2009-829, In the Matter of Tammy Rupa and Alan Rupa

Barbara L. Parker

No. 2009-829

Newport Family Division

the divorce Mr. Rupa exercised his visitation at their home in Massachusetts. grandparents were not awarded visitation in the decree, in the years following was awarded visitation with the child on alternate weekends, and although the custody of the child, while granting Ms. Rupa sole physical custody. Mr. Rupa divorced on September 14, 2000. The trial court awarded the parties joint legal and Alan Rupa are the parents of a child born in January 1995. They were The trial court found, or the record reflects, the following facts. Tammy the Newport Family Division (Cardello CONBOY, J. The petitioner, Tammy Rupa, appeals an order issued by

Shanelaris & Schirch, PLLC grandparent visitation set forth in this opinion. and remand for application of the legal standard for determining an award of her to provide transportation related to the grandparents’ visitation. We vacate her minor child. The petitioner also appeals the trial court’s order requiring Lucy Rupa (grandparents), visitation and unsupervised telephone contact with

orally), for the intervenors.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as structured, less restrictive environment that is more focused on p. 2 weekend visits with the [grandparents], which occur in a less Andy Engart, [the child’s] therapist, stated that overnight visits or

court further stated: problems correlate to, and follow, visits with the [grandparents].” The trial trial court found “insufficient evidence [that her] outbursts and behavioral grandparents’ home was having a negative effect on the child’s behavior, the As for the petitioner’s concerns that transitioning to and from the the grandparents regularly provided travel for the child to and from her visits. grandparents she maintained consistent telephone contact with them; and (4) weekends per month with her grandparents; (3) when not visiting with her over the course of her life; (2) between 2000 and 2008 she regularly spent two things, that: (1) the grandparents had enjoyed significant contact with the child the grandparents’ request for visitation, the trial court found, among other responsibility and sole decision-making authority for the child. With respect to parenting plan in September 2009 that awarded Ms. Rupa sole residential Following a final hearing, the trial court issued a permanent modified

grandparents’ visitation and temporarily eliminating all overnight visits. temporary order resulting in a May 2009 order further reducing the and suspension from school, the petitioner filed a petition to modify the outbursts at home and at school in April 2009, resulting in her hospitalization petitioner and the child reside. After the child engaged in several violent month, with a second weekend visit per month to occur in Newport, where the altering the visitation schedule to one overnight weekend visit at their home per modification petition, granting the grandparents’ request to intervene but In March 2009, the trial court issued a temporary order on the

proceedings, and he is not a party to this appeal. modify. At some point, however, Mr. Rupa ceased to participate in the Rupa and the grandparents, who sought to intervene, opposed the petition to unwilling to follow recommended protocol in their visitation. Initially, both Mr. outbursts from her, and that Mr. Rupa and the grandparents were unable or the transitions to and from the grandparents’ home resulted in violent that appropriate limits for the child were not being set during her visits, that grandparents’ visitation with the child be suspended. The petitioner asserted terms of the divorce decree, in which she requested that Mr. Rupa’s and the The petitioner also filed a petition in the superior court to modify the

that the petitioner intended to end the child’s visits to their home. them that the child was not transitioning well from her weekend visitations and In November 2008, the petitioner wrote a letter to the grandparents, advising anxiety disorder, obsessive compulsive disorder and attention deficit disorder. otherwise specified, a condition on the autism spectrum, as well as generalized The child has been diagnosed with pervasive developmental disorder – not p. 3 3

