-of-home placement, the parent is expected to fully meet this standard and the child is expected to be returned home, DCYF may recommend a brief extension of the child's placement.

In addition to addressing questions 1 through 5 above, the report shall also include the following:

a. the facts and circumstances showing why it is not appropriate to return the child home at the time of the permanency hearing and a plan that outlines what the parent must do to fully meet the standard for return of her/his child;

b. a date certain when the child is to be safely returned home, which should not exceed ninety (90) days; and

c. a description and status of the concurrent permanent plan for the child if reunification cannot occur at the conclusion of the court-ordered extension of the child's out-of-home placement.

III. THE ADOPTION OF THE CHILD IS CONTEMPLATED AND A TERMINATION OF PARENTAL RIGHTS PETITION (TPR) WILL BE FILED BETWEEN 60 AND 90 CALENDAR DAYS OF THE PERMANENCY HEARING ORDER

If DCYF indicates that an adoption is contemplated and recommends that a TPR petition be filed, in addition to addressing questions 1 through 5 above, the permanency report shall also include the following:

a. an explanation as to why reunification cannot safely occur and why reunification services should therefore cease;

b. the facts and circumstances supporting the grounds for a termination of parental rights petition (TPR);

c. the court in which the TPR petition will be filed and the projected date when it will be filed, which shall be filed between sixty (60) and ninety (90) calendar days of the permanency hearing order;

d. an explanation as to whether relinquishment of parental rights was discussed with the parent, and, if so, when it was discussed and its outcome. If a relinquishment was not discussed with the parent, an explanation as to why not;

e. a sworn statement, pursuant to RSA 169-C:24-a,IV, which describes the efforts that have been made to finalize a new permanent home for the child;

f. a plan for adoption of the child, and any interim placement for the child if she/he is not already placed with a pre-adoptive family;

g. a recommendation concerning parental visitation and whether it is appropriate. If appropriate, the extent to which visitation between a child and parent should occur;

h. a recommendation concerning sibling visitation and whether it is appropriate. If appropriate, the extent to which such visitation should occur; and

i. a recommendation as to whether or not a mental health evaluation is appropriate.

COMMENTS

1. If a TPR petition is ordered, the best practice is to have the petition filed within sixty (60) calendar days of the permanency order, but in all cases, the petition shall be filed within ninety (90) calendar days of the order.

2. If a TPR petition is ordered, DCYF will no longer be required to make reasonable efforts to reunify the parent and child. Nonetheless, services for a child should continue to be provided, as well as services related to visitation between a child and parent.

In such cases, visitation between a parent and child shall be within the discretion of the court. Visitation should be clinically appropriate to meet the needs of the child. When reviewing visitation, district courts should consider that their orders specific to visitation may remain in place during a TPR case. Additionally, district courts may be asked to reconsider visitation during a pending TPR if the probate court does not choose to address the issue. In such cases, district courts are encouraged to continue to conduct hearings limited to the issue of visitation.

3. If a TPR petition is ordered, the district court shall retain jurisdiction until such time as the TPR is granted. If the TPR fails, the probate court should return the case to the district court, where a second permanency hearing shall be held immediately. At this hearing, all permanency options, including reunification, may be considered by the court.

4. Pursuant to RSA 169-C:24-a,I, the district court has the authority to require DCYF to file a petition for termination of parental rights (TPR) where any one or more of the following circumstances exist:

(a) where a child has been in an out-of-home placement, pursuant to a finding of child neglect or abuse, under the responsibility of the State, for 12 of the most recent 22 months;

(b) where a court of competent jurisdiction has determined that a child has been abandoned as defined by RSA 170-C:5,I; or

(c) where a court of competent jurisdiction has made any one or more of the following determinations:

(1) that the parent has been convicted of murder of another child of the parent, pursuant to RSA 630:1-a or 630:1-b;

(2) that the parent has been convicted of manslaughter of another child of the parent pursuant to RSA 630:2;

(3) that the parent has been convicted of attempt pursuant to RSA 629:1, solicitation pursuant to RSA 629:2, or conspiracy pursuant to RSA 629:3, to commit any of the offenses specified in subparagraphs (1) and (2) above; and/or

(4) that the parent has been convicted of a felony assault under RSA 631:1, 631:2, 632-A:2, or 632-A:3 which resulted in serious bodily injury to the child or to another child of the parent.

Additionally, in the circumstances outlined above in (a), (b) and (c), DCYF is required to file a TPR petition.

EXCEPTION

Pursuant to RSA 169-C:24-a,III, the State may not be required to file a petition for termination of parental rights, or seek to be joined as a party to such a petition, if one or more of the following conditions exist:

(a) the child is being appropriately cared for by a relative;

(b) a state agency has documented in the case file a compelling reason for determining that filing a petition for termination of parental rights would not be in the best interests of the child; or

(c) the State has not provided to the family of the child, consistent with RSA 170-C:5,III, such services and reasonable efforts as the State deems necessary for the safe return of the child to the child's home. In determining whether the state has made reasonable efforts to prevent placement and reunify the family, the district court shall consider whether services to the family have been accessible, available, and appropriate.

IV. A GUARDIANSHIP PETITION WILL BE FILED ON BEHALF OF A FIT AND WILLING RELATIVE OR ANOTHER APPROPRIATE PARTY

If DCYF recommends that a guardianship petition be filed for the child on behalf of a fit and willing relative or another appropriate party, in addition to addressing questions 1 through 5 above, the report shall also include the following:

a. an explanation as to why reunification cannot safely occur and why reunification services should therefore cease;

b. why a TPR petition should not be filed. For cases that statutorily require the filing of a TPR petition, an explanation of which exception in RSA 169-C:24-a,III is applicable;

c. the facts and circumstances explaining why and how a guardianship will provide for the needs of the child;

if a co-guardianship with DCYF is proposed, an explanation of the necessity for a continued relationship between the child and State;

if a "limited guardianship" is proposed by DCYF because of medical issues and the need for authorization, DCYF shall indicate when it will file, if appropriate, a TPR petition;

d. whether the child will be placed with a relative or non-relative under guardianship;

e. a description of the fitness and suitability of the guardian for the care of the child, including the guardian's commitment to the long-term care and stability of the child;

f. a description of how the child's medical, therapeutic and educational needs will be met;

g. a description of the extent to which there will continue to be contact, if any, between a parent and child and between a child and siblings; and

h. the court in which the guardianship petition will be filed and the projected date when and by whom the petition will be filed, which shall not exceed sixty (60) days from the permanency hearing order.

COMMENTS

1. If someone other than DCYF will file the petition, DCYF shall outline what assistance it will provide to ensure that the petition will be filed in a timely manner.

2. The district court shall retain jurisdiction over the underlying abuse and neglect case until such time as the guardianship is finalized.

3. Pursuant to ASFA, when a guardianship is identified as the permanency plan for an abused or neglected child, the guardianship is intended to be permanent and self-sustaining. A guardianship is intended to create a home in which the child can grow and maintain a life long relationship with his/her caregiver and should transfer to the guardian certain parental rights with respect to the child, including protection, education, care and control of the child, custody of the child and decision making.

V. THE CHILD WILL BE PLACED IN ANOTHER PLANNED PERMANENT LIVING ARRANGEMENT (APPLA)

If DCYF recommends that the child be placed in another planned permanent living arrangement (APPLA), which is the least permanent plan for a child, in addition to addressing questions 1 through 5 above, the report shall also document to the court a compelling reason for determining that it would not be in the best interests of the child to follow one of the four specified, more permanent, options outlined above, including:

a. why reunification cannot safely occur, and why reunification services should therefore cease;

b. why a TPR petition should not be filed. For cases that statutorily require the filing of a TPR petition, an explanation of which exception in RSA 169-C:24-a,III is applicable;

c. why a guardianship petition should not be filed;

d. why the proposed permanent living arrangement is the most appropriate permanent plan for the child and how it will meet the child's needs and best interests. Also, whether an independent living arrangement is a component of this permanent plan and if so, what the plan is for the child's transition to adulthood and closure of the case. The Adoption and Safe Families Act requires that a permanency plan for a youth 16 years or older include "the services needed to assist the child to make the transition from foster care to independent living";

e. a description of plans for continued contact with the parent and siblings, if any; and

f. when the case should next be reviewed.

COMMENTS

1. If another planned permanent living arrangement is being recommended, the case should be reviewed within ninety (90) days of the permanency hearing order. Thereafter, federal law requires that a permanency hearing be held, as well as a reasonable efforts determination made, at least every twelve (12) months following the initial permanency hearing while the child is in foster care. At that time, the court should revisit the permanency plan and consider whether a modification to the plan is appropriate or whether a different more permanent and stable plan should be sought for the child.

2. Another planned permanent living arrangement (APPLA) is, pursuant to ASFA, the least preferred permanency plan for an abused or neglected child. APPLA is not a catchall for whatever temporary plan is needed when none of the more permanent options are appropriate. Instead, APPLA is intended to be a planned and permanent arrangement that will endure for a child. The term "living arrangement" includes both the physical placement of the child and the quality of care, supervision, and nurture the child will receive.

APPLA is not long-term foster care, which ASFA explicitly prohibits as a permanency option for an abused or neglected child. Similarly, emancipation is not a permanency plan for a child since it lacks the permanency features of APPLA.

PROTOCOL 8 GUARDIAN AD LITEM (GAL) OR CASA GUARDIAN AD LITEM (CASA GAL) REPORT

A report shall be filed with the court and all other parties by the GAL or CASA GAL at least five (5) calendar days prior to the permanency hearing. The report shall discuss whether the child can be safely returned to the parent's custody, considering the child's physical safety, emotional security and psychological well-being. If the GAL or CASA GAL does not recommend return to the parent's custody, the report shall include an alternative recommendation for the child's legal, permanent placement, and a time line for when it can be realized. To the extent possible, the report may also comment on the parent's compliance with the case plan, visitation, and any other information deemed relevant.

PROTOCOL 9 REPORTS FROM OTHER PARTIES

Other parties to a case may file reports if they choose, offering their recommendations for a permanency plan. Reports shall be filed with the court and all parties of record not less than five (5) calendar days prior to the permanency hearing.

PROTOCOL 10 LETTER OR REPORT FROM FOSTER PARENTS, PRE-ADOPTIVE PARENTS OR RELATIVE CAREGIVERS

Consistent with the Adoption and Safe Families Act (ASFA), foster parents, pre-adoptive parents and relative caregivers may submit a letter or report to the court, whether or not that person plans to attend the permanency hearing. Written comments should be filed with the court at least fourteen (14) days in advance of the hearing. Upon receipt of such information, the court should determine who will be responsible for mailing the letter or report to all parties of record. The court may either photocopy the letter/report and mail it to all parties or may choose to send a copy of the letter/report to one of the parties and require that it be photocopied and mailed to all other parties.

The written comments submitted to the court should not advance a particular position or plan for the child but should instead focus on the status of the child(ren) in care. A letter or report may address the following:

(a) general observations about the behavior of the child(ren) while in a foster parent's, pre-adoptive parent's or relative caregiver's home and the relationship of the child(ren) with any members of the family;

(b) visits and/or connections between the biological parents and the child(ren) as well as any visits and connections with siblings;

(c) any educational, social, medical and/or mental health considerations concerning the child(ren) or any special problems experienced by the child(ren); and/or

(d) any other information that in a foster parent's, pre-adoptive parent's or relative caregiver's opinion affects the health, safety or well-being of the child(ren) in their care.

PROTOCOL 11 EVIDENCE

Consistent with RSA 169-C:12, the court shall not be bound by the technical rules of evidence and may admit evidence which it considers relevant and material. Additionally, the court, in its discretion, should consider whether the evidence being offered is reliable. Customarily, permanency hearings should be based on offers of proof. If circumstances require, however, testimony may be offered.

According to national guidelines, the approximate length of time for a permanency hearing is 60 minutes.

PROTOCOL 12 THE COURT'S INQUIRY AT THE PERMANENCY HEARING

The court shall make the following inquiries at the permanency hearing:

1. What efforts has DCYF made to locate a non-accused, non-household parent and/or putative father(s)? The court shall require DCYF to submit an affidavit describing its efforts to locate these parents;

2. Has DCYF made reasonable efforts to finalize the permanency plan of reunification?;

Federal law requires that a judicial determination be made with respect to reasonable efforts to finalize a permanency plan at the permanency hearing and at least every twelve (12) months thereafter while the child is in foster care. If such a judicial determination is not made timely, the child will be ineligible for foster care maintenance payments until such a determination is made.

