In re K.O.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

6th Circuit Court-Concord Family Division
Case No. 2024-0686
Citation: In re K.O., 2025 N.H. 39

IN RE K.O.

Argued: June 18, 2025
Opinion Issued: September 4, 2025

Shaughnessy Allard, PLLC, of Bedford (Kimberly A. Shaughnessy on the
brief and orally), for the mother.

Jorel V. Booker, of Dover, on the brief and orally, for the father.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Mary A. Triick, assistant attorney general, on the memorandum of law
and orally), for the New Hampshire Division for Children, Youth and Families.

DONOVAN, J.

¶1 The parents of K.O. (child) appeal orders of the Circuit Court
(Luneau, J.), issued following a hearing on the merits, terminating their
parental rights over the child for failure to correct conditions that led to
findings of child neglect within twelve months of those findings. See RSA 170-
C:5, III (2022). The father argues that the trial court erred by not determining
that the petitioner, the New Hampshire Division for Children, Youth and
Families (DCYF), failed to provide reasonable accommodations for his disability
in the underlying child neglect case in light of his rights under the Americans
with Disabilities Act (ADA). See 42 U.S.C. § 12132 (2013). The mother argues
that the trial court erred by finding that: (1) she failed to correct the conditions
that led to the finding that she neglected the child; (2) DCYF made reasonable
efforts to assist her in correcting the conditions that led to the neglect finding;
and (3) terminating her parental rights is in the child’s best interest. We
conclude that non-compliance with the ADA cannot be asserted as a defense in
a termination proceeding. We further conclude that the evidence supports the
trial court’s findings regarding the mother’s failure to correct the conditions
that led to the neglect finding, DCYF’s reasonable efforts and, ultimately, its
termination decision. Accordingly, we affirm.

I. Facts

¶2 The trial court found, or the record otherwise supports, the following
facts. K.O. was born in 2022 and is the parents’ only child. Following K.O.’s
birth, she lived with her mother in a shelter. Less than two weeks later, staff at
the shelter contacted DCYF to report their concerns that the mother was failing
to provide proper care to K.O. Staff at the shelter observed that the mother
was unable to provide basic support for herself or for K.O. due to her cognitive
disabilities. K.O. lost a “dangerous amount of weight” and was hospitalized
after her pediatrician intervened. At the hospital, the mother required
prompting to care for K.O.

¶3 The father has an intellectual disability and did not reside with K.O.
and the mother. He resided instead with his own mother, who would not allow
K.O.’s mother into the residence. Although the father visited K.O. in the
hospital, when K.O. was ready to be discharged, neither parent was available to
take her. DCYF investigated and filed RSA chapter 169-C neglect petitions as
to both parents.

¶4 Following an adjudicatory hearing, the Circuit Court (Hersh, J.)
issued an order finding that the evidence substantiated DCYF’s petitions and
found K.O. to be neglected. Specifically, it found that the mother lacked stable
housing, was unable to properly care for K.O., and “was not appropriately
interacting with the baby.” The court found that the father “indicated that the
baby could not reside in [his] home, and declined to take custody” of K.O.
Based upon these findings, the court determined that K.O. could not be
returned to her parents’ care because the concerns that led to her initial
removal from the mother’s care had not been mitigated. Consequently, it
awarded DCYF legal custody of K.O. and ordered that she be placed with
relatives or in another placement. The court allowed the parents to have
supervised visitation at DCYF’s discretion, ordered the mother to submit to a

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mental health evaluation, and ordered DCYF to provide services for both K.O.
and her parents.

¶5 The Circuit Court (Luneau, J.) subsequently held a dispositional
hearing and issued an order in which it found both parents responsible for the
neglect. The court’s order set forth the conditions that the parents were
required to meet before K.O. could be returned to their care, as well as the
services that DCYF was required to provide. It ordered the parents to maintain
safe and appropriate housing, “[m]eaningfully engage with a mental health
provider and follow all [recommendations],” participate in visits with K.O. on a
regular and consistent basis, consistently and meaningfully participate in
parent education, “[d]emonstrate appropriate parenting skills and provide
proper parental supervision for [their] child at all times.” Additionally, the
court ordered the parents to ensure that their child’s ongoing needs are met,
and “[c]ooperate with DCYF, service providers,” and Court Appointed Special
Advocates for Children of New Hampshire (CASA). The order specified the
services that DCYF was required to provide, which included a parent aide to
supervise the parents’ visits with K.O. and provide instruction regarding
parenting skills. In addition, the court appointed a guardian ad litem (GAL) for
the mother.

