ADA Noncompliance Is Not a Defense to Termination of Parental Rights in New Hampshire

Commentary on In re K.O., 2025 N.H. 39 (N.H. Sept. 4, 2025)

Introduction

In In re K.O., 2025 N.H. 39, the New Hampshire Supreme Court affirmed the termination of both parents’ rights to their child, K.O., under RSA 170-C:5, III, for failure to correct the conditions leading to a prior neglect finding within 12 months. The case presents a significant holding of first impression in New Hampshire: noncompliance with the Americans with Disabilities Act (ADA), Title II, cannot be asserted as a defense in a termination of parental rights (TPR) proceeding. The Court also reinforced established standards governing “reasonable efforts” by the Division for Children, Youth and Families (DCYF), the evidentiary burdens for statutory grounds and best-interest determinations, and principles of preservation and waiver on appeal.

The parents, both with cognitive limitations, challenged the TPR orders on multiple grounds. The father contended DCYF failed to provide ADA-compliant accommodations and that the evidence was insufficient on “reasonable efforts.” The mother argued she had corrected the neglect conditions, DCYF had not made reasonable efforts on her behalf, and termination was not in the child’s best interest. The Supreme Court rejected these challenges, holding that ADA noncompliance is not a cognizable defense in TPR proceedings and concluding that the trial court’s findings on failure to correct, reasonable efforts, and best interests were supported by the record.

Summary of the Opinion

• Holding of first impression: Termination of parental rights proceedings are not “services, programs, or activities” under Title II of the ADA; therefore, ADA noncompliance cannot be raised as a defense to TPR in New Hampshire.
• Father’s ADA-based challenge fails as a matter of law; to the extent he argued DCYF’s efforts were unreasonable, the Court found ample evidence that DCYF provided accessible, available, and appropriate services and that the father did not develop contrary argument on appeal.
• Preservation and waiver:
  • The father conceded at oral argument that he failed to correct the neglect conditions; that issue was therefore waived.
  • The mother failed to preserve her “reasonable efforts” challenge; the Court declined to reach it.
• Statutory ground: The evidence supported the finding that the mother failed to correct the conditions leading to neglect within 12 months, despite reasonable efforts under court direction (RSA 170-C:5, III).
• Best interests: The trial court’s determination that termination served K.O.’s best interests was supported by evidence of her strong bond and thriving in the pre-adoptive placement, contrasted with the lack of a strong bond with the mother and the mother’s continuing caregiving limitations.
• Result: Affirmed.

Factual and Procedural Background

K.O. was born in 2022. Shortly thereafter, concerns arose about the mother’s ability to provide basic care due to cognitive disabilities. K.O. lost a dangerous amount of weight and was hospitalized. The father, who has an intellectual disability, did not live with the mother and could not offer a placement for the child. Following an adjudicatory hearing, the circuit court found neglect as to both parents, awarded DCYF legal custody, and ordered services, including mental health evaluation, supervised visitation, and parent-aide support. A GAL was appointed for the mother.

Over multiple review hearings, the court found partial compliance but persistent deficits: the mother struggled to interact beyond rehearsed routines, required prompting during visits, and failed to obtain stable housing; the father struggled with emotional regulation, co-parenting, engagement with mental health services, and housing. At the twelve-month permanency hearing, the court established adoption via TPR as the permanency plan.

DCYF petitioned to terminate both parents’ rights under RSA 170-C:5, III. After a four-day merits hearing, the trial court granted the petitions, finding the parents failed to correct the neglect conditions and that termination was in K.O.’s best interest. The father moved to dismiss, asserting DCYF failed to make ADA-compliant accommodations; the trial court concluded DCYF had reasonably accommodated him. Both parents appealed.

Analysis

Statutory Framework and Standards

• Ground for termination: RSA 170-C:5, III authorizes termination where, subsequent to a neglect finding under RSA 169-C, the parent fails to correct the conditions leading to the finding within 12 months, “despite reasonable efforts under the direction of the court.”
• Burdens of proof:
  • Statutory ground must be proven beyond a reasonable doubt (RSA 170-C:10; In re S.A., 174 N.H. 298, 299-300 (2021)).
  • Best-interest determination does not require proof beyond a reasonable doubt (In re Shannon M., 146 N.H. 22, 27-28 (2001)).
• Reasonable efforts: Courts consider whether services were “accessible, available, and appropriate,” recognizing DCYF’s staffing and budget constraints. “Reasonable efforts means doing everything reasonable, not everything possible,” and parents must make their own efforts in conjunction with DCYF (S.A.; In re Michael E., 162 N.H. 520, 525 (2011)).
• Appellate review: Deferential to trial court findings; will not disturb unless unsupported by evidence or plainly erroneous as a matter of law, with deference to credibility and weight determinations (In re C.O., 171 N.H. 748, 756 (2019); In re C.M., 176 N.H. 757, 760 (2024)).

