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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

5th Circuit Court – Newport Family Division

No. 2014-0023

IN RE C.M. & a.

Argued: June 26, 2014

Opinion Issued: September 30, 2014

Joseph A. Foster, attorney general (Rosemary Wiant, assistant attorney 

general, on the memorandum of law and orally), for the petitioner.

Barbara L. Parker, of Newport, on the brief and orally, for respondent 

Larry M.

Simpson and Mulligan, P.L.L.C., of Lebanon (James L. Mulligan, on the 

brief and orally), for respondent Sonia M.

LYNN, J. The respondents, Larry M. (Larry) and Sonia M. (Sonia), appeal 

the order of the Circuit Court (Cardello, J.), terminating their parental rights 

over their children, A.M. and C.M. See RSA ch. 170-C (2014). On appeal, 

Larry argues that the trial court erred by: (1) proceeding with the termination 

case based on an underlying neglect case in which he was improperly denied 

counsel; and (2) finding that termination of his parental rights was in the best 

interests of the children. Sonia argues that the court erred because: (3) the 

trial judge did not recuse himself despite the fact that he presided over the 
2

underlying neglect case in the circuit court. Both respondents argue that the 

court erred by: (4) failing to afford them twelve months from the superior 

court’s de novo finding of neglect within which to correct the conditions which 

led to the finding of neglect; and (5) finding that the petitioner, the New 

Hampshire Division for Children, Youth and Families (DCYF), made reasonable 

efforts to assist them in correcting the conditions that led to the neglect 

finding. We affirm.

I

The following facts are supported by the record or are not in dispute. On 

April 12, 2011, DCYF initiated proceedings in the circuit court against Larry 

and Sonia, alleging that they had neglected their children by failing to provide 

them with a safe and sanitary home and adequate supervision, and by 

exposing them to household domestic violence. See RSA 169-C:7 (2014). The 

court granted DCYF temporary custody of the children, see RSA 169-C:6, :6-a 

(2014), and, pursuant to the law in effect at that time, see RSA 169-C:10, II(a) 

(2002) (repealed 2011; re-enacted 2013), appointed counsel to represent each 

parent. An adjudicatory hearing was held on May 12, at which the parents 

were represented by appointed counsel. See RSA 169-C:18 (2014). Following 

the hearing, the Circuit Court (Cardello, J.) found that both parents had 

neglected the children and continued the order granting legal custody to DCYF.

Both parents also were represented by appointed counsel at the dispositional 

hearing held on June 13. After this hearing, the court ordered that the 

children remain in the legal custody of DCYF and set forth specific measures 

that the parents were to undertake before the children could be returned to 

them. 

Both parents appealed to the superior court, and a de novo hearing was 

scheduled for August. See RSA 169-C:28 (2014). In the interim, on July 1, 

2011, Laws 2011, 224:77 took effect. This legislation amended RSA 169-C:10, 

II(a), so as to abolish the statutory right to counsel for an indigent parent 

alleged to have abused or neglected his or her child. Thereafter, the parents 

each filed a motion to continue to be represented by court-appointed counsel, 

asserting that such representation was mandated by the State and Federal 

Constitutions. The superior court approved an interlocutory transfer of these 

constitutional issues to this court, and we subsequently held in In re C.M., 163 

N.H. 768 (2012), that although the State and Federal Constitutions did not

guarantee the right to court-appointed counsel to every indigent parent 

accused of abusing or neglecting his or her child, such a right may exist under 

the facts and circumstances of a particular case. See In re C.M., 163 N.H. at 

777-78. We remanded to the superior court to determine whether appointment 

of counsel for either or both parents was constitutionally required in this case. 

Id. at 778. 
3

On remand, the Superior Court (Tucker, J.) determined that neither 

Larry nor Sonia was constitutionally entitled to appointed counsel. The court 

found that Sonia is a high school graduate who had received special education 

services while in school, that she had completed the requirements for a 

licensed practical nurse certificate, and that she suffers from severe 

depression. The court found that Larry is partially disabled and blind in one 

eye and that he received special education assistance while in school. Despite 

their limitations, the court found that the parents were capable of 

understanding and responding to the allegations in the petition. The court 

noted that the case did not present particularly complex legal issues or expert 

testimony, examples of circumstances which our C.M. opinion indicated might 

require the appointment of counsel for an accused parent. See id. at 777. 

Rather, the court found that the case was straightforward, involving allegations 

that the parents failed to provide adequate food and clothing for the children, 

that they were subjected to unclean living conditions, and that they were 

exposed to physical violence between the parents. The court also found that 

the parents’ purported defense — lack of financial resources to provide for the 

children — was not so complex as to be difficult for them to explain. With the 

assistance of counsel, the parents moved for reconsideration of the order 

denying them appointed counsel. The court denied the motion, and neither 

parent appealed that ruling.

