NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 

well as formal revision before publication in the New Hampshire Reports. 

Readers are requested to notify the Reporter, Supreme Court of New 

Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 

editorial errors in order that corrections may be made before the opinion goes 

to press. Errors may be reported by E-mail at the following address: 

reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 

a.m. on the morning of their release. The direct address of the court's home 

page is: http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

10th Circuit Court-Brentwood Family Division

No. 2016-0160

IN RE S.T.

Argued: October 6, 2016

Opinion Issued: November 29, 2016

Joseph A. Foster, attorney general (Elizabeth A. Lahey, assistant attorney 

general, on the brief and orally), for the petitioner.

Fitzgerald-Boyd Law PLLC, of Plaistow (Jacqueline C. Fitzgerald-Boyd on 

the brief and orally), for the respondent.

LYNN, J. The respondent, the mother of a minor child, appeals the order 

of the Circuit Court (Weaver, J.) terminating her parental rights over the child.

See RSA ch. 170-C (2014 & Supp. 2015). On appeal, the mother argues that 

the trial court erred by: (1) granting the petition brought by the petitioner, the 

New Hampshire Division of Children, Youth and Families (DCYF), to terminate

her parental rights while the direct appeal of her underlying criminal conviction 

was pending; and (2) finding that termination of her parental rights was in the 

best interest of the child. We reverse and remand.

I

The relevant facts follow. The child was born on September 17, 2013, to

the mother and her boyfriend, the child’s natural father (the father). A court 
2

order prohibited the father from having any unsupervised contact with the 

child and the mother’s two other children.

On October 21, DCYF received a report that the mother had brought the 

child to a doctor with concerns about “red eyes.” The doctor determined that 

the child was suffering from bilateral conjunctival hemorrhages, and reported 

that the mother had expressed concern that the father might be hurting the 

child. The doctor reported that the injuries appeared to be suspicious in 

nature and referred the child to the emergency room for further examination. 

On October 22, DCYF was informed that a skeletal survey of the child had 

indicated multiple fractures of varying ages that were consistent with nonaccidental trauma. DCYF brought an ex parte petition seeking removal of the 

child from the parents’ care on grounds that the child “is in imminent danger 

based on the injuries that she has sustained, the inability of [the father] and 

[the mother] to follow the existing court orders and the fact that the injuries 

were consistent with non-accidental trauma.” The petition was granted, and

the child was placed in a foster home.

On October 24, DCYF filed petitions, based upon the child’s injuries,

alleging abuse and neglect of the child by the father, and neglect by the 

mother. See RSA 169-C:3, II(b), (d), XIX(b) (Supp. 2015). On December 11, 

DCYF amended the abuse and neglect petitions to allege an incident involving 

the child in which the father “had the baby wrapped up against his body and 

[the mother] grabbed the child’s legs and pulled and he twisted to pull the baby 

away.” According to the doctor who examined the child, it was possible that 

some of the child’s injuries that she had identified on October 22 “could be 

consistent with the description of the tugging that occurred between the 

parents.”

Also on December 11, the father and mother were arrested and charged 

with second degree assault of the child based upon the October incident. The 

mother was granted bail. The father subsequently pleaded guilty to eight 

counts of second degree assault and received an eight-to-sixteen-year sentence.

Following a hearing on December 18, the trial court found that the father

had abused and neglected the child in that he “admitted to the police and 

[DCYF] that he had a tug of war with the infant which resulted in at least some 

of her many fractures. Additionally, [he] had the opportunity to cause further 

injuries by having unsupervised time with [the child] in violation of this court’s 

order.” The court found that the mother had neglected the child because she

continued to minimize the risk that [the father] posed to her 

children. On several occasions, she allowed [the father] to care for 

[the child] unsupervised in violation of this Court’s order, which 

placed the child at risk of serious harm. Additionally, [the mother]

engaged in reckless conduct by tugging on [the child’s] legs in an 
3

effort to get the [child] away from [the father]; their [actions] very 

likely resulting in serious harm to [the child].