Precedents and Authorities Cited

• New Hampshire cases:
  • In re S.A., 174 N.H. 298 (2021): Clarifies burden of proof on statutory ground; guides “reasonable efforts” analysis.
  • In re Michael E., 162 N.H. 520 (2011): Emphasizes parental responsibility alongside DCYF support; efforts must be “reasonable,” not exhaustive.
  • In re Haley K., 163 N.H. 247 (2012): Compliance with dispositional orders is relevant but not dispositive to the “failure to correct” inquiry.
  • In re Shannon M., 146 N.H. 22 (2001): Best-interest standard does not require beyond a reasonable doubt.
  • In re C.O., 171 N.H. 748 (2019): Parental rights are fundamental but not unassailable.
  • In re C.M., 176 N.H. 757 (2024) and In re C.M., 166 N.H. 764 (2014): Deference on appeal; importance of permanency.
  • Preservation and waiver cases: Bean v. Red Oak Prop. Mgmt., 151 N.H. 248 (2004) (unpreserved issues not reviewed); State v. Krueger, 146 N.H. 541 (2001) (issue conceded at oral argument is waived); State v. Blackmer, 149 N.H. 47 (2003) and Gallo v. Traina, 166 N.H. 737 (2014) (require developed argumentation on appeal).
  • In re Jack L., 161 N.H. 611 (2011): Earlier, the Court assumed without deciding potential ADA duties; In re K.O. resolves the specific ADA-as-defense question in TPRs.
• Out-of-state authorities:
  • In re B.S., 693 A.2d 716 (Vt. 1997): Held TPR proceedings are not “services, programs, or activities” under ADA Title II; ADA not a defense in TPRs.
  • In re Elijah C., 165 A.3d 1149 (Conn. 2017): Majority rule that ADA is not a defense in TPR proceedings.
• Statutes and federal authorities:
  • RSA 170-C:5, III; RSA 170-C:10; RSA ch. 169-C (neglect framework).
  • ADA Title II: 42 U.S.C. §§ 12131-12132; Congressional findings, 42 U.S.C. § 12101.

Legal Reasoning

1) ADA noncompliance is not a defense to TPR

The Court addressed a question of first impression: whether Title II of the ADA can be invoked as a defense in a TPR proceeding. Interpreting 42 U.S.C. § 12132, the Court aligned with the “vast majority” of jurisdictions, holding that TPR proceedings are not “services, programs, or activities” within the meaning of Title II. Relying particularly on Vermont’s In re B.S. and Connecticut’s In re Elijah C., the Court concluded that the ADA’s anti-discrimination mandate does not directly govern the termination adjudication itself.

Importantly, this does not negate DCYF’s statutory obligation under RSA 170-C:5, III to make “reasonable efforts” to assist a parent in correcting neglect conditions. New Hampshire law evaluates those efforts for accessibility, availability, and appropriateness. The Court separated the ADA defense question (rejected) from the statutory “reasonable efforts” inquiry (accepted and applied).

2) Reasonable efforts and the father’s arguments

The father argued DCYF failed to conduct its own disability assessment and to make accommodation recommendations under RSA 169-C:19, asserting an ADA violation. The Court rejected the legal premise (no ADA defense in TPR) and, independently, concluded the record “amply” supported the trial court’s finding that DCYF provided the highest level of available services and reasonably adapted its case plan to the father’s needs. The father did not identify what additional accommodations were necessary or why DCYF’s efforts were unreasonable, and he conceded he failed to correct the underlying conditions—waiving that ground on appeal.

3) Failure to correct and the mother’s arguments

As to the mother, the record demonstrated persistent caregiving deficits tied to the conditions that led to the initial neglect finding: difficulty meeting basic needs without prompting, limited ability to parent safely outside controlled settings, and lack of stable housing. Despite partial progress (e.g., attending medical appointments, improvement within structured visits), she never moved beyond partially supervised visitation and continued to require intervention in the community to avoid endangering K.O. Given deference to the trial court’s credibility and weight determinations, the Supreme Court upheld the finding beyond a reasonable doubt that she failed to correct the conditions within the statutory period.

4) Best interests

The Court affirmed the best-interest determination without requiring proof beyond a reasonable doubt. Evidence showed K.O. had minimal bond with the mother, had thrived in the pre-adoptive placement for over a year, and that the foster parents remained committed to adoption and meeting her needs. CASA and DCYF witnesses strongly supported permanency through adoption. The Court reiterated that children “need and deserve permanent living arrangements” and that child welfare prevails over parental interests at this stage.