¶6 The court held periodic review hearings over the nine months that
followed. In its orders, the court found that the parents were either in partial
or “partial to substantial” compliance with the dispositional order. The mother
attended K.O.’s medical appointments and made progress during supervised
visits, but she struggled to adequately prepare for the visits, required
assistance, and had difficulty interacting with K.O. “outside of well-rehearsed
routines.” The father attended K.O.’s medical appointments, although he
argued with the mother at joint visits with K.O. and struggled to control his
emotions. Neither parent was able to secure safe and appropriate housing.
Both parents underwent psychological evaluations, and DCYF indicated that it
would provide recommendations for specialized support.

¶7 In each of the orders issued following the review hearings, the court
found that DCYF had made reasonable efforts to “make it possible for [K.O.] to
return to” her parents’ care. It found that DCYF was providing the family with
numerous services, including parental education, therapeutic and non-
therapeutic support, housing and financial paperwork assistance, and
transportation for K.O. To facilitate the parents’ reunification with K.O., the
court ordered DCYF to provide referrals for mental health providers,
psychological evaluations, a child health support worker to supervise visits and
provide parenting skill instruction, and additional case management services.

¶8 The father filed motions to modify his case plan, requesting that the
court “require DCYF to make recommendations that are a reasonable
accommodation or modification” under the ADA “that would help him comply

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with DCYF’s requirements and the court’s dispositional orders.” The court
denied the motions without prejudice based upon its finding that DCYF was
already providing sufficient services to accommodate the father’s disability.

¶9 At the twelve-month permanency hearing, the court once again
found that the parents were in partial compliance with the dispositional orders.
It noted that the mother could not fully parent without supervision, had
communication troubles, lacked safe and appropriate housing, and had
cognitive disabilities. The court noted that the father had a job, but he lacked
appropriate housing, had not engaged with mental health services, could not
co-parent, had cognitive limitations, and would need significant help to parent
K.O. Overall, it found that K.O. “may need significant support and oversight as
she continues to grow”; neither parent could raise her alone, and neither had
found someone who could help them raise K.O. As a result, it concluded that
the parents had failed to establish that K.O. would not be “endangered in the
manner adjudicated on the initial petition, if returned home,” and, therefore,
that K.O.’s return to the parents’ custody was not in her best interest.
Accordingly, the court established adoption through termination of parental
rights as K.O.’s permanency plan.

¶10 DCYF thereafter filed petitions for termination of both parents’
parental rights on the ground that the parents failed to correct the conditions
that led to the findings of neglect within 12 months of those findings. See RSA
170-C:5, III. The court held a final hearing on the termination petitions over
the course of four days. During the final hearing, the court heard testimony
from various DCYF employees who were involved in the case, such as the
supervisor for the family services team and the family’s clinical case manager.
The court also heard from the father. Following the hearing, the father moved
to dismiss the termination petition, arguing that, because DCYF did not
recommend accommodations in the neglect case or otherwise perform its own
assessment or evaluation of his disability, it failed to make reasonable efforts to
assist him in correcting the conditions of neglect.

¶11 The court issued final orders granting the termination petitions in
November 2024. In ruling on the father’s motion to dismiss, the trial court
agreed with the father that he has a disability for purposes of the ADA. Noting
the absence of New Hampshire case law on point, the trial court relied upon
decisions from other jurisdictions and determined that, because the father is
disabled, DCYF was required to “account for and, if possible, make reasonable
accommodations for the [father’s] disability when devising a treatment plan
and providing rehabilitative services.” Whether reasonable accommodations
were made in the neglect case, according to the trial court, is relevant to
whether DCYF made reasonable efforts to assist the father in accordance with
RSA 170-C:5, III. Ultimately, the court found that DCYF did adjust and adapt
its case plan and services to reasonably accommodate the father’s disability for
purposes of the ADA.

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 [¶12] The court further concluded that DYCF proved that the parents
failed to correct the conditions that led to the finding of neglect and that
termination of the parents’ parental rights was in K.O.’s best interest. The
court explained that K.O.’s pre-adoptive foster family was “an especially good
fit for [K.O.]’s needs, and will enable her to grow and thrive.” The father filed a
motion for reconsideration, which the court denied. This appeal followed.

