2004-738 IN THE MATTER OF JEFFREY G. and JANETTE P.

and a Guardian Ad Litem (GAL) represented the children’s interests. The issue

DiMeo

reverse and remand. make decisions concerning the care, custody, and control of his children. We the children’s paternal aunt, arguing that it violated his constitutional right to

Division at Salem. Both Jeffrey G. and Janette P. were represented by counsel, divorce on August 7, 2002, after a three-day contested hearing in the Family parents of J.G., born in 1996, and L.G., born in 1997. They were granted a The record supports the following facts. Jeffrey G. and Janette P. are the

J.) order granting primary physical custody of two minor children to Lisa S., GALWAY, J. The petitioner, Jeffrey G., appeals the Trial Court’s (,

Administrative Law and Advocacy Clinic, as amicus curiae. Mary Pilkington-Casey, of Concord, by brief, for the Franklin Pierce

Lisa S., by brief, pro se. Errors may be reported by E-mail at the following address:

Janette P., by brief, pro se.

Jeffrey G., by brief and orally, pro se.

errors in order that corrections may be made before the opinion goes to press. No. 2004-738 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Family Division at Salem Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as retain physical custody of the children. p. 2 GAL recommended that they share joint legal custody and that Janette P.

conclusion that the children were being harmed by the parents’ behavior, the

Maine.

the lack of cooperation and hostility between their parents. Despite her counseling and their behavioral, health and educational needs were affected by finding of neglect against Janette P.; and (3) the children received inconsistent that, in light of the GAL’s recommendation, the parents reached another

recommended that the children reside with their paternal aunt, Lisa S., in parties reconvened to continue the custody modification hearing, the GAL relatives for potential placement of the children. On July 30, 2004, when the

agencies in Massachusetts and New Hampshire, one of which resulted in a Court (fully present evidence pertaining to their case. Nevertheless, it is undisputed

during 2003, both parents were involved in four assessments by child reporting arrangements pertaining to the children. In the final divorce decree, the Trial had violated conditions and provisions contained in the divorce decree; (2) and Janette P. were denied the opportunity to complete their testimony and March 11, 2004, which, among other things, revealed that: (1) both parents

acknowledging its “grave concerns about the emotional, physical and mental testimony, but prior to the conclusion of the hearing, the court issued an order, children’s therapist and the GAL. After the completion of the first two days of

history together, much of which arose from and/or affected custody Jeffrey G. asserts that the hearing was never completed and that both he final divorce hearing, the GAL filed a report documenting the parents’ turbulent in June 2004. Prior to that hearing, the third GAL filed a written report, dated children from approximately October 1999 through August 2002. Prior to the

Over two days, the trial court heard evidence, including testimony from the In June 2004, the court conducted a modification of custody hearing.

which were addressed in a subsequent custody modification hearing conducted Prior to the final divorce decree, Jeffrey G. had primary physical custody of the

custodial rights,” including liberal visitation as detailed in the decree.

children. Both parents filed multiple motions and petitions with the trial court, proceedings, three different GALs have represented the children’s interests. deteriorate and reportedly had a negative impact on all parties, including the The parents’ acrimonious and volatile relationship continued to

custody of the two children, while granting Jeffrey G. “reasonable physical Taube, J.) awarded Janette P. sole legal custody and primary physical

Throughout the pendency of the couple’s divorce and post-divorce

separation in 1998. of the children’s custody has been intensely disputed since the parents’ initial of discussion.” The court further stated:

p. 3 court determined that “[t]he children will reside with their aunt in [Maine], end proposed change would be the fourth custodial change in four years, the trial primary physical custody of the children. However, recognizing that the

hearing’s over. Thank you.

a proposed custodial change, to which the parents agreed, granting Janette P.

and again and again. That will be my order. This parents [3 have done this before and before, and again and again their noncompliance with the terms of that agreement. The GAL also described what the two of you are doing to your children. We

circumstances had changed since the July 30, 2004 stipulation, resulting in on October 8, 2004, at which the GAL reported that both parents’ court granted the GAL’s

requests to reconsider.

therapist how damaged they are as a result of their

S.’ immediate custody. By order dated October 15, 2004, the court found that he’s to receive. Parents can pay. This is outrageous

further stated: The hearing lasted seventeen minutes. The court denied both counsels’

The hearing is over.

their parents. We’ve already heard testimony from the These children are in grave danger remaining with received the appropriate special education services the last two months. I’m not going to hear it again.

I’ve heard this case. I’ve heard it every two weeks for willing and able to provide at this time,” and recommended that the children be GAL, the report concluded, “[t]he children deserve better than their parents are Janette and Jeffrey.” In addition to detailing several incidents of concern to the After denying Jeffrey G.’s counsel’s repeated requests to be heard, the court

been through co-parenting classes, after [J.G.] has

You can come back in a year after the parents have

court “to document the failure of co-parenting and communication between

children.

On October 1, 2004, the GAL filed an “Interim Case Update” with the

joint legal custody and Jeffrey G. assumed primary physical custody of the consent agreement, which the trial court approved, whereby the parents shared interests of the child.”

p. 4 awarded custody “if the court determines that such an award is in the best

only two classes of third parties, grandparents and stepparents, who may be in

child’s best interests

make decisions concerning the care, custody, and control of their children.