Following a de novo hearing, the superior court issued its adjudicatory 

order on January 16, 2013. The court found that Larry and Sonia had 

neglected C.M. (then age eight) and A.M. (then age six) and ordered that the 

children remain in the custody of DCYF. The court found that Larry took a 

“hands-off approach” to parenting, leaving such responsibilities to Sonia, even 

after he was confronted with an investigation into the home situation. He 

engaged only sporadically with a parent educator from the Good Beginnings 

program when she sought to help the parents develop the skills necessary to 

maintain a proper level of parental care and control. He blamed Sonia for not 

keeping him apprised of appointments with Good Beginnings, but also 

acknowledged that he made no efforts on his own to learn of the meeting times. 

The court found that Sonia had “difficulty meeting her obligations as, in effect, 

a single parent to her two boys.” Although she attended meetings with the 

representative of Good Beginnings, she also missed scheduled appointments. 

She suffers from depression, but stopped seeing a doctor for this condition 

after he denied her medication on her first visit. 

The court recited evidence adduced at the hearing showing that: (1)

Larry was physically violent with Sonia in front of the children, including an 

incident in which the police were called because he had been trying to choke 

her; (2) the household was chaotic, permeated with the smell of garbage and 

cigarette smoke; (3) the children were regularly left unattended and free to 

engage in mischief, on one occasion pulling a fire alarm, on another throwing 

beer bottles out the window, and on yet another, watching an adult video 
4

depicting shooting and killing; and (4) Sonia left C.M. at home alone while she 

took a long walk to court with A.M. in order to attempt to have lifted a 

restraining order she had obtained against Larry. The court also referenced 

the testimony of more than one witness that there was little or no food in the 

home and that the children were lacking in proper hygiene and did not have 

adequate clothing for the winter. The court observed that Sonia attributed the 

absence of food and medicine in the home to the fact that she had neglected to 

submit paperwork necessary to obtain public assistance. The court found that 

neither parent works and that Sonia’s lack of employment was apparently 

based on her choice to stay at home.

Additionally, the court found that neither parent ensures that the 

children attend school. In a period of approximately three months, C.M. had 

over twenty unexcused absences from his first grade class, as a result of which 

his academic progress suffered, and he was deprived of the opportunity to eat 

breakfast provided by the school. Calls to C.M.’s home to inquire about the 

absences were not returned. A.M. started school at Head Start but lost his 

placement with that program due to continual absences. Although Sonia 

attributed the school absences to lack of transportation, she admitted to a 

DCYF worker that she had trouble getting the children to bed and that they 

often remained awake until past midnight. The worker said that the children 

appeared exhausted.

The court’s narrative order summarized as follows:

It was shown that the parents neglect to provide the children 

with certain necessities, including adequate food and clothing. 

While there are monetary issues to be sure, the parents use the 

income they have on cigarettes. It is not clear whether Larry . . . is 

able to work, but Sonia has been employed and now chooses to 

stay home. The parents have not been diligent in obtaining public 

assistance, despite efforts by others to assist them in doing so. 

The parents do not ensure that their boys attend school. 

Sonia . . . contends it is due to transportation problems, but the 

evidence was that the parents have not responded to attempts by 

representatives of Head Start and the town . . . to address the 

issue. The evidence suggests further that transportation is not the 

only impediment to school attendance. Due to a lack of parental 

control, the children keep late hours and, by implication, lack 

sufficient sleep to begin the school day on time.

A third sign of neglect is the home environment. Sonia . . .

resisted efforts to convince her to relocate to a domestic violence 

shelter in order to remove the children and herself from 

threatening conduct by Larry . . . .
5

In sum, [C.M.] and [A.M.] require a greater degree of care or 

control than Larry and Sonia . . . are presently willing or able to 

provide. This lack of care or control is not due primarily to a lack 

of financial means.

In its dispositional order entered on February 14, 2013, the superior 

court imposed upon the parents essentially the same remedial prerequisites as 

had the circuit court in order for the children to be returned to the parents’

custody. Specifically, both parents were required to demonstrate: (1) the 

parenting skills necessary to provide their children with safety, stability, and 

supervision appropriate to their developmental stages; (2) the ability to obtain 

and maintain a safe and sanitary home; and (3) the ability to provide the 

children access to education. In addition, Sonia was required to demonstrate 

that she can manage her mental health issues, and Larry was required to 

demonstrate that he can manage his anger issues. DCYF was ordered to make 

available case management, child health support, home-based therapy, and 

individual service options for parenting support and education. The parents 

were ordered to cooperate in the delivery of these services. The court remanded 

the case to the circuit court for further proceedings. Neither parent appealed 

the superior court’s final order.

