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.