3. Pursuant to RSA 169-C:23,I, is the parent in compliance with the outstanding dispositional order? What action has the parent taken in response to each dispositional order? Has there been meaningful participation by the parent with respect to each dispositional order and have the conditions or circumstances leading to the child's removal been corrected?;

4. Pursuant to RSA 169-C:23,II, can the parent demonstrate that the child will not be endangered in the manner adjudicated on the initial petition, if returned home?;

5. Pursuant to RSA 169-C:23,III, can the parent demonstrate that return of custody is in the best interests of the child? Upon showing the ability to provide proper parental care, it shall be presumed that a return of custody is in the child's best interests; and

COMMENT

The New Hampshire Child Protection Act seeks to protect the safety of the child and to preserve the unity of the family whenever possible. With respect to a parent's ability to provide proper parental care, this shall include providing for a child's safety and physical and emotional well-being.

6. Based upon an examination of the above questions and a review of the five (5) permanency options, the court will determine which of the following options will constitute the final, legal, permanent placement for the child and when it will be realized. Accordingly, the court will consider the following:

I. THE CHILD IS TO BE RETURNED HOME IMMEDIATELY OR BY A DATE CERTAIN (NOT TO EXCEED 60 DAYS)

In addition to addressing questions 1 through 4 above, if the court is considering returning the child home immediately or by a date certain, it shall make the following inquiry:

a. what is the plan for the child's safe return home, including a schedule that continues to increase visitation between a child and parent and between a child and siblings, and what post-reunification services will be provided, and for what duration?; and

b. what is the date certain when the child can be safely returned home, which shall not exceed sixty (60) days from the permanency hearing order?

COMMENT

1. Whenever possible, courts are strongly encouraged to return children home immediately when the case plan has been fully met.

2. If a parent has successfully corrected the conditions that led to a finding of abuse or neglect but, due to the unique treatment needs of a child, the child cannot be returned home for some time, reunification may remain the goal even though it will not be achieved within the 60 day limits outlined here for reunification.

II. THE CHILD IS EXPECTED TO BE RETURNED HOME AFTER A BRIEF EXTENSION OF HER/HIS OUT-OF-HOME PLACEMENT (NOT TO EXCEED 90 DAYS)

In addition to addressing questions 1 through 4 above, if the court is considering returning a child home after a brief extension of her/his out-of-home placement, it shall make the following inquiry:

a. what are the facts and circumstances that show why it is not appropriate to return the child home at the time of the permanency hearing and what is the plan that outlines what the parent must do to fully meet the standard for return of her/his child?;

b. what is the date certain when the child is to be safely returned home, which should not exceed ninety (90) days from the permanency hearing order?; and

c. what is the description and status of the concurrent plan for the child if reunification cannot occur at the conclusion of the court-ordered extension?

COMMENTS

1. In the event reunification cannot occur following the extension, the court should ensure that the concurrent plan is implemented at the hearing that immediately follows the permanency hearing.

2. If a parent has successfully corrected the conditions that led to a finding of abuse or neglect but, due to the unique treatment needs of a child, the child cannot be returned home for some time, reunification may remain the goal even though it will not be achieved within the 90 day limits outlined here for reunification.

III. THE ADOPTION OF THE CHILD IS CONTEMPLATED AND A TERMINATION OF PARENTAL RIGHTS PETITION (TPR) WILL BE FILED BETWEEN 60 AND 90 CALENDAR DAYS OF THE PERMANENCY HEARING ORDER

In addition to addressing questions 1 through 4 above, if the court is considering that the adoption of the child is contemplated and thus having a termination of parental rights petition filed, it shall make the following inquiry:

a. what is the explanation as to why reunification cannot safely occur and why reunification services should therefore cease?;

b. what are the facts and circumstances that support the grounds for a termination of parental rights petition (TPR)?;

c. in which court will the TPR petition be filed and what is the projected date when it will be filed, which shall be filed between sixty (60) and ninety (90) calendar days of the permanency hearing order?;

d. an explanation as to whether relinquishment of parental rights was discussed with the parent, and if so, when it was discussed and its outcome. If a relinquishment was not discussed with the parent, an explanation as to why not;

e. is there a sworn statement, pursuant to RSA 169-C:24-a,IV, which describes the efforts that have been made to finalize a new permanent home for the child?;

f. what is the plan for adoption of the child, including any interim placement for the child if she/he is not already placed with a pre-adoptive family?;

g. what is the recommendation concerning parental visitation and whether it is appropriate? If appropriate, what is the extent to which visitation between a child and parent should occur?;

h. what is the recommendation concerning sibling visitation and whether it is appropriate? If appropriate, what is the extent to which such visitation should occur?; and

i. is a mental health evaluation appropriate?

COMMENTS

1. If a TPR petition is ordered, the best practice is to have the petition filed within sixty (60) calendar days of the permanency order, but in all cases, the petition shall be filed within ninety (90) calendar days of the order.

2. If a TPR petition is ordered, DCYF will no longer be required to make reasonable efforts to reunify the parent and child. Nonetheless, services for a child should continue to be provided, as well as services related to visitation between a child and parent.

In such cases, visitation between a parent and child shall be within the discretion of the court. Visitation should be clinically appropriate to meet the needs of the child. When reviewing visitation, district courts should consider that their orders specific to visitation may remain in place during a TPR case. Additionally, district courts may be asked to reconsider visitation during a pending TPR if the probate court does not choose to address the issue. In such cases, district courts are encouraged to continue to conduct hearings limited to the issue of visitation.

3. If a TPR petition is ordered, the district court shall retain jurisdiction until such time as the TPR is granted. If the TPR fails, the probate court should return the case to the district court, where a second permanency hearing shall be held immediately. At the second permanency hearing, all permanency options, including reunification, may be considered by the district court.

4. Pursuant to RSA 169-C:24-a,I, the district court has the authority to require DCYF to file a petition for termination of parental rights in certain circumstances. Additionally, in these circumstances DCYF is required to file a TPR petition.

IV. A GUARDIANSHIP PETITION WILL BE FILED ON BEHALF OF A FIT AND WILLING RELATIVE OR ANOTHER APPROPRIATE PARTY

In addition to addressing questions 1 through 4, if the court is considering legal guardianship on behalf of a fit and willing relative or another appropriate party as the permanency plan, it shall inquire about the following:

a. what is the explanation as to why reunification cannot safely occur and why reunification services should therefore cease?;

b. why is a TPR petition not being filed? For cases that statutorily require the filing of a TPR petition, which exception in RSA 169-C:24-a,III is applicable?;

c. what are the facts and circumstances explaining why and how a guardianship will provide for the needs of the child?

if a co-guardianship with DCYF is proposed, what is the necessity for a continued relationship between the child and State?

if a "limited guardianship" is being proposed by DCYF because of medical issues and the need for authorization, when will a TPR petition be filed?;

d. will the child be placed with a relative or non-relative under guardianship?;

e. what is the fitness and suitability of the guardian for the care of the child, including the guardian's commitment to the long-term care and stability of the child?;

f. how will the child's medical, therapeutic and educational needs be met?

g. to what extent will there continue to be contact, if any, between a parent and child and between a child and siblings; and

h. in which court will the guardianship petition be filed and what is the projected date when and by whom the petition will be filed, which shall not exceed sixty (60) days from the permanency hearing order?

COMMENTS

1. If someone other than DCYF will file the petition, DCYF shall outline what assistance it will provide to ensure that the petition will be filed in a timely manner.

2. If a guardianship petition is ordered, the district court shall conduct post-permanency hearings until the petition is filed. Thereafter, the district court shall retain jurisdiction over the underlying abuse and neglect case until such time as the guardianship is finalized. If the guardianship is not finalized, the probate court should return the case to the district court, where a second permanency hearing shall be held. At a secondary permanency hearing, all permanency options, including reunification, may be considered by the district court.

3. Pursuant to the Adoption and Safe Families Act (ASFA), when a guardianship is identified as the permanency plan for an abused or neglected child, the guardianship is intended to be permanent and self-sustaining. A guardianship is intended to create a home in which the child can grow and maintain a life long relationship with his/her caregiver and should transfer to the guardian certain parental rights with respect to the child, including protection, education, care and control of the child, custody of the child and decision making.

V. THE CHILD WILL BE PLACED IN ANOTHER PLANNED PERMANENT LIVING ARRANGEMENT (APPLA)

In addition to addressing questions 1 through 4 above, if the court is considering another planned permanent living arrangement as the permanent plan for a child, it shall make the following inquiry:

a. has DCYF documented a compelling reason for determining that it would not be in the best interests of the child to follow one of the four specified, more permanent options above?

b. what is the explanation as to why reunification cannot safely occur, and why reunification services should therefore cease?;

c. why is a TPR petition not being filed? For cases that statutorily require the filing of a TPR petition, which exception in RSA 169-C:24-a,III is applicable?;

d. why is a guardianship petition not being filed?;

e. why is the permanent living arrangement the most appropriate permanent plan for the child and how will it meet the child's needs and best interests? Also, is an independent living arrangement a component of this permanent plan and if so, what is the plan for the child's transition to adulthood and closure of the case? The Adoption and Safe Families Act requires that a permanency plan for a youth 16 years or older include "the services needed to assist the child to make the transition from foster care to independent living";

f. what is the plan for continued contact with the parent and siblings, if any?; and

g. when should the case next be reviewed?

 

COMMENTS

1. If a planned permanent living arrangement is being recommended, the case should be reviewed within ninety (90) days of the permanency hearing order. Thereafter, federal law requires that a permanency hearing be held, as well as a reasonable efforts determination made, at least every twelve (12) months following the initial permanency hearing while the child is in foster care. At that time, the court should revisit the permanency plan and consider whether a modification to the plan is appropriate or whether a different more permanent and stable plan should be sought for the child.

2. Another planned permanent living arrangement (APPLA) is, pursuant to ASFA, the least preferred permanency plan for an abused or neglected child. APPLA is not a catchall for whatever temporary plan is needed when none of the more permanent options are appropriate. Instead, APPLA is intended to be a planned and permanent arrangement that will endure for a child. The term "living arrangement" includes both the physical placement of the child and the quality of care, supervision, and nurture the child will receive.

APPLA is not long-term foster care, which ASFA explicitly prohibits as a permanency option for an abused or neglected child. Similarly, emancipation is not a permanency plan for a child since it lacks the permanency features of APPLA.

3. Where there has been a domestic violence fatality and abuse or neglect in the same family, the court should consider retaining jurisdiction of the proceeding until such time as the juvenile turns 18 years of age, if needed, in order that services may be provided to assist the juvenile in dealing with the parent's death.

PROTOCOL 13 THE COURT'S WRITTEN ORDER FOLLOWING THE PERMANENCY HEARING

COURT FORM:

•Permanency Hearing Order (AOC-325-048)

The court's decision, including the findings and permanency order, shall be sent to all parties. It is within the court's discretion whether foster parents, pre-adoptive parents or relative caregivers may receive some or all of the court's permanency order.

The following issues shall be addressed in the court's order, which shall be mailed within fourteen (14) calendar days of the permanency hearing:

1. Specify the efforts made by DCYF to locate any non-accused, non-household parent and/or putative father(s) who were not present at the hearing, as well as specify the efforts DCYF must continue to make to locate any absent parents. If any such parents did receive notice of the hearing, but did not attend, it should be reflected in the court's order;

2. Specify whether DCYF has made reasonable efforts to finalize the permanency plan of reunification;

3. Pursuant to RSA 169-C:23,I, specify whether the parent is in compliance with the outstanding dispositional order? What action has the parent taken in response to each dispositional order? Has there been meaningful participation by the parent with respect to each dispositional order and have the conditions or circumstances leading to the child's removal been corrected;

4. Pursuant to RSA 169-C:23,II, specify whether the parent can demonstrate that the child will not be endangered in the manner adjudicated on the initial petition, if returned home?;

5. Pursuant to RSA 169-C:23,III, specify whether the parent can demonstrate that return of custody is in the best interests of the child? Upon showing the ability to provide proper parental care, it shall be presumed that a return of custody is in the child's best interests; and

6. Based upon an examination of the above considerations, a review of the five (5) permanency options and the court's inquiry, which of the options will constitute the final, legal, permanent plan for the child and when will it be realized?