During the twenty-month period while the case was on appeal to the 

superior court and this court, the circuit court held review hearings 

approximately every three months. On February 25, 2013, the circuit court

held a permanency hearing, after which it directed DCYF to file termination of 

parental rights petitions against both parents.

DCYF filed the termination petitions on March 21, 2013, asserting as 

grounds therefore that, following the neglect findings entered against them in 

the RSA chapter 169-C proceeding, both parents had failed to correct the 

conditions leading to the findings within twelve months despite reasonable 

efforts under the direction of the circuit court to rectify the conditions. See

RSA 170-C:5, III. In May 2013, Larry filed a “motion to exclude findings.” In 

this motion, he asserted that because, at the time he first appeared in court in 

the neglect case, he had been provided with a form advising him of his right to 

be represented by an attorney “at every point in the case and at every court 

hearing,” and because he had applied for and been granted counsel at that 

time, the subsequent removal of his counsel following the amendment of RSA 

169-C:10, II(a) “breached the agreement made by the Court with [him]” and 

violated his statutory and constitutional rights to an attorney. As relief for the 

alleged violations, the motion requested that the termination proceeding be 

dismissed, that the court exclude from evidence the dispositional order and any 

findings made in the review hearings or the permanency hearing in the neglect 

case, and/or that the court “give no judicial notice in this termination matter

[to] any findings made after counsel was terminated.” The court denied this 

motion.
6

The Circuit Court (Cardello, J.) held a three-day hearing on the

termination petitions in September and October 2013. Pursuant to RSA 170-

C:10, both parents were represented by appointed counsel throughout this 

hearing. Based on the evidence presented, the court found that during the 

more than twelve-month period since the June 2011 dispositional hearing in 

the circuit court, “the parents had not obtained safe and stable housing, nor 

had they followed recommendations and obtained the necessary counseling 

and treatment.” Specifically, the court determined that “[Larry] had not 

addressed his domestic violence issues, [and Sonia] had not addressed her 

mental health issues . . . .” The court found that, after the children were 

placed in foster care1 in July 2011, DCYF worked with the parents to schedule

visits, but they attended those visits inconsistently. During the visits they did 

attend, the parents required much guidance from a social worker as to how to 

properly parent and supervise the children. For part of the time between July 

and November 2011, Larry and Sonia lived in a tent, after being evicted from 

their apartment. They later moved into a residence with friends, but no visits 

could be scheduled there because the owner of the property would not permit 

DCYF to inspect it.

The court further found that Sonia had failed to obtain employment and 

that after finally separating from Larry in September of 2012, she lived with a 

series of friends and relatives in accommodations not suitable for her children. 

Although Sonia attributed much of her non-compliance with court 

requirements to a lack of transportation, the court found that she failed to take 

advantage of transportation options that were available to her. In addition, the 

court found that Sonia failed to apply for Medicaid coverage so that she could 

obtain medications needed to treat her depression. Although she was referred 

to the New Hampshire Department of Employment Security for help in finding 

a job, she participated in its assistance program for only two weeks; she never 

did get a job and “lost out on” available cash benefits.

Larry failed to appear for his initial evaluation, denying that he had any

need for the batterer’s intervention program and stating that he was not going 

to do it. Although he ultimately took some steps to attend counseling, he 

missed many sessions, also claiming transportation issues as the reason. The 

court recited testimony from one of the case workers that when Larry and 

Sonia fought, the children ran to Sonia and cowered. The court found that 

when Larry was confronted about this, he denied that the children’s behavior 

had anything to do with him or his history of domestic violence. Between May 

and September 2012, the parents made very little progress toward their 

treatment goals. DCYF attempted overnight visits of the children with the 

parents, but stopped them due to conflict between Larry and Sonia, their 

failures to attend counseling and inability to provide the children with 

 

1 Prior to entering foster care, the children lived with their paternal grandmother, and then their 

paternal aunt, for approximately three months.
7

adequate food, and the children’s own expressions of concern about their 

welfare during the overnight visits. Thereafter, the parents were each 

scheduled for one visit per week, but Larry missed many of these visits. It was 

not until late 2012, nearly eighteen months after the circuit court’s 

dispositional order, and after he had stopped attending monthly team 

meetings, that Larry finally acknowledged that the children had been adversely 

affected by their parents’ fighting. Even then, however, he continued to 

minimize the need for the involvement of counselors and other treatment 

providers, and he never completed the batterer’s intervention program.

