PUBLIC SAFETY AND WELFARE
TERMINATION OF PARENTAL RIGHTS
The purpose of this chapter is to provide for the involuntary termination of the parent-child relationship by a judicial process which will safeguard the rights and interests of all parties concerned and when it is in the best interest of the child. Implicit in this chapter is the philosophy that whenever possible family life should be strengthened and preserved, and that the parent-child relationship is to be terminated only when the adoption of that child may be contemplated.
Source. 1973, 523:1, eff. Aug. 31, 1973.
When used in this chapter, unless the text otherwise requires:
I. "Court" means the probate court.
II. "Child" or "minor" means a person less than 18 years of age.
III. The singular includes the plural, the plural the singular, and the masculine the feminine, when consistent with the intent of the chapter.
IV. "Legal custody" means a status created by court order, embodying the following rights and responsibilities:
(a) The right to have the physical possession of the child;
(b) The right and the duty to protect, train and discipline the child; and
(c) The responsibility to provide the child with food, clothing, shelter, education and ordinary medical care, provided that such rights and responsibilities shall be exercised subject to the powers, rights, duties and responsibilities of the guardian of the person and subject to residual parental rights and responsibilities if these have not been terminated by judicial decree.
V. "Guardianship of the person" with respect to a minor means the duty and authority to make important decisions in matters having a permanent effect on the life and development of the minor, and to be concerned about the general welfare of the minor. It includes but is not necessarily limited either in number or kind to:
(a) The authority to consent to marriage, to enlistment in the armed forces of the United States, and to major medical, psychiatric and surgical treatment, to represent the minor in legal actions and to make other decisions concerning the child of substantial legal significance.
(b) The authority and duty of reasonable visitation, except to the extent that such right of visitation has been limited by court order.
(c) The rights and responsibilities of legal custody except where legal custody has been vested in another individual or in an authorized agency.
(d) When the parent-child relationship has been terminated by judicial decree with respect to the parents, or only living parent, or when there is no living parent, the authority to consent to the adoption of the child and to make any other decision concerning the child which the child's parents could make.
VI. "Guardian ad litem" means a person appointed by the court to protect the interest of a minor or an incompetent in a case before the court.
VII. "Authorized agency" means the New Hampshire department of health and human services or a licensed child-placing agency.
" means (a) the mother, (b) a father as to whom a child is legitimate, (c) a person as to whom a child is presumed to be a legitimate child, (d) an alleged father who is living with the mother and child or who has complied with the provisions of RSA 170-B:5, I(c), or (d) an adoptive parent. Such term does not include a parent as to whom the parent- child relationship has been terminated by judicial decree.
IX. "Residual parental rights and responsibilities" means those rights and responsibilities remaining with the parent (where there has not been termination of the parent-child relationship by judicial decree) after the transfer of legal custody and guardianship of the person, including but not necessarily limited to, the right to reasonable visitation, consent to adoption, the right to determine the child's religious affiliation, and the responsibility for support.
X. "Parties" includes the child, the petitioners, and the child's parents.
Source. 1973, 523:1. 1983, 291:1. 1986, 223:7. 1994, 212:2. 1995, 310:181. 2004, 255:4, eff. Jan. 2, 2005.
The probate court shall have exclusive original jurisdiction over petitions to terminate the parent-child relationship when the child involved is present in the state or is in the legal custody or legal guardianship of an authorized agency located in the state. The petition shall be filed in the probate court of the county in which the child or his parents reside at the time of filing of the petition, or in the probate court of the county in which the authorized agency has provided services to the child.
Source. 1973, 523:1. 1983, 331:6, eff. Aug. 17, 1983.
A petition for termination of the parent-child relationship may be filed by the following:
I. Either parent when termination of the parent-child relationship is sought with respect to the other parent.
II. The guardian of the person or the legal custodian of the child or the foster parents. Foster parents may file only when the following conditions are met:
(a) The child has lived in the foster home continuously for 24 months; and
(b) The foster parents have requested in writing the licensed child-placing agency to legally free the child for adoption, but that the agency has not initiated proceedings, and there is reasonable cause to believe that grounds exist.
III. An authorized agency.
Source. 1973, 523:1. 1981, 381:1, eff. Aug. 22, 1981.
170-C:5 Grounds for Termination of the Parent-Child Relationship.