5) Preservation and waiver

Preservation rules shaped the Court’s review. The father’s concession at oral argument waived his “failure to correct” challenge. The mother failed to contest DCYF’s “reasonable efforts” below; thus, the Supreme Court declined to consider it. The Court also declined to reach underdeveloped arguments in the father’s brief, reflecting standard New Hampshire appellate practice.

Impact and Practical Implications

Immediate doctrinal impact

• New rule of law in New Hampshire: ADA noncompliance cannot be asserted as a defense in TPR proceedings. This aligns New Hampshire with the majority view nationally.
• Reasonable efforts analysis remains central: While the ADA cannot be used to block termination, trial courts will continue to assess whether DCYF’s efforts were accessible, available, and appropriate in light of a parent’s circumstances, including disability.

For DCYF and service providers

• Best practices: Document disability-informed adaptations to case plans and services (e.g., parent aides, simplified instructions, increased prompting, scheduling flexibility, transportation support). The trial court credited DCYF for “highest level” supports and adaptations in this case.
• Coordination: Proactively coordinate with mental health providers and specialized supports; ensure records reflect tailoring of services to the parent’s needs.

For parents and counsel

• Preserve issues early and often: Raise “reasonable efforts” objections and specific accommodation requests in the neglect and dispositional phases; create a record of what additional supports are sought and why.
• Develop the appellate record: Identify concrete, feasible accommodations allegedly omitted and how their absence prejudiced the parent’s ability to remediate within 12 months.
• Separate avenues for ADA enforcement: While ADA cannot defend against TPR, parents may consider asserting ADA claims in appropriate separate proceedings concerning service delivery—recognizing that In re K.O. does not decide the scope of ADA obligations in the service context outside the TPR adjudication itself.

Open questions and contours

• Scope of ADA in child protection stages other than TPR: In re K.O. squarely holds the ADA is not a defense in TPR proceedings; it does not decide whether and how Title II may apply to DCYF’s service delivery during the neglect/dispositional phase.
• Interface with “reasonable efforts”: The Court continued to use the S.A. triad (accessible, available, appropriate). Disability-sensitive service delivery remains relevant, not because ADA is a defense, but because it informs whether efforts were reasonable.

Complex Concepts Simplified

• Termination of Parental Rights (TPR): A court order permanently ending the legal relationship between a parent and child.
• Failure to Correct (RSA 170-C:5, III): After a neglect finding, if the parent does not fix the conditions that led to neglect within 12 months despite DCYF’s reasonable efforts, TPR may be sought.
• Reasonable Efforts: DCYF must provide support that is practical and suitable under the circumstances, not every conceivable service. Services should be accessible, available, and appropriate.
• Best Interests of the Child: After a statutory ground is proven, the court decides what outcome best serves the child’s welfare and need for permanency; this is the dominant consideration.
• ADA Title II: Prohibits public entities from discriminating against qualified individuals with disabilities in services, programs, or activities. In re K.O. holds the TPR adjudication itself is not such a service or program, so ADA noncompliance is not a TPR defense.
• Preservation/Waiver: To appeal an issue, it generally must have been raised and ruled upon in the trial court. Issues conceded at oral argument or inadequately briefed are not considered on appeal.

Conclusion

In re K.O. establishes a clear, precedential rule in New Hampshire: ADA noncompliance cannot be asserted as a defense in termination of parental rights proceedings. The decision harmonizes New Hampshire law with the majority of jurisdictions and refocuses litigants on the statutory framework—especially the “reasonable efforts” requirement and the child’s best interests. While disability-informed service delivery remains relevant to assessing reasonableness, parents must preserve and develop such claims during the neglect and dispositional phases and articulate specific, feasible accommodations.

On the record presented, the Supreme Court affirmed the trial court’s findings that the father received reasonable services and, in any event, waived key issues; that the mother failed to correct the conditions leading to neglect within 12 months; and that terminating parental rights served the child’s best interests by securing permanency in a placement where the child had bonded and thrived. The case consolidates the primacy of child welfare and permanency in New Hampshire TPR jurisprudence, while clarifying the limits of ADA-based defenses at the termination stage.

Key Takeaways

• New Hampshire now expressly holds that ADA noncompliance is not a defense in TPR proceedings.
• “Reasonable efforts” are assessed for accessibility, availability, and appropriateness; parents must engage and make their own efforts.
• Preservation is critical; concessions and underdeveloped arguments will be deemed waived.
• Best interests and permanency remain the dominant considerations after a statutory ground is established.