After A.M. and C.M. began counseling at West Central Behavioral Health 

in the summer of 2012, Sonia attended a number of sessions, but Larry never 

participated. The counselor opined that both children exhibited evidence of 

having suffered trauma from neglect, lack of supervision, and exposure to 

domestic violence. However, the counselor also testified that the children had 

improved since they were placed in foster care and were secure and happy in 

their foster home where their needs were being met and they were being wellcared-for. The court observed that issues had been raised during the hearing 

about inappropriate discipline being imposed on the children by the foster 

parents, but noted that the complaints to this effect were either unresolved or 

investigated and determined to be unfounded and that both the children’s 

counselor and the DCYF case worker had no concerns about the children living 

with the foster parents. Although the children were clearly bonded and “loyal” 

to their parents, they nonetheless wanted to live with their foster parents. 

Despite having some reservations about the foster parents, the children’s 

guardian ad litem (GAL) recommended termination of Larry and Sonia’s 

parental rights as being in the children’s best interests. 

In concluding its order, the court wrote: 

“[The] children have resided with the current foster family since 

November 2011 (after an earlier 18-month placement there) where 

they are safe and well-cared-for, and have done well. These boys 

deserve the stability and permanency of adoption. The Court finds 

beyond a reasonable doubt that these parents have failed to 

correct the conditions leading to the finding of neglect within 12 

months of the finding despite the provision of services by DCYF, 

parent aides, therapists and others to assist them in correcting the 

conditions. And although there was evidence of a continuing bond 

between the children and their parents, the Court finds beyond a 

reasonable doubt that termination of [Larry’s and Sonia’s] parental 

rights is in the children’s best interests.

Both parents filed motions for reconsideration in which they asserted, 

among other things, that the court erred in denying them appointed counsel in 
8

the superior court neglect proceeding. The court denied these motions, and 

this appeal followed.

II

We first address the argument advanced by both parents that the trial 

court erred in finding a basis for termination of their parental rights under RSA 

170-C:5, III, because they had not been given a full twelve months to correct 

the conditions leading to the finding of neglect. 

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 Sophia-Marie H., 165 N.H. 332, 335 (2013); see RSA 

170-C:5. Once a statutory ground is established, the court must then consider 

whether termination is in the child’s best interest. Sophia-Marie H., 165 N.H. 

at 336.

RSA 170-C:5, III provides that termination may be ordered when “[t]he 

parents, subsequent to a finding of child neglect or abuse under RSA 169-C, 

have failed to correct the conditions leading to such a finding within 12 months 

of the finding despite reasonable efforts under the direction of the [circuit 

court] to rectify the conditions.” There is no dispute that more than twelve 

months elapsed between the date the circuit court issued its finding of neglect 

(May 12, 2011) and the date DCYF filed the petition to terminate parental 

rights (March 21, 2013). The parents argue, however, that because they 

appealed the neglect finding to superior court for a de novo hearing pursuant 

to RSA 169-C:28, the twelve-month period specified in RSA 170-C:5, III runs

from the date of the superior court’s finding of neglect (January 16, 2013), 

which was issued only two months before the termination petition was filed. 

This argument requires us to construe RSA 170-C, III and RSA 169-C:28, a 

task for which we employ a de novo standard of review. Petition of Carrier, 165 

N.H. 719, 720-21 (2013). “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.” State Employees’ Assoc. of N.H. v. State of 

N.H., 161 N.H. 730, 738 (2011). “We first look to the language of the statute 

itself, and, if possible, construe that language according to its plain and 

ordinary meaning.” Id. “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. “We construe all 

parts of a statute together to effectuate its overall purpose and avoid an absurd 

or unjust result.” Id. “Moreover, we do not consider words and phrases in 

isolation, but rather within the context of the statute as a whole.” Id. “This 

enables us to better discern the legislature’s intent and to interpret statutory 

language in light of the policy or purpose sought to be advanced by the 

statutory scheme.” Id. at 738-39.
9

The parents’ argument is straightforward. They cite our decision in In re 

Juvenile 2002-511-A, 149 N.H. 592 (2003), in which we explained: “A hearing 

de novo is defined as: 1. A reviewing court’s decision of a matter anew, giving 

no deference to a lower court’s findings. 2. A new hearing of a matter, 

conducted as if the original hearing had not taken place.” Juvenile 2002-511-

A, 149 N.H. at 594 (quotations omitted). Based on this definition, they argue 

that because their de novo appeal to superior court started the neglect 

proceedings anew, it also restarted the running of the twelve-month period

within which they were required to correct the conditions upon which the 

neglect findings were based. We disagree with the parents’ position because 

construing the statutes in the manner they advocate would be antithetical to 

the statutory goals. As we have frequently stated, “the dominant consideration 

in termination proceedings under RSA chapter 170-C is the welfare of the 

child, which must prevail over the interests of the parents.” In re Antonio W., 

147 N.H. 408, 412 (2002); see also In re Doe, 123 N.H. 634, 641 (1983).

RSA 169-C:28, I, the section of the Child Protection Act that permits a 

party aggrieved by a circuit court’s final dispositional order in an abuse and 

neglect proceeding to obtain de novo review in the superior court, specifically 

provides that “an appeal shall not suspend the order or decision of the [circuit] 

court unless the court so orders.” In addition, the statute directs the superior 

court to give such appeals “priority on the court calendar.” RSA 169-C:28, I. 

