2008-900, In re Adam R.

The respondent, K.B., appeals the order of the

general, on the brief), for the State of New Hampshire, as amicus curiae. Kelly A. Ayotte, attorney general (Naomi N. Butterfield, assistant attorney

the brief and orally), for the petitioners. Law Offices of Randall E. Wilbert, PLLC, of Nashua (Lucinda Hopkins on

the brief and orally), for the respondent. to press. Errors may be reported by E-mail at the following address: Smith-Weiss, Shepard & Durmer, P.C., of Nashua (Robert M. Shepard on

page is: http://www.courts.state.nh.us/supreme. IN RE ADAM R.

No. 2008-900 editorial errors in order that corrections may be made before the opinion goes Hillsborough County Probate Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 mother did not appeal.

p. 2 of giving Adam . . . proper parental care and protection for a longer

taken positive steps to correct her problems for a minimum of six months. The and his mother would be at the grandparents’ discretion until the mother had employment. Further, the probate court ruled that visitation between Adam order. The same GAL was appointed in the termination case in November. evaluate whether the mother had complied with the outstanding guardianship 2

Hillsborough County Probate Court (

mental deficiency[, the mother] is and will continue to be incapable

parenting and domestic violence courses, secured proper housing, and found

deficiency or mental illness. A guardian ad litem (GAL) was appointed to

until [K.B.] is on med[ication]s and stable per a doctor[’]s report.” The

[T]he court finds beyond a reasonable doubt . . . that because of

the petition, stating: In October 2008, pursuant to RSA 170-C:5, IV, the probate court granted

parental rights and to Adam’s adoption by the grandparents. little involvement in Adam’s life, and consented to the termination of his underwent drug and alcohol evaluations and psychological counseling, took

support, educate, or care for him, and that she suffered from a mental parental rights (TPR), alleging that the mother had abandoned Adam, failed to they requested that the probate court grant them “temporary custody of [Adam] In October 2007, the grandparents petitioned for the termination of February 2005 for a temporary guardianship over their grandson. Specifically, a form of autism. His many special needs require extensive medical care. between his parents, the grandparents petitioned the probate court in late Disorder, speech and language delays, muscle apraxia, a seizure disorder, and learning disability. Adam has been diagnosed with Pervasive Developmental

and his mother with his grandparents. Since that time, the father has had and ruled that it would not terminate the guardianship until the mother

might intervene and place Adam in a foster home because of certain behavior Concerned that the division for children, youth and families (DCYF) difficulties. She also is afflicted with a suspected severe language-based

Adam was approximately three months old, his father moved out, leaving Adam the petitioners, J.R. and F.R., his paternal grandparents (grandparents). When From shortly after his birth, Adam and his parents lived in Nashua with

limitations, and his mother has significant cognitive limitations and emotional (mother) and A.R. (father) in November 2004. Adam’s father has cognitive The record supports the following. Adam R. (Adam) was born to K.B.

p. 3 evidence of present or future danger to Adam if the termination petition was

with Adam and a regular schedule of contact with him, and there was no

had substantially complied with the guardianship order, had a relationship 3 never had a chance to parent Adam due to the grandparents’ guardianship, doctor testified to their conclusions “beyond a reasonable doubt”; and (3) she

doubt. party must prove a statutory ground for termination beyond a reasonable

welfare of the child, which prevails over the interests of the parents.

due process requirements have been met.

did not meet with her, neither doctor observed her with Adam, and neither of Part I, Article 2 of the New Hampshire Constitution. Antonio W., 147 N.H. at 412. The calculation of a child’s best interest is not an court must then consider whether termination is in the child’s best interest. Id.; RSA 170-C:5. If a statutory ground is established, the probate

a probate court may order the termination of parental rights, the petitioning

termination proceedings under RSA chapter 170-C (2002 & Supp. 2009) is the

unassailable, and terminations of parental rights will be upheld if applicable N.H. 408, 412 (2002). Nevertheless, the fundamental rights of parents are not

any detrimental effect upon Adam; instead, both the witnesses and the probate limitations, emotional difficulties, and language-based learning disability had have proven that they can fully address[ ] Adam’s special needs. II him with a stable and permanent family and with parents who [grandparents] are desirous of adopting Adam which would provide

parental rights because: (1) there was no evidence that her cognitive The mother argues that the probate court erred in terminating her in the best interest of the minor to grant this petition as the This appeal followed. The probate court denied the mother’s motion for stay and reconsideration. based upon Adam’s own developmental issues and needs. grounds alleged by the petitioners. their burden under RSA 170-C:5[,] IV, it will not address the other As the court has found that the petitioners have satisfied