New Hampshire Constitution. and the best interests of the child guide all custody decisions in New

guidance only. fit parent is acting in the best interests of the child). RSA 458:17, VI identifies without following the requisite procedures set forth in RSA chapter 169-C. (emphasis added); contends the trial court’s custody determination comports with precedent set see Troxel, 530 U.S. at 58 (recognizing a presumption that a procedural due process rights when it denied him custody of the children as between two fit parents.” Nelson, 149 N.H. at 548 divorce, the superior court “may interfere with parental rights to determine a case of divorce or annulment. RSA 458:17, I (2004). Thus, in the context of a to the United States Constitution protects the fundamental right of parents to the superior court with authority to make child custody determinations in the

Bodwell v. Brooks, 141 N.H. 508, 512 (1996). RSA 458:17 vests

children is a fundamental liberty interest protected by Part I, Article 2 of the The superior court’s jurisdiction to award custody is purely statutory,

State v. Ball, 124 N.H. 226, 231-33 (1983).

address this issue under the State Constitution and cite federal opinions for child’s welfare is at stake. Preston v. Mercieri, 133 N.H. 36, 40 (1990). We first subordinate to the State’s competing found that the parents were unfit and granted physical custody to Lisa S. It parens patriae power to intervene if a children to Lisa S. under RSA 458:17; and (2) violated his fundamental Troxel, 530 U.S. at 66. This fundamental right is not absolute, but is

limiting the parents to supervised visits. 547 (2003). Similarly, the Due Process Clause of the Fourteenth Amendment

The right of biological and adoptive parents to raise and care for their

Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion).

the trial court properly considered the best interests of the children when it that the trial court: (1) did not have jurisdiction to grant custody of the We also permitted the filing of an amicus curiae brief, which argues that

their parents; and (2) required continuing protection for the children by children when it: (1) found that the children were in danger if left in the care of arguing that the trial court properly considered the best interests of the Lisa S. urges us to uphold the trial court’s custody determination,

The petitioner appeals the trial court’s custody determination, arguing

physical custody to Lisa S. and supervised visitation to both parents. “[r]esiding with either parent is detrimental to these children,” and granted her in this context.

p. 5 458:17, VI, and, therefore, the court did not have authority to grant custody to

liberties in these circumstances as the Federal Constitution,

458:17. However, Lisa S. is not a potential custodial recipient named in RSA court had jurisdiction to determine custody of the children pursuant to RSA allegedly abused or neglected child is of paramount importance. between two parents who had not been found unfit and, therefore, the trial child has been abused or neglected. Under this statute, the welfare of an detailed procedures to be followed when any interested party asserts that a

emergency interim relief, see In re Tracy M., Because the State Constitution is at least as protective of individual

The instant case initially arose in the context of a divorce proceeding

determinations in child abuse and neglect proceedings and enumerates with relatives or other appropriate third parties. See RSA 169-C:19, I & III.

enumerated procedures in the statute, RSA chapter 169-C provides for C (termination of parental rights). 169-C:2, I (2002) (emphasis added). Thus, when appropriate, and pursuant to all parties involved in the adjudication of child abuse or neglect cases.” RSA of this chapter is also “to establish a judicial framework to protect the rights of parents, protection to children whose life, health or welfare is endangered,” the purpose its jurisdiction. Preisendorfer, 143 N.H. 50, 54 (1998). However, in addition to “provid[ing] called disadvantaged home is not a sufficient basis for coercive intervention.” See In re

because they have not been model parents.” care, custody and management of their children “does not evaporate simply The Child Protection Act, RSA chapter 169-C, governs custody

either RSA chapter 169-C (abuse and neglect proceedings) or RSA chapter 170-

see Troxel, 530 U.S. at 58, until they are found to be unfit under

skills are less than ideal, biological and adoptive parents are presumed to be fit while balancing the State’s interest in protecting the welfare of children within Id. (quotations and citation omitted). Therefore, even though their parenting protect the fundamental liberty interests of biological and adoptive parents appropriate circumstances). We have narrowly interpreted RSA 458:17, VI to (2000). “Absent a showing of specific harm to the children, growing up in a so-

The fundamental liberty interest of biological and adoptive parents in the

child over a biological or adoptive parent. See id.; RSA 458:17, VI. has established in loco parentis status, he or she may not obtain custody of the determination, unless a third party is either a grandparent or stepparent who

See id. at. Therefore, in the context of a custody

authorizing superior court to grant custody to stepparent or grandparent in (decided December 30, 2005) (Broderick, C.J.) (construing RSA 458:17, VI as p. 6 6

or stepparents.

stepparent who has established

but respectfully dissent as to the majority’s reasoning concerning grandparents

over a biological or adoptive parent.

opinion. unless a third party is either a grandparent or

status, he or she may not obtain custody of the child

remand this case to the trial court for further proceedings consistent with this Therefore, in the context of a custody determination,

DALIANIS and DUGGAN, JJ., concurring in part and dissenting in part.

in part and dissented in part. BRODERICK, C.J., concurred; DALIANIS and DUGGAN, JJ., concurred

Accordingly, we reverse the trial court’s custody determination and

Constitution. 137 N.H. 119, 122 (1993), we reach the same result under the Federal