there is a constitutional overlay to her statutory issues. In construing RSA petitioner’s constitutional arguments because they have not been preserved, considering the best interests of her child. While we do not decide the RSA 461-A:1 p. 3 3 by failing to accord her parental judgments any deference when The petitioner next argues that the trial court erred in its application of on appeal that were not presented in the lower court.” LaMontagne Builders v. “This court has consistently held that we will not consider issues raised not been raised at the trial level. Accordingly, we will not address them. for the petitioner conceded at oral argument that her constitutional claims had raised her issues before the trial forum. Id. In this instance, appellate counsel appealing party, the petitioner bears the burden of demonstrating that she Jones Roofing Co., 151 N.H. 391, 393 (2004) (quotation omitted). As the conclusions and to correct errors in the first instance.” Tiberghein v. B.R. time, because trial forums should have a full opportunity to come to sound A (plain error rule). “We require issues to be raised at the earliest possible Brooks best interests, see, 154 N.H. 252, 258 (2006) (quotation omitted). But see Sup. Ct. R. 16argues that because there is a presumption that fit parents act in their child’s hers regarding the grandparents’ visitation with the child. Specifically, she Constitution, was violated when the trial court substituted its judgment for the child to Milford for the grandparents’ visitation. United States Constitution and under Part I, Article 2 of the New Hampshire to the order for telephonic visitation and the order requiring her to transport guaranteed under the Due Process Clause of the Fourteenth Amendment to the constitutional rights. The petitioner makes the same arguments with respect The petitioner first argues that her fundamental right to parent, decision to allow the grandparents’ visitation over her objection violated her appeal ensued. Because no such finding was made in this case, the petitioner argues that the unsupervised weekly mail, email and telephone contact with the child. This to those cases in which a finding has been made that a parent is unfit. visitation. The court also ruled that the grandparents were entitled to the grandparent visitation statute, RSA 461-A:13 (Supp. 2009), must be limited responsible for returning the child to the petitioner’s home at the end of the Troxel v. Granville, 530 U.S. 57, 68 (2000), the application of parties meet in Milford to begin the visitation, and that the grandparents be were entitled to visitation one weekend each month. The court ordered that the Based upon these findings, the trial court ruled that the grandparents

despite the issues associated with transition.

regularly throughout most of her life, is in her best interest, visitation with the [grandparents], which [the child] has enjoyed the criteria set forth in RSA 461-A:1 p. 3 3, and finds that continued [the child] having fun, “is a good thing.” The Court has considered termination of parental rights, or other cause.

p. 4 nuclear family, whether divorce, death, relinquishment or (e) The circumstances which resulted in the absence of a would have on the child. the grandparent and the parent, and the effect such friction and the parent of the minor child, including friction between (d) The nature of the relationship between the grandparent lack of it.

emotional health would be endangered by such visitation or

no reasonable cause to believe that the child’s physical and

grandparent and length of such residence, and when there is

of contact, and whether the child has lived with the and the minor child, including but not limited to, the frequency (c) The nature of the relationship between the grandparent child. parent-child relationship or with a parent’s authority over the (b) Whether such visitation would interfere with any the child. (a) Whether such visitation would be in the best interest of

child: order relative to a grandparent’s visitation rights to the minor The court shall consider the following criteria in making an

absence of a nuclear family. The statute provides, in relevant part: determining an award of grandparent visitation with a minor child in the RSA 461-A:13, II sets forth criteria that the trial court must consider in

which a statute may be applied.” R.A., 153 N.H. at 104. (2001). “It is within our purview to establish the constitutional grounds within statutory scheme.” Appeal of Manchester Transit Auth., 146 N.H. 454, 458 enacting them and in light of the policy sought to be advanced by the entire N.H. at 95. “Our goal is to apply statutes in light of the legislature’s intent in intended to confine a statute’s scope within constitutional limits.” R.A., 153 Watterworth, 149 N.H. 442, 445 (2003). “We presume that the legislature the statute considered as a whole.” In the Matter of Watterworth & “[W]e are the final arbiter of legislative intent as expressed in the words of

against this backdrop that we interpret the language of RSA 461-A:13. Court opinion in Troxel, regarding the fundamental right to parent. Thus, it is to RSA 461-A:13). Moreover, we are guided by the United States Supreme (plurality opinion) (considering the constitutionality of the predecessor statute under RSA 461-A:13); In the Matter of R.A. & J.M., 153 N.H. 82 (2005) Shepard, 158 N.H. 784 (2009) (defining “grandmother” for purposes of standing visitation is constitutionally permissible. See In the Matter of Dufton & 461-A:13, we must be mindful of our case law addressing when grandparent p. 5 In Troxel In R.A.