The court further finds beyond a reasonable doubt that it is

an unstable or impermanent environment. This is especially true period of time than would be wise or prudent to leave the child in protection. p. 4 or mental illness, a parent is incapable of providing proper parental care and of parental rights under RSA 170-C:5, IV, where, because of mental deficiency

chapter 169-C is not at issue here. Instead, this case involves the termination

that both the witnesses and the probate court “merely speculated” that such together. psychiatrists or clinical psychologists or one of each acting

correcting conditions of abuse and neglect and reunification under RSA

based learning disability had any detrimental effect on Adam. She contends shall be established by the testimony of either 2 licensed

DCYF intervention in this case, DCYF has not been involved. The process for of abuse or neglect. Notwithstanding the grandparents’ concern over possible of abuse or neglect under RSA chapter 169-C. Here, there has been no finding

no evidence that her cognitive limitations, emotional difficulties, and language- The mother first argues that the probate court erred because there was impermanent environment. Mental deficiency or mental illness

We address each of the mother’s arguments in turn.

TPR case. Most often, termination actions are brought by DCYF after a finding III

be wise or prudent to leave the child in an unstable or parental care and protection for a longer period of time than would and will continue to be incapable of giving the child proper Because of mental deficiency or mental illness, the parent is

probate court finds the following: while not necessarily unique, differ significantly from those usually seen in a RSA 170-C:5, IV provides that a TPR petition may be granted where the

erroneous as a matter of law.

and weigh the evidence before it.

The posture of this private action and the circumstances presented,

probate court’s decree unless it is unsupported by the evidence or plainly could not reasonably be made. RSA 567-A:4 (2007). We will not disturb a fact of a probate court are final unless they are so plainly erroneous that they has the benefit of observing the parties and their witnesses. Id. The findings of

The probate court, as the trier of fact, is in the best position to assess

doubt.” In re Shannon M., 146 N.H. 22, 28 (2001). evidentiary fact, however, and need not be established “beyond a reasonable p. 5 She concluded her testimony by stating:

frustration tolerance and high impulsivity [could] result in unsafe situations.” Howe opined that “[r]egardless of the etiology of symptoms, the [mother’s] low mother’s mental deficiency would prevent progress beyond that point. Dr.

tests, and quickly became frustrated to a “fairly extreme” level; and (8) the

manner; (7) the mother could not complete even the first step of very basic level unable to understand Adam’s needs, and to learn from him in a non-verbal to provide feedback to a parental figure, was concerning; (6) the mother was

over hers, especially given Adam’s significant disabilities and diminished ability

“to place herself in [Adam’s] shoes” and understand the priority of his needs safe, consequently placing him in an unsafe position; (5) the mother’s inability mistakes regarding those rules, called into question her ability to keep Adam

future though.

very specific, but simple, rules of the visitation center, or to learn from her

verbally frustrated. going to jump out a window, or to just yell, to get angry, to be 5

frustrated, that may not be a great combination. I can’t predict the

were all at the level of an eight-year-old; (4) the mother’s inability to follow the

become frustrated and to have a suicidal gesture, claim they’re

be very frustrating. And with somebody who’s very easily I can’t predict what will happen, but . . . parenting is — can

. . . . year-old; (3) the mother’s reactions, responses, general functioning, and logic cognitive, emotional, and social development had leveled off at that of an eight- “moderately mentally retarded” or an “intellectual disability”; (2) the mother’s

[him], take them away and lock herself in her room, whether things out, whether it’s been to — when the child was an infant, to grab Nashua Visitation Center from 2004 to September 2008. When things get frustrating [the mother] has been known to act

intelligence quotient (IQ) of approximately fifty, generally referred to as

reports and descriptions of her interactions with the GAL and the Greater

Among Dr. Howe’s conclusions were that: (1) the mother had a total

cognitive testing, academic testing from 1997 to 2004, and multiple incident testified that she conducted an evaluation of the mother by reviewing her past psychologists, Catherine Howe, Ph.D., and Eric G. Mart, Ph.D. Dr. Howe The probate court heard testimony from two clinical and forensic

