CONCORD — A Manchester Circuit Court judge should never have terminated the parental rights of a father who spent time in jail for an armed robbery and never held a full-time job because he never abandoned his son, the Supreme Court ruled last week.
In the unanimous decision written by Associate Justice Robert J. Lynn, the court reversed Judge Susan B. Carbon’s ruling that terminated the man’s parental rights saying he had abandoned his 6-year-old son and that it was in the child’s best interest.
Attorney John J.A. Schrepfer of Manchester, who represented the father, said he could not comment on the decision because of the confidential nature of the case because it involves a juvenile. The New Hampshire Union Leader was unable to reach attorney Edward C. Mosca, who represented the mother.
According to the decision in the case of In Re Deven O., the child was born in June 2006 and lived with both parents until December 2006, when the couple broke up and the father moved out.
Father and son spent a few days each month together until December 2007 when the father was arrested for armed robbery and imprisoned until June 2010. The mother visited him in prison on a number of occasions, but brought Deven only one or two times.
In June 2010, the father was released from a halfway house and, during the next three months, visited with Deven a few times each week. He took numerous photos of his son and posted comments about the visits on his Facebook page.
In September 2010, however, the parents had a long telephone conversation during which the mother said she did not want him visiting with Deven until the father “straighten(ed) out” his life.Thereafter, contact with his son decreased because, Carbon found, the mother made it difficult for him to contact his son. Between September 2010 and March 2011, the father called the mother at least once about giving Deven a Christmas gift.
In October 2010, the mother filed a petition to change Deven’s surname to her own. Although she knew the father was no longer incarcerated, she listed his last known address as the state prison. As a result, the father did not receive notice of the petition and did not learn that Deven’s name had been changed until December, when the mother posted the information online.
Beginning in March 2011, the father tried several times to contact the mother to arrange to visit Deven. He also asked her father for help in arranging visits. When that failed, he filed a parenting petition in December 2011 and also proposed a parenting plan and a visitation schedule.
In January 2012, the mother filed a petition to terminate his parental rights on the grounds of abandonment and failure to provide support.
The judge, in opposition to the guardian ad litem’s recommendation, terminated the father’s parental rights.
Carbon noted the mother’s new partner had become a father figure for Deven, had welcomed Deven into his extended family and provided financial, emotional and other support for the child.
The Supreme Court, however, said a court cannot terminate parental rights unless the petitioning party proves the statutory grounds for termination beyond a reasonable doubt. It agreed with the judge that the evidence in the case was sufficient to trigger the presumption of abandonment but, the jurists said, the finding that there was no communication for a period of at least six months is only the first step in determining abandonment.
The trial court, however, also must consider “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.”
The Supreme Court said the record shows the father made efforts to communicate with Deven both before and after the triggering period, which is a six-month span of time when a parent has left the child in the care and custody of another without any provision for the child’s support or without communicating with the child.
In this case, the father visited with Deven multiple times a week for three months, which is sufficient to show his conduct during this time was more than minimal and evidenced a concern for Deven’s physical and emotional care and well-being, according to the decision.
“Indeed the trial court found that the father enjoyed these visits with Deven; he took pictures of the child and posted Facebook messages about visits. The father also made an effort to communicate with Deven after the triggering period. He repeatedly called or sent Facebook messages to the mother in an attempt to arrange parenting time with Deven, and also called or text messaged the mother’s father to solicit his help in seeing Deven. When these efforts failed, the father filed a parenting petition requesting visitation time with Deven.”