And RSA 169-C:24-a, I(a) (2014) generally requires DCYF to file a petition for 

termination of parental rights “[w]here a child has been in an out-of-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.” The clear 

import of these provisions is the legislature’s recognition of the need for efforts 

at family rehabilitation to continue while the superior court appeal is ongoing 

(unless the court orders otherwise), for the superior court to resolve appeals

expeditiously, and for termination proceedings to be instituted promptly 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. See In re Juvenile 2006-674, 156 N.H. 1, 9 

(2007) (Dalianis, J., concurring specially) (“Children need and deserve 

permanent living arrangements.”). The foregoing objectives would be 

substantially frustrated were we to adopt the parents’ interpretation that a de

novo appeal always restarts the twelve-month clock for corrections of the 

conditions of neglect or abuse. 

The purpose of the de novo appeal provided by RSA 169-C:28 is to give 

the party aggrieved by the circuit court decision an opportunity for a fresh look 

at the case by a different judge, who will consider the matter anew, 

unconstrained by the decision of the first judge. If, after such hearing, the 

superior court does not find that a child has been neglected or abused, then

the circuit court’s dispositional orders terminate and can no longer be enforced 

(unless the superior court, or this court, stays the superior court order pending 
10

an appeal to this court). There may also be circumstances in which the 

superior court, while agreeing with the circuit court that a child has been 

neglected or abused, issues a dispositional order that is so substantially at 

variance with the circuit court’s dispositional order, in terms of what the 

parent must do to correct the conditions of neglect or abuse, that it would be 

fundamentally unfair not to give the parent the benefit of a full twelve months 

from the superior court’s order to achieve compliance. We need not decide that 

issue today, however. We conclude that, where, as here, the superior court’s 

dispositional order is virtually identical to that issued by the circuit court, and 

where the circuit court’s order remained in effect and review hearings were held 

in that court throughout the superior court appeal, there is no sound 

justification for construing RSA 170-C:5, III so as to prolong the parent’s time 

to achieve compliance to run from the date of the superior court’s adjudicatory 

order. We therefore hold that, in cases such as this one, where the superior 

court’s dispositional order is not significantly different from the circuit court’s 

dispositional order, the twelve-month period specified in RSA 170-C:5, III runs 

from the date of the circuit court’s adjudicatory order.

III

We next address Sonia’s contention that Justice Cardello should have 

disqualified himself from presiding over the termination case because he 

presided over the neglect proceedings. Sonia argues that because the petition 

to terminate her rights alleged that she had failed to correct the conditions 

leading to the finding of neglect within twelve months of the finding “despite 

reasonable efforts under the direction of the [circuit court] to rectify the 

conditions,” RSA 170-C:5, III (emphasis added), proof of an essential 

prerequisite to termination “necessarily involves an assessment of the quality of 

direction provided by the presiding judge” in the neglect case. She continues:

“Given that the finder of fact’s role in [the termination] proceedings, in part, 

was to assess the actions of Judge Cardello as the presiding judge . . . in the 

underlying neglect proceedings he cannot be presumed to act impartially in 

these proceedings.” In effect, Sonia asserts that by presiding in the 

termination case, Justice Cardello undertook to review his own actions taken 

in the neglect case.

We acknowledge that by presiding in the termination case Justice 

Cardello, to some extent at least, was required to review his own actions in the 

neglect case. However, this circumstance is neither unusual nor sufficient in 

itself to require the judge’s recusal. For example, it is widely accepted that a 

judge who issues a search warrant is not precluded from presiding over a 

suppression hearing at which the warrant’s validity is determined. See, e.g., 

Minks v. Com., 427 S.W.3d 802, 808 n.3 (Ky. 2014) (collecting cases). This is 

merely a manifestation of the broader principle that “[a]dverse rulings against 

the defendant in the same or a prior judicial proceeding do not render the 
11

judge biased.” State v. Bader, 148 N.H. 265, 271 (2002) (quotation omitted). 

As both this court and the United States Supreme Court have recognized:

Judicial rulings alone almost never constitute a valid basis for a 

bias or partiality motion. . . . Opinions formed by the judge on the 

basis of facts introduced or events occurring in the course of the 

current proceedings, or of prior proceedings, do not constitute a 

basis for a bias or partiality motion unless they display a deepseated favoritism or antagonism that would make fair judgment 

impossible.

