2011-038 In Re Athena D.

Jennifer N. and Ralph N., by brief, pro

No. 2011-038

Merrimack County Probate Court

Marcia L. and Terry L., pro

Michael A. Delaney continued visitation and contact with the child. We affirm. division; and denying their request to order the adoptive parents to allow their Athena while they pursue a petition for grandparent visitation in the family lack of subject matter jurisdiction; denying their motion to stay the adoption of their petition for grandparent visitation, see RSA 461-A:13 (Supp. 2010), for

THE SUPREME COURT OF NEW HAMPSHIRE and Families. the memorandum of law), for the New Hampshire Division for Children, Youth

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 the guardian ad litem strongly supported their petition. The grandparents p. 2 The court found that the L. family was an “exceptional family” and noted that minds about adopting Athena only because of their opposition to the L. family. grandparents’ petition. The court found that the grandparents changed their Athena to grant the L. family’s petition for adoption and to deny the held over sixteen days, the court found that it was in the best interest of adoption of Athena with the probate court. After a hearing on the petitions The L. family and the grandparents filed competing petitions for the

wanted to be adopted by the L. family. natural attachment she ha[d] ever observed” and that Athena told her that she significantly. Athena’s counselor testified that Marcia L. exhibited the “most Athena transitioned well into the L. family and her behavior improved

adopt Athena. had been chosen, they immediately raised objections, and eventually sought to was underway. When the grandparents were made aware that the L. family chose the L. family before the grandparents were fully aware that the process DCYF moved quickly to place Athena with another adoptive family and

respite care home. would be harmful to Athena and declined. Athena was then placed into a family could be found. DCYF determined that such a temporary placement adoption, but instead offered to provide respite care while a new adoptive did not indicate to DCYF that they wanted her returned to them for eventual When Athena was removed from the H. family’s home, the grandparents

her removed from their home. of the grandparents, her behavior deteriorated and the H. family ultimately had selection. After Athena was transitioned to the H. family with the participation a family chosen by the grandparents, despite DCYF’s concerns about the selection process for an adoptive family. Athena was placed with the H. family, finally indicated that they would not adopt Athena, DCYF included them in the they were reluctant to proceed with the adoption. When the grandparents for various reasons, including Athena’s behavioral problems and their own age, DCYF’s initial plan was for the grandparents to adopt Athena; however,

(DCYF) since that time. custody of the New Hampshire Division for Children, Youth and Families rights were terminated on January 26, 2006, and Athena has been in the legal grandparents when she was three months old. Athena’s parents’ parental brief placement in a foster home, she was placed with her maternal parents’ care shortly thereafter because of concern for her safety. Following a Athena D. was born in October 2003. She was removed from her limited to those conferred upon it by statute.” Petition of CIGNA Healthcare p. 3 “The probate court is not a court of general jurisdiction. Its powers are

issues concerning her best interest.” adoption of Athena . . . [should] be void until resolution of these substantive petition for visitation to be entered Athena and her grandparents and other close family relatives,” and that “the RSA 461-A:13, which governs grandparent visitation rights, requires the faith on the part of the [L.] family to support an enduring relationship between “fail[ed] to give sufficient review to post hearing documents that indicated bad this issue prior to granting the adoption of Athena,” that the probate court visitation under RSA 461-A:13, that the probate court erred by “not resolving On appeal, the grandparents argue that they have a right to seek

at 438-39. phrases in isolation, but rather within the context of the statute as a whole. Id. avoid an absurd or unjust result. Id. Moreover, we do not consider words and construe all parts of a statute together to effectuate its overall purpose and have said or add language that the legislature did not see fit to include. Id denied both motions.. We from the statute as written and will not consider what the legislature might require the L. family to grant them visitation with Athena. The probate court according to its plain and ordinary meaning. Id transfer to this court to resolve the issue. The grandparents also moved to. We interpret legislative intent to the language of the statute itself, and, if possible, construe that language grandparents moved to reconsider and sought approval of an interlocutory expressed in the words of the statute considered as a whole. Id Athena’s best interest to have her adoption finalized as soon as possible. The. We first look statutory interpretation, we are the final arbiters of the legislature’s intent as family division. The probate court denied the motion, finding that it was in moved to stay the adoption until the petition for visitation could be filed in the review de novo. Zorn v. Demetri, 158 N.H. 437, 438 (2009). In matters of could be granted after the adoption was finalized. The grandparents then interpretation. The interpretation of a statute is a matter of law, which we jurisdiction of the probate court requires us to engage in statutory court order also expressed doubt as to whether relief under RSA 461-A:13 jurisdiction, noting that it should be filed in the family division. The probate 146 N.H. 683, 688 (2001) (quotation omitted). Thus, determining the under RSA 461-A:13. The probate court dismissed the petition for lack of, The grandparents subsequently filed a petition for grandparent visitation