II. Analysis

¶13 On appeal, both parents challenge the trial court’s decision to
terminate their parental rights over K.O. The father argues that there was
insufficient evidence that: (1) he failed to correct the conditions leading to the
neglect finding in the RSA chapter 169-C case; and (2) DCYF made reasonable
efforts to assist him in correcting those conditions in light of his rights under
the ADA. The mother argues that the court erred in finding that: (1) she failed
to correct the conditions that led to K.O.’s removal from her care; and (2) DCYF
made reasonable efforts to provide her with services and assistance to correct
those conditions. Both parents separately claim that terminating their
parental rights was not in K.O.’s best interest.

¶14 As a threshold issue, DCYF argues that the mother failed to
preserve her argument that DCYF did not make reasonable efforts to assist her
in correcting the conditions that led to the neglect finding. In addition, DCYF
contends that the father failed to preserve his argument regarding whether he
failed to correct the conditions that led to the neglect finding. At oral
argument, the father conceded that he failed to correct the conditions that led
to the neglect finding. Therefore, he waived any argument regarding this issue.
See State v. Krueger, 146 N.H. 541, 542 (2001) (treating as waived ground for
appeal conceded at oral argument). In addition, our review of the record
reveals that the mother failed to contest DCYF’s evidence and arguments that it
made reasonable efforts to assist her. It is a long-standing rule that parties
may not have judicial review of matters not sufficiently raised in the trial court.
Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). Accordingly, we
decline to address these arguments on appeal.

¶15 Before the trial court may terminate a parent’s rights based upon a
petition filed by DCYF, DCYF must prove a statutory ground for terminating
parental rights beyond a reasonable doubt. In re S.A., 174 N.H. 298, 299-300
(2021); RSA 170-C:10 (2022). One such ground is the parents’ failure,
“[s]ubsequent to a finding of child neglect . . . under RSA 169-C, . . . to correct
the conditions leading to [the] finding within 12 months of the finding despite
reasonable efforts under the direction of the court to rectify the conditions.”
RSA 170-C:5, III; S.A., 174 N.H. at 300. Whether a parent has complied with
dispositional orders in the underlying child neglect case is a non-dispositive
factor that the trial court may consider when determining whether the parent
has corrected the neglect conditions. S.A., 174 N.H. at 300.

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 [¶16] When assessing DCYF’s efforts to assist a parent in correcting
conditions, the trial court must consider whether the services provided were
accessible, available, and appropriate. Id. In view of the staffing and financial
limitations that constrain DCYF’s ability to provide services, we have
emphasized that “[t]he word reasonable is the linchpin on which DCYF’s efforts
in a particular set of circumstances are to be adjudged.” Id. (quotation and
brackets omitted). “DCYF’s role in neglect cases is not to assume the full
weight of the parent’s responsibilities, but to provide the parent assistance to
deal with and correct problems.” Id. “Reasonable efforts means doing
everything reasonable, not everything possible.” Id. “A parent must make her
own effort in conjunction with the efforts made by DCYF.” In re Michael E.,
162 N.H. 520, 525 (2011) (quotation omitted).

¶17 “Once a statutory ground for termination of parental rights is
established, the court must then consider whether termination, or some
alternative dispositional order, is in the child’s best interest.” S.A., 174 N.H. at
300. Unlike the statutory ground for termination, this element does not
require proof beyond a reasonable doubt. See In re Shannon M., 146 N.H. 22,
27-28 (2001). “The dominant consideration is the welfare of the child, which
prevails over the interests of the parent.” S.A., 174 N.H. at 300.

¶18 Parental rights are “natural, essential, and inherent” within the
meaning of Part I, Article 2 of the New Hampshire Constitution. In re C.O., 171
N.H. 748, 755 (2019). Nevertheless, the fundamental rights of parents are not
unassailable, and terminations of parental rights will be upheld if applicable
due process requirements have been met. Id. When reviewing a trial court’s
termination decision, we will not disturb the circuit court’s finding unless it is
unsupported by the evidence or plainly erroneous as a matter of law. Id. at
756. In reviewing its findings, we are mindful that the trial court is in the best
position to assess and weigh the evidence before it, and that our task is not to
determine whether we would have found differently, but whether a reasonable
person could have reached the same conclusions as the trial judge based upon
the evidence presented. In re C.M., 176 N.H. 757, 760 (2024).