Id. (quotation, brackets, and ellipses omitted).

In DYFS v. L.C., 788 A.2d 330 (N.J. Super. Ct. App. Div. 2002), the court 

considered a challenge similar to that advanced by Sonia here — that it was 

improper for the same judge to preside in both the abuse-neglect proceeding 

and the termination proceeding involving the same family. The court rejected 

the argument that the Code of Judicial Conduct precluded the same judge from 

hearing both cases, explaining:

There is . . . a . . . significant policy justification for one judge 

hearing both matters. In [N. J. Youth & Family Services v. K.M., 

643 A.2d 987 (N.J. 1994)], the Court commented on the need to 

coordinate and expedite both the [protective services] and 

[termination] cases. The Court also acknowledged the traditional 

notion of one court/one family, not in the context of depriving a 

defendant of due process but, to the contrary, eliminating 

defendant’s burden to defend in two forums issues that could be 

resolved with one counsel and, ultimately, one judge sufficiently 

familiar with a family so as to expedite matters. We are neither 

unmindful of nor do we minimize a defendant’s due process 

concerns, but judges are constantly required to adjudicate matters 

involving parties and related disputes which have come before the 

judge in a different proceeding. Judges are perfectly capable of 

recognizing the different issues involved, different standards of 

proof required and different remedies sought without “prejudging” 

a defendant so as to implicate due process concerns. Ultimately, 

the issue to be determined is the future of the children protected 

by the statutory and judicial schemes at issue. Fully cognizant of 

a judge’s sworn responsibility under the constitution and the law, 

we fail to see that either the cited rule or canon bars a judge from 

adjudicating both the [protective services case and termination]

case. Ultimately the judge, on appropriate application from a 

litigant, must consider whether her involvement in a case warrants 

that judge recusing herself from further consideration of the 
12

issues. But we find no basis to conclude that a per se rule, which 

is being urged here, is warranted.

L.C., 788 A.2d at 333 (quotation and citation omitted). We find the L.C. court’s 

reasoning compelling, and, in the absence of any allegation that the record 

demonstrates a particularized “deep-seated” bias on the part of Justice 

Cardello that would have made it impossible for him to render fair judgment in 

the termination case, we hold that he was not required to disqualify himself 

merely because he was the presiding judge in the neglect case. 

Citing Rule 2.11(A)(5)(c) of the Code of Judicial Conduct,2 Sonia also 

argues that Justice Cardello was required to disqualify himself because he was

a material witness concerning the matters that occurred in the neglect 

proceeding, including the efforts made under the direction of the circuit court 

to correct the conditions leading to the finding of neglect. See Sup. Ct. R. 38, 

Canon 2.11(A)(5)(c). We reject this argument as well. In Hale v. Wyatt, 78 N.H. 

214, 215-16 (1916), we held that a judge may be a competent witness to prove

all that occurred before him, but that he may not be compelled to testify. See

Gelinas v. Metropolitan Prop. & Liability Ins. Co., 131 N.H. 154, 168-69 (1988). 

Even if we assume that Justice Cardello could have been a competent witness 

as to some issues of fact, Hale makes clear that he could not be compelled to 

testify, and his denial of the motion to disqualify carries with it the implicit 

assertion of his privilege not to testify, since he certainly could not preside over 

the termination case if he were to be a witness. Moreover, insofar as Sonia’s 

argument is understood to suggest that she should be able to inquire into the 

reasons Justice Cardello did or did not take certain actions or his impressions 

about the adequacy of the services provided under the court’s direction, 

“overwhelming authority concludes that a judge may not be compelled to testify 

concerning the mental processes used in formulating official judgments or the 

reasons that motivated him in the performance of his official duties.” United 

States v. Roebuck, 271 F. Supp. 2d 712, 718 (D.V.I. 2003); see State ex rel 

Childs v. Hayward, 109 N.H. 228, 230 (1968) (“no magistrate should be 

subjected to interrogation with respect to his mental processes or the reasons 

for his decision”).

Sonia makes no claim that any of the hearings in the neglect proceeding 

were conducted without a record. That being the case, we agree with DCYF 

 

2 Rule 2.11 of the Code of Judicial Conduct states, in relevant part:

(A) [A] judge shall disqualify himself or herself in any proceeding in which the 

judge’s impartiality might reasonably be questioned, including but not limited 

to the following circumstances:

. . . 

(5) The judge:

. . . 

