2008-712, I/M/O KATHALEEN A. DUFTON AND TERRY L. SHEPARD, JR.

The grandmother, Kathaleen A. Dufton (grandmother),

Abert on the brief, and Ms. Abert orally), for the father. Bradley & Faulkner, P.C., of Keene (Douglas F. Green and Susan R. to press. Errors may be reported by E-mail at the following address: and orally), for the grandmother. Nadeau Law Offices, PLLC, of Portsmouth (Justin P. Nadeau on the brief

page is: http://www.courts.state.nh.us/supreme. KATHALEEN A. DUFTON AND TERRY L. SHEPARD, JR.

editorial errors in order that corrections may be made before the opinion goes No. 2008-712 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Cheshire Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 party,” to petition for visitation. p. 2 allow the grandmother, whom the father characterized as “an unrelated third

bedside.

abrogated in favor of an unrelated third person.”). The trial court granted the

grandmother’s daughter died in March 2005, the grandmother was at her

statute applies to both adoptive and natural grandparents. the biological grandmother of the children and the grandparent visitation

is not a natural grandmother because she was not the legal parent of the of her daughter’s children and, therefore, lacked standing to petition for fundamental rights [of the natural or adoptive parent over his children] be standing to seek visitation. 548 (2003) (“Only in the most unusual and serious of cases may . . . the hospital and accompanied her to all of her doctor visits. When the custody and control of child); In the Matter of Nelson & Horsley, 149 N.H. 545, grandmother’s daughter fell ill with cancer, the grandmother stayed with her at infringed upon parent’s fundamental right to make decisions regarding care, granddaughters, including the children’s baptisms and birthdays. When the visitation is “breathtakingly broad,” and, as applied, unconstitutionally the children were with the grandmother for six weeks. (2000) (plurality holding that visitation statute allowing any third party to seek during school vacation weeks, and over the summer. In the summer of 2007, reasoned that the grandmother had standing to seek visitation because she is See Troxel v. Granville, 530 U.S. 57, 66-67 allowed the grandmother to visit with her granddaughters every other weekend,

The father moved for reconsideration, arguing that: (1) the grandmother relinquished her parental rights to her daughter, she was not a “grandparent” father moved to dismiss on the grounds that because the grandmother had Accordingly, as the children’s natural grandmother, the grandmother had visitation with the children, prompting her to file the instant petition. The I. The court ruled that the plain meaning of the word “natural” is “biological.”

Initially, the trial court denied the father’s motion. The trial court grandmother to visit with her grandchildren. Then, in November 2005, he

At some point thereafter, the father again denied the grandmother

through her pregnancies and attended the birth of her two granddaughters. and visited every other weekend. The grandmother helped her daughter from cancer, they were very close. They vacationed and spent holidays together For several months after his wife’s death, the father would not allow the

twenty-six, and, for the next thirteen years, until the daughter’s untimely death The grandmother and her daughter reunited when the daughter was nuclear family.

p. 3 termination of parental rights, or other cause of the absence of a

language to confer standing upon a grandparent, either natural or adoptive,

contemporaneous with the divorce, death, relinquishment or the minor child has been restricted for any reason prior to or apply in cases where access by the grandparent or grandparents to 3

2005), the predecessor to RSA 461-A:13, I. We have previously interpreted this

provided in paragraph III. The provisions of this section shall not interpretation of a statute is a question of law, which we review

part: This language is identical to the language of RSA 458:17-d, I (1992) (repealed

expressed in the words of the statute considered as a whole.

the court for reasonable rights of visitation with the minor child as I. Grandparents, whether adoptive or natural, may petition “grandmother” within the meaning of the grandparent visitation statute. The

RSA 461-A:13, the grandparent visitation statute, provides, in pertinent trial court’s decision the statute and ascribe the plain and ordinary meanings to the words used. Id. sufficiently demonstrated her right to claim relief. Kenick & Bailey, 156 N.H. 356, 358 (2007). We first examine the language of allegations and determine, based upon the facts, whether the petitioner has In the Matter of standing to sue, the trial court must look beyond her unsubstantiated statutory interpretation, we are the final arbiter of the legislature’s intent as Dep’t of Envtl. Servs. v. Marino, 155 N.H. 709, 713 (2007). In matters of

The sole issue for our review is whether the grandmother is a

N.H. 94, 96 (2008).