COMMENTS

1. The court may request parties to submit proposed findings and orders.

2. Specific written findings after the permanency hearing are needed to ensure prompt implementation of the court's decision and to provide documentation for further proceedings.

3. Foster parents, pre-adoptive parents or relative caregivers in some circumstances may be entitled to receive some or all of the court's permanency hearing order, subject to the court's discretion and redaction.

4. Federal law requires a judicial determination be made with respect to reasonable efforts to finalize a permanency plan at the permanency hearing and at least every twelve (12) months thereafter while the child is in foster care. If such a judicial determination is not made timely, the child will be ineligible for foster care maintenance payments until such a determination is made.

5. If a permanency order requires DCYF to file a TPR petition, the district court is encouraged to notify the probate court in which the TPR petition will be filed.

PROTOCOL 14 THE POST-PERMANENCY HEARINGS

COURT FORM:

•Post-Permanency Hearing Order (AOC-331-048)

Unless a child is reunified immediately as of the permanency hearing and the case is closed, the court shall schedule and conduct a two (2) or three (3) month post-permanency hearing, depending upon which of the permanency plans the court orders for the child. Thereafter, the court should conduct a six (6) and nine (9) month post-permanency hearing.

For the unusual case that remains open twelve (12) months after the permanency hearing, the court shall conduct, as required by ASFA, a 12-month post-permanency hearing. At that time, ASFA requires a judicial determination regarding the reasonable efforts made by DCYF to finalize the permanency plan for a child.

Consistent with ASFA, foster parents, pre-adoptive parents or relative caregivers must receive notice of all post-permanency hearings and should have an opportunity to be heard at these hearings.

A. 2-MONTH POST-PERMANENCY HEARING

A 2-month post-permanency hearing shall be held within sixty (60) days of the permanency hearing order when the court-ordered permanent plan is:

(1) the child is returned home immediately but the case has remained open;

(2) the child is to be reunified by a date certain;

(3) the adoption of the child is contemplated and a termination of parental rights petition (TPR) will be filed; or

(4) a guardianship petition will be filed on behalf of a fit and willing relative or another appropriate party.

Thereafter, the court shall conduct ongoing post-permanency hearings. When a TPR petition or guardianship petition must be filed, the court shall continue to conduct post-permanency hearings until the TPR or guardianship petition is filed. Thereafter, the district court shall retain jurisdiction over the underlying abuse or neglect case until such time as the TPR or the guardianship petition is granted. If, however, the TPR or guardianship petition is not granted, the probate court should return the case to the district court, where a second permanency hearing shall be held. At the second permanency hearing, all permanency options, including reunification, may be considered by the district court.

B. 3-MONTH POST-PERMANENCY HEARING

A 3-month post-permanency hearing shall be held within ninety (90) days of the permanency hearing order when the court-ordered permanent plan is:

(1) the child is expected to be returned home after a brief extension of her/his out-of-home placement; or

(2) another planned permanent living arrangement.

If another planned permanent living arrangement is the plan for the child, the 90-day post-permanency hearing must be followed by a permanency hearing at least every twelve (12) months after the initial 12-month permanency hearing while the child is in foster care (therefore, nine (9) months after the 90-day post-permanency hearing).

PROTOCOL 15 THE 30-DAY PERMANENCY HEARING

The court, upon its own motion or upon a motion of any party at any time following the adjudicatory finding or the approval of a consent agreement that includes a finding, shall schedule and conduct a permanency hearing within thirty (30) calendar days of a parent's conviction of any of the following crimes:

(1) murder of another child of the parent, pursuant to RSA 630:1-a or 630:1-b;

(2) manslaughter of another child of the parent pursuant to RSA 630:2;

(3) attempt, pursuant to RSA 629:1, solicitation, pursuant to RSA 629:2, or conspiracy, pursuant to RSA 629:3, to commit any of the offenses specified in subparagraphs (1) and (2) above; and/or

(4) a felony assault under RSA 631:1, 631:2, 632-A:2, or 632-A:3 which resulted in serious bodily injury to the child or to another child of the parent.

In such cases, when a 30-day permanency hearing is held the court shall require DCYF to file a TPR petition and to make reasonable efforts to finalize a new permanent home for the child. The TPR petition shall be filed within sixty (60) days of the permanency hearing order.

 


TABLE OF CONTENTS

CHAPTER 12 - RELINQUISHMENT OF PARENTAL RIGHTS

Page

PROTOCOL 1 

REQUIREMENTS FOR A RELINQUISHMENT OF PARENTAL RIGHTS

127

PROTOCOL 2 

EFFECT OF A RELINQUISHMENT OF PARENTAL RIGHTS

129

PROTOCOL 3 

COURT'S REQUIREMENT THAT DCYF TRANSFER RELINQUISHMENT CASES TO THE ADOPTION UNIT

129

PROTOCOL 4 

WITHDRAWAL OF RELINQUISHMENT

129

PROTOCOL 5 

POST-RELINQUISHMENT CASE REVIEW HEARING

130

PROTOCOL 6 

SUBMISSION OF STATUS REPORT BEFORE POST- RELINQUISHMENT CASE REVIEW HEARING

130

COURT FORMS

•Relinquishment of Parental Rights (AOC-82B-003)

•Medical Information on Birth Parents (AOC-200-003)

•Affidavit (AOC-82F-003)

 

CHAPTER 12 - RELINQUISHMENT OF PARENTAL RIGHTS

 

STATUTORY REFERENCES: •RSA 169-C:24-a,II, Petition for Termination of Parental Rights Required; Reasonable Efforts to Reunify

•RSA 170-B:8,II,III,IV,&V, Relinquishments

COURT FORMS: •Relinquishment of Parental Rights (AOC-82B-003)

•Medical Information on Birth Parents (AOC-200-003)

•Affidavit (AOC-82F-003)

INTRODUCTION

Voluntary relinquishment of parental rights is a very difficult step. It may be very hard for parents to admit their inability to care for their own child and to legally free their child for adoption. Courts, therefore, should ensure that a parent fully understands the implications of such a relinquishment, the goal of which is to free a child for adoption.

PROTOCOL 1 REQUIREMENTS FOR A RELINQUISHMENT OF PARENTAL RIGHTS

COURT FORMS:

•Relinquishment of Parental Rights (AOC-82B-003)

•Medical Information on Birth Parents (AOC-200-003)

•Affidavit (AOC-82F-003)

Pursuant to RSA 170-B:8, a relinquishment of parental rights must be:

(1) made by a parent to DCYF or a licensed child placing agency unless parental rights have been terminated;

(2) in writing (Relinquishment of Parental Rights Form, AOC-82B-003); and

(3) signed by the parent, in the presence and with the approval of the court, or its designee, of the county in which the parent or child resides. If the parent does not reside in New Hampshire, the relinquishment may be taken pursuant to the laws of the state where the parent resides.

Additionally, a Relinquishment of Parental Rights Form should be accompanied by:

(4) a Medical Information on Birth Parents Form (AOC-200-003); and

(5) a certified copy of the child's birth certificate. If the father is not named on the birth certificate, the mother should also complete an Affidavit (AOC-82F-003) about the child's paternity.

COMMENT

1. The court may also want to require the submission of a photocopy of a picture ID and an appearance form from counsel.

2. Although RSA 170-B:8,II makes it discretionary whether or not the court will require the consent of the parents or guardian if the mother and/or father is unwed and is under eighteen (18) years of age, the better practice is for the court to always require such consent, unless excused for good cause shown.

3. If an alleged father is named at this time, DCYF should notify the court concerning how it will proceed with the newly-named alleged father.

4. These protocols support voluntary relinquishment of a parent's parental rights in cases involving abused or neglected children rather than a parent's consent to an adoption, especially a consent that names the adopting parent. In practice, DCYF does not use consents when an abused or neglected child is involved.

A voluntary relinquishment fosters greater permanency for children since a relinquishment may not be withdrawn, if properly executed, acknowledged and approved by the court, unless obtained by fraud or duress. By contrast, a consent to adoption which names or otherwise identifies the adopting parent may not lead to an adoption if the adopting parent subsequently decides that he/she cannot adopt the child. In such circumstances, permanency for such a child would be further delayed.

PROTOCOL 2 EFFECT OF A RELINQUISHMENT OF PARENTAL RIGHTS

Pursuant to RSA 170-B:8, a properly executed and acknowledged relinquishment becomes effective upon the approval of the court.

All rights of a parent with reference to the child are relinquished and the relationship of parent and child terminated, including the rights of care, custody and control, the right to consent to the adoption of the child and the right to receive notice of a hearing on any petition for adoption of the child.

The care, custody and control of the child to be adopted, including the right to consent to such adoption, rests with DCYF or the licensed child placing agency taking the relinquishment.

PROTOCOL 3 COURT'S REQUIREMENT THAT DCYF TRANSFER RELINQUISHMENT CASES TO THE ADOPTION UNIT

Upon the court's approval of a relinquishment of parental rights, the probate court or family division shall send a certified copy of the relinquishment with the court's decree to DCYF's attorney. The attorney shall be required to transfer the case to the DCYF Adoption Unit ten (10) days after the appeal period has expired and shall also be required to notify the court in writing of such transfer, unless some additional legal proceeding is required to free the child for adoption. In such a case, the DCYF attorney shall notify the court of the reason the transfer to the Adoption Unit is not made.

Additionally, if a relinquishment of parental rights is approved and there are no additional legal proceedings required to free the child for adoption, DCYF shall file a motion with the district court requesting that the abuse and/or neglect case be closed.

PROTOCOL 4 WITHDRAWAL OF RELINQUISHMENT

Pursuant to RSA 170-B:8,III, a relinquishment by a parent, properly executed, acknowledged and approved by the court, may not be withdrawn unless it was obtained by fraud or duress.

A parent wishing to withdraw a relinquishment shall notify in writing the court where the relinquishment was approved, pursuant to RSA 170-B:8,IV.

A relinquishment shall become irrevocable after entry of the final decree of adoption.

PROTOCOL 5 POST-RELINQUISHMENT CASE REVIEW HEARING

Upon the court's approval of the relinquishment of parental rights, the court shall schedule a post-relinquishment case review hearing within ninety (90) calendar days of the decree, and every ninety (90) calendar days thereafter, unless excused by the court for good cause shown. The purpose of the review is to make sure that everything possible is being done to place the child for adoption, to initiate the adoption process, and to make sure the needs of the child are being met.

If an adoption petition has been filed prior to a post-termination case review hearing, this hearing may be cancelled.

COMMENT

Although RSA 170-B:8,V, requires that the status of all children for whom care, custody and control has been transferred to DCYF or a licensed child placing agency shall be reviewed at least once a year following the initial decree until an adoption is finalized, this protocol requires that there be an initial ninety (90) day post-relinquishment review hearing held by the court and every ninety (90) days thereafter, unless good cause is shown. These hearings shall be held to assure that DCYF continues to make reasonable efforts to finalize the permanency plan, including efforts to identify, recruit and approve a qualified family for adoption pursuant to RSA 169-C:24-a,II, so that an adoption may be finalized.

It will be especially helpful to review the status of those cases in which the relinquishment was approved in one court and the adoption petition was to be filed in another court.

PROTOCOL 6 SUBMISSION OF STATUS REPORT BEFORE POST-RELINQUISHMENT CASE REVIEW HEARING

Within five (5) calendar days prior to the post-relinquishment case review hearing, DCYF or a licensed child placing agency shall submit a written status report to the court and other remaining parties, if any.

The status report shall address each of the following and shall be written by DCYF to include four (4) separate categories, as outlined below:

(1) a description of the agency's progress toward arranging an adoptive placement for the child;

(2) where adoptive parents have not already been selected, a schedule and description of steps taken to place the child for adoption;

(3) a discussion of special barriers preventing placement of the child for adoption and how they should be overcome; and

(4) the projected date for filing the petition for adoption and the name of the court in which the petition will be filed.