The court awarded legal custody of the child to DCYF because the mother “does

not recognize the potential risk to [the child], as demonstrated by repeated 

violations of court orders related to [the father] having contact with the kids. 

[The mother’s] minimization of the risk to [the child] coupled with her 

inappropriate handling of the child place [the child] at continued risk of harm 

in her care.”

On June 12, 2014, DCYF moved to modify the outstanding dispositional 

orders to: (1) “reunify the child with” the mother; (2) “remove the child from 

DCYF’s legal custody and instead vest DCYF with legal supervision”; and (3) 

“modify the permanency plan from ‘reunification’ to ‘maintain in the home.’” In 

support, DCYF stated that the mother had “made significant progress in 

attending to and managing the needs of her children,” had “continued to 

actively engage in services and ha[d] successfully completed case plan goals,” 

and had “increased frequent and liberal parenting time with [the child], even 

extended unsupervised parenting time encompassing the majority of each of 

several weeks, and ha[d] demonstrated her ability to safely parent her.” The 

trial court granted the motion.

On July 10, DCYF moved ex parte to withdraw its June 12 motion, 

stating that the mother had been charged with shoplifting which, in turn, had

caused the State to move to revoke her bail, and that “[t]hese factors have

caused a significant increase in stress” for the mother, thereby “adversely 

impact[ing] her ability to consistently parent.” In addition, as a result of the 

mother’s increased stress being conveyed to her children, her son had become 

“increasingly volatile, acting out aggressively, mostly toward [the child],” and, 

because of the son’s behavior, DCYF was “not satisfied that [the child] can be 

safe in the care of her mother.” The trial court granted the motion, and the 

child was placed in a foster home.

On October 7, the child was again reunified with her mother until 

January 30, 2015, when the mother was convicted by a jury of second degree 

assault based upon the October 2013 “tug of war” incident and incarcerated. 

See RSA 631:2 (2016). At that time, the child was placed in the care of her

maternal grandparents. At a review hearing on February 6, the trial court 

found that DCYF “has provided services to [the mother] throughout this case 

which enabled her to safely reunify with her daughter. The current removal is 

outside of the Division’s control and not related to any current child safety 

concern other th[a]n the mother’s incarceration.” The court also found that the 

mother was “in substantial compliance” with the case plan wherein she had

“attended parenting classes and engaged in mental health treatment,” and the 

court recommended that she continue with those services. The court ordered
4

that DCYF have legal supervision of the child, and that physical custody

remain with the child’s maternal grandparents.

The mother was subsequently sentenced on the second degree assault 

conviction to serve 10 to 20 years, with three years suspended for good 

behavior. DCYF thereafter sought a permanency order allowing it to place the 

child in foster care with the goal of adoption. After a review hearing on April 

14, 2015, the trial court awarded legal custody of the child to DCYF, with 

placement to continue with the child’s maternal grandparents. The court noted 

that “[a]lthough the mother and DCYF had hoped that a short prison sentence 

would be imposed, . . . [a]s a result of the incarceration of both the mother and 

the father, the reunification of the child with her parents is in doubt.”

On May 19, the trial court held a permanency hearing. See RSA 169-

C:24-b (2014). The court found that twelve or more months had passed since 

the finding of abuse and neglect in December 2013, and that the child had 

been in out-of-home placement for a minimum of twelve months since October 

21, 2013. See RSA 169-C:24-a, I(a) (2014). The trial court also found that 

DCYF had made “reasonable efforts to finalize the permanency plan of 

reunification” between the child and her mother. Although the mother was

found to be “in substantial compliance” with the outstanding dispositional 

orders because she had “participated in parenting classes, and engaged in 

mental health treatment,” and had “actively worked with DCYF and services in 

order to correct conditions that led to [the child] being injured,” the court 

concluded that the conditions leading to the child’s removal had not been 

corrected because “her current incarceration prevents her from reunifying with 

[the child] within a reasonable time frame.”