2010-500 (N.H. October 22, 2010). appealed the probate court’s order and we affirmed. See In re Athena D., No. not confer upon the probate court the power to decide divorce cases, we p. 4 divorce cases from the town or city where Athena resides, and RSA 547:3 does grandparent visitation to be filed in the court having jurisdiction to hear RSA 547:3- l (Supp. 2010). Because RSA 461-A:13, III requires a petition for by a third party against an estate, trust, conservatorship, or guardianship.” estate, trust, conservatorship, or guardianship against a third party or brought damages or for the recovery of money or property brought on behalf of an has jurisdiction are expressly limited to “claims for liquidated or non-liquidated A:13 petitions. Rather, the “ancillary matters” over which the probate court jurisdiction over ancillary matters as defined in RSA 547:3- l includes RSA 461- We also reject the grandparents’ argument that the probate court’s

petition for visitation. cases. Thus the probate court lacked jurisdiction to hear the grandparents’ courts. Nothing in RSA 547:3 grants the probate court authority over divorce Moreover, RSA 547:3 (Supp. 2010) defines the jurisdiction of the probate

termination of parental rights, or other cause.” See child’s nuclear family is absent due to “divorce, death, relinquishment or RSA 461-A:13, I, contemplates grandparent visitation rights when a

town or city where the child resides.” RSA 461-A:13, III. must be entered “in the court having jurisdiction to hear divorce cases from the 461-A, this argument fails. Instead, the petition for grandparent visitation parental rights is not a proceeding that could be brought under RSA chapter this chapter” refers to RSA chapter 461-A, and because the termination of grandparent visitation was properly filed in the probate court. However, “under probate court had jurisdiction over that proceeding, the petition for “proceeding brought under this chapter,” RSA 461-A:13, III, and since the The grandparents contend that the termination of parental rights is a

case of the death of a parent, stepparent adoption, or unwed parents. termination of parental rights are to be treated in the same manner as in the purpose, we conclude that petitions for grandparent visitation in the case of the hear p. 4 divorce cases from the town or city where the child resides. construing all parts of the statute together in order to effectuate the overall. . . the petition shall be entered in the court having jurisdiction to specifically address cases involving the termination of parental rights, in case of death of a parent, stepparent adoption, or unwed parents the result of termination of parental rights. While RSA 461-A:13, III does not separation, or a proceeding brought under this chapter. In the Shepard, 158 N.H. 784, 788 (2009). Here, Athena’s nuclear family is absent as

in the court which has jurisdiction over the divorce, legal p. 5 5

arguments are without merit, warranting no further discussion. See over the issue of grandparent visitation. The grandparents’ remaining and the grandparents, we again note that the probate court lacked jurisdiction Affirmed faith on the part of the [adoptive parents]” in ending contact between Athena “fail[ed] to give sufficient review to post hearing documents that indicated bad Finally, to the extent the grandparents argue that the probate court

the sound discretion of the trial court. See in the family division. Whether to stay judicial proceedings is a matter left to stay the adoption while they litigated a petition for grandparent visitation rights DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred. Nor did the probate court err by denying the grandparents’ motion to .

Vogel, 137 N.H. 321, 322 (1993).

possible” was not an unsustainable exercise of discretion. it was “in Athena’s best interest to have her adoption finalized as soon as the L. family. Under these circumstances, the probate court’s conclusion that behavioral problems which have seen marked improvement while living with decided to adopt her but then changed their minds. She has documented with multiple families, including her maternal grandparents, who initially parents were terminated on January 26, 2006. Thereafter, Athena was placed (1998). Here, the record reflects that the parental rights of Athena’s biological

grandparent visitation. conclude that the probate court did not err by dismissing the petition for