N.H. at 404. Because the underlying facts are not in dispute, we review the

[grandmother].” This appeal followed. the [father] would deprive his children of a relationship with the petitioner’s legal claim, but instead, as in the present case, challenges her however, the motion to dismiss does not contest the sufficiency of the her. In the Matter of Lemieux & Lemieux, 157 N.H. 370, 372-73 (2008). When, be true and construe all reasonable inferences in the light most favorable to determination, the court would normally accept all facts pled by a petitioner to Parts v. Ossipee Planning Board, 134 N.H. 401, 403 (1991). To make this sufficient to state a basis upon which relief may be granted. Ossipee Auto determine whether the allegations contained in a petitioner’s pleadings are Usually, in ruling upon a motion to dismiss, the trial court is required to

to pursue grandparent visitation,” but stating that it was “deeply troubled that motion for reconsideration, ruling that the grandmother lacked “legal standing grandmother that this word is synonymous with “biological.”

p. 4 visitation statute, which was first enacted in 1989, such a conflict exists, however, for even if it does, we hold that the grandparent conflicts with New Hampshire’s adoption laws. We need not decide whether

look to the plain meaning of the word “natural,” and agree with the 4 grandmother for the purposes of the grandparent visitation statute. We first first condition: whether the grandmother is the children’s “natural”

visitation statute to allow the grandmother to seek visitation, the statute

A:13, I. Because it is the only issue on appeal, we confine our analysis to the specifically addresses visitation by natural grandparents, controls.

opposed to a parent who has adopted the child.

The father argues that to the extent that we interpret the grandparent

“grandmother” as “the mother of one’s father or mother”). Webster’s Third New International Dictionary, supra at 988 (defining grandmother within the meaning of the grandparent visitation statute. See grandmother gave birth to the children’s mother, she is their “natural” reason” before or contemporaneously with her daughter’s death. RSA 461- “natural child” as distinguished from an “adopted child”). Because the cause[s].” grandmother; and (2) her access to the children was not “restricted for any Dictionary 1054 (8th ed. 2004) (“natural” means “[o]f or relating to birth”; a to seek visitation provided that: (1) she is the children’s adoptive or natural International Dictionary 1506 (unabridged ed. 2002); see Black’s Law

A “natural” parent is a parent who has conceived or “begotten” a child, as

a nuclear family. reason before or contemporaneously with the event giving rise to the absence of

“divorce, death, relinquishment or termination of parental rights” and

relinquishment or termination of parental rights,” but included “other mother, the grandmother’s daughter, died. Thus, the grandmother is entitled In this case, the grandchildren’s nuclear family is absent because their

Id. (quotation omitted).

access to the grandchild has been earlier, or contemporaneously, restricted.” the grandparent’s access to the grandchild has not been restricted for any

nuclear family is absent for some reason, which includes, but is not limited to therefore, a grandparent may petition for visitation only if the grandchild’s

Id. (quotations omitted). Under our interpretation in O’Brien,

reason for the absence of the nuclear family was not limited to “divorce, death, the absence of the grandchild’s nuclear family. Id. We also explained that the In O’Brien, we explained that grandparent visitation rights existed only in

O’Brien v. O’Brien, 141 N.H. 435, 437 (1996) (quotation omitted).

relinquishment or termination of parental rights unless the grandparent’s “whenever a grandchild’s nuclear family is the subject of divorce, death, visitation rights.

making the grandmother a stranger to the child and extinguishing her adoption statutes severed her child from his biological father’s family tree, thus

visitation. rendered the grandmother an unrelated third party and negated her right to absence of a nuclear family.

between stepparent adoption of an older child and traditional infant adoption.

Id. at 39. We disagreed, in part, because of the difference

Like the father in this case, the mother argued that New Hampshire’s

trial court ruled in her favor, and we affirmed. Id. at 37, 38. stipulation regarding visitation. Id. The grandmother sought to enforce the stipulation. Id. The

mother then took the position that the child’s adoption by his stepfather reason before or contemporaneously with the event that gave rise to the In the meantime, the mother’s new husband adopted the child. Id. The the grandmother’s access to the grandchild has not been restricted for any relationship to the children. the parties entered into a stipulation about visitation. visitation when the grandchild’s nuclear family is absent for some reason and Id. granted. Id. at 38. The mother appealed, and while the appeal was pending, 37-38. The grandmother filed a petition for visitation, which the trial court the child’s mother refused to allow the grandmother to visit the child. Id. at four months before the father suddenly died. Id. at 37. After the father died, and child had lived together, with the child’s father (the grandmother’s son), for

