In re C.M. & a.

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(2002) (repealed 2011; re-enacted 2013), appointed counsel to represent each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

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 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

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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 . . . .

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 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.

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 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

1Prior to entering foster care, the children lived with their paternal grandmother, and then their
paternal aunt, for approximately three months.

6
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 well-
cared-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

7
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.

8
 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

9
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

10
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 deep-
seated 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

11
 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.

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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

13
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.” Sophia-
Marie 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.

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 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 well-
cared-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

15
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.

16