2010-609 In Re Guardianship of Nicholas P

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fifteen-year-old Jonathan, and Rebecca’s teenage daughter from a previous

May 2007, Martin and Rebecca lived in Dover with then nine-year-old Nicholas,

No. 2010-609 Rochester Family Division

P. and Martin P. Jonathan P. is Martin’s son from a previous relationship. In The trial court found the following facts. Nicholas is the son of Rebecca

Nicholas P., to Jonathan P., her son’s half-brother. We affirm. Rochester Family Division (Ashley, J.) awarding guardianship of her son, CONBOY, J. The respondent, Rebecca P., appeals an order of the

orally. ___________________________ Michael Alfano, guardian ad litem, of Portsmouth, by memorandum and

respondent. Kay Oppenheimer, of Barrington, on the brief and orally, for the a.m. on the morning of their release. T reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 orally), for the petitioner. 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

page is: http://www.courts.state.nh.us/supreme.

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

Carolina in p. 2 2009.

substantial periods of time together since Nicholas’s six-week trip to South

seen each other on a consistent basis since p. 2 2007. They have not spent any also does not feel safe in her “environment.” Rebecca and Nicholas have not Nicolas remains “terribly upset” and angry about her abandonment of him. He

Rebecca had not fulfilled her parental responsibilities since p. 2 2007, and that

phone and when we do we talk for only a minute.” The court found that the GAL: “I don’t know her. I have no connection to her. We rarely talk on the relationship is strained. Nicholas described his relationship with his mother to

The court found that Nicholas and Rebecca love each other, but their

and succeed educationally, socially and emotionally.” his home environment and not just survive his many losses, but actually grow

that “Jonathan’s devotion to his brother . . . has allowed Nicholas to remain in

a “gray area between parent and older sibling.” In sum, the trial court found

studying, and enforcing reasonable rules. He and Nicholas were interacting in appointments. At home, he was cooking, cleaning, supervising Nicholas’s and one weekday available to take Nicholas to counseling and medical

working thirty-one hours a week at a Wendy’s restaurant, keeping weekends

plate.’” Jonathan had not used drugs or alcohol since Martin’s death. He was sought ex By all accounts, including that of Rebecca P[.], Jonathan . . . ‘stepped up to the [Jonathan] transformed himself into a man and a parent figure for Nicholas.

Martin died suddenly on October 13, p. 2 2009. Soon thereafter, Rebecca trial court found that “almost overnight following the death of the boys’ father, 2009, Martin initiated divorce proceedings against Rebecca.

use at age fourteen, and that he had experimented with both. However, the two years. Nicholas was upset and angry, and felt abandoned. In August disrespect.” He testified that Rebecca had introduced him to drug and alcohol school record evidenced a history of “skipping classes, defiance, and

summer. Otherwise, mother and son saw each other only briefly over the next summer of p. 2 2008, and Nicholas spent six weeks with her there the following At the time of the hearing, Jonathan was eighteen years old. His high Martin and Nicholas briefly visited Rebecca in South Carolina in the

p. 2 25, 2010. A guardian ad litem (GAL) represented Nicholas’s interests. never relocated back to New Hampshire. of Nicholas. A hearing on Jonathan’s guardianship petition was held on June Jonathan, and Nicholas in which she promised to return in a month, but she Carolina. Her request was denied. Jonathan then petitioned for guardianship to the rest of the family. Rebecca left behind a note addressed to Martin, parte approval in the divorce case to take Nicholas with her to South

14, p. 2 2007, Rebecca left with Danielle for South Carolina without advance notice relationship, Danielle. The couple were having marital difficulties, and on May p. 3 3

sustained his burden, and granted him sole guardianship of Nicholas. It also

psychological harm to the minor.” The trial court ruled that Jonathan had

physical and safety needs of the minor or to prevent specific, significant supplementation of parental care and supervision to provide for the essential evidence that the best interests of the minor require substitution or

guardianship over the objections of a parent to show “by clear and convincing

46 p. 3 3:8, III(b) (Supp. 2010), which requires a non-parent seeking to establish minor.”). Jonathan’s petition to be substituted as guardian is governed by RSA either parent, the survivor shall be the sole guardian of the person of the

operation of law when Martin died. RSA 46 p. 3 3:3, I (2004) (“Upon the death of

As noted by the trial court, Rebecca became Nicholas’s guardian by

starting to really know me . . . . Why should I leave where I feel safe?”

“This is where I have been my whole life. My friends are here[,] and everyone is

sleeplessness, and headaches over the possible move. Nicholas said to her:

reported that Nicholas was tearful, worried, and suffering from anxiety, South Carolina would be psychologically harmful to Nicholas. She also Nicholas’s counselor agreed that relocating to his mother’s home in

interview and concluded that there was “no connection” between them. friends, and Dover at this time.” He observed mother and son during a joint “It would be psychologically harmful to move Nicholas from his brother,

The GAL recommended that Nicholas remain in Dover with his brother:

South Carolina “would be damaging.” stay with his brother and friends. She also testified that she believed a move to

Rebecca. She expressed her opinion that it was in Nicholas’s best interests to

involved” during Nicholas’s sixth grade year, the teacher never heard from

“really strong bond” with his brother. In contrast to Jonathan being “very testified that Nicholas has strong friendships with his Dover classmates and a don’t even know my mom. I would be scared to live with her.” The teacher also