TABLE OF CONTENTS

CHAPTER 13 - TERMINATION OF PARENTAL RIGHTS HEARINGS

Page

PROTOCOL 1

JURISDICTION

134

PROTOCOL 2

WHO MAY FILE A PETITION FOR TERMINATION OF PARENTAL RIGHTS (TPR)

134

PROTOCOL 3

IF DCYF IS ORDERED AT THE PERMANENCY HEARING TO FILE A TPR PETITION

135

PROTOCOL 4

CONTENTS OF THE TPR PETITION

135

PROTOCOL 5

STATUTORY GROUNDS FOR FILING A TERMINATION PETITION

137

PROTOCOL 6

THE SOCIAL STUDY AND WRITTEN REPORT TO THE COURT

139

PROTOCOL 7

NOTICE BY THE COURT TO THE PETITIONER

140

PROTOCOL 8

NOTICE BY THE PETITIONER TO THE PARENTS AND ORDER OF NOTICE

140

PROTOCOL 9

NOTICE BY THE PETITIONER TO OTHERS

142

PROTOCOL 10

APPOINTMENT OF COUNSEL

142

PROTOCOL 11

APPOINTMENT OF GUARDIAN AD LITEM (GAL)

143

PROTOCOL 12

MENTAL HEALTH EVALUATIONS

144

PROTOCOL 13

CONTINUANCES

145

PROTOCOL 14

SCHEDULING THE INITIAL HEARING

146

PROTOCOL 15

THE COURT'S INQUIRY AT THE INITIAL HEARING

146

PROTOCOL 16

STRUCTURING CONFERENCE

148

PROTOCOL 17

PRE-TRIAL CONFERENCE

148

PROTOCOL 18

FINAL HEARING ON THE MERITS

149

PROTOCOL 19

THE COURT'S INQUIRY AT THE FINAL HEARING ON THE MERITS

149

PROTOCOL 20

THE COURT'S WRITTEN FINAL ORDER

150

PROTOCOL 21

EFFECT OF THE COURT DECREE

153

PROTOCOL 22

APPEALS

153

PROTOCOL 23

POST-TERMINATION CASE REVIEW HEARINGS

153

PROTOCOL 24

SUBMISSION OF STATUS REPORT BEFORE POST-TERMINATION CASE REVIEW HEARING

154

 

CHAPTER 13 - TERMINATION OF PARENTAL RIGHTS HEARINGS

 

STATUTORY REFERENCES: •RSA 169-C:24-a,II, Petition for Termination of Parental Rights Required; Reasonable Efforts to Reunify

•RSA 170-C:1, Purpose

•RSA 170-C:3, Jurisdiction

•RSA 170-C:4, Petition

•RSA 170-C:5, Grounds for Termination of the Parent-Child Relationship

•RSA 170-C:5, I,II,III,IV,V,VI & VII, Grounds for Termination of the Parent-Child Relationship

•RSA 170-C:6, Contents of Petition

•RSA 170-C:7, Notice

•RSA 170:C:8, Guardian Ad Litem

•RSA 170:C:9, Social Study Prior to Disposition

•RSA 170-C:9,I, Social Study Prior to Disposition

•RSA 170-C:9-a, Evaluations

•RSA 170-C:10, Hearing

•RSA 170-C:11, Decree

•RSA 170-C:11,III,IV,V,&VI, Decree

•RSA 170-C:12, Effect of Decree

•RSA 170-C:13, Court Costs

•RSA 170-C:15, Appeals

•RSA 567-A, Appeals from Court of Probate

•RSA 629:1, Attempt

•RSA 629:2, Criminal Solicitation

•RSA 629:3, Conspiracy

•RSA 630:1-a, First Degree Murder

•RSA 630:1-b, Second Degree Murder

•RSA 630:2, Manslaughter

•RSA 631:1, First Degree Assault

•RSA 631:2, Second Degree Assault

•RSA 632-A:2, Aggravated Felonious Sexual Assault

•RSA 632-A:3, Felonious Sexual Assault

CROSS REFERENCES: •Chapter 11, Permanency Hearing, Protocol 12, The Court's Inquiry at the Permanency Hearing

•Probate Court Rule 53

LEAD CASES:In re John Kevin B., 129 N.H. 286, 525 A.2d 281 (1987),contemplation of adoption is not required prior to the termination of parental rights; it is a factor to be considered when determining a child's best interest in statutory proceedings to terminate parental rights, not a prerequisite to those proceedings.

In re Lisa H., 134 N.H. 188, 589 A.2d 1004 (1991), in proceedings to terminate parental rights, trial court must consider whether it is in the best interest of a child to terminate the rights of the parent, but only after a finding of abandonment or one of the other statutory conditions for termination.

In re Matthew G. and Christopher G., 124 N.H. 414, 469 A.2d 1365 (1983), on a petition to terminate parental rights, the trial court must consider whether it is in the child's best interest to terminate the rights of the parent in question, but only after a finding of abandonment or one of the other statutory conditions for termination.

In re Sheena B., 139 N.H. 179, 651 A.2d 7 (1994), a party seeking to terminate parental rights must prove the statutory ground for termination beyond a reasonable doubt; after one of the statutory grounds for terminating a party's parental rights has been satisfied, the court then must consider whether it is in the child's best interest to terminate the rights of the parent in question.

In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985), section of termination of parental rights statute, listing as a ground for termination a failure to correct conditions which led to a finding of child abuse or neglect under child protection act, does not provide that a parent must have been the named respondent in a child protection act neglect proceeding, before that parent's rights can be terminated so long as there is ample evidence of the non-respondent parent's failure to correct the conditions which led to the abuse and/or neglect finding.

The State of New Hampshire v. Robert H., 118 N.H. 713, 393 A.2d 1387 (1978), State must prove its case beyond a reasonable doubt before the permanent termination of liberty and natural rights of parents guaranteed under New Hampshire Constitution, part I, article 2, can occur.

INTRODUCTION

Termination of parental rights petitions (TPR) arising from child abuse and neglect cases are among the most challenging a judge can face. These protocols are designed for cases in which there has been an abuse or neglect proceeding and a subsequent termination petition filed by DCYF as the authorized agency. However, they may also be helpful in considering petitions brought by others, which allege alternative grounds for termination of parental rights.

Termination proceedings must be conducted with great care and with full procedural protection to parents and children. At a termination proceeding, not only are parents' rights at stake, but whatever ruling the court makes can involve serious risks to the child as well. If the decision is mistaken, the child may needlessly be deprived of the chance to remain in contact with her/his parents, and to have lifelong relationships with members of the extended family.

On the other hand, failure to terminate parental rights may deprive a child of the chance for a permanent substitute home. In most circumstances, the preferred placement for children who cannot return home is adoption. Many children, however, remain in foster care long after findings of the impossibility of family reunification. The longer children wait, the more difficult it becomes to find permanent homes, and the more likely that children will suffer serious emotional and psychological harm.

PROTOCOL 1 JURISDICTION

Pursuant to RSA 170-C:3, the probate court shall have exclusive original jurisdiction over TPR petitions, except in Grafton and Rockingham counties, where the family division's jurisdiction shall continue from abuse and neglect proceedings to TPR proceedings.

PROTOCOL 2 WHO MAY FILE A PETITION FOR TERMINATION OF PARENTAL RIGHTS (TPR)

Pursuant to RSA 170-C:4, a petition for termination of the parent-child relationship may be filed by DCYF, a licensed child placing agency, the legal custodian of the child, the guardian of the person, either parent against the other, or the foster parents when certain conditions are met.

COMMENT

1. Whenever possible and pursuant to RSA 170-C:7, where it shall appear impractical to personally serve a parent, the Division should submit, with its TPR petition, a motion to the court for publication once each week for two (2) successive weeks in a newspaper of general circulation in the area where that person was last domiciled. See Protocol 8, Notice by the Petitioner to the Parents.

2. RSA 170-C:11, III, allows the court to terminate the parent-child relationship with respect to one parent without affecting the relationship between the child and the other parent.

PROTOCOL 3 IF DCYF IS ORDERED AT THE PERMANENCY HEARING TO FILE A TPR PETITION

If at the permanency hearing the Division is ordered to file a TPR petition, the best practice is to have the petition filed within sixty (60) calendar days of the court's permanency order, but in all cases, the petition shall be filed within ninety (90) calendar days of the permanency order.

PROTOCOL 4 CONTENTS OF THE TPR PETITION

CROSS REFERENCE:

•Probate Court Rule 53

Consistent with RSA 170-C:6, the petition for termination of the parent-child relationship shall include, to the best information or belief of the petitioner, the following:

(1) the name and place of residence of the petitioner;

(2) the name, sex, date and place of birth, and residence of the child;

(3) the basis for the court's jurisdiction;

(4) the relationship of the petitioner to the child, or the fact that no relationship exists;

(5) the names, addresses, and dates of birth of the parents;

(6) when the child's parent is a minor, the names and addresses of said minor's parents or guardian of the person;

(7) the names and addresses of the person who:

(a) has legal custody;

(b) is the guardian of the parent or the child;

(c) is acting in loco parentis to the child; or

(d) the organization or authorized agency having legal custody or providing care for the child;

(8) the grounds on which termination of the parent-child relationship is sought;

(9) the name of the authorized agency to whom or to which legal custody or guardianship of the person of the child may be transferred;

(10) the names and addresses of the attorneys representing the parents in the underlying abuse/neglect case;

(11) the names and addresses of the DCYF attorney and social worker; and

(12) the name and address of the child's GAL or CASA GAL in the underlying case.

COMMENT

A termination of parental rights petition must be complete and definite, and provide fair notice to the parties. It will often include information spanning a wide range of issues and a long period of time. Termination petitions typically address issues such as agency efforts to work with a parent; parent's cooperation with the agency; parent's condition, behavior, progress, and improvements after adjudication in the district court; and the effects of the out-of-home placement on the child.

A termination of parental rights petition may allege facts in summary form because of the breadth of the material at issue, but there must be sufficient detail to clarify the petitioner's legal and factual theory of the case. Also, the court should require that the petitioner provide a summary of facts in support of each statutory ground.

PROTOCOL 5 STATUTORY GROUNDS FOR FILING A TERMINATION PETITION

Pursuant to RSA 170-C:5, a TPR petition may be filed based on one or more of the following grounds:

1. The parent has abandoned the child. It shall be presumed that the parent intends to abandon a child who has been left by his parent without provision for his identification or who has been left by his parent in the care and custody of another without any provision for his support, or without communication from such parent for a period of six (6) months. If in the opinion of the court the evidence indicates that such parent has made only minimal efforts to support or communicate with the child, the court may declare the child to be abandoned. (RSA 170-C:5, I)

2. That, although the parents are financially able, they have substantially and continuously neglected to provide the child with necessary subsistence, education or other care necessary for his mental, emotional, or physical health or have substantially and continuously neglected to pay for such subsistence, education or other care when legal custody is lodged with others; provided, however, it shall not be grounds for the termination of the parent-child relationship for the sole reason the parent of said child relies upon spiritual means through prayer in accordance with a recognized religious method of healing in lieu of medical treatment for the healing of said child. (RSA 170-C:5, II)

3. The 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 twelve (12) months of the finding despite reasonable efforts under the direction of the district court or family division to rectify the conditions. (RSA 170-C:5, III). See In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985).

4. Because of mental deficiency or mental illness, the parent is and will continue to be incapable of giving the child proper parental care and protection for a longer period of time than would be wise or prudent to leave the child in an unstable or impermanent environment. Mental deficiency or mental illness shall be established by the testimony of either two (2) licensed psychiatrists or clinical psychologists or one of each acting together. (RSA 170-C:5, IV)

5. The parent knowingly or willfully caused or permitted another to cause severe sexual, physical, emotional, or mental abuse of the child. Subsequent to a finding of such abuse pursuant to RSA 169-C, the parent-child relationship may be terminated if return of the child to the parent would result in a substantial possibility of harm to the child. A substantial possibility of harm to the child shall be established by testimony of at least two (2) of the following factors:

(a) The parent's conduct toward the child has resulted in severe harm to the child.