leading to the probate court’s decision. See id. Consequently, we note the factual background of this case and the testimony deference, are critical to our review. In re Doe, 123 N.H. 634, 637 (1983). harm would result. The factual findings in a TPR case, to which we owe emotions, controlling them, and dealing with frustration.” p. 6 emotional regulation”; and (5) the mother “has difficulty modulating her the brain “that allows . . . planning, certain types of comprehension, [and]

her son,” the probate court’s decision should be reversed. We disagree. reasonable doubt, that [her] manifestations had any detrimental effect upon frustration could be related to “executive functioning deficits” in that part of

order nor the conclusions by the witness[es] contain explicit findings, beyond a frustrated and increasingly upset; (4) he suspected that the mother’s ready

reasonably made. problems that she has, [such as] processing information.” she’s not doing well or she’s being asked to do a task that’s going to reveal deficiencies and some specific harm to Adam. . . . As neither the termination to do other tests because the mother did not want to do them and became basis to terminate her parental rights without evidence of a link between those language-based learning disability than retardation, per se”; (3) he was not able stating: “[M]erely having the condition of mental deficienc[y] is an insufficient non-verbally”; (2) it is much more likely that the mother has a “very severe Kristopher B., 125 N.H. at 684-85, she contends that the probate court erred, re Craig T., 147 N.H. 739, 744-45 (2002), In re Doe, 123 N.H. at 643, and In re Robert H., 118 N.H. 713, 718 (1978), overruled in part on other grounds by In The essence of the mother’s argument, however, is clear. Citing State v.

support mental deficiency were so plainly erroneous that they could not be mental deficiency, and we cannot say that the probate court’s findings to testimony of Drs. Howe and Mart provided ample evidence of the mother’s “very stressful,” and because she “seem[ed] to have difficulty when she feels the probate court’s finding of mental deficiency was error, we disagree. The Kristopher B., 125 N.H. 678, 684 (1984). To the extent the mother argues that compared to her relatively intact ability to notice visual problems or to think proved by the testimony of two psychiatrists or psychologists. See In re Mental deficiency, for purposes of termination of parental rights, must be

“had some problematic aspects to it,” in part because the mother found it to be developmental status and his guardianship. He explained that the evaluation screening test; and reviewed records concerning Adam’s neurological and score[, s]o her ability to solve problems utilizing language is problematic misleading because her verbal score is much lower than her performance to have an IQ of eighty — “in the borderline to low average range[, b]ut that’s Among Dr. Mart’s conclusions were that: (1) testing revealed the mother

conducted a clinical interview, a mental status examination, and an intellectual Dr. Mart testified that he met with the mother and her caseworker; son].”

p. 7 years or longer before the [mother] would be capable of being a parent to [her

a desire to adopt him. months, her son had been living in a foster home with a couple who expressed her son was approximately eighteen months old. Since the age of thirteen 7 child.

capable, of caring for him. Both psychologists testified that it “could be two that she was not presently capable, nor did she know when she might be that she was mentally ill and unable to care for her son. The mother testified to require termination of parental rights. detrimental effect of the parent’s mental illness on the child, so as beyond a reasonable doubt, supported by the record, as to the

welfare. The mother had been admitted to the New Hampshire Hospital when emphasis on the parental conduct rather than on any harm to the interest of the child is too vague a concept and places undue Id. at 684. At the time of the TPR hearing, the child had been in the children, is sufficient to terminate parental rights in the best

psychologists, based upon their own observations of the mother, established

pursuant to RSA 170-C:5, IV, in response to a petition filed by the division of In re Kristopher B. involved the termination of a mother’s parental rights,

Id. at 643. merely that inadequate parenting, absent specific harm to the

that:

there is no evidence of mental illness as manifested by child abuse termination of parental rights pursuant to [the statute], where [T]hat to support such an extreme and irreversible action as a

we held: illness or mental deficiency.” Doe, 123 N.H. at 642 (emphasis added). Further, particular parental conduct, but because of a parent’s condition, inadequate homes. But this is not an ideal world, and to hold i.e., mental the statute provides for the termination of parental rights, “not because of In In re Doe, decided pursuant to RSA 170-C:5, IV, we recognized that

Id failure to correct the conditions leading to a finding of neglect), we further held. at 718 (quotations and citation omitted).