The trial court found that the mother could not demonstrate that, if 

returned home, the child would not be endangered in the manner adjudicated 

on the initial neglect petition because:

[The mother] was convicted on second degree assault charges 

against [the child]. She is currently serving a ten to twenty year 

prison sentence with three years suspended from the minimum 

sentence. Through her criminal case she is ordered to complete 

parenting classes and . . . an anger management program during 

her incarceration. She is also receiving mental health treatment. 

However, due to the length of her sentence, [the mother] will not be 

able to demonstrate within the recommended permanency time 

frame that she has successfully addressed parenting and mental 

health issues, including anger management so that [the child] 

would not be endangered in the manner adjudicated on the 

original petition.
5

The court ordered DCYF to file a termination of parental rights (TPR) petition 

against the mother within 30 days. It also ordered that “DCYF is no longer 

required to provide reasonable efforts to facilitate reunification between” the

child and the mother, and that DCYF explore adoptive home placements. Legal 

custody was awarded to DCYF, and the court ordered that the child remain in 

her maternal grandparents’ care.

On July 10, DCYF petitioned for termination of the mother’s parental 

rights pursuant to RSA 170-C:5, on the grounds that she was incarcerated for 

a felony and had been found, pursuant to RSA chapter 169-C, to have abused 

and neglected her child, see RSA 170-C:5, VI, and that she was convicted of a 

felony assault under RSA 631:2 which resulted in injury to the child, see RSA 

170-C:5, VII(d). In support, the petition alleged that “[t]he nature of the 

conviction and the length of incarceration will deprive [the child] of proper 

parental care and leave her in an impermanent environment for a longer period 

of time than would be prudent.”

Prior to the final hearing on the termination petition initially scheduled 

for December 15, DCYF filed a motion to continue the hearing on grounds that 

the mother “has appealed her criminal convictions to the NH Supreme Court” 

and that “[a]lthough the State is prepared to proceed to termination, a 

continuance of 60 days may provide finality to the criminal process.” DCYF

noted that it was proceeding with the permanency plan for the child, that the 

child had visited with a foster family that was prepared to adopt her should she 

be freed for adoption, and that because it was in the process of transitioning 

the child from her grandparents’ care to the foster home, “[a] brief continuance

will not adversely impact [the child].”

The trial court held the final hearing on the TPR petition on February 9, 

2016, and found that DCYF had met its burden and granted the petition. The 

court found that “there is no question but that the statutory grounds have 

been established beyond a reasonable doubt.” The court concluded that

because the mother had been convicted of a felony assault against the child

that had resulted in serious injuries to the child, the requirements of RSA 170-

C:5, VII(d) had been met. The court rejected the mother’s argument that the 

conviction was not final because it was on appeal, reasoning that “[t]o hold 

otherwise would leave the child in legal limbo while her mother makes her way 

through the appellate process. That process can take years, and therefore, the 

Court finds the conviction in this case meets the statutory test even though it 

is still subject to appellate review.” The court also found that DCYF had met 

its burden under RSA 170-C:5, VI “as the evidence established beyond a 

reasonable doubt that [the mother], as a result of her current incarceration for 

7 to 20 years, is unable to perform her parental responsibilities to [the child] 

and she has been found to have neglected [the child].” The court reasoned that 

the mother’s “incarceration is of a long enough period that if her rights are not 
6

terminated, [the child] will be deprived of proper parental care and protection 

and left in an unstable and impermanent situation.”

On March 8, we issued an order reversing and remanding the mother’s 

conviction. We concluded that the trial court erred by excluding evidence that 

the child’s father had threatened the mother’s only witness prior to the

witness’s first interview at the Child Advocacy Center. We also concluded that 

the mother was prejudiced by the exclusion of that evidence “because it 

precluded her from rehabilitating her only witness, who was also the only 

witness to the ‘tug-of-war’” incident that resulted in the assault charge. As we 

explained,

A police officer testified to [the mother’s] various accounts of the 

“tug-of-war.” He described [the mother] as saying that the father

was holding [the child] and she grabbed [the child’s] legs and 

“yanked” them for about five minutes “with everything she had.” 