(b) The parent's conduct toward the child has continued despite the reasonable efforts of authorized agencies in obtaining or providing services for the parent to reduce or alleviate such conduct.

(c) The parent's conduct has continued to occur either over a period of time, or many times, or to such a degree so as to indicate a pattern of behavior on the part of the parent which indicates a complete disregard for the child's health and welfare.

(d) Such conduct is likely to continue with no change in parental behavior, attitude or actions.

Testimony shall be provided by any combination of at least two (2) of the following people: a licensed psychiatrist, a clinical psychologist, a physician, or a social worker who possesses a master's degree in social work and is a member of the Academy of Certified Social Workers. (RSA 170-C:5, V)

6. If the parent is, as a result of incarceration for a felony offense, unable to discharge his responsibilities to and for the child and, in addition, has been found pursuant to RSA 169-C to have abused or neglected his child or children, the court may review the conviction of the parent to determine whether the felony offense is of such a nature, and the period of incarceration imposed of such duration, that the child would be deprived of proper parental care and protection and left in an unstable or impermanent environment for a longer period of time than would be prudent. Placement of the child in foster care shall not be considered proper parental care and protection for purposes of this paragraph. Incarceration in and of itself shall not be grounds for termination of parental rights. (RSA 170-C:5, VI)

7. The parent has been convicted of one or more of the following offenses:

(a) Murder of another child of the parent, pursuant to RSA 630:1-a or 630:1-b;

(b) Manslaughter of another child of the parent pursuant to RSA 630:2;

(c) Attempt, pursuant to RSA 629:1, solicitation, pursuant to RSA 629-2, or conspiracy, pursuant to RSA 629:3, to commit any of the offenses specified in subparagraphs 7(a) and 7(b); or

(d) A felony assault under RSA 631:1, 631:2, 632-A:2, or 632-A:3 which resulted in serious bodily injury to the child or to another child of the parent. (RSA 170-C:5, VII)

COMMENT

Best practice shall be that DCYF should only plead those statutory grounds on which it intends to move forward.

PROTOCOL 6 THE SOCIAL STUDY AND WRITTEN REPORT TO THE COURT

CROSS REFERENCE:

•Protocol 8, Notice by the Petitioner to the Parents

•Protocol 9, Notice by the Petitioner to Others

A. SOCIAL STUDY REQUIREMENT

If a social study has not been filed with the petition, the court, consistent with RSA 170-C:9, I, shall direct that a social study be completed and a report filed by DCYF within thirty (30) calendar days of the filing of the petition. The purpose of the social study is to aid the court in making disposition of the petition and shall be considered by the court prior to rendering its decision in the case.

Upon filing the social study with court, DCYF shall certify that it has sent copies to the parties' attorneys, the GAL or CASA GAL and any other party of record.

COMMENT

Although the statute permits the court to order a social study by an authorized agency other than DCYF, typically the Division includes the social study with the TPR petition. This is good practice because of the Division's knowledge of the family and child and extensive history of the case. The Division, however, may be permitted to subcontract the report in order that it be filed in a timely manner.

B. CONTENTS OF THE SOCIAL STUDY

Pursuant to RSA 170-C:9, the contents of the social study shall be treated in a confidential manner so as not to injure any party. The social study shall be dated and signed and shall be written by DCYF to include, pursuant to RSA 170-C:9, I, five (5) separate categories, as outlined below:

(a) the circumstances of the petition;

(b) the social history;

(c) the present condition of the child and parents;

(d) the proposed plans for the child; and

(e) such other factors as may be pertinent to the parent-child relationship.

COMMENT

Because the information required by RSA 170-C:9 for the social study is substantially similar to information required for the district court's permanency hearing report, it is anticipated that only a brief update of the Division's permanency hearing report will be necessary to satisfy the requirement of RSA 170-C:9 for a social study and DCYF is strongly encouraged to submit this as the social study.

PROTOCOL 7 NOTICE BY THE COURT TO THE PETITIONER

Consistent with RSA 170-C:7, after a petition has been filed, the court shall immediately mail to the petitioner notice of the date, time and place of the first hearing.

PROTOCOL 8 NOTICE BY THE PETITIONER TO THE PARENTS AND ORDER OF NOTICE

CROSS REFERENCE:

•Probate Court Rule 53

A. NOTICE BY THE PETITIONER TO THE PARENTS

The petitioner shall provide notice to the respondent/parent by personal service. Where it shall appear impractical to personally serve a respondent/parent, however, the court shall, upon motion of the petitioner, order service, either by certified mail to the respondent's/parent's last known address, or by publication once each week for two (2) successive weeks in a newspaper of general circulation in the area where that person was last domiciled, or both. Best practice shall include restricted delivery to the person named in the petition.

Pursuant to RSA 170-C:13, costs of giving notice and advertising shall be paid by the petitioner.

Pursuant to RSA 170-C:7, where the child's parent is a minor, notice shall also be given to the minor's parents or guardian of the person unless the court is satisfied, in its discretion, that such notice is not in the best interest of the minor and that it would serve no useful purpose.

COMMENT

Whenever possible and pursuant to RSA 170-C:7, where it shall appear impractical to personally serve a parent, the Division should submit, with its TPR petition, a motion to the court for publication once each week for two (2) successive weeks in a newspaper of general circulation in the area where that person was last domiciled. An affidavit should accompany a motion for publication. In its affidavit, DCYF should describe all efforts to date to locate and serve the parents. Normally by the time a petition is filed, the Division will have made significant efforts throughout the abuse or neglect proceedings to locate the parents, and shall submit an affidavit describing these efforts.

Without meaningful searches for missing parents, termination proceedings can be substantially and needlessly delayed. Even if a parent is located, defects in notice can invalidate a TPR case and disrupt a child's placement. Therefore, the court shall require the petitioner to make concerted efforts to identify and locate all parents, including putative fathers and incarcerated parents, and to provide proper notice in all termination proceedings.

If necessary, the court should specify all steps that must be taken to locate missing parents and should specify time frames within which these steps must be taken. By way of illustration, efforts to locate parents should include personal contact, including telephone contact, by DCYF with relatives and friends, internet searches and searches of parents through a driver's license and social security number.

B. ORDER OF NOTICE

The order of notice provided for in RSA 170-C:7 shall be attached to a copy of the petition and shall include the following:

1. the statement that termination of parental rights means the loss of all rights to custody, visitation, and communication with the child and that if termination is granted, the parent will receive no notice of future legal proceedings concerning the child;

2. an explanation of the need to respond immediately to the notice, both to prepare for trial and because important hearings will take place prior to trial;

3. an explanation of how to find out the time and place of future hearings in the case;

4. notice of right to counsel, of the procedure to follow to obtain appointed counsel, and of the role that counsel can play in court proceedings;

5. the date, time and place of the hearing on the petition for termination of parental rights. The statement that a written appearance must be filed with the court on or before the date of the hearing, or the respondent/ parent may personally appear on the date of the hearing or be defaulted; and

6. the statement that the failure to appear personally or in writing will waive all rights to a hearing and that the person's parental rights may be terminated at the hearing.

PROTOCOL 9 NOTICE BY THE PETITIONER TO OTHERS

Pursuant to RSA 170-C:7, the petitioner shall provide notice by regular mail at their last known address to the following persons:

(1) the guardian of the person of the child;

(2) the person having legal custody of the child;

(3) any individual standing in loco parentis to the child; and

(4) the guardian ad litem of any party.

PROTOCOL 10 APPOINTMENT OF COUNSEL

Upon receipt of a parent's completed financial affidavit, the court shall immediately:

(1) determine eligibility for counsel;

(2) contact counsel by telephone. Whenever possible and if the parent so requests and if the attorney is a contract attorney, the court shall appoint the same attorney who represented the parent in the underlying abuse or neglect case; and

(3) inform the parent of counsel's name, address and telephone number.

COMMENT

When appointing counsel, the better practice is to have a different attorney represent each parent.

PROTOCOL 11 APPOINTMENT OF GUARDIAN AD LITEM (GAL)

Pursuant to RSA 170-C:8, the court shall immediately appoint a GAL to represent the interests of the child in all termination hearings. For the sake of continuity and cost, whenever possible the court should appoint the same GAL who served in the underlying abuse or neglect case. When a GAL is appointed, the GAL shall file an appearance with the court.

Appointment

The GAL will be asked in the notice of appointment to submit a preliminary report to the court on or by the day of the initial hearing.

If the TPR GAL did not serve as the abuse/neglect GAL, the TPR GAL shall be required to contact the prior GAL to discuss the case and to request a copy of the GAL's report submitted at the permanency hearing. The name and telephone number of the abuse/neglect GAL will be included in the notice of appointment.

Preliminary Report

The preliminary report submitted by the GAL shall include the following:

1. A copy of the GAL's permanency report submitted at the permanency hearing; and

2. An addendum to the GAL's permanency report, which provides a brief update concerning the child's status since the time of the permanency hearing.

If a parent defaults at the initial hearing and the court conducts a final hearing on the merits, the court may accept the preliminary report as the final report. If, however, the GAL would like to submit additional information to the court, this information shall be submitted within ten (10) calendar days of the hearing.

Final Report

The final report submitted by the GAL shall be due no later than thirty (30) days before the final hearing on the merits.

The final report shall include analysis of the consideration of the best interest of the child. If the GAL did not serve as the abuse/neglect GAL, the final report should also address whether the GAL agrees or disagrees with the recommendation in the prior GAL's permanency report for or against termination of parental rights. If the GAL takes a position different from the prior GAL's report, the court should also be advised as to the basis for the differing opinion.

GAL Participation in the TPR Proceeding

In the first instance, the GAL will be asked to testify on the best interest of the child and then be excused from the court proceedings. A GAL, however, may be permitted to stay for the full TPR proceeding.

COMMENT

RSA 170-C:8 also requires the appointment of a guardian ad litem for the alleged incompetent parent when a termination petition is brought based on mental deficiency or mental illness under RSA 170-C:5, IV. Also, the court may in any other case, appoint a guardian ad litem as may be deemed necessary or desirable, for any party.

PROTOCOL 12 MENTAL HEALTH EVALUATIONS

CROSS REFERENCE:

•Chapter 11, Permanency Hearing, Protocol 12, The Court's Inquiry

Consistent with RSA 170-C:9-a, at any time prior to the final decree, the court may order the child, the parents or both to undergo a mental health evaluation. Such an evaluation shall be done at a mental health center or elsewhere by one or more psychiatrists or clinical psychologists or one of each acting together, as ordered by the court.

A written assessment of the individual evaluated shall be provided to the court. The court shall specify the time frame for completing the evaluation and for filing the report with the court. The report shall be admissible into evidence and considered by the court in making a final order. The parent's failure to appear for the scheduled evaluation may be considered by the court at the final hearing.

COMMENT

In an effort to streamline proceedings between district court (abuse and neglect) and probate court (termination), the issue of necessity of a mental health evaluation should be considered at the district court's permanency hearing. Only under rare circumstances should an evaluation be ordered after the initial hearing in the termination case.

The court may require the presence of witnesses deemed necessary to the disposition of the petition. Pursuant to RSA 170-C:10, when information contained in a report, study or examination is admitted in evidence, the person making the report, study or examination shall be subject to both direct and cross-examination if he/she is residing or working within the state, or if he/she is otherwise reasonably available.

PROTOCOL 13 CONTINUANCES

Continuances are strongly discouraged and should only be granted for good cause shown, such as unforeseen circumstances. Requests for continuances should not be presumed to be granted; to the contrary, they should be presumed to be denied absent a showing of good cause.

COMMENT

Termination of parental rights cases must be given high priority because of the significant implications for children and parents and the particular stresses involved in termination proceedings. Delays in termination of parental rights cases extend children's stay in foster care and are thus strongly discouraged.

With the exception of scheduling the initial hearing, all subsequent hearings shall be scheduled by the court, in the courtroom, with all parties in concurrence, and once scheduled, shall remain fixed except for good cause shown and due to unforeseen circumstances. Unforeseen circumstances would include such circumstances as illness or family emergency, and other events which could not possibly be foreseen at the time of scheduling the hearing.

By scheduling hearings with all parties present and committing to the date, there should be no need for continuances based upon a party's scheduling conflict. This saves unnecessary time and money in filing motions to continue, and ensures that these important cases remain on track.