¶19 We first address the father’s argument that the trial court erred by
not determining that DCYF failed to provide reasonable accommodations in
light of his rights under the ADA. During the underlying neglect case, the
father underwent a court-ordered psychological evaluation, which revealed a
cognitive disability. Thereafter, he filed motions seeking to: (1) modify his case
plan and compel DCYF “to make recommendations that are a reasonable
accommodation or modification due to father’s disability”; and (2) require DCYF
to convene a meeting with representatives of certain agencies to assist it in
recommending accommodations. The trial court denied his motions on the
basis that DCYF was “already providing services and supports to the Father
sufficient to address the concerns raised in the motions.” The father also
moved to dismiss the termination petition, arguing that, because DCYF did not

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recommend accommodations in the neglect case or otherwise perform its own
assessment or evaluation of his disability, it failed to make reasonable efforts to
assist him in correcting the conditions of neglect. In its termination order, the
trial court found that as a result of the psychological evaluation, DCYF in fact
modified and adjusted its services and case plan “to adapt to [the father’s]
disability.”

¶20 On appeal, the father argues that, because DCYF did not conduct
its own assessment or evaluation of his disability, and because it did not make
recommendations to the court for accommodations pursuant to RSA 169-C:19,
his rights under the ADA were violated. We disagree.

¶21 Title II, § 202 of the ADA provides that “no qualified individual with
a disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §
12132. For purposes of the ADA, a “qualified individual with a disability” is
“an individual with a disability who, with or without reasonable modifications
to rules, policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and services, meets
the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.” 42 U.S.C. §
12131(2) (2013). When Congress enacted the ADA, it found that the Act
properly promoted the goal of assuring that individuals with disabilities have
“equality of opportunity, full participation, independent living, and economic
self-sufficiency.” 42 U.S.C. § 12101(a)(7) (2013). As a result, the ADA seeks to
“provide clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2)
(2013).

¶22 As the trial court noted, we have not had the occasion to determine
whether the ADA applies to termination of parental rights proceedings. Cf. In
re Jack L., 161 N.H. 611, 616 (2011) (“Even if we were to assume that DCYF or
the court had a duty under the ADA to provide . . . .”). We therefore look to
decisions issued by other courts for guidance. Under similar circumstances,
the Vermont Supreme Court concluded that the ADA may not be raised as a
defense in termination of parental rights proceedings. In re B.S., 693 N.E.2d
716, 720 (Vt. 1997). In that case, a mother with intellectual disabilities argued
that the trial court erred in terminating her parental rights because the
Vermont Department of Social and Rehabilitation Services (SRS) failed to
accommodate her disability and, as a result, had discriminated against her by
failing to provide her with the necessary services needed to parent her child.
Id. at 719-20. The court, following the majority of courts that have considered
this issue, concluded that “TPR proceedings are not ‘services, programs or
activities’ within the meaning of Title II of the ADA” and, therefore, “the anti-
discrimination requirement does not directly apply to TPR proceedings.” Id. at

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720; see also In re Elijah C., 165 A.3d 1149, 1164-65 (Conn. 2017) (explaining
that, “consistent with the view of the vast majority of courts that have
addressed the issue,” the ADA is not properly raised as a defense in a
termination proceeding “because such an action is not a service, program, or
activity within the meaning of the ADA”). Consistent with our sister states, we
conclude that termination of parental rights proceedings do not constitute
“services, programs, or activities” for the purposes of the ADA, 42 U.S.C. §
12132, and, therefore, the ADA is not a defense in termination of parental
rights proceedings.

¶23 To the extent that the father argues that, notwithstanding his
rights under the ADA, DCYF failed to make reasonable efforts to assist his
efforts to correct the conditions that led to the finding of neglect, see RSA 170-
C:5, III, we disagree. The trial court found, and the record amply supports,
that DCYF provided the highest level of available services to the father and that
the services provided were reasonable. The father does not address these
findings, identify what additional adjustments to DCYF’s services and case plan
were necessary, or argue why DCYF’s efforts were unreasonable. It is the
father’s burden on appeal to establish that the trial court erred and to support
the issues he raises with developed legal argument. See Gallo v. Traina, 166
N.H. 737, 740 (2014); State v. Blackmer, 149 N.H. 47, 49 (2003). We conclude
that the father has failed to establish that the trial court erred by determining
that DCYF made reasonable efforts to assist him in correcting the conditions
that led to the neglect finding. Any additional issues the father raises in his
brief, including his assertion that the termination of his parental rights “is
against the best interest needs of K.O.,” are not fully developed and, thus, do
not warrant further discussion or are waived. See Blackmer, 149 N.H. at 49.