However, the witness’s testimony gave a different character to [the 

mother’s] participation in the “tug-of-war.” The witness testified 

that [the mother] tried to get [the child] away from the father, who 

was angry, to comfort [the child] and that the father “started to 

yank [the child] away from” [the mother]. Furthermore, the 

witness described [the mother’s] actions in caring for [the child] 

and the father’s mistreatment of [the child] on other occasions. 

This testimony was critical to the defense’s argument regarding the 

father’s mistreatment of [the child].

The State’s cross-examination of the witness regarding her 

prior inconsistent statements created the impression that the 

witness had fabricated her testimony to benefit [the mother]. 

Explaining these statements as having been the result of a threat 

could have rehabilitated the witness.

(Brackets omitted.)

Following our decision, the mother requested that the trial court 

reconsider its order granting the TPR petition. The trial court noted that it had

previously considered the possibility of a reversal on appeal, but concluded 

that the mother’s “continued incarceration, which is not over given that the 

case has been remanded for a new trial, places her daughter in an unstable 

and impermanent environment for a longer period than would be prudent, 

given the history of this case, leaving [the child] without proper parental care.” 

Given the fact of the mother’s incarceration, “and the prior conviction and 

finding of neglect,” the trial court denied the motion. This appeal followed.
7

II

On appeal, the mother argues that the trial court erred in terminating 

her parental rights “without knowing the outcome of the criminal conviction 

appeal and finding that the statutory ground had been met beyond a 

reasonable doubt.” (Bolding and underlining omitted.) She asserts that 

because the statutory basis for the TPR petition was that she was convicted of 

and incarcerated for a felony assault, and because the effect of our reversal of 

her conviction “vacates the ‘guilty’ finding[,] she is now in the same place as 

she was prior to the conviction. She is facing charges but she is not 

‘convicted.’” Thus, she argues that terminating “a natural, essential and 

inherent parental right” of a parent whose conviction has been vacated when

that conviction was the basis of the petition, “is unjust and denies [her] her

fundamental liberty interest.” She also argues that the trial court erred in 

determining that terminating her parental rights was in the best interest of the 

child.

DCYF counters that based upon “the plain language, policy, and[ ]

legislative history of RSA 170-C:5, VI and VII(d),” the trial court could, as a 

matter of law, terminate the mother’s parental rights while the direct appeal of 

her criminal conviction was pending. DCYF argues that these statutory 

provisions “require only that the State prove that the parent at issue has been 

convicted of a felony at the time of the termination hearing, not that the parent 

has been convicted and that all relevant appellate periods have expired.” To 

conclude otherwise, DCYF argues, “would require children . . . to remain in 

legal limbo, languishing in the foster system for years while their parents 

exhaust all direct and collateral appeals related to their convictions,” a result 

that would be “at direct odds” with the purposes of RSA chapter 170-C, “which 

are to make foster care temporary and provide timely, permanent placements 

for children.” DCYF also asserts that the trial court properly ruled that 

termination was in the child’s best interest. Because we conclude that it was 

error to terminate the mother’s parental rights before the resolution of the 

direct appeal of her conviction, we need not address whether the termination 

was in the best interest of the child.

III

Before a court may order the termination of parental rights, the 

petitioning party must prove a statutory ground for termination beyond a 

reasonable doubt. In re C.M., 166 N.H. 764, 773 (2014). Once a statutory 

ground is established, the court must then consider whether termination is in 

the child’s best interest. Id. The trial court’s ruling should not be disturbed 

unless it is unsupported by the evidence or plainly erroneous as a matter of 

law. In re Zachary G., 159 N.H. 146, 153 (2009).
8

In matters of statutory interpretation, we are the final arbiter of the 

intent of the legislature as expressed in the words of the statute considered as 

a whole. In re C.M., 166 N.H. at 774 (quotation omitted). We first look to the 

language of the statute itself, and, if possible, construe that language according 

to its plain and ordinary meaning. Id. (quotation omitted). We interpret 

legislative intent from the statute as written and will not consider what the 

legislature might have said or add language that the legislature did not see fit 

to include. Id. (quotation omitted). We construe all parts of a statute together 

to effectuate its overall purpose and avoid an absurd or unjust result. Id. 