PROTOCOL 14 SCHEDULING THE INITIAL HEARING

The court shall direct that the petition be served promptly so that the statutory requirements of RSA 170-C:7 can be met. The initial hearing should be scheduled as soon as practicable, depending upon the method of service, as outlined below.

1. Standard In-State Service

Upon the filing of a TPR petition, an initial hearing shall be scheduled to be held no sooner than twenty (20) days after service of notice and not later than forty-five (45) calendar days of the filing date.

2. Standard Out-of-State Service

Upon the filing of a TPR petition, an initial hearing shall be scheduled to be held no sooner than twenty (20) days after service of notice and not later than sixty (60) calendar days of the filing date.

3. Standard In-State Service By Publication

Upon the filing of a TPR petition, an initial hearing shall be scheduled to be held no sooner than seven (7) days from the last date of publication and not later than sixty (60) calendar days of the filing date.

4. Standard Out-of-State Service By Publication

Upon the filing of a TPR petition, an initial hearing shall be scheduled to be held no sooner than seven (7) days from the last date of publication and not later than sixty (60) calendar days of the filing date.

PROTOCOL 15 THE COURT'S INQUIRY AT THE INITIAL HEARING

A. DEFAULT BY RESPONDENT/PARENT

If the respondent/parent does not appear at the initial hearing, the respondent/parent shall be defaulted and the court shall conduct a final hearing on the merits and issue a final order. See Protocol 16, Structuring Conference.

Before the issuance of a court order on the termination petition, DCYF shall file with the court an Affidavit as to Military Service.

B. APPEARANCE BY RESPONDENT/PARENT

If the respondent/parent enters an appearance or appears personally at the initial hearing, the court shall address the following issues:

(1) determine that the court has jurisdiction;

(2) assure that all parents have been identified and located and if there is an unnamed or absent parent, review the affidavit submitted by DCYF in which it describes what efforts the Division has made to locate that person;

(3) assure that all counsel have been appointed for the respondent(s)/parent(s);

(4) address the issue of notice, if necessary;

(5) order evaluations, if appropriate. See Protocol 12, Mental Health Evaluations;

(6) establish the time and date for a structuring conference;

(7) address the propriety of visitation between a parent and child;

(8) assure that the parent's attorney and the GAL have a complete copy of the Division's file; and

(9) address any other matters necessary to expedite the case and to make orders for that purpose.

COMMENTS

1. In considering any request for visitation between a parent and child, the probate court should refer for guidance to the most recent district court order of visitation. In all cases, visitation should be clinically appropriate to meet the needs of the child.

If the probate court chooses not to address visitation between a child and parent during a pending TPR case, parties may be directed to file a motion in district court for reconsideration of visitation. District courts are encouraged to conduct these hearings for the limited purpose of addressing visitation issues.

2. If the respondent parent appears, the initial hearing and structuring conference may be conducted as one hearing. See Protocol 16, Structuring Conference.

PROTOCOL 16 STRUCTURING CONFERENCE

If an initial hearing is held as a result of an appearance by the respondent/parent, a structuring conference shall be held within thirty (30) calendar days after the initial hearing, or as soon as possible thereafter as the court's calendar shall permit. At the structuring conference, the court shall:

(1) resolve any outstanding discovery disputes;

(2) identify issues of law and fact for trial;

(3) assure that all relevant evaluations will be completed prior to the final hearing;

(4) resolve any other matters which will simplify or aid the conduct of the final hearing;

(5) determine if a pre-trial conference will be necessary and, if so, set the time and date; and

(6) set the time and date of the final hearing on the merits and estimate its length.

COMMENT

The structuring conference and initial hearing may be conducted as one hearing. See Protocol 15, The Court's Inquiry at the Initial Hearing.

PROTOCOL 17 PRE-TRIAL CONFERENCE

A pre-trial conference is not mandatory. However, if a pre-trial conference is held, it shall be held at a time, within the discretion of the court, after the structuring conference and before the final hearing on the merits. At the pre-trial conference, the court shall:

(1) resolve any remaining issues which would simplify or aid the conduct of the final hearing on the merits, e.g., memoranda of law, admission of documents, admission of reports, etc.;

(2) review the final witness list; and

(3) confirm the date, time, and estimated length of the final hearing on the merits.

PROTOCOL 18 FINAL HEARING ON THE MERITS

If the respondent/parent neither enters an appearance nor appears personally, the final hearing on the merits shall be conducted in place of the scheduled initial hearing.

If the respondent/parent enters an appearance, the final hearing on the merits shall be held within one hundred and twenty (120) days after the structuring conference.

The court shall set aside sufficient time to avoid interruptions of the final hearing. In the event a final hearing on the merits cannot be completed within the allotted time, it may be adjourned. Except for good cause shown, the adjournment shall not exceed fourteen (14) days.

COMMENT

Pursuant to RSA 170-C:10, cases under this chapter shall be heard by the court sitting without a jury.

The general public and any member of the news media shall be excluded, and only such persons admitted whose presence is requested by any person entitled to notice under RSA 170-C:7 or as the judge shall find to have a direct interest in the case or in the work of the court; provided that anyone who is admitted shall not disclose any information obtained at the hearing which would identify an individual child or parent who is involved in the hearing.

The court may require the presence of witnesses deemed necessary to the disposition of the petition. Pursuant to RSA 170-C:10, when information contained in a report, study or examination is admitted in evidence, the person making the report, study or examination shall be subject to both direct and cross-examination if he/she is residing or working within the state, or if he/she is otherwise reasonably available.

PROTOCOL 19 THE COURT'S INQUIRY AT THE FINAL HEARING ON THE MERITS

The court shall make the following inquiries at the final hearing on the merits:

1. Have the statutory grounds for termination of parental rights been satisfied beyond a reasonable doubt?

Although RSA 170-C:10 indicates that the court's finding with respect to the statutory grounds for a termination of parental rights petition shall be based upon clear and convincing evidence, the state supreme court, in 1978, introduced the "beyond a reasonable doubt" standard for these cases in The State New Hampshire v. Robert H., 118 N.H. 713, 393 A.2d 1387 (1978). See In re Sheena B., 139 N.H. 179, 651 A.2d 7 (1994).

Pursuant to RSA 170-C:10, relevant and material evidence of any nature, including that contained in reports, studies or examinations, may be admitted and relied upon to the extent of its probative value. When information contained in a report, study or examination is admitted in evidence, the person making such a report, study or examination shall be subject to both direct and cross-examination if he/she is residing or working within the state, or if he/she is otherwise reasonable available.

2. Is the termination in the best interest of the child?

Upon a finding that one or more of the statutory grounds has been met, the court must also consider whether it is in the child's best interest to terminate the rights of the parent in question. In re Matthew G. and Christopher G., 124 N.H. 414, 469 A.2d 1365 (1983). See In re Lisa H., 134 N.H. 188, 589 A.2d 1004 (1991).

The conclusion of what is in the child's best interest is not an evidentiary fact. Rather, the conclusion concerns which of the possible alternative dispositional orders is the most desirable, under a standard giving priority to the assumed interest of the child. In re Matthew G. and Christopher G., 124 N.H. 414, 469 A.2d 1365 (1983).

Contemplation of adoption is not required prior to the termination of parental rights; it is a factor to be considered when determining a child's best interest in statutory proceedings to terminate parental rights, not a prerequisite to those proceedings. In re John Kevin B., 129 N.H. 286, 525 A.2d 281 (1987).

COMMENT

Currently, there is no standard for determining the best interest of a child in either New Hampshire statute or case law.

PROTOCOL 20 THE COURT'S WRITTEN FINAL ORDER

A. ISSUANCE OF COURT ORDER

The court shall issue a decision which shall include a disposition no later than thirty (30) calendar days after the date of the final hearing on the merits. However, before the issuance of a court order on the termination petition, DCYF shall file with the court an Affidavit as to Military Service.

This protocol is based upon the following tasks and time frames to be undertaken by the probate court or family division, the DCYF social worker and the DCYF Adoption Unit:

Upon the granting or denial of a petition for termination of parental rights brought by DCYF subsequent to a district court abuse or neglect proceeding, the probate court shall notify the district court. Additionally, the probate court or family division shall send notice of the decision to the Adoption Unit, if applicable.

If the petition for termination is granted, the probate court or family division shall require the DCYF social worker to transfer the TPR case to the Adoption Unit ten (10) days after the appeal period has expired and shall send a letter to the probate court or family division confirming such transfer, unless some additional legal proceeding is required to free the child for adoption. In such a case, the DCYF social worker shall notify the court of the reason the transfer to the Adoption Unit is not made.

Additionally, if a petition for termination is granted and there are no additional legal proceedings required to free the child for adoption, DCYF shall file a motion with the district court requesting that the abuse and/or neglect case be closed.

The Adoption Unit social worker shall file an appearance with the probate court or family division for purposes of receiving notice for subsequent hearings.

COMMENT

Although RSA 170-C:11, V permits up to sixty (60) days for the court's order, it is better practice and consistent with other juvenile proceedings to have a final order issued within thirty (30) days. An additional thirty (30) days only further delays the child's permanent placement.

B. CONTENT OF ORDER

Consistent with RSA 170-C:11, every order of the court addressing the petition to terminate the parent-child relationship shall:

(1) be in writing;

(2) recite the findings upon which the order is based, including the findings pertaining to the court's jurisdiction; and

(3) address whether the ground(s) for termination was satisfied beyond a reasonable doubt; and

(4) if the statutory ground(s) for termination was met, whether termination was in the best interest of the child. There is no standard for this consideration by the court.

C. PETITION GRANTED

If the petition for termination of parental rights is granted, the court shall, pursuant to RSA 170-C:11, II, appoint the department of health and human services or another authorized agency as guardian of the child's person and vest legal custody in such agency. The court shall also make an order fixing responsibility for the child's support.

Should the responsible agency wish to proceed with adoption proceedings in another county or state, the responsible agency shall petition the court where termination occurred for permission to transfer the matter to the new court.

D. PETITION DENIED

Where the court denies the petition to terminate the parent-child relationship, pursuant to RSA 170-C:11, IV, it shall dismiss the petition and, upon the recommendation of any party and if approved by the probate court, the case shall be returned to the district court. Thereafter, the district court will conduct a second permanency hearing at which it will identify a new permanency plan for the child.

Where the court finds that the best interest of the child requires substitution or supplementation of parental care and supervision, it shall make an order awarding guardianship with the department of health and human services or an authorized agency and fixing responsibility for temporary child support. A review hearing shall be scheduled within one (1) year after any court order granting guardianship is issued, and annually thereafter. If a legal guardianship is approved, the district court case shall close.

COMMENT

When a TPR petition is denied, the probate court is encouraged to return the case to the district court so that a second permanency hearing may be held. The district court has an extensive history with the case based on its oversight of the family for at least a year. Additionally, DCYF favors having a second permanency hearing held in district court rather than having a guardianship created whenever a TPR fails. Guardianships with the agency do not provide permanency for children.

E. CONTINUED RESPONSIBILITIES OF THE GAL OR CASA GAL

The GAL for the child shall continue as such until the child is adopted or the court discharges the GAL from further involvement in the case.

PROTOCOL 21 EFFECT OF THE COURT DECREE

Pursuant to RSA 170-C:12, an order terminating the parent-child relationship shall divest the parent and the child of all legal rights, privileges, duties and obligations except that the rights of inheritance of both the parent and child shall not be divested until the adoption of the child.

A guardian appointed under RSA 170-C may give his/her consent to the adoption of such child in lieu of the parents whose parent-child relationship has been terminated by the decree of the court.

PROTOCOL 22 APPEALS

Pursuant to RSA 170-C:15, any party aggrieved by any order or decree of the court may appeal to the supreme court in accordance with RSA 567-A. The pendency of an appeal, or an application therefor, shall not suspend the order of the court regarding the child.

An appeal to the supreme court must be made within thirty (30) days of the court's final decision with respect to the termination petition.

The district court shall retain jurisdiction over the underlying abuse and neglect case until such time as a guardianship or adoption is finalized.

COMMENT

During the application or pendency of an appeal, there shall be a presumption against visitation between the child and the parent whose rights have been terminated.