At the hearing, Nicholas’s sixth-grade teacher testified that he told her, “I

making the accusations liars, including Jonathan and Nicholas.” and Danielle. Rebecca responded to this testimony “by calling the people

a “challenged mother” before 2007 and had mistreated Jonathan, Nicholas,

pregnancy. Further, the trial court noted witness testimony that Rebecca was because of one “aberrant” positive test result for marijuana during her program, the trial court disbelieved her claim that she entered this program

care.” Although Rebecca completed an intensive six-month drug rehabilitation

father, her mother’s ongoing drug use, and the baby’s safety in her mother’s “surrounded by alleged confusion over the identification of [the baby’s] birth trial court observed that the recent birth of Rebecca’s youngest daughter was

unnecessary to make a determination as to Rebecca’s fitness as a parent, the While noting that, in the context of a guardianship proceeding, it was p. 4 4

statute de

and control of their children.’” In the Matter of R.A. & J.M fundamental right of parents to make decisions concerning the care, custody, the words used. Id

statute considered as a whole. Id

guardianship statute – the respondent appears to argue, first, that RSA p. 4 463:3, governs guardianship of minors. We review the trial court’s interpretation of a As to her first claim of error – that the trial court’s decision violated the Resolution of this appeal requires us to interpret RSA chapter 463, which

Constitution; and (3) was a de said nor add words that it did not see fit to include. Id. Hampshire Constitution and the Fourteenth Amendment to the United States N.H. 75, 78 (2005). We will neither consider what the legislature might have right to parent her child as guaranteed by Part I, Article 2 of the New meaning is not subject to modification. Dalton Hydro v. Town of Dalton, 153

that ‘the Due Process Clause of the Fourteenth Amendment protects the statute, and, where possible, we ascribe the plain and ordinary meanings to

final arbiter of the intent of the legislature as expressed in the words of the court with a record sufficient to decide her issues on appeal. See novo. Kenison v. Dubois, 152 N.H. p. 4 448, 451 (2005). We are the

court’s order for legal errors only. See In re Adam R. constitutionality of the guardianship statute. Accordingly, we review the trial, 159 N.H. at 788. (2005). Nevertheless, the fundamental rights of parents are not unassailable.

788, 792 (2010). “Similarly, the United States Supreme Court has recognized of Part I, Article 2 of the New Hampshire Constitution. In re Adam R., 159 N.H. Parental rights are “natural, essential, and inherent” within the meaning support of her appeal. It is the burden of the appealing party to provide this (1997). At the outset, we note that the respondent did not provide a record in

30 p. 4 4 (2002). We further note that the respondent does not challenge the findings necessary to support its decision. In re Jonathan T., 148 N.H. 296, N.H. 248, 250 (2004). We must also assume that the trial court made all guardianship of her son to a non-parent over her objections: (1) violated the was sufficient to support its decision. See Bean v. Red Oak Prop. Mgmt., 151 On appeal, the respondent argues that the trial court’s award of a transcript of the hearing in the trial court, we must assume that the evidence Kinderworks Corp., 136 N.H. 548, 553 (1992); see also Sup. Ct. R. 13. Absent

place in South Carolina. ordered the parties to negotiate Rebecca’s parenting time with Nicholas to take p. 5 5

trial court had shifted the burden of proof to her.

contesting Jonathan’s petition for guardianship, not as an indication that the

“contestant” to describe the respondent as referring to the fact that she was standard. For example, we interpret the trial court’s use of the word an inference that the trial court substituted its own standards for the statutory

few phrases in the trial court’s decision cited by the respondent do not support applied erroneous legal standards or shifted the burden of proof to her. The We cannot agree with the respondent’s contention that the trial court

friends in Dover, and says he feels “safe” in Dover.

Nicholas has lived in Dover all his life, has strong bonds with his brother and

weather the painful blows of his mother’s abandonment and his father’s death. The trial court found that it is Jonathan who has helped Nicholas to

his teacher, consistently and repeatedly, that he does not want to move.”

does not contest that Nicholas told “the Guardian ad litem, his therapist and to him. See anxiety, sleeplessness, and headaches over the possible move. The respondent angry with her, does not feel safe in her “environment,” and suffers from

physical and safety needs or to prevent specific, significant psychological harm best interests require substitute guardianship to provide for his essential mother and would be afraid to live with her. The trial court found that he is is, whether Jonathan showed by clear and convincing evidence that Nicholas’s The trial court identified and applied the proper statutory standard – that

court’s order does not support the respondent’s contentions. trial court’s characterization of her as a “contestant.” A review of the trial

respondent left the family in 2007. Nicholas stated that he did not know his

legal standards; and (3) placing the burden of proof on her, as shown by the

regular, sustained contact, either in person or by telephone, since the The trial court found that Nicholas and the respondent have not had

Nicholas would suffer under his mother’s guardianship; (2) using erroneous

findings as to potential psychological harm, the trial court made such findings.

witnesses to establish psychological harm to the minor. Id several ways, including: (1) failing to identify the specific, psychological harm The respondent next argues that the trial court violated RSA 