decision[] in . . . Troxel determining the best interest of the child. . . . Consistent with the 461-A:6, V, it added various factors that courts must consider in

paramount when the court considers an award of grandparent visitation. Thus, the legislature has made clear that the best interests of the child are R.A. grandparent[ ] of the child[ ] pursuant to RSA 461-A:13.” RSA 461-A:6, V. responsibilities] grant reasonable visitation privileges to a party who is a . . . best interest of the child[ ], it shall in its decree [of parental rights and section V provides, in relevant part: “If the court determines that it is in the 5 child . . . .” RSA 461-A:6, I (Supp. 2009). In keeping with this standard, responsibilities, the court shall be guided by the best interests of the that allowed third parties to petition for visitation rights with a minor child. set forth in section I, which provides, “In determining parental rights and The overarching standard for determining parental rights and responsibilities is [W]hen the legislature recently recodified RSA 458:17, VI as RSA, the U.S. Supreme Court considered a Washington State statute from RSA 461-A:6, the statute relating to parental rights and responsibilities. child custody). The authority of the trial court to grant grandparent visitation is derived , 153 N.H. at 98 (construing the language of RSA 458:17, VI relative to

parents. that a court give special consideration to the wishes of the child’s interest of the child, . . . it is not only relevant, but also necessary

Broderick, writing the plurality opinion, stated: given to parental determinations of a child’s best interests. Chief Justice addressed the best interests of the child standard and the weight that must be supervision. In considering the constitutionality of RSA 458:17, VI, we mother visitation at the grandmother’s home under the grandmother’s court awarded the child’s father primary physical custody and the child’s Concluding that RSA 458:17, VI was unconstitutional on its face, the trial trial court to award grandparent visitation, rights or responsibilities. 458:17, VI (2004), the predecessor to RSA 461-A:6, V, which authorized the

, a grandmother sought joint custody of her grandchild under RSA

appropriate or relevant to the petition for visitation. (h) Any such other factors as the court may find (g) Any preference or wishes expressed by the child. 461-A:16. guardian ad litem appointed for the child pursuant to RSA (f) The recommendation regarding visitation made by any the State of Washington a court can disregard and overturn any

p. 6 the judge’s view necessarily prevails. Thus, in practical effect, in

child’s best interests must be given special consideration by the trial court. ensure the welfare of the child, a parent’s determination of what is in the disagree with the parent’s estimation of the child’s best interests, parental rights must yield to the State’s parens determination solely in the hands of the judge. Should the judge patriae power in order to easily set aside.” R.A., 153 N.H. at 90. Thus, while there are instances where reasons that natural and adoptive parents’ rights over their children “are not the Matter of Nelson & Horsley, 149 N.H. 546, 547 (2003). It is for these that fit parents act in their child’s best interests. See Troxel, 530 U.S. at 68; In and interests of all parties.”). Moreover, it is a well-established presumption parent-child relationship by a judicial process, which will safeguard the rights chapter 170-C was enacted to provide for the involuntary termination of the and custody of their children.”); In re Noah W., 148 N.H. 632, 639 (2002) (“RSA Court have a long history of recognizing parents’ fundamental rights to the care Troxel In keeping with Troxel, 530 U.S. at 65; see also R.A., 153 N.H. at 93 (“[W]e and the Supreme dimension to the right of parents to direct the upbringing of their children.” Id and federal courts have long recognized that “there is a constitutional Instead, the Washington statute places the best-interest the State, against third parties and against the child” (citation omitted)). State decision any presumption of validity or any weight whatsoever. 391 (1985) (concluding that parental rights “have been found to operate against statute] contains no requirement that a court accord the parent’s Article 2 of the New Hampshire Constitution.”); Roberts v. Ward, 126 N.H. 388, care for their children is a fundamental liberty interest protected by Part I, 200, 203 (2006) (“[T]he right of biological and adoptive parents to raise and See R.A., 153 N.H. at 99; In the Matter of Jeffrey G. & Janette P., 153 N.H. construction to comport with state and federal constitutional requirements. rights of parents, we conclude that RSA 461-A:13 requires a narrow