In an ideal world, children would not be brought up in

context of RSA 170-C:5, III (termination of parental rights on the grounds of a parental rights could be ordered. See Robert H., 118 N.H. at 716. Within the under RSA chapter 170-C beyond a reasonable doubt before the termination of In Robert H., we announced that the State was required to prove its case court to decide the issues on appeal.

p. 8 appealing party has the burden of presenting a record sufficient to allow the to provide any care for her son for the foreseeable future. continued inability to live outside of a mental [health] institution or specific harm to the child in this case was caused by the [mother’s]

parties’ requested findings of fact and rulings of law in the record. The denied consistent with the above order.” The mother has failed to include the “[t]he parties’ requested findings of fact and rulings of law are granted or 8 testimony as well as by the testimony of two psychologists. The

detriment to [the son] in this case. Therefore, it is not necessary to remand for explicit findings of

harm to, Adam from her mental deficiency. However, the order does recite that mental illness on the child was clearly indicated by her own proof. In the present case, the detrimental effect of the [mother’s] . . . , we note that many different factual settings may provide such cannot say that the probate court failed to make the requisite explicit findings. (2002); see also Sup. Ct. R. 13. In the absence of that portion of the record, we

specific harm to the child caused by the [mother’s] mental illness.

requisite explicit findings concerning the detrimental effect on, or the specific order terminating the mother’s parental rights over Adam does not contain the In the present case, as in [mother’s] incapabilities. Under the standard established in [Kristopher B., the body of the probate court proven in order to terminate parental rights under RSA 170-C:5, IV explicitly state the detrimental effect upon [the son] of the Id. at 685-86. incapable of giving her son proper parental care, but he did not

evidence in this case would compel any rational fact-finder to find remand for additional findings. We hold, however, that the explicit findings of specific harm to the child would require a Doe, 123 N.H. 634 (1983)], the [probate] master’s failure to make

detrimental effect on a child of a parent’s mental illness must be The [probate] master made a finding that the [mother] was

While we agree with the defendant’s argument that the

Affirming the decision of the probate court, we stated: parental relationship with her son would cause him “specific harm.” Id. at 685. erred because the division of welfare had failed to prove that her continued appeal, the mother argued, among other things, that the probate court had bonding” to foster parents occurs within that time frame. Id. at 684-85. On care of the same foster family for three years, and we noted that “psychological if reasonable supports are put in place. p. 9 [the mother] will not be able to appropriately care for her son even problems of her own. Dr. Mart concludes that it is his opinion that

these problems and advocate for her son when she has similar

mother in her third-story apartment, the mother showed the GAL a back porch

intervention, it is difficult to see how [the mother] could deal with

follow fairly simple safety rules.”

and was diagnosed with depression. During the GAL’s home visit with the

that Adam apparently requires a very high level of supervision and extended period of time. Dr. Mart stated that based on the fact disability, [the mother] would place [Adam] in an unsafe position and could not who will present ongoing challenges to his caregivers for an created dangerous situations,” and that “as a result of this intellectual stress, she has been impulsive, argumentative, deceptive, illogical, and has

balcony; the mother subsequently tested positive for marijuana at the hospital September 2006 when the mother again tried to jump from a third story herself with a knife. The GAL also noted a second suicide attempt in

Adam, due to his developmental disabilities, is the type of child

The father reported to the police that the mother had also threatened to kill

been difficult for [the mother] to deal with her own needs and that foreseeable future. Dr. Mart further stated in his report that it has maturity of an eight-year-old, and that this “theoretical assumption is the primary physical custodian of her son anytime in the the mother would respond to difficult social situations with the level of testimony of Dr. Howe, the probate court noted that she was of the opinion that

prescription medicine and attempting to throw herself off a third story balcony. hospitalized in January 2006 after she attempted suicide by overdosing on In her report and testimony, the GAL noted that the mother was

disposal it is difficult to see how [the mother] would be able to be

Adam’s educational advocate/resource specialist. In summarizing the

[Dr. Mart] further opined that based on the information at his

Mart, as well as testimony from the grandparents, the GAL, the mother, and The probate court also summarized the testimony of Dr. Mart, and noted:

future.