(quotation omitted). We employ a de novo standard of review. Id.

IV

The provisions of RSA chapter 169-C, the Child Protection Act, and RSA 

chapter 170-C, the Termination of Parental Rights statute, together set forth 

the procedures that apply to adjudicating petitions alleging abuse and/or

neglect, and petitions to terminate the parent-child relationship. The question 

before us is whether the terms “convicted” and “conviction” as used in these

statutes mean convicted in the trial court after a finding of guilt or whether 

they mean a determination of guilt after a direct appeal to this court.

The purposes of the Child Protection Act include: “[p]rotect[ing] the 

safety of the child”; “[p]reserv[ing] the unity of the family whenever possible”; 

“[p]rovid[ing] assistance to parents to deal with and correct problems in order 

to avoid removal of children from the family”; and “[t]ak[ing] such action as 

may be necessary to prevent abuse or neglect of children.” RSA 169-C:2, I

(2014). The chapter “shall be liberally construed to the end that its purpose 

may be carried out, to wit, . . . whenever possible,” to keep a child in a family 

environment “by preserving the unity of the family and separating the child 

from his parents only when the safety of the child is in danger or when it is 

clearly necessary for his welfare,” and “[t]o provide effective judicial procedures 

through which the provisions of this chapter are executed and enforced and 

which recognize and enforce the constitutional and other rights of the parties 

and assures them a fair hearing.” RSA 169-C:2, II(b), (c) (2014).

DCYF is required to file a TPR petition when “a child has been in an outof-home placement pursuant to a finding of child neglect or abuse, under the 

responsibility of the state, for 12 of the most recent 22 months” or when “a 

court of competent jurisdiction” has determined that “the parent has been 

convicted of a felony assault under RSA . . . 631:2 . . . that resulted in injury to 

the child.” RSA 169-C:24-a, I(a), (c)(4) (2014). The statute does not define the

term “convicted.” See RSA 169-C:3 (2014 & Supp. 2015).
9

The purpose of the Termination of Parental Rights statute 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.

RSA 170-C:1 (2014). RSA chapter 170-C “imports the procedural safeguards 

and substantive requirements of RSA 169-C.” In re Zachary G., 159 N.H. at 

153.

The statute sets out seven grounds for termination of the parent-child 

relationship. See RSA 170-C:5, I-VII (2014). In the case before us, DCYF 

sought to terminate the mother’s parental rights based upon RSA 170-C:5, VI 

and VII(d). RSA 170-C:5, VII was added to the statute in 1999, when the 

statute was amended “to initiate New Hampshire’s compliance with the federal 

Adoption and Safe Families Act of 1997” (ASFA). Laws 1999, 133:1, :4. The 

ASFA “is designed and intended to reform parts of the current child welfare 

system and to promote the safety, permanency, and well being of children in 

out-of-home placements.” Laws 1999, 133:1.

RSA 170-C:5, VI provides:

If the parent . . . is, as a result of incarceration for a felony offense, 

unable to discharge [her] responsibilities to and for the child and, 

in addition, has been found pursuant to RSA 169-C to have 

abused or neglected [her] child or children, the court may review 

the conviction of the parent . . . 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.

Under RSA 170-C:5, VII, termination may be ordered when “[t]he parent has 

been convicted of . . . [a] felony assault under RSA . . . 631:2 . . . which 

resulted in injury to the child.” RSA 170-C:5, VII(d). The statute does not 

define the terms “conviction” or “convicted.” See RSA 170-C:2 (2014).
10

The meaning of the terms “conviction” and “convicted” in the context of

petitions to terminate parental rights raises a question of first impression. 