PROTOCOL 23 POST-TERMINATION CASE REVIEW HEARINGS

If the court orders termination of parental rights and grants custody of the child to DCYF for the purpose of placing the child for adoption, a post-termination case review hearing shall be held within ninety (90) calendar days of the court's order and every ninety (90) calendar days thereafter, unless excused by the court for good cause shown. The purpose of the hearing is to make sure that everything possible is being done by DCYF to place the child for adoption, to initiate the adoption process, and to make sure the needs of the child are being met.

If an adoption petition has been filed prior to a post-termination case review hearing, the hearing may be cancelled.

COMMENT

RSA 170-C:11, VI, requires that the status of all children for whom termination decrees have been issued and for whom guardianship for the purpose of the adoption has been granted to the department of health and human services shall be reviewed at least once each year following the initial decree until the adoption decree has been finalized. Nevertheless, this protocol requires that there be an initial ninety (90) day post-termination case review hearing held by the court and every ninety (90) days thereafter, unless good cause is shown. These hearings shall be held to assure that DCYF has made efforts to identify, recruit and approve a qualified family for adoption, pursuant to RSA 169-C:24-a, II, so that an adoption may be finalized.

PROTOCOL 24 SUBMISSION OF STATUS REPORT BEFORE POST-TERMINATION CASE REVIEW HEARING

Within five (5) calendar days prior to the post-termination case review hearing, the responsible agency shall submit a written status report to the court, the GAL or CASA GAL, and/or the child's attorney.

The status report shall address each of the following and shall be written by DCYF to include four (4) separate categories, as outlined below:

(1) a description of the agency's progress toward arranging an adoptive placement for the child;

(2) if adoptive parents have not already been selected, a schedule and description of the steps taken to place the child for adoption;

(3) a discussion of any special barriers preventing placement of the child for adoption and how they should be overcome; and

(4) the projected date for filing the petition for adoption.


TABLE OF CONTENTS

CHAPTER 14 - ADOPTION HEARING

Page

PROTOCOL 1

JURISDICTION

155

PROTOCOL 2

FILING THE PETITION FOR ADOPTION

156

PROTOCOL 3

NOTICE OF PETITION

157

PROTOCOL 4

INVESTIGATION

157

PROTOCOL 5

SCHEDULING THE ADOPTION HEARING

158

PROTOCOL 6

WHO MUST BE PRESENT AT THE ADOPTION HEARING

159

PROTOCOL 7

ISSUES FOR THE COURT TO CONSIDER AT THE ADOPTION HEARING

159

PROTOCOL 8

INTERLOCUTORY DECREE AND FINAL DECREE

160

PROTOCOL 9

COURT'S NOTIFICATION OF ADOPTION BY DCYF

161

PROTOCOL 10

APPEALS AND VALIDATION OF ADOPTION DECREES

161

 

CHAPTER 14 - ADOPTION HEARING

 

STATUTORY REFERENCES: •RSA 170-B:5, Persons Required to Consent Adoption

•RSA 170-B:11,I,&II, Jurisdiction, Venue, and Inconvenient Forum

•RSA 170-B:13,I, Notice of Petition

•RSA 170-B:14,I, Investigation

•RSA 170-B:15,I,II,III-b,IV, Hearing

•RSA 170-B:17,I,&II, Appeals and Validation of Adoption Decrees

•RSA 567-A, Appeals from Court of Probate

CROSS REFERENCE: •Chapter 13, Termination of Parental Rights Hearings, Protocol 24, Submission of Status Report Before Post-Termination Case Review Hearing

INTRODUCTION

Adoption creates the status of parent and child between individuals who are not each other's biological parent and child. A judicial decree of adoption builds a new legal relationship between a child and the members of the child's adoptive family, and causes the child to become, for all purposes, the child of the adoptive parents.

These protocols are predicated on an underlying abuse or neglect proceeding that has resulted in a relinquishment or termination of parental rights and the filing of an adoption petition. Whenever possible, it is the preferred practice for the court that handled the termination of parental rights case to also handle the adoption proceeding.

PROTOCOL 1 JURISDICTION

Pursuant to RSA 170-B:11,I, the probate court has exclusive jurisdiction to consider a petition for adoption, except in Grafton and Rockingham counties, where adoption cases are handled in the family division.

The petition for adoption shall be filed, consistent with RSA 170-B:11,II, in the probate court or family division of the county in which the petitioner or the individual to be adopted resides at the time of the filing, or in the county in which the authorized agency has provided services to the individual to be adopted.

PROTOCOL 2 FILING THE PETITION FOR ADOPTION

CROSS REFERENCE:

•Chapter 13, Termination of Parental Rights Hearings, Protocol 24, Submission of Status Report Before Post-Termination Case Review Hearing

A petition for adoption shall be filed by DCYF on behalf of the adoptive parent(s) no later than ninety (90) days from the date of the relinquishment or termination of parental rights. If an adoption petition is not filed prior to the ninety (90) days, the court shall schedule a review hearing. The purpose of this hearing is to make sure that everything possible is being done by DCYF to place the child for adoption, to initiate the adoption process, and to make sure the needs of the child are being met. Within five (5) calendar days of this hearing a status report should be submitted to the court and all parties, which shall recite the special circumstances why the adoption petition has not been filed and the anticipated date for filing the adoption petition.

If a child has been placed in an adoptive home for more than thirty (30) days when the petition is filed or the status report is submitted to the court, an affidavit shall be included with the adoption petition stating why the child has been in the home for more than thirty (30) days.

DCYF may also file the Investigation and Written Report, and Adoption Subsidy Agreement, at the time of filing the petition, although such is not required at that time. If so filed, it shall be distributed pursuant to Protocol 3, Notice of Petition.

COMMENT

This protocol is based upon the following tasks and time frames to be undertaken by the probate court and family division, the DCYF social worker and the DCYF Adoption Unit.

Upon the court's rendering a decision on the petition for termination of parental rights or a relinquishment, the probate court or family division shall send notice of decision to the Adoption Unit. The court shall also require the DCYF social worker to transfer the TPR or relinquishment case to the Adoption Unit within ten (10) days of the expiration of the appeal period and to send a letter to the probate court confirming such transfer. Upon receipt of the TPR or relinquishment case, the Adoption Unit social worker shall file an appearance with the probate court or family division.

PROTOCOL 3 NOTICE OF PETITION

Pursuant to RSA 170-B:13,I, after the filing of a petition to adopt a minor, the court shall set a date, time and place for hearing the petition.

At least seven (7) days before the hearing, the court shall send by regular mail the following to the department of health and human services:

(1) the notice of the filing of the petition;

(2) the date, time and place of the hearing; and

(3) a copy of the petition.

Notice shall be given by the court to the petitioner and legal custodian of the child and to the guardian ad litem of any party.

PROTOCOL 4 INVESTIGATION

A. INVESTIGATION AND REPORT OF FINDINGS OF ADOPTIVE HOME

Before the petition is heard, consistent with RSA 170-B:14,I, an investigation shall be conducted and a written report submitted by the department of health and human services, or by a licensed child-placing agency designated by the court, for the purpose of ascertaining whether the adoptive home is a suitable home for the child and whether the proposed adoption is in the best interest of the child.

Pursuant to RSA 170-B:14,IV, the department of health and human services or a licensed child-placing agency designated by the court to make the required investigation may request other departments or agencies within or outside of the State to make investigations of designated portions of the inquiry as may be appropriate and to make a written report that shall be included as a supplement to the DCYF report.

COMMENT

Although the statute provides that a written report of the investigation shall be filed with the court not later than sixty (60) days after the petition has been filed with the court, this protocol reflects DCYF's practice of including a completed report of the investigation of the adoptive home with the petition at the time of filing. This is because the child will likely have been placed in the home during an abuse/neglect and/or TPR proceeding, such that DCYF will have long since determined the propriety of this placement.

B. THE COURT'S REVIEW OF THE REPORT'S FINDINGS

Pursuant to RSA 170-B:14,I, in determining whether the petitioner will be able to provide the prospective adoptee with a proper home and education, the court shall give due consideration to any assurance by the commissioner or designee that the commissioner will provide or contribute funds for the necessary maintenance or medical care of the prospective adoptee under an adoption subsidy agreement, which should be submitted to the court with the petition, if possible, but in no event later than the final hearing. The judge may also request an investigation of the antecedents of a minor sought to be adopted.

COMMENT

Although authorized by RSA 170-B:14,I, it would be highly unusual for a court to request an investigation of the minor's antecedents where an abuse or neglect and termination case preceded the adoption.

PROTOCOL 5 SCHEDULING THE ADOPTION HEARING

The adoption hearing shall take place, pursuant to RSA 170-B:13,I, no sooner than seven (7) days after service of notice. Courts are strongly encouraged to schedule the adoption hearing to be held within thirty (30) days of the filing of the petition and report of the investigation of the adoptive home.

COMMENT

Although RSA 170-B:15,II, allows the court to continue the adoption hearing to permit further observation, investigation, or consideration of any circumstances affecting the granting of the petition, continuances of these cases are strongly discouraged, and indeed, largely unnecessary, since the child will likely have been residing in this home for a substantial period of time. Children in out-of-home placements need permanence and adoption hearings must be held in a timely manner so that these children do not suffer any additional delay.

PROTOCOL 6 WHO MUST BE PRESENT AT THE ADOPTION HEARING

Consistent with RSA 170-B:15,I, the petitioner, the adoptive parents and the individual to be adopted shall appear at the hearing on the petition, unless their presence is excused by the court for good cause shown.

COMMENT

Although RSA 170-B:13 requires the court to provide notice of the adoption hearing to the petitioners, the guardian of the child, the person having legal custody of the child, and the guardian ad litem, their presence is not required and, in fact, due to the intimate and ceremonial nature of this important hearing, they should attend only if invited by the adoptive parents. The adoptive parents may also choose to invite extended family members to the adoption hearing.

PROTOCOL 7 ISSUES FOR THE COURT TO CONSIDER AT THE ADOPTION HEARING

At the adoption hearing, the judge shall review the petition and all documents and should:

(1) confirm that the court has proper jurisdiction;

(2) ascertain that parental rights have been voluntarily relinquished or that parental rights have been terminated and that the appeal process for the latter has expired;

(3) ensure that any consents to adoption are provided, pursuant to RSA 170-B:5, including the consent of the person to be adopted when that person is twelve (12) years of age or older;

(4) review the applicability of the Indian Child Welfare Act (ICWA);

(5) confirm that the adoptive parents have been advised, pursuant to RSA 170-B:15,III-b, based on information that is reasonably available at the time, of information on the age, medical and personal backgrounds of the birth parents and the child to be adopted. Such information may include, but is not limited to, the ethnic and religious background, as is reasonably known;

(6) ensure that adoptive parents understand that adoption is permanent and irreversible; and

(7) any other information the court deems necessary.

COMMENT

When an adoption petition is to be approved, a significant part of the judge's function becomes ceremonial. The adoption is an important milestone for a parent and child, and the courtroom ceremony can be an important event in their lives. Thus, the judge should take special care to make the adoption both a solemn ceremony and a celebration.

PROTOCOL 8 INTERLOCUTORY DECREE AND FINAL DECREE

If at the conclusion of the hearing, pursuant to RSA 170-B:15,III,(b), the court determines that the required consents or relinquishments have been obtained or excused or parental rights terminated and that the adoption is in the best interest of the individual to be adopted, the court shall issue an interlocutory decree of adoption. If, however, the child has lived with the adoptive parents for at least six (6) months, the court may waive the interlocutory decree and waiting period and issue a final decree.

Where the court issues an interlocutory decree of adoption, it may provide for, pursuant to RSA 170-B:15,IV, observation, investigation, and further report on the adoptive home. A date for the final hearing shall be established. Upon the filing of the supplemental report, the final hearing may be waived and a final decree entered.

COMMENT

Although the statute states that a decree shall not become final until the minor to be adopted has lived in the adoptive home for at least six (6) months after the department of health and human services or the court has been informed of the custody of the minor by the petitioner, and the department of health and human services or a licensed child-placing agency has had an opportunity to observe or investigate the adoptive home, in most instances a child who is being adopted by her/his foster parents will have resided in their home for more than six (6) months and the court will move directly to a final decree.