That evidence included the previously noted testimony of Drs. Howe and

See Kristopher B., 125 N.H. at 685. inability to provide proper parental care for Adam now or for the foreseeable harm to, the child caused by the mother’s mental deficiency — that is, an would compel any rational fact-finder to find a detrimental effect on, or specific were not made, we believe that the evidence in this case, as in Kristopher B., Moreover, even if we were to assume that the requisite explicit findings supervised visits. p. 10 visitation. This was due to her failure to make progress during the

recommendation of the police. process of the visitation center that would lead to unsupervised obtained a restraining order against [the mother] at the

findings of fact to support their position.” We disagree.

problem is that [the mother] never could progress in the four-step 10 to properly care for him now or in the foreseeable future. guardians while the police were present. The guardians then visitation center and most of the visits were without incident. The mother] was substantially in compliance with the rules of the

conclusions beyond a reasonable doubt, nor did any doctor provide explicit

Adam, is caused by the mother’s inability, as a result of her mental deficiency, moved out of the guardians’ home and called in a threat to the the grandparents, and the GAL. The detrimental effect, or specific harm to day to remove [Adam] from the locked room. [The mother] then visitation when she didn’t abide by the rules. However [the a matter of law, by the testimony and various reports of the two psychologists, guardianship paperwork and the assistance of the police the next neither doctor observed her with Adam, and “neither doctor testified to their her parental rights because one of the psychologists did not meet with her, The mother next contends that the probate court erred in terminating

125 N.H. at 685.

of visitation and 4 months of visitation due to suspension of the effect of the mother’s mental deficiency on the child is clearly demonstrated, as home with [Adam] and the guardians had to obtain their although there are two blocks of time where [she] missed 6 months Based upon our review of the record, we believe that the detrimental fairly consistent with the visitations at the visitation center

granted, [the mother] locked herself in her room at the guardians’ mother] and [Adam] at the visitation center. [The mother] was The guardians then set up supervised visitation between [the court made the following factual findings:

from climbing over it.

On the day the [grandparents’] guardianship [petition] was

Subsequent to assessing and weighing the evidence before it, the probate

the mother, when asked, did not understand the necessity of protecting Adam area, which was enclosed by a three-foot high half-wall. The GAL reported that as Adam’s parent.

p. 11 should have been afforded the opportunity to establish that she would not fail essence, that the termination of her parental rights was premature, as she her son if the termination petition was denied. We read her argument to be, in illness on the child.” supported by the record, as to the detrimental effect of the parent’s mental

mental deficiency and cognitive limitations. for the purposes of either forming an opinion or testifying about the mother’s

of contact with him, and there was no evidence of present or future danger to

probate court that “must make explicit findings beyond a reasonable doubt,

interactions with the GAL and the Greater Nashua Visitation Center inadequate

guardianship order, she had a relationship with Adam and a regular schedule grandparents’ guardianship, she had substantially complied with the evidence of a parent’s mental illness as manifested by child abuse, it is the parental rights because she never had a chance to parent Adam due to his individual witness. As previously noted, in TPR cases where there is no falls squarely on the trier of fact, here the probate court, and not on any

prudent, testing, academic testing, and multiple incident reports and descriptions of her the mother renders Dr. Howe’s review of all of the mother’s past cognitive observations. Further, we do not believe that the absence of an interview with the absence of individual examination or based on record review).

The mother next argues that the probate court erred in terminating her

responsibility for making explicit factual findings beyond a reasonable doubt C

is a question for the court to determine.” Id. at 642 (emphasis added).

parental care and protection for a longer period of time than would be wise or whether such mental illness renders the parents incapable of giving proper

[RSA 170-C:5, IV].”);

regarding detrimental effect or their conclusions, is misplaced. The none of the witnesses made “explicit findings, beyond a reasonable doubt,” Further, the mother’s argument that the probate court erred because

personally with the mother or together with the mother and child. The mother Psychological Association Code of Conduct (“Bases for [Psychological] RSA 170-C:5, IV does not require the clinical psychologists to meet either Appeal of Kelly, 158 N.H. 484, 491 (2009) (American to the mother’s caseworker, but that the mother ultimately did not attend. psychologists to prove mental illness for termination of parental rights under legislature has relied upon the professional opinion of psychiatrists or

testified that she found a meeting place and time that was acceptable, at least Dr. Mart did meet with the mother and her caseworker. Dr. Howe of the progress that Adam has been able to make.

p. 12 experience working with children with autism, have been instrumental in much

two to three years in their care.

language, and her ability to teach it to Adam, as well as her paraprofessional educational advocate testified that the grandmother’s knowledge of sign best educational, physical and social services available.” For example, the 12

should be reversed based upon

between a child and foster parents, and the surroundings they provide, after

an unstable or impermanent environment. interest.