The petition may be granted where the court finds that one or more of the following conditions exist:
I. The parent has abandoned the child. It shall be presumed that the parent intends to abandon the 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 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.
[Paragraph II effective until January 1, 2023; see also paragraph II set out below.]
II. 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.
[Paragraph II effective January 1, 2023; see also paragraph II set out above.]
II. 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. A parent's decision not to have their child vaccinated shall not be used as evidence in any proceeding to terminate parental rights.
III. Subsequent to a finding of child neglect or abuse under RSA 169-C, the parents have failed to correct the conditions leading to such a finding within 12 months of the finding despite reasonable efforts under the direction of the court to rectify the conditions.
III-a. Subsequent to a finding of child neglect or abuse under RSA 169-C, the parents have failed to correct the conditions leading to such a finding prior to an early permanency hearing held pursuant to RSA 169-C:24-b, II(b) at which the court changed the child's permanency plan, despite reasonable efforts under the direction of the court to rectify the conditions.
IV. 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 2 licensed psychiatrists or clinical psychologists or one of each acting together.
V. 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 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 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.
VI. If the parent or guardian 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 or guardian 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.
VII. The parent has been convicted of one or more of the following offenses:
(a) Murder, pursuant to RSA 630:1-a or 630:1-b, of another child of the parent, a sibling or step-sibling of the child, the child's other parent, or other persons related by consanguinity or affinity, including a minor child who resided with the defendant.
(b) Manslaughter, pursuant to RSA 630:2, of another child of the parent, a sibling or step-sibling of the child, the child's other parent, or other persons related by consanguinity or affinity, including a minor child who resided with the defendant.
(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 VII(a) and VII(b).
(d) A felony assault under RSA 631:1, 631:2, 632-A:2, or 632-A:3 which resulted in injury to the child, a sibling or step-sibling of the child, the child's other parent, or other persons related by consanguinity or affinity, including a minor child who resided with the defendant.
Source. 1973, 523:1. 1975, 280:5. 1979, 332:1. 1983, 331:7; 401:1. 1990, 240:5. 1999, 133:2, 4. 2003, 79:1. 2005, 235:1, eff. July 11, 2005. 2021, 219:6, eff. Jan. 1, 2022. 2022, 324:1, eff. Jan. 1, 2023.
170-C:5-a Termination of the Parent-Child Relationship in Cases of Sexual Assault.
A petition for termination of the parent-child relationship shall be granted in cases where the child's birth is the result of sexual assault of the birth mother and where termination of the parent-child relationship is in the best interests of the child. Upon a showing, beyond a reasonable doubt, that the child's birth is the result of sexual assault of the birth mother, there shall be a rebuttable presumption that termination of the biological father's parent-child relationship with the child is in the best interest of the child. This section shall apply to a person who has been found to be the father of a child and who:
I. Has been convicted of or who has pled guilty or nolo contendere to a violation of sexual assault as defined in RSA 632-A:2 through RSA 632-A:4, or a similar statute in another state against the birth mother for his conduct in fathering the child; or
II. At a fact-finding hearing, is found beyond a reasonable doubt to have fathered the child through an act of non-consensual sexual penetration.
Source. 2014, 244:1, eff. Jan. 1, 2015. 2017, 93:1, eff. Jan. 1, 2018.
170-C:6 Contents of Petition.
The petition for the termination of the parent-child relationship shall include, to the best information or belief of the petitioner:
I. The name and place of residence of the petitioner.
II. The name, sex, date and place of birth, and residence of the child.
III. The basis for the court's jurisdiction.
IV. The relationship of the petitioner to the child, or the fact that no relationship exists.
V. The names, addresses, and dates of birth of the parents.
VI. When the child's parent is a minor, the names and addresses of said minor's parents or guardian of the person.
VII. The names and addresses of the person having legal custody or guardianship of the person or acting in loco parentis to the child or the organization or authorized agency having legal custody or providing care for the child.
VIII. The grounds on which termination of the parent-child relationship is sought.
IX. The names of the authorized agency to whom or to which legal custody or guardianship of the person of the child may be transferred.
Source. 1973, 523:1, eff. Aug. 31, 1973.
