In re Zachary G. and another, 159 N.H. 146

Summary

The Supreme Court of New Hampshire affirmed the termination of S.G.'s parental rights based on her failure to protect her children from violent and abusive men. The court held that collateral estoppel did not bar consideration of evidence from an earlier abuse and neglect proceeding because substantially similar abuse and neglect recurred after that proceeding was closed. It also held that the statutory grounds for termination under RSA 170-C:5, III were satisfied and that termination served the children's best interests.

Holdings

1. Collateral estoppel may apply in a termination-of-parental-rights proceeding, but it does not bar reconsideration of evidence from an earlier closed action when subsequent and recent incidents of abuse and neglect substantially similar to the earlier incidents have occurred.
2. The family division did not abuse its discretion by rejecting the mother's judicial-estoppel argument because DCYF's pursuit of termination was not clearly inconsistent with its earlier effort to close the 2004 case in light of intervening abuse and neglect.
3. RSA 170-C:5, III requires proof of a finding of abuse or neglect under RSA chapter 169-C, failure to correct the same condition within twelve months, and reasonable efforts under the direction of the court to correct that condition. The family division erred in relying exclusively on the stale 2004 findings, but the error was one of form rather than substance because DCYF had obtained and cited the 2007 findings and proved the same continuing condition.
4. Although DCYF's May 2007 termination petitions were filed before twelve months had elapsed from the January 2007 neglect findings, the termination was not reversible error because the mother received twelve months to correct the conditions before the termination hearing and decree, and the family division found that DCYF made reasonable reunification efforts during that period.
5. The evidence supported, beyond a reasonable doubt, the finding that S.G. failed to correct the condition leading to the neglect findings, and it sufficiently supported the conclusion that termination of her parental rights was in the children's best interests.

Questions Presented

1. Whether collateral estoppel barred consideration of evidence from the earlier, closed abuse and neglect action in the parental-rights termination proceeding.
2. Whether judicial estoppel barred DCYF from pursuing termination after previously seeking closure of the earlier abuse and neglect action and reunification.
3. Whether RSA 170-C:5, III permitted termination based on the mother's failure to correct conditions associated with the 2004 neglect findings.
4. Whether the termination petitions were premature because twelve months had not elapsed when they were filed after the January 2007 neglect findings.
5. Whether the evidence proved beyond a reasonable doubt that the mother failed to correct the conditions leading to neglect and established that termination was in the children's best interests.

Disposition

affirmed