“intimately and consistently present in his life and know how to get him the

petition to terminate the mother’s (Jennifer) parental rights over their son

Further, we disagree with the mother that the probate court’s order

old, and has no doubt benefited from the “psychological bonding” that occurs

for a longer period of time than would be wise or prudent to leave the child in conclusion that the mother’s parenting abilities will remain incurably deficient Adam in a stable and permanent environment was consistent with his best the mother’s capabilities may be, we believe that the record amply supports a

grandparents are desirous of adopting Adam, and that they have been educational advocate/resource specialist, clearly supports findings that the 134 N.H. at 193. The testimony of the grandparents, the GAL, and Adam’s best interest of Adam. Kristopher B., 125 N.H. at 684; see Lisa H., correct in its weighing of the mother’s fundamental rights as a parent and the

the care of his grandparents (and legal guardians) since he was five months

See In re William A., 142 N.H. 598, 601 (1998). Adam has been in

we believe that the probate court’s decision properly recognized that keeping we recognize that the probate court cannot predict with absolute certainty what See In re Angel N., 141 N.H. 158, 165 (1996) (Johnson, J. dissenting). Instead, of her right to parent Adam simply because “better parents” have been found. This is not a case, as argued by the mother, where she has been deprived

156 N.H. 1, 7-8 (2007). Consequently, we believe that the probate court was

welfare of the child, which must prevail over the interests of the parent.

against the best interest of Adam. provide proper parental care for Adam now or for the foreseeable future. While Adam caused by his mother’s mental deficiency — that is, an inability to any rational fact-finder to find a detrimental effect on, or specific harm to, We have already concluded that the evidence in this case would compel

a reasonable doubt.” Shannon M., 146 N.H. at 28. interest is not an evidentiary fact, and is not required to be established “beyond Antonio W., 147 N.H. at 412. The determination of what is in a child’s best

noted earlier, however, the dominant consideration in that process is the

implicates the necessary weighing of her fundamental rights as a parent The decision whether or not to afford the mother such an opportunity evidence presented, we believe that to give the mother the opportunity to fail

p. 13 unstable or impermanent environment, is amply supported. Based upon the

longer period of time than would be wise or prudent to leave him in an capabilities to provide proper parental care and protection for Adam for a would remain at risk if the mother’s parental rights were not terminated. her mental deficiency, does not possess, and will not possess, the necessary get [Adam] back.” Consequently, Adam’s relationship with his grandparents guardianship remained in place, she would continue “to go to court and try to

on the record before us, the probate court’s ruling that the mother, because of

probate court denied the petition to terminate her parental rights and the

maintain her parental relationship with him and to be his caregiver. However,

thing for her was “[f]or [Adam] to be with [her].” Finally, she affirmed that if the everything for him that . . . needs to be done,” and that the most important [Adam] to eventually come home and me to be able to take care of him and do would remain at home with his father and stepmother. him. and physical custody of his father, and, absent further court order, William Adam would be beneficial in maintaining a stable and secure environment for unless his mother’s parental rights were terminated. William was in the legal

was in his best interest to terminate her parental rights.

doubt that the mother truly loves her son, and is sincere in her desire to try to irreversible event. Id. From the evidence presented in this case, we have no The termination of a parent’s legal bond to a child is a solemn and

[and] didn’t want anybody to step in.” She testified that her goals remain “[f]or

continued ability of the mother to contest the grandparents’ guardianship over evidence to support that William could not be kept in a stable environment id. at 602. Given the evidence presented in this case, we cannot agree that the

Jennifer had abandoned William. The probate court further determined that it and the stepmother believed that such visitation was in William’s best interest. custody of her son. She merely wanted the right to visit him, and both the GAL

Adam from the outset, as she “wanted to be able to take care of [her] own kid record reflects that the mother contested the grandparents’ guardianship over custody of either parent since he was five months old. More important, the determination of William’s best interest. Specifically, we held that there was no Here, however, Adam is not, and has not been, in the legal or physical

Id. appointment as William’s legal guardian. The probate court found that Jennifer’s parental rights, and she had conditionally agreed to Lyne’s Lyne, the child’s stepmother. The GAL recommended against terminating the record did not reflect any effort by Jennifer to reacquire legal or physical

at 600. We reversed, holding that the probate court had erred in the

deficiency. William was in the legal custody of his father and his father’s wife, (William) on the grounds of abandonment and nonsupport, and not mental p. 14 14

erroneous as a matter of law.

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

probate court’s decree is either unsupported by the evidence or plainly would not be in Adam’s best interest; consequently, we cannot say that the