Other jurisdictions that have been presented with this question have reached 

contrasting conclusions. For example, in People in Interest of T.T., 845 P.2d 

539 (Colo. Ct. App. 1992), the court held that under its termination statute, the 

term “conviction” means “convicted upon trial.” Interest of T.T., 845 P.2d at 

541 (quotation omitted). The mother had been convicted of, among other 

things, murder and reckless child abuse and sentenced to life imprisonment 

plus 32 years. Id. at 539-40. The Department of Social Services sought to 

terminate the mother’s parental rights based upon a statutory provision that 

allows termination upon a finding of “[l]ong-term confinement of the parent of 

such duration that he is not eligible for parole for at least six years from the 

date the child was adjudicated dependent or neglected.” Id. at 540. The trial 

court took judicial notice of the mother’s conviction and her sentence, and 

terminated her parental rights. Id.

On appeal, the mother argued that “the six-year period should not be 

computed until all appeals as of right from a trial court conviction and 

sentence have been exhausted.” Id. In determining the meaning of the term

“conviction” in the context of the termination of parental rights, the appellate 

court looked to the policies set forth in the termination statute. Id. at 540-41.

These include that the court is to “place paramount emphasis on the best 

interests of the child,” and that the provisions of the statute are “designed to 

render a particular parent fit to provide adequate parenting to a child within a 

‘reasonable’ time.” Id. at 541. Construing the statute in light of those policies, 

the court concluded that it was “apparent that the [legislature] intended 

‘conviction’ to mean convicted upon trial” where the accused “has had a 

complete and full opportunity to be heard on the charges against her and a 

final judgment against her has been entered.” Id. The court reasoned that

[t]o hold otherwise would be to violate the important policies of [the 

statute] which seek to assure a child of some degree of permanency 

in long-term planning and to assure the child of a stable and 

secure environment as soon as possible. If a termination 

proceeding were required to be stayed until a parent’s appellate 

rights are exhausted, a child would have to spend an 

indeterminate time, perhaps a great portion of his youth, in foster 

or other temporary care at a time when the child needs stability 

and bonding in his relationships.

Id. (citation omitted); see also Varnadore v. Dept. of Human Resources, 543 So.

2d 1194, 1196 (Ala. App. 1989) (rejecting, as being based upon “mere 

speculation,” mother’s argument that the termination was premature because 

her criminal conviction will be overturned); Matter of Juvenile Severance 

Action, 785 P.2d 56, 58 (Ariz. Ct. App. 1989) (explaining that nothing in the 

TPR statute suggests that the juvenile court must wait for the parent convicted 
11

of a crime “to exhaust all avenues of appeal before the court may proceed with 

a severance hearing” because doing so would “indefinitely delay determinations 

regarding children whose best interests are at risk and require expedient 

consideration”).

By contrast, in In Interest of Kody D.V., 548 N.W.2d 837 (Wis. Ct. App. 

1996), the court held that under its termination statute, the term “conviction” 

means “conviction after the appeal as of right has been exhausted.” Kody D.V., 

548 N.W.2d at 843. The mother had been convicted of recklessly causing great 

bodily harm to her child and sentenced to five years’ imprisonment. Id. at 839. 

The County petitioned to terminate the mother’s parental rights on the 

statutory ground that she had been convicted of a felony. Id. The County 

argued that the term “conviction” as used in the statute “means a conviction at 

the trial level and that it is irrelevant whether an appeal is pending or, by 

implication, what the decision of the appellate court is.” Id. The mother 

argued that “conviction means a final conviction after an appeal.” Id.

The court found both meanings of the term “conviction” as set forth by 

the parties to be reasonable in the context of the statute. Id. at 640. As the 

court reasoned, a judgment of conviction is entered by the trial court after a 

verdict of guilty by the jury or a finding of guilty by the court and, therefore, it 

is reasonable to interpret the term “conviction” as used in the statute “as the 

judgment of conviction entered by the trial court.” Id. at 840-41. “On the 

other hand,” the court reasoned that “an appeal is an integral part in our 

judicial system for a final adjudication of guilt or innocence and serves to 

protect a defendant against errors in the criminal proceedings,” that “[a] 

defendant has both a statutory and a constitutional right to an appeal,” and 

that therefore it is reasonable to interpret the statute to mean “a conviction 

after the completion of the appeal as of right.” Id. at 841.

