Terminating Parental Rights in New Hampshire

When we bring children into this world, we have the right to bring them up the way we

want – at least within reason. Because of this principle, parental rights have been given a lofty

position because parental rights are said to be natural, essential, and inherent within our society.

Indeed, these rights are given constitutional protection in the New Hampshire Constitution.

Notwithstanding these rights, there are times when it is shown that a parent is unfit to

remain a parent. In such instances, parental rights can be terminated. The dominant

consideration in termination proceedings is the welfare of the child. That consideration prevails

over the interests of the parents.

Before a court can order the termination of a parent’s rights, the petitioning party must

prove a statutory ground for termination and they must prove it beyond a reasonable doubt. In

New Hampshire, authority is given to the family division to exercise jurisdiction over

termination of parental rights cases. There is a two-step process. Once a statutory ground is

established, the court must then consider whether termination is in the child’s best interest. A

determination of the child’s best interests requires an assessment of which of the possible

alternative dispositional orders is the most desirable, under a standard giving priority to the

assumed interest of the child.

I’ll address one of the statutory grounds for termination – child abandonment.

It is presumed that a parent intends to abandon a child who has been left by the parent in

the care and custody of another without any provision for their 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.

Although the statute does not provide a comprehensive definition of abandonment, the

New Hampshire Supreme Court has held that a parent abandons a child when the parent’s

conduct evidences a settled purpose to forego all parental duties and relinquish all parental

claims to the child. The trial court must consider the totality of the evidence, and may find

abandonment if the parent has made only minimal efforts to support or communicate with the

child, or shown only a mere “flicker of interest” in the child. I love that phrase – flicker of

interest – as it tells it all in three short words.

The six-month period of time during which there is no contact or support by the parent

may trigger the statutory presumption of intent to abandon, but it does not mandate a finding of

abandonment. Instead, the parent opposing termination has the opportunity to rebut the

presumption of intent to abandon by offering evidence of events that occurred before, during, and

after the triggering period.

Abandonment is a factual issue to be determined by the trial court, and a finding of

abandonment will not be disturbed unless it is unsupported by the evidence or plainly erroneous

as a matter of law. In making a determination, the court considers, among other things, “the

frequency and quality of the communication between the parent and child, the emotional and

financial support provided by the parent for the child, and whether the overall conduct of the

parent evidences a willingness to take on responsibility and concern for the child’s physical and

emotional care and well-being.”

Lou Holtz is a legendary Notre Dame football coach. Drawing upon something Lou

Holtz once said: “…….everybody wants to talk about their rights and privileges. Twenty-five

years ago, people talked about their obligations and responsibilities.” It is comforting to know

that if a parent doesn’t live up their obligations and responsibilities, their rights and privileges

can and sometimes will be taken away.