PROTOCOL 9 COURT'S NOTIFICATION OF ADOPTION BY DCYF

The court where relinquishment or termination of parental rights occurred shall receive written notification from DCYF immediately following the final decree of adoption of the child who was the subject of the termination or relinquishment proceeding.

PROTOCOL 10 APPEALS AND VALIDATION OF ADOPTION DECREES

Pursuant to RSA 170-B:17,I, an appeal from any final or interlocutory decree of the court may be taken in the manner and time provided by RSA 567-A, except that no appeal shall be allowed from any order or decree involving proceedings for adoption unless taken within thirty (30) days from receipt of such order or decree.

Pursuant to RSA 170-B:17,II, subject to the disposition of an appeal upon the expiration of one (1) year after a final adoption decree is issued, the decree cannot be questioned by any person, including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter.


 

APPENDIX

LEAD CASES

 

In re Ethan H., 135 N.H. 681, 609 A.2d 1222 (1992)

In re Gina D., 138 N.H. 697, 645 A.2d 61 (1994)

In re John Kevin B., 129 N.H. 286, 525 A.2d 281 (1987)

In re Lisa H., 134 N.H. 188, 589 A.2d 1004 (1991)

In re Matthew G. and Christopher G., 124 N.H. 414, 469 A.2d 1365 (1983)

In re Mellisa M., 127 N.H. 710, 506 A.2d 324 (1986)

In re Ryan G., 142 N.H. 643, 707 A.2d 134 (1998)

In re Shelby R., 148 N.H. 237, 804 A.2d 435 (2002)

In re Sheena B., 139 N.H. 179, 651 A.2d 7 (1994)

In re Thomas M. and Michael M., 141 N.H. 55, 676 A.2d 113 (1996)

In re Tracy M., 137 N.H. 119, 624 A.2d 963 (1993)

In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985)

Petition of Jane Doe, 132 N.H. 270, 564 A.2d 433 (1989)

Petition of Kerry D., 144 N.H. 146, 737 A.2d 662 (1999)

The State of New Hampshire v. Harold J. Baird, 133 N.H. 637, 581 A.2d 1313 (1990)

The State of New Hampshire v. Robert H., 118 N.H. 713, 393 A.2d 1387 (1978)

 

APPENDIX

LEAD CASES

 

1. In re Shelby R., 148 N.H. 237, 804 A.2d 435 (2002)

(Protocols, Chapter 2, Petition, Summons, Court’s Appointment of Counsel for Parents, GAL or CASA GAL and Counsel for Child)

Due process requires the appointment of counsel for a stepparent accused of abuse or neglect under RSA Chapter 169-C.

2. Petition of Kerry D., 144 N.H. 146, 737 A.2d 662 (1999)

(Protocols, Chapter 6, Consent Decree)

All parents, whether named or unnamed in an abuse or neglect petition, need to be informed and need to acknowledge that they understand the consequences of the consent order, including but not limited to the loss of physical and/or legal custody of their child and/or termination of their parental rights.

3. In re Ryan G., 142 N.H. 643, 707 A.2d 134 (1998)

(Protocols, Chapter 8, Dispositional Hearing)

If the court’s order includes a non-certified placement for a child, DCYF must undertake the certification review process giving "proper weight" to the court’s placement order. DCYF, however, has the exclusive power to certify placement facilities.

4. In re Thomas M. and Michael M., 141 N.H. 55, 676 A.2d 113 (1996)

(Protocols, Chapter 8, Dispositional Hearing; and Chapter 9, Appeal of Final Dispositional Order)

In a case involving an incarcerated father and the neglect of his children, the superior court misinterpreted RSA 169-C:28, which mandates that the "superior court shall hear the matter de novo" and leaves no room for the exercise of discretion, meaning that the superior court must hear both the adjudicatory and dispositional aspects of the neglect case de novo. RSA 169-C:28.

5. In re Sheena B., 139 N.H. 179, 651 A.2d 7 (1994)

(Protocols, Chapter 13, Termination of Parental Rights Hearings)

A party seeking to terminate parental rights must prove the statutory ground for termination beyond a reasonable doubt; after one of the statutory grounds for terminating a party’s parental rights has been satisfied the court then must consider whether it is in the child’s best interest to terminate the rights of the parent in question. N.H. CONST. pt I, art. 2; RSA 170-C:5.

6. In re Gina D., 138 N.H. 697, 645 A.2d 61 (1994)

(Protocols, Chapter 1, General Provisions; Chapter 7, Adjudicatory Hearing)

New Hampshire Rules of Evidence do not apply to abuse and neglect proceedings; instead, court may admit evidence which it considers relevant and material, looking to New Hampshire common law of evidence for guidance in analyzing the materiality and relevancy of testimony. RSA 169-C:12; RSA 169-C:18, III.

7. In re Tracy M., 137 N.H. 119, 624 A.2d 963 (1993)

(Protocols, Chapter 1, General Provisions)

In determining whether challenged procedure afforded requisite due process safeguards, supreme court considers: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. N.H. CONST. pt. 1, art.15.

In determining whether burden of proof in child abuse case afforded stepfather requisite due process safeguards, supreme court considers the interest of both the stepfather and the child. N.H. CONST. pt. 1, art. 15; RSA 169-C:2; RSA 169-C:13.

Supreme court found no constitutional error in legislature’s decision to adopt preponderance of the evidence standard as burden of proof in child abuse and neglect cases. N.H. CONST. pt. 1, art. 15; RSA 169-C:13.

8. In re Ethan H., 135 N.H. 681, 609 A.2d 1222 (1992)

(Protocols, Chapter 7, Adjudicatory Hearing)

Where mother observed her seven-year old son throwing food at the dinner table, and son allegedly ignored her, and mother in response took son to bedroom and struck his bare buttocks approximately six times with an imitation leather belt, superior court order finding the son was an "abused child" under Child Protection Act was reversed; there was substantial evidence that son, although bruised, was not harmed. RSA 169-C:3, II. Children’s bruises may in future cases be by nature prima facie evidence of harm or threatened harm in child abuse cases.

9. In re Lisa H., 134 N.H. 188, 589 A.2d 1004 (1991)

(Protocols, Chapter 13, Termination of Parental Rights Hearings)

In proceedings to terminate parental rights, trial court must consider whether it is in the best interests of child to terminate the rights of the parent, but only after a finding of abandonment or one of the other statutory conditions for termination. RSA 170-C:1, 5.

In proceedings to terminate parental rights of mother found to have abandoned her child, evidence that child referred to aunt and uncle with whom she was living as "mom " and "dad," while referring to her mother as "Sharon," and rapidly progressed in school while living with them supported the trial court’s finding that termination was in the best interests of the child. RSA 170-C:1.

10. The State of New Hampshire v. Harold J. Baird, 133 N.H. 637, 581 A.2d 1313 (1990)

(Protocols, Chapter 1, General Provisions; Chapter 7, Adjudicatory Hearing)

Confidentiality provision of Child Protection Act cannot reasonably be interpreted to prevent relevant evidence relating to a prior action under that statute from being introduced in the criminal prosecution of a party to the earlier juvenile proceeding for a crime arising out of that prior proceeding. RSA 169-C:25, II (Supp. 1989).

At trial for witness tampering arising out of defendant’s retaliatory actions against his daughter for her participation in an initial child abuse or neglect hearing, court properly denied motion in limine to exclude all evidence pertaining to the abuse or neglect hearing under confidentiality provisions of Child Protection Act. RSA 169-C:25 (Supp. 1989), 641:5, II.

11. Petition of Jane Doe, 132 N.H. 270, 564 A.2d 433 (1989)

(Protocols, Chapter 7, Adjudicatory Hearing)

Proper finding of child abuse under Child Protection Act must include a determination of whether the alleged abusive act was committed under circumstances indicating harm or threatened harm to the child’s life, health, or welfare. RSA 169-C:3, II(d) (Supp. 1988).

On appeal from "fair hearing" decision by the division for children and youth services (DCYS), findings that mother had abused her young son on two separate occasions were reversed, where the injuries sustained by the son on both occasions concededly were minor, where expert witnesses concluded that mother was not an abusive mother and that son was not an abused child, and where DCYS failed to offer any facts to show that the son’s life, health, or welfare was harmed, or would be threatened with harm, by his mother’s actions. RSA 169-C:3, II(d) (Supp. 1988).

12. In re John Kevin B., 129 N.H. 286, 525 A.2d 281 (1987)

(Protocols, Chapter 13, Termination of Parental Rights Hearings)

Contemplation of adoption is not required prior to the termination of parental rights; it is a factor to be considered when determining a child’s best interest in statutory proceedings to terminate parental rights, not a prerequisite to those proceedings. RSA 170-C.

13. In re Melissa M., 127 N.H. 710, 506 A.2d 324 (1986)

(Protocols, Chapter 1, General Provisions; Chapter 7, Adjudicatory Hearing; and Chapter 8, Dispositional Hearing)

There is no constitutional right to a stay of a civil proceeding pending disposition of a related criminal case. Trial court’s refusal to continue a child abuse proceeding under the Child Protection Act, until criminal prosecutions against defendant for child abuse had been concluded, did not violate defendant’s privilege against self-incrimination, where statute emphasized importance of avoiding delay in child protection cases, and where defendant received use immunity for any statements made or testimony given in the child protection proceeding. RSA 169-C (Supp. 1985).

In a child abuse case brought under the Child Protection Act, the court is entitled to the best information available in deciding whether and when a child should be returned to his or her parents. RSA 169-C (Supp. 1985).

Provision of Child Protection Act requiring that final orders include conditions the parents must meet before the child is returned home does not require a court to attempt to specify conditions under which a parent and child may be reunited when no conditions exist under which reunification could safely occur. RSA 169-C:21, II (Supp. 1985).

14. In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985)

(Protocols, Chapter 6, Consent Decree; Chapter 7, Adjudicatory Hearing; Chapter 8, Dispositional Hearing; and Chapter 13, Termination of Parental Rights Hearings)

Section of termination of parental rights statute, listing as a ground for termination a failure to correct conditions which led to a finding of child abuse or neglect under Child Protection Act, does not provide that a parent must have been the named respondent in a child protection act neglect proceeding, before that parent’s rights can be terminated. RSA 169-C (Supp.1983), 170-C:5, III (Supp. 1983).

Probate court was warranted in terminating a father’s parental rights where the underlying finding of neglect was based on the unwillingness or inability of the parents to provide living conditions of minimal decency for the children, and there was ample evidence of the father’s failure to correct the conditions which led to the neglect findings. RSA 170-C:5, III (Supp. 1983). In this case, although the father was not named in the petition, he had actual notice of the charges, and the record was clear that he failed or refused to make efforts sufficient to correct the conditions that led to the finding of neglect.

15. In re Matthew G. and Christopher G., 124 N.H. 414, 469 A.2d 1365 (1983)

(Protocols, Chapter 13, Termination of Parental Rights Hearings)

On appeal by plaintiff from trial court’s denial of her petitions seeking termination of the rights of the defendant, her former husband, as parent of their two minor children, the plaintiff’s claim that the master erred in failing to consider the best interests of the children, for the purpose of determining whether the defendant had abandoned them, assumed that the court should consider a conclusion about what is in a child’s best interest when determining whether the child has been abandoned; and plaintiff’s assumption was faulty for two reasons: first, such a conclusion is not an evidentiary fact and second, the conclusion has no logical tendency to prove that the parent in question abandoned the children. RSA 170-C:5, I (Supp. 1983).

On a petition to terminate parental rights, the trial court must consider whether it is in the child’s best interest to terminate the rights of the parent in question, but only after a finding of abandonment, or one of the other statutory conditions for termination. RSA 170-C:1.

16. The State of New Hampshire v. Robert H., 118 N.H. 713, 393 A.2d 1387 (1978)

(Protocols, Chapter 13, Termination of Parental Rights Hearings)

The family and the rights of parents over it are held to be natural, essential, and inherent rights within the meaning of New Hampshire Constitution, part I, article 2.

State must prove its case beyond a reasonable doubt before the permanent termination of liberty and natural rights of parents guaranteed under New Hampshire Constitution, part I, article 2 can occur. RSA 170-C.