The court thus turned to a consideration of “the nature of TPR

proceedings, including the constitutional implications,” to determine which of 

the meanings the legislature intended. Id. at 840-41. The court took into 

consideration that “[a] parent’s interest in his or her child is a fundamental 

liberty interest that is protected by the Due Process Clause of . . . the United 

States Constitution.” Id. at 841. The court also considered the purposes of 

TPR proceedings as set forth in the statute, which included: providing 

procedures “through which children and other interested parties are assured of

a fair hearing and of the protection of their constitutional rights while 

protecting the public safety”; preserving the unity of the family whenever 

possible; providing children with permanent and stable relationships;

promoting the adoption of children into stable families “rather than allowing 

them to remain in the impermanence of foster care”; and allowing the 

termination of parental rights “at the earliest possible time after rehabilitation 

and reunification efforts are discontinued.” Id. at 841-42.
12

Recognizing that “[t]he balancing of the child’s interest and the parent’s 

interest in a TPR proceeding is difficult,” the court reasoned that

[t]he consequences of adopting [the County’s] interpretation of 

conviction in this context [are] troubling. If an appeal of a 

judgment of conviction is pending when the termination of parental 

rights occurs, there is the chance the judgment may be reversed. 

There may be a new trial, which could result in either a guilty 

verdict or an acquittal. If the reversal is due to the insufficiency of 

the evidence, the defendant cannot be retried. Meanwhile, the 

parent’s rights would have been terminated and the child possibly 

already adopted.

The lack of finality of a conviction that is being appealed 

raises the question as to whether that conviction is clear and 

convincing evidence of parental unfitness. That lack of finality also 

does not ultimately promote permanency and stability for the 

child. Until the right to appeal has been exhausted, there is no 

certainty that the supposedly permanent arrangements made for 

the child will not be disrupted after a successful appeal.

Id. at 842-43 (citations omitted). Therefore, the court concluded that “the 

correct interpretation of ‘conviction’ in [the statute] is a conviction after the 

appeal as of right has been exhausted.” Id. at 843.

The court subsequently clarified its holding as being limited to direct 

appeals that raise issues of guilt or innocence, rather than, for example, an 

appeal raising “only a sentencing issue that will in no way affect the 

determination of guilt.” In re Reynaldo F., 681 N.W.2d 289, 293 (Wis. Ct. App. 

2004); see also In re Sonia G., 158 Cal. App. 3d 18 (Ct. App. 1984) (reasoning 

that “[a] judgment which is not yet final and may be reversed on appeal falls far 

short of the requirement of proof by clear and convincing evidence necessary to 

permanently sever a parental relationship,” and expressing concern that “[i]f 

the term ‘conviction’ were to mean a mere finding of guilt, regardless of the 

outcome of an appeal, a child could be declared free from parental control, 

adopted, and then later claimed by the natural parent again after a ruling of 

reversal on said parent’s criminal appeal”); Matter of D.D.F., 801 P.2d 703, 708

(Okla. 1990) (determining that because father’s criminal convictions were 

pending on appeal, the convictions “are not final, and thus cannot be the basis 

for the termination of parental rights” under the statute); In re HC, 983 P.2d 

1205, 1212 (Wyo. 1999) (explaining that because the mother’s felony conviction 

was central to one of the grounds for termination, until the appeal of right was 

resolved, the conviction could not qualify under the termination statute as a 

“conviction”).
13

Almost forty years ago, we recognized that “[t]he role of parents in the life 

of a family has attained the status of a fundamental human right and liberty.”

