2008-023, In the Matter of J.B. and J.G.

father. paternity at the time of A.B.’s birth, recognizing the petitioner as the child’s certificate. The parties, who never married, also executed an affidavit of in Dover. The petitioner, J.B., was listed as the child’s father on the birth

respondent, J.G., gave birth to a child, A.B., at Wentworth-Douglass Hospital

See RSA 5-C:24 (Supp. 2007).

The record reveals the following facts. In November 2001, the

motion to dismiss. We affirm and remand. recommendation of a Marital Master (Fishman, M.), denying the respondent’s from rulings of the Portsmouth Family Division (DeVries, J.), entered on the BRODERICK, C.J. This is an interlocutory appeal, see Sup. Ct. R. 8,

and orally), for the respondent. Wensley & Jones, PLLC, of Rochester (Daniel J. Harkinson on the brief to press. Errors may be reported by E-mail at the following address:

brief and orally), for the petitioner. Shaheen & Gordon, P.A., of Dover (Stacey Shaheen Bellabona on the

editorial errors in order that corrections may be made before the opinion goes No. 2008-023 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Portsmouth Family Division Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. 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 p. 2 22 as 2

consideration, which guide our “threshold inquiry” in this case: The family division transferred the following questions for our

Id. (quotation, brackets, and citation omitted). that would permit legal relief, we will uphold the denial of a motion to dismiss.” the facts alleged by a [petitioner] are reasonably susceptible of a construction inquiry that tests the facts in the petition against the applicable law. Where N.H. 763, 766 ( p. 2 2008) (quotation omitted). “We then engage in a threshold inferences in the light most favorable to the [petitioner].” Tosta v. Bullis, 156 truth of the facts alleged by the [petitioner] and construe all reasonable In reviewing a trial court’s order on a motion to dismiss, “we assume the

child. This interlocutory appeal followed. ordered an immediate resumption of contact between the petitioner and the granting the respondent’s motion, the trial court later reversed itself and the Matter of Nelson & Horsley, 149 N.H. 545, 547 ( p. 2 2003). After initially constitutional right, as a fit natural parent, to raise and care for A.B., see In ordered paternity testing. and that granting parental rights to the petitioner would violate her father. Thereafter, the trial court, in response to requests from both parties, within the class of persons entitled to such rights under RSA chapter 461-A, petitioner’s parental rights action. She argued that the petitioner did not fall After receiving these test results, the respondent moved to dismiss the

marker testing). signed at birth established legal father, trial court erred in ordering genetic child support order against him. ___ (decided May p. 2 20, 2008) (where out-of-state acknowledgement of paternity petitioner’s care three or four days each week and that in 2004, she obtained a note our recent decision in In the Matter of Gendron & Plaistek, 157 N.H. ___, acknowledges that from 2003 through September 2006, A.B. was in the been asked to decide if the trial court erred in ordering such testing, but we demonstrated that the petitioner was not A.B.’s biological father. We have not

her reply, the respondent alleged that the petitioner was not A.B.’s biological his parental rights and responsibilities. See RSA ch. 461-A (Supp. p. 2 2007). In 2006, the petitioner filed a parenting petition in the family division to establish After the parties had a disagreement about A.B.’s schooling in September

petitioner has consistently maintained contact with the child. The respondent Although the parties have not lived together since A.B.’s birth, the p. 3 3

mean “all rights and responsibilities are to be allocated. The term “parental rights and responsibilities” is defined to or brings forth offspring.” The respondent then reasons: which “parental rights and responsibilities” (formerly known as custody rights) us, citing a dictionary only, to adopt a definition of “parent” as “one that begets also cannot be considered A.B.’s “parent” under RSA chapter 461-A. She urges or grandparent of A.B. In her brief, the respondent argues that the petitioner Neither party asserts that the petitioner could be considered a stepparent

V. stepparent or a grandparent, if in the best interests of the child. RSA 461-A:6, “parent.” It does, however, contemplate an award of parental rights to a the statutory scheme.” 461-A:1, IV (emphasis added). The chapter does not explicitly define the term

enacted by the legislature in 2005. RSA 461-A:6 lays out the framework within RSA chapter 461-A, titled “Parental Rights and Responsibilities,” was both [the] Federal and State Constitutions? legislative purpose of the statutes.” Id. other, and so that they will lead to reasonable results and effectuate the similar subject matter, we construe them so that they do not contradict each 4 p. 3 31 (2007) (citation omitted). “When interpreting two statutes that deal with a

statutory language in light of the policy or purpose sought to be advanced by This enables us to better discern the legislature’s intent and to interpret phrases in isolation, but rather within the context of the statute as a whole. negative, and accordingly affirm the trial court’s denial of the respondent’s N.H. 445, 455 (2007) (quotation omitted). “We do not consider words and plain and ordinary meanings to words used.” Appeal of Regenesis Corp., 156 look first to the statutory language itself, and where possible, we ascribe the legislature as expressed in the words of a statute considered as a whole. We respondent’s fundamental liberty interest to raise her son, as secured by matters of statutory interpretation, we are the final arbiter of the intent of the We turn first to the statutory question presented by this appeal. “In grandparent to the child?