. at 67.

statute] a narrower reading, but it declined to do so. The Washington Supreme Court had the opportunity to give [the not be in the child’s best interest is accorded no deference. [The solely on the judge’s determination of the child’s best interests. is placed before a judge, a parent’s decision that visitation would third party affected by the decision files a visitation petition, based Once the visitation petition has been filed in court and the matter decision by a fit custodial parent concerning visitation whenever a

Clause of the Federal Constitution, the Supreme Court stated: upon the fundamental right to parent, guaranteed under the Due Process Troxel, 530 U.S. 5 p. 7 7. In holding that the statute unconstitutionally infringed 7

visitation. arguments in the event that the trial court, on remand, awards grandparent expense, in order to facilitate the grandparents’ visitation. We address these and the child up to three times per week; and (2) transportation, at her to order: (1) unsupervised telephonic communication between the grandparents In the Matter of Kosek & Kosek The petitioner also argues that the trial court lacked statutory authority visitation except where there has been an unsustainable exercise of discretion. holdings herein. We will not overturn a trial court’s determination regarding an award of court’s order and remand for application of RSA 461-A:13 in light of our constitutional requirements of due process. We therefore vacate the trial that the trial court applied RSA 461-A:13 in a way that comports with the factors relating to the protected parent-child relationship. Thus, it is not clear the best interests of her child or that it weighed more heavily the first two that the trial court accorded due deference to the petitioner’s determination of overnight visitation with the grandparents, it is not evident from the record trial court concluded that it was in the child’s best interest to continue

their issuance of civil stalking orders). (exercising supervisory authority and providing instructions to trial courts in factors that it considers. See Fisher v. Minichiello, 155 N.H. 188, 193 (200 p. 7 7) courts to make express findings of fact with respect to all of the enumerated exercise our supervisory authority over the trial courts and instruct those child’s best interests. Further, in order to assist in any appellate review, we to the best interests of the child as part of the court’s determination of the remaining listed factors, according due deference to a fit parent’s judgment as court must weigh the first two statutory factors more heavily than the fundamental rights of parents, we hold that in applying RSA 461-A:13 the trial emphasized the significance of the parent-child relationship and the A:13, II(a), (b). Because both Troxel and our own case law have consistently parent-child relationship or with a parent’s authority over the child.” RSA 461interest of the child,” and “(b) Whether such visitation would interfere with any the first two of which are: “(a) Whether such visitation would be in the best award of grandparent visitation the trial court must consider various factors, The plain language of RSA 461-A:13 instructs that in determining an

welfare of the child.”). are subordinate to the State’s parens patriae power, and must yield to the Berg & Berg, 152 N.H. 658, 661 (2005) (“Parental rights are not absolute, but mother’s] determination of her daughter’s best interests.”); cf. In the Matter of intervened, but that when it did so, it gave no special weight at all to [the Troxel, 530 U.S. at 69 (“The problem here is not that the [trial court] p. 8 Vacated and remanded

access to the child and to order the sharing of transportation responsibilities. statutory authority for the trial court to award the grandparents telephonic Therefore, contrary to the petitioner’s argument, we conclude that there is describing those rights and responsibilities. See visitation, RSA 461-A:4 provides for the development of a written plan electronic access . . . [and] [t]ransportation and exchange of the child.” determine parental rights and responsibilities, including grandparent relative to . . . [i]nformation sharing and access, including telephone and While RSA 461-A:6 establishes the authority and procedure by which to RSA 461-A:4, II states that “[a] parenting plan may include provisions

DALIANIS, C.J.