State v. Robert H., 118 N.H. 713, 715 (1978), overruled in part on other 

grounds by In re Craig T., 147 N.H. 739, 744-45 (2002). We also recognized 

that it is “firmly established that freedom of personal choice in the matters of 

family life is one of the liberties protected by the Due Process Clause of the 

Fourteenth Amendment,” and that “[th]e family and the rights of parents over it 

are held to be natural, essential, and inherent rights within the meaning of the 

New Hampshire Constitution, part I, article 2.” Id. at 715-16 (quotation and 

ellipses omitted). Given that “[t]he permanent termination of the rights of 

parents over their children is even more final than involuntary commitment or 

delinquency proceedings,” we held that “the government must prove its case 

under chapter 170-C beyond a reasonable doubt before the permanent 

termination of liberty and natural rights of parents . . . can occur.” Id.; see In 

re Sophia-Marie H., 165 N.H. 332, 335 (2013).

We agree with the observation of the court in Kody D.V. that the 

consequences of interpreting the termination statute to permit termination of

the parent-child relationship while an appeal of the underlying judgment of 

conviction is pending are “troubling.” Kody D.V., 548 N.W.2d at 842. The lack 

of finality of a conviction that is being appealed raises the question whether 

DCYF has satisfied the heightened requirement of proving the grounds for 

termination beyond a reasonable doubt. See In re C.M., 166 N.H. at 773. In 

addition, although the judgment may be reversed on appeal and the parent 

subsequently acquitted, the child may already have been adopted. See RSA 

170-C:15 (2014) (an appeal “shall not suspend the order of the court regarding 

the child”); see also RSA 169-C:24-a, II (2014) (concurrent with the filing of a 

TPR petition, DCYF “shall seek to identify, recruit, and approve a qualified 

family for adoption in accordance with the provisions of RSA 170-B, and in 

accordance with the principle that the health and safety of the child shall be 

the paramount concern”); RSA 170-B:21, II (2014) (“upon the expiration of one 

year after a final adoption decree is issued, the decree cannot be challenged by 

any person . . . in any manner upon any ground”).

The stated purpose of RSA chapter 169-C includes providing “effective 

judicial procedures” that “recognize and enforce the constitutional and other 

rights of the parties.” RSA 169-C:2, II(c). The stated purposes of RSA chapter

170-C include “strengthen[ing] and preserv[ing]” family life “whenever possible,” 

and providing “a judicial process which will safeguard the rights of all parties 

concerned.” RSA 170-C:1 (emphasis added). We acknowledge the State’s 

interest in timely adoptions “in those cases in which reunification of parent and 

child is not possible—the goal being to provide the child with stable and 

permanent living arrangements as soon as reasonably possible.” In re C.M., 

166 N.H. at 775. However, “termination of a parent’s legal bond to a child is a 

solemn and irreversible event.” In re William A., 142 N.H. 598, 602 (1998). 

Taking into consideration the interests of both parents and children that are at 
14

stake in termination proceedings, and the heightened standards we apply to 

such proceedings, we conclude that the legislature intended the terms

“convicted” and “conviction” as used in RSA 169-C:24-a, I, and RSA 170-C:5, 

VI and VII, to mean an affirmance of guilt following a direct appeal as of right to 

this court that raises an issue of innocence or guilt. Of course, if the 

legislature disagrees with our construction of the statutory scheme, it is free to 

amend the statutes. See In the Matter of Fulton & Fulton, 154 N.H. 264, 268 

(2006).

Thus, when a TPR petition is based only upon the parent’s conviction of 

one of the crimes specified in the termination statute, or incarceration resulting 

therefrom, and the parent timely exercises his or her right to a direct appeal of 

that conviction, and therein raises an issue of innocence or guilt, the parentchild relationship may not be terminated until the resolution of that appeal. 

Cf. In re C.M., 166 N.H. at 774 (explaining that we construe all parts of the 

statute together to effectuate its overall purpose and avoid an absurd or unjust 

result). Accordingly, we hold that the trial court erred as a matter of law when

it terminated the mother’s parental rights while her direct appeal of the 

conviction that formed the statutory ground for the termination was pending.

Reversed and remanded.

DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.