We answer the first question in the affirmative, the second question in the

(2) Would allowing this petitioner to maintain a parenting petition violate

[chapter] 461-A, when he is neither a stepparent, biological parent, or (1) May petitioner maintain a parenting petition under N.H. RSA filed. p. 4 2007). In this case, no challenge to the parties’ affidavit of paternity has been decided only by a court of competent jurisdiction.” RSA 5-C:28, III (Supp. sixty-day rescission period has passed, “any challenge to the affidavit shall be

or judicial proceeding related to the child results in an earlier date.” After this

within 60 days of the filing of an affidavit of paternity unless an administrative affidavit of paternity from the clerk of the city or town where the birth occurred 2007), in turn, provides: “A parent or legal guardian may request to rescind an

paternity without requiring further action pursuant to this chapter, unless (c) (Supp. 2007). “The affidavit of paternity [has] the legal effect of establishing “natural” father, and must be signed by the child’s mother. RSA 5-C:25, I(b), 2007). An affidavit of paternity requires information about a child’s supposed of the child occurred pursuant to RSA 5-C:24.” RSA 168-A:2, I(b) (Supp.

status as a parent by other means. under RSA chapter 461-A, so long as he alleges sufficient facts to establish his filing of . . . [a]n affidavit of paternity with the clerk of the town where the birth

petitioner in 2004, she necessarily acknowledged his status as A.B.’s parent.

obligation for child support.’”

A.B. is therefore not fatal to his request for parental rights and responsibilities Further, we note that in this state, “[p]aternity [is] established upon the failed to dismiss the Parenting Petition.

respondent actively sought and received a child support order against the 429 (2003) (quoting Watts v. Watts, 115 N.H. 186, 188 (1975)). Thus, when the biological ties for us to give the respondent’s argument much weight. In the Matter of Haller & Mills, 150 N.H. 427, establishment of paternity is ‘an essential prerequisite to imposing the alternative routes to establish parental status that do not require proof of The petitioner has met this threshold. We have long held that “the area, as we must, we observe that the legislature has set forth too many chapter 461-A. After considering the overarching statutory scheme in this

voluntarily petitioning court). The petitioner’s lack of a biological connection to good faith); RSA 168-A:2, I(a) (2002) (paternity may be established by under N.H. RSA [chapter] 461-A, the Family Division incorrectly (2004) (legitimacy of child presumed when born of a marriage entered into in of people who may be awarded parental rights and responsibilities RSA ch. 170-B (Supp. 2007) (outlining adoption procedures); RSA 458:23 forth” A.B. . . . Because Petitioner is not within any of the classes

definition of the term “parent” when it repeatedly employed that term in RSA We cannot agree, however, that the legislature intended such a limited

biological father, and in no way did Petitioner “beget” or “bring DNA testing conclusively proves that Petitioner is not A.B.’s p. 5 5

raise and care for the child. presume that he currently enjoys rights equal to those of the respondent to

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

responsibility). motion to dismiss. parenting petition, and, therefore, hold that it correctly denied the respondent’s and care for A.B. by the trial court’s continued consideration of the pending result, we see no unconstitutional intrusion on the respondent’s right to raise

petitioner has alleged sufficient facts to establish that he is a parent of A.B., we We next consider the second transferred question. Because the

from the belated resort to scientific proof” in an effort to terminate parental contravene the policy of this State’s law to protect the child and the spouse of acquiescence, and passage of several opportunities to raise the issue, “would affidavit of paternity, 11 p. 5 5 N.H. 353, 355 (1975) (allowing challenge to paternity after lengthy period terminating the petitioner’s child support obligation, or rescinding the parties’ the father of [A.B.],” as the issue is not before us. But see McRae v. McRae, order on her motion to dismiss, that the petitioner be “adjudicated to not be indirectly grant the respondent’s request, as set forth earlier in her proposed We do not address the soundness of an order that would directly or

interests of the child. See RSA 461-A:6. RSA chapter 461-A, which shall be assigned in accordance with the best petitioner has standing to seek full parental rights and responsibilities under court properly denied the respondent’s motion to dismiss, and that the

establish that he is a parent of A.B. To date, no court has entered an order On the record before us, the petitioner has made sufficient allegations to