(c) was a material witness concerning the matter.
13

that insofar as the circuit court’s “direction” with respect to whether reasonable 

efforts were made to assist Sonia in correcting the conditions of neglect was at 

issue in the termination case, such direction could be fully established through 

the official records of the neglect proceeding and without any need for 

testimony from Justice Cardello. See Childs, 109 N.H. at 230 (“nor should [a 

judicial officer] be subjected to interrogation with respect to the evidence 

presented before him when there is an existing record thereof”). For these 

reasons, Rule 2.11(A)(5)(c) did not require Justice Cardello to disqualify himself 

from presiding in this case.

IV

We next consider the parents’ assertion that termination of their parental 

rights was unwarranted because DCYF did not make reasonable efforts to 

reunify them with their children. In determining whether DCYF has made 

reasonable efforts to assist a parent in correcting the conditions that led to a 

finding of abuse or neglect, the court must consider whether it provided 

services that were “accessible, available and appropriate.” In re Michael E., 

162 N.H. 520, 524 (2011); see RSA 169-C:24-a, III(c), IV (2014). “The State’s 

role is to provide assistance to parents to deal with and correct problems. Its 

role is not to assume the full weight of the parents’ responsibilities. A parent 

must make [his] own effort in conjunction with the efforts made by DCYF.” 

Michael E., 162 N.H. at 525 (citations, quotations, and brackets omitted). 

Addressing Larry’s arguments first, we observe that the record shows 

that throughout the nearly two-year pendency of this matter before the circuit 

court’s permanency hearing, DCYF provided Larry with ample services to assist 

him in correcting the conditions that led to the neglect finding. That Larry 

made minimal efforts to avail himself of these services is a situation for which 

he, not DCYF, bears responsibility.

Larry advances two particularized arguments in support of his claim that 

DCYF made insufficient efforts to reunify him with his children. First, he 

asserts that, after the children were placed in the legal custody of DCYF, the 

agency afforded him the opportunity for overnight visits on only three 

occasions, July 23, July 25, and July 29, 2012, and notes that “not one of 

those occasions occurred after the finding of neglect.” However, because the 

circuit court’s finding of neglect was made in May 2011, more than a year 

before these three visits, it is apparent that this argument is again based on 

the premise that Larry was entitled to additional time after the superior court’s 

adjudicatory order within which to correct the conditions of neglect. We have 

already rejected this premise as applied to the circumstances of this case and, 

therefore, need not discuss it further.

Second, Larry contends that “[a]fter the parties separated, there were no 

further allegations of disputes between the parents, there were no concerns 
14

with [Larry’s] home (all reports were that it . . . was safe and sanitary), there 

were no reports of domestic violence, and the only supervision complaint was 

that the children watched television and played video games during their time 

with [Larry].” However, the record contains evidence showing that both before 

and after his separation from Sonia, Larry never consistently attended 

scheduled visits with the children, and he remained opposed to intervention by 

service providers. He also stopped attending team meetings after September 1, 

2012, and he never completed the batterer’s intervention program. 

Turning to Sonia, she argues that DCYF failed to establish that it made 

reasonable efforts to assist her in correcting the conditions which led to the 

findings of neglect following the entry of such findings by the superior court. 

This argument is premised entirely upon the proposition that the circuit court 

erred in entering its permanency order, which relieved DCYF of any further 

responsibility to assist the parents in reuniting with the children, prior to the 

expiration of twelve months from the date of the superior court’s adjudicatory 

order. Sonia does not argue that there was insufficient evidence of DCYF’s 

reasonable efforts to assist the parents with reunification during the more than 

twelve-month period between the circuit court’s adjudicatory order and the 

circuit court’s permanency order. Thus, the argument is really nothing more 

than a repetition of the parents’ contention that the twelve-month correction 

period begins to run anew when the superior court makes a finding of neglect 

after de novo review, a position we have already rejected for the reasons stated 

previously. 

In sum, the record provides ample support for the trial court’s finding 

that DCYF proved beyond a reasonable doubt that the requisites for 

termination of the parental rights of both Larry and Sonia under RSA 170-C:5, 

III were satisfied.

V

Larry next argues that the trial court erred in finding that termination of 

his parental rights was in the children’s best interests. We disagree. 

The determination of a child’s best interests “requires 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.” SophiaMarie H., 165 N.H. at 336; see In re Mathew G., 124 N.H. 414, 416 (1983). 

Larry advances three points in support of his claim. First, he relies upon 

the trial court’s finding that the children have a bond with their parents. 