After a petition has been filed, the court shall set the time and place for a hearing and shall give notice thereof to the petitioner who shall cause notice to be given to the parents of the child, the guardian of the person of the child, the person having legal custody of the child, any individual standing in loco parentis to the child, and the guardian ad litem of any party. Where the child's parent is a minor, notice shall also be given to said minor's parents or guardian of the person unless the court is satisfied, in the exercise of its discretion, that such notice is not in the best interest of said minor and that it would serve no useful purpose. Notice shall be given by personal service to the parent whose parental rights may be terminated pursuant to the petition that has been filed. Where it shall appear impractical to personally serve said parent, the court shall order service by certified mail to the parent's last known address or publication once a week for 2 successive weeks in a newspaper of general circulation in the area where that person was last domiciled or both. All other parties shall be given notice by regular mail at their last known address. The hearing shall take place no sooner than 20 days after service of notice, except that if notice is by publication the hearing shall take place no sooner than 7 days after the last date of publication.
Source. 1973, 523:1. 1974, 18:3, eff. April 2, 1974.
170-C:8 Guardian Ad Litem.
When termination of the parent-child relationship is sought under RSA 170-C:5, IV, the court shall appoint a guardian ad litem for the alleged incompetent parent. The court shall appoint a guardian ad litem to represent the interests of the child in all termination hearings. The court may, in any other case, appoint a guardian ad litem, as may be deemed necessary or desirable, for any party.
Source. 1973, 523:1, eff. Aug. 31, 1973.
170-C:9 Social Study Prior to Disposition.
I. Upon the filing of a petition, the court shall direct that a social study be made by the department of health and human services or by any other authorized agency and that a report in writing of such study be submitted to the court prior to the hearing. The social study shall include the circumstances of the petition, the social history, the present condition of the child and parents, proposed plans for the child, and such other facts as may be pertinent to the parent-child relationship. 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 thereto. Copies of the social study shall be made available to the parties' attorneys. The contents of said study shall be treated in a confidential manner so as not to injure any party.
II. If the petition is filed by one parent with respect to the other parent, the court may waive or limit the extent of the social study otherwise required by this section. In such cases, the age of the child shall be considered; as well as the alleged grounds for termination of parental rights; the length of time the child has lived with the stepparent, if any; and the wishes of the child, parents, and other persons found by the court to have an appropriate interest in the child.
Source. 1973, 523:1. 1983, 291:1. 1986, 223:7. 1987, 174:4. 1994, 212:2. 1995, 310:181, eff. Nov. 1, 1995.
The court, at any time prior to the final decree, may order the child who is subject to the petition or the parents of such child or both the child and the parents 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 psychologist or one of each acting together, as ordered by the court, who shall provide a written assessment of the subject evaluated to the court.
Source. 1979, 332:2, eff. Aug. 21, 1979.
Cases under this chapter shall be heard by the court sitting without a jury. The hearing may be conducted in an informal manner and may be adjourned from time to time. 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 persons so admitted shall not disclose any information secured 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. When termination of the parent-child relationship is sought, the parent shall be notified at the same time notice is given pursuant to RSA 170-C:7 of his or her right to counsel, and if counsel is requested and the parent is financially unable to employ counsel, counsel shall be provided by the court and shall be paid for by the judicial council in accordance with RSA 170-C:13, III. The court's finding with respect to grounds for termination shall be based upon proof beyond a reasonable doubt, provided that relevant and material information 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 or she is residing or working within the state, or if he or she is otherwise reasonably available.
Source. 1973, 523:1. 2013, 104:1, eff. July 1, 2013. 2017, 85:1, eff. June 2, 2017.
I. Every order of the court terminating the parent-child relationship or transferring legal custody or guardianship of the person of the child shall be in writing and shall recite the findings upon which such order is based, including findings pertaining to the court's jurisdiction.
II. If the court finds grounds for the termination of the parent-child relationship, it shall terminate such relationship and 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.
III. Notwithstanding the provisions of RSA 170-C:11, II, the court may terminate the parent-child relationship with respect to one parent without affecting the relationship between the child and the other parent, and unless the court finds that the best interest of the child requires substitution or supplementation of parental care and supervision, it shall award guardianship and vest legal custody in the other parent.
IV. Where the court does not order termination of the parent-child relationship, it shall dismiss the petition; provided, however, that 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.
V. The court shall issue a decision which shall include a disposition not later than 60 days after the date of the final hearing.
VI. The status of all children for whom termination decrees have been issued and for whom guardianship for the purpose of adoption has been granted to the department of health and human services shall be reviewed at least once a year following the initial decree until the adoption decree has been finalized.