(1990). In that case, the child’s paternal grandmother moved to enforce a We rejected a similar proposition in Preston v. Mercieri, 133 N.H. 36

children’s mother when the mother was an infant, she has no familial statute, the legislature specifically gave natural grandmothers the right to seek parental rights to their mother. Having relinquished her parental rights to the natural grandmother because her rights to them are only derivative of her The father next asserts that the grandmother is not the children’s

the child she relinquished, Dist., 1 p. 5 50 N.H. 241, 242 (2003). Sanborn Regional Sch. Dist. v. Budget Comm. of the Sanborn Regional Sch. This specific statute controls over the more general adoption laws. See and the earlier enactment treats that subject in a general fashion.” See RSA 461-A:13, I; O’Brien, 141 N.H. at 437.

of the grandparent visitation statute. By enacting the grandparent visitation may be considered the natural grandmother of those children for the purposes purposes of adoption law, is not the grandmother of her child’s children, she

(quotation omitted). While generally, a natural parent has no parental rights to Assocs. v. N.H. Dep’t of Health & Human Servs., 1 p. 5 54 N.H. 228, 233 (2006)

control, especially when the later statute deals with a subject in a specific way “When a conflict exists between two statutes, the later statute will relinquished her.

p. 6 has reached maturity and pursued a relationship with the mother who

adoption proceeding.” (Emphasis omitted.) parental rights that she has previously voluntarily surrend[er]ed in a previous grandmother is “judicially estopped from claiming legal rights derivative of

no bearing, 6

such an analogy loses its rationale” when, as in this case, the adopted child trauma occasioned by the parent’s death.” “sever[ ] the child from its own family tree and engraft[ ] it upon another, . . . daughter died thirteen years later. While an adoption decree may serve to

children’s mother, we necessarily reject the father’s assertion that the

her parental rights to the children’s mother when the mother was an infant has

and commitment of grandparents can be a source of security which lessens the

children’s mother when the mother was an infant. daughter was twenty-six, and had a loving, close relationship until the

in visitation with her grandchildren is not derivative of her parental rights to the now. See id. at 45-46. Because we hold that the grandmother’s right to seek is merely derivative of her parental rights to the children’s mother. As in per se, upon her ability to seek visitation with the grandchildren

We conclude, therefore, that the fact that the grandmother relinquished

the present one, where the child’s natural parent has died suddenly, the love

merely because the grandmother relinquished her parental rights to the not present. Here, the grandmother and her daughter reunited when the Preston, it would be “cruel and inhumane” to terminate that relationship existing relationship between the grandmother and her daughter’s children. As Moreover, as in Preston, anonymity cannot be achieved because of the grandmother’s right to seek visitation under the grandparent visitation statute

adoption.” and remembers his grandparents and retains emotional ties with them after grandparents, “and anonymity cannot be achieved because the child knows between the grandmother and the children of her now deceased daughter are Preston, the policy justifications for requiring anonymity or preventing contact

For similar reasons, we reject the father’s contention that the

Id. to terminate the relationship between the child and his grandparents abruptly.

Id. In such a case, we observed, it would be “cruel and inhumane”

older child, the child already has a substantial relationship with his in the case of a stepparent adoption. Id. at 45. In a stepparent adoption of an and precluding post-adoption visitation,” these policy justifications do not exist reasons for secrecy which justify a shield of confidentiality ensuring anonymity emotional bonds have not yet formed with natural relations, there are policy Id. at 44-45. While in a traditional adoption, “where the child is an infant and p. 7 7

visitation statute.

issue for another day.

is the children’s “natural” grandmother for the purposes of the grandparent

rights to allow a natural grandmother to petition for visitation, we leave this

BRODERICK, C.J., and DUGGAN and HICKS, JJ., concurred.

substantive due process rights because it will allow an “unrelated third party”

For all of the above reasons, therefore, we conclude that the grandmother

them. As the father does not argue that it violates his substantive due process purposes of the grandparent visitation statute, and, therefore, is related to children’s mother, the grandmother is their natural grandmother for the Matter of Nelson & Horsley, 149 N.H. at 548. Having given birth to the

grandparent visitation statute to apply to the grandmother violates his We also necessarily reject his contention that to interpret the