Today's NH Supreme Court Decision
What is "financially able?" Today's decision issued by the New Hampshire Supreme Court is about a petitioner's legal burden of proof when he or she tries to terminate the other parent's rights over their child on the grounds that he or she failed to support the child. In re Sophia-Marie H.
In this case, the mother filed a Termination of Parental Rights petition against the father. Father and mother stopped living together when the child was about one year old. The mother filed a parenting petition and father was granted supervised visits. Father was then incarcerated for about a year and a half, during which the court recommended no visitation. After his release, the father filed a motion to resume his visitation with their then four year old daughter. A few months later, mother filed the petition to terminate the father's rights on the grounds of abandonment and nonsupport. The guardian ad litem recommended the mother's request for termination be denied. The Franklin Family Division found that the father had not abandoned the child, but that he had "failed to support, educate, and care for her." See RSA 170-C:5, II. The trial court granted the mother's petition to terminate, and the father appealed.
The facts in the published opinion state that the father did not pay child support during his incarceration, but that there had been a child support order that suspended his monthly obligation until he was employed following his release. Father testified that he did not pay child support before he was incarcerated and he was not a good father, but had started paying child support after he was released until, apparently, he was "on leave" for lack of work. The father testified he was committed to building a relationship with his daughter.
The New Hampshire Supreme Court's decision rested on the legal burden of the mother, as identified by the statute, 170-C:5, II. The burden is that the petitioner, the mother in this case, must prove beyond a reasonable doubt that the other parent, although financially able to do so, had failed to provide support. The statute's specific language is:
In this case, the mother filed a Termination of Parental Rights petition against the father. Father and mother stopped living together when the child was about one year old. The mother filed a parenting petition and father was granted supervised visits. Father was then incarcerated for about a year and a half, during which the court recommended no visitation. After his release, the father filed a motion to resume his visitation with their then four year old daughter. A few months later, mother filed the petition to terminate the father's rights on the grounds of abandonment and nonsupport. The guardian ad litem recommended the mother's request for termination be denied. The Franklin Family Division found that the father had not abandoned the child, but that he had "failed to support, educate, and care for her." See RSA 170-C:5, II. The trial court granted the mother's petition to terminate, and the father appealed.
The facts in the published opinion state that the father did not pay child support during his incarceration, but that there had been a child support order that suspended his monthly obligation until he was employed following his release. Father testified that he did not pay child support before he was incarcerated and he was not a good father, but had started paying child support after he was released until, apparently, he was "on leave" for lack of work. The father testified he was committed to building a relationship with his daughter.
The New Hampshire Supreme Court's decision rested on the legal burden of the mother, as identified by the statute, 170-C:5, II. The burden is that the petitioner, the mother in this case, must prove beyond a reasonable doubt that the other parent, although financially able to do so, had failed to provide support. The statute's specific language is:
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.
The New Hampshire Supreme Court found that the mother had not met her burden of proof. Specifically, she had not proven that the father was financially able to provide for support of this child. Keep in mind, the trial court at Franklin Family Division, had already found that the father had not abandoned the child, so the only ground for termination remaining for appeal was the father's lack of support. The New Hampshire Supreme Court mentioned that the statute does not define what it means to be "financially able." The Court also declined to address what "financially able" means because, it said, the record from the trial court contained very little evidence about whether the father was financially able.
We come away from this decision with instruction from the Court that when a termination of parental rights matter is filed on the grounds that a parent has failed to support a child, the petitioner must provide sufficient evidence - beyond a reasonable doubt - to show that the other parent is otherwise financially able to provide support. In this case, the father paid no support for about a year after he moved out of the family residence. He paid no support during one and one-half years of incarceration, and paid sporadically after he was released. But, the history of what he paid does not, in the Court's view, address whether he could have paid, and the evidence of whether he was able to pay was just too thin.
Though it was not a legal issue on appeal, in this decision the Court also went on to discuss why it believes that the trial court erred when it ruled that it was in Sophia-Marie's best interest to terminate her father's rights. The Court stated that it was providing this explanation because it believed that the issue could arise in future proceedings between the parents. The Court's explanation is also guidance for everyone in future termination of parental rights cases that are decided on best interests.
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