Source. 1973, 523:1. 1975, 280:6, 7. 1979, 332:3. 1983, 291:1; 416:24. 1985, 367:3. 1986, 223:7. 1994, 212:2. 1995, 310:181, eff. Nov. 1, 1995.
170-C:12 Effect of Decree.
An order terminating the parent-child relationship shall divest the parent and the child of all legal rights, privileges, duties and obligations. A guardian appointed under this chapter may give his 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. The rights of inheritance of both the parent and the child shall not be divested until the adoption of said child.
Source. 1973, 523:1, eff. Aug. 31, 1973.
170-C:13 Fees and Court Costs.
I. The petitioner shall pay all entry fees and court costs including costs of giving notice, costs of advertising, and court-appointed guardian ad litem fees. The court, however, may waive entry fees and court costs where payment would work a hardship on the petitioner. Where the court waives payment by the petitioner, the state, through the court system, shall pay court costs. The judicial council shall pay the cost of a CASA guardian ad litem appointed for the child or other guardian ad litem in cases arising from an underlying abuse and neglect proceeding when the state is the moving party or in cases where payment would work a hardship on the petitioner. The cost of such appointment, including counsel and investigative, expert, or other services and expenses necessary to provide adequate representation, shall be paid from funds appropriated for indigent defense pursuant to RSA 604-A.
II. The department of health and human services is exempted from paying any entry fees and court costs.
III. When appointment of counsel is made by the court pursuant to RSA 170-C:10 for a parent determined to be financially unable to employ counsel, the court shall use a financial eligibility guideline established by the office of cost containment to determine if the party is indigent. Upon determination that the party is indigent, the court may appoint counsel, subject to an order of repayment through the office of cost containment. The judicial council shall bear the financial responsibility for the payment of costs for attorneys appointed pursuant to RSA 170-C:10 in accordance with the financial eligibility guideline established by the office of cost containment. The cost of such appointment, including counsel and investigative, expert, or other services and expenses necessary to provide adequate representation, shall be paid from funds appropriated for indigent defense pursuant to RSA 604-A. Counsel shall petition the court for investigative, expert, or other services necessary to provide adequate representation. If the court finds that such services are necessary and that the parent is financially unable to obtain them, the court shall authorize counsel to obtain the necessary services on behalf of the parent. Services authorized under this section shall not include the payment of expenses that are the responsibility of any other agency pursuant to RSA 169-C or this chapter.
Source. 1973, 523:1. 1983, 291:1. 1986, 223:7. 1987, 333:1. 1994, 212:2. 1995, 310:181. 2002, 9:5. 2011, 224:78. 2013, 104:2, eff. July 1, 2013. 2021, 207:2, Pt. V, Sec. 1, eff. Oct. 9, 2021.
170-C:14 Confidentiality of Records.
I. All hearings held in termination proceedings shall be in closed court without admittance of any person other than essential officers of the court, the parties, their witnesses, counsel, and representatives of the agencies present to perform their official duties.
II. All papers and records, including birth certificates, pertaining to the termination, whether part of the permanent record of the court or of a file in the department, in an agency or office of the town clerk, or in the division of vital records administration are subject to inspection only upon written consent of the court for good cause shown.
III. Notwithstanding paragraph II, if the New Hampshire department of health and human services has petitioned for termination of parental rights under this chapter and the child named in the petition resides with a foster parent who intends to adopt the child, the department may share information regarding the status of the case with the child's foster parent.
IV. If any person shall violate any of the provisions of this section, he or she shall be subject to the following penalty:
(a) If the offense occurs prior to November 1, 1973, he or she shall be fined $500 or be imprisoned for 6 months, or both.
(b) If the offense occurs on or after November 1, 1973, he or she shall if a natural person be guilty of a misdemeanor, and any other person shall be guilty of a felony.
Source. 1973, 523:1. 1995, 310:175. 2003, 319:63, eff. July 1, 2003. 2015, 235:2, eff. Sept. 11, 2015.
Any party aggrieved by any order or decree of the court may appeal to the supreme court. The pendency of an appeal, or an application therefor, shall not suspend the order of the court regarding the child.
Source. 1973, 523:1, eff. Aug. 31, 1973. 2020, 37:40, eff. Sept. 27, 2020.