¶24 We next address the mother’s arguments. First, she argues that
the trial court erred by finding that she failed to correct the conditions that led
to the finding of child neglect. DCYF removed K.O. from the mother’s care
shortly after her birth due to the mother’s failure to provide basic care, which
led to K.O.’s hospitalization. Thereafter, the mother failed to interact
appropriately or bond with K.O. Throughout the neglect case, the mother
never progressed beyond partially supervised visits with K.O. Although the
mother was able to safely supervise K.O. within the “very controlled, routine
environment” of her service provider’s facility, she struggled when caring for
K.O. in the community where she required assistance and intervention to avoid
exposing K.O. to danger. By the time of the permanency hearing, the mother
continued to struggle to meet K.O.’s basic needs, including feeding and
changing her. According to DCYF’s family services supervisor, the mother
required “prompting assistance,” including “which way the diaper went,”
“[s]upplying the correct supplies for what they were doing, [and] ensuring that
those supplies were clean.” She testified that the mother had a “lot of struggles
still in the community.” In addition, the mother had not yet obtained safe and

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appropriate housing, and according to K.O.’s CASA, she did not have a strong
bond with the child.

¶25 Although the mother emphasizes other evidence to argue that she
made progress in the neglect case, we defer to the trial court’s evaluation of the
weight of the evidence and the credibility of the witnesses. See S.A., 174 N.H.
at 300. Moreover, “compliance or noncompliance with orders issued in the
neglect case is not dispositive; rather, it is but one factor the trial court may
consider in addressing the broader issue of whether the conditions leading to
the original finding of neglect had been corrected.” In re Haley K., 163 N.H.
247, 251 (2012). On this record, the trial court’s determination that the
mother failed to correct the conditions that led to the finding of child neglect
was neither unsupported by the evidence nor plainly erroneous as a matter of
law. See S.A., 174 N.H. at 300.

¶26 Finally, we address the mother’s argument that the trial court erred
by finding that termination was in K.O.’s best interest. The evidence
establishes that, but for a very short period of time following K.O.’s birth, she
has not been in the mother’s care, and that K.O. does not have a strong bond
with her. By contrast, K.O. has bonded with her foster parents, who intend to
adopt her and with whom she had lived for more than a year prior to the final
hearing, and was “doing exceptionally well.”

¶27 K.O.’s CASA representative agreed that K.O.’s foster family “is
committed to meeting her needs . . . for the rest of her childhood,” and it was
her “very strong recommendation” that the parents’ “parental rights be
terminated to free [K.O.] up for adoption.” Similarly, K.O.’s permanency child
protective service worker testified that terminating the parents’ parental rights
was in K.O.’s best interest “given that she has thrived in her current foster
placement,” that she “has all of her needs met in the current foster placement,”
that the foster parents “are committed to adopting her,” and that the foster
parents have not “wavered on their commitment to give [K.O.] the permanency
that she deserves.” See In re C.M., 166 N.H. 764, 775 (2014) (recognizing that
children need and deserve permanent living arrangements). On this evidence,
the trial court’s finding that terminating the mother’s parental rights was in the
child’s best interest was neither unsupported by the evidence nor plainly
erroneous as a matter of law. See S.A., 174 N.H. at 300.

III. Conclusion

¶28 For the foregoing reasons, we conclude that the father cannot, as a
matter of law, raise the ADA as a defense in a termination of parental rights
proceeding and that the evidence otherwise supports the trial court’s finding
that DCYF made reasonable efforts to assist the father in correcting the
conditions that led to the neglect finding. We also conclude that the evidence
supports the trial court’s findings that the mother failed to correct the

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conditions that led to the neglect finding and that termination of her parental
rights was in K.O.’s best interest. Accordingly, we affirm the trial court’s
orders.

Affirmed.

MACDONALD, C.J., and COUNTWAY, J., concurred.

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