Second, he notes that he and Sonia have a large extended family and that there 

was testimony that the children had a close relationship with some of these 

family members. Finally, he cites the concerns expressed by the GAL as to the 

parenting abilities of the foster parents.
15

We acknowledge that the above factors are pertinent to the best interests 

determination and arguably weigh against termination of Larry’s parental 

rights. Cf. Sophia-Marie H., 165 N.H. at 338 (recognizing that lack of bond 

with parent is factor to be considered in termination decision); In re Lisa H., 

134 N.H. 188, 193 (1991) (considering child’s bond with foster parent when 

evaluating trial court’s determination that termination of parental rights was in 

child’s best interests). However, the trial court clearly was aware of these 

factors, but nonetheless concluded that they were substantially outweighed by 

evidence showing that Larry was unwilling or unable to take the steps 

necessary to become a responsible parent, that the children had established a 

long-term relationship with the foster parents, where they are safe and wellcared-for, and that, despite any reservations she had, the GAL recommended 

that termination was in the children’s best interests. On this record, we 

cannot say that the trial court erred in concluding that termination of Larry’s 

parental rights was in the best interests of A.M. and C.M. See Sophia-Marie 

H., 165 N.H. at 336.

VI

Finally, Larry contends that the court erred in terminating his parental 

rights based, in part, on the superior court’s neglect finding entered in a 

proceeding in which he did not have counsel. He advances two specific 

arguments in support of his position. First, he argues that because counsel 

had been appointed to represent him in the circuit court neglect case, he 

attained a vested right to counsel which could not be taken away by what he 

claims was a retrospective application of the 2011 amendment to RSA 169-

C:10, II(a) to his case. Second, he argues that the superior court erred in 

determining, after our remand in C.M., that the particular circumstances of his 

case were not such that fundamental fairness required that he be provided 

with appointed counsel. We conclude that neither of these issues is properly 

subject to review in this proceeding.

Larry did not raise his “vested right” argument before us in the C.M.

appeal, and even if the interlocutory nature of our ruling would not present a 

res judicata bar to his presenting the issue to the superior court after our 

remand, but cf. State v. Presler, 731 A.2d 699, 702-04 (R.I. 1999), the record 

before us contains no indication that he ever did so. More importantly, with 

respect to both the vested rights issue and the claim that the particular 

circumstances of his case required the appointment of counsel, Larry did not 

appeal the superior court’s dispositional order, which therefore became final 

and binding as to all issues raised and which could have been raised in that 

proceeding, including Larry’s right to have court-appointed counsel in that 

case. See Gray v. Kelly, 161 N.H. 160, 164 (2010) (“Res judicata . . . bars the 

relitigation of any issue that was, or might have been, raised in respect to the 

subject matter of the prior litigation.” (quotation omitted)); cf. Michael E., 162 

N.H. at 523-24 (collateral estoppel barred parent in termination of rights case 
16

from relitigating final order of neglect entered against her in RSA chapter 169-C 

case).

Affirmed.

HICKS and BASSETT, JJ., concurred; CONBOY, J., concurred

specially.

CONBOY, J., concurring specially. Although I join the court’s opinion in 

this case, I write separately regarding Larry’s final arguments that he was 

entitled to court-appointed counsel during the abuse and neglect proceedings. 

We conclude that because Larry failed to appeal the superior court’s 

dispositional order, he is precluded from raising those arguments in this 

termination of parental rights case. I acknowledge this court’s decision in In re 

C.M., 163 N.H. 768 (2012) — that due process does not require the 

appointment of counsel for an indigent parent in every case involving 

allegations of abuse and neglect. In re C.M., 163 N.H. at 770, 777. However, 

for the reasons stated in my dissent in that case, I continue to believe that the 

New Hampshire Constitution requires the appointment of counsel in every 

such proceeding. Id. at 781-90 (Conboy, J., dissenting). Larry’s failure to file a 

self-represented appeal from the superior court’s final dispositional order is 

precisely why indigent parents should have legal representation in abuse and 

neglect proceedings without having to demonstrate particular circumstances 

warranting appointment of counsel: An unrepresented indigent parent could 

reasonably conclude that an abuse and neglect proceeding is simply part of a 

continuum of proceedings that end with termination of parental rights. See id. 

at 785 (Conboy, J., dissenting). Indeed, given that an initial petition alleging 

abuse and neglect often sets in motion a series of hearings that may ultimately 

result in termination of parental rights, it is doubtful that an unrepresented 

parent would appreciate that the two proceedings are separate cases and that 

issues from the abuse and neglect case cannot be deferred to an appeal from 

an order terminating his or her parental rights. 

In light of the fact that the legislature reinstated the statutory right to 

counsel for indigent parents alleged to have abused or neglected their children 

only two years after having abolished the right, see Laws 2013, 144:60; Laws 

2011, 224:77, it is unlikely that this situation will arise in another case. 

Unfortunately here, although Larry was represented by counsel during the 

termination of parental rights case, his counsel could not revive appealable 

issues from the abuse and neglect case, including the issues relating to the 

superior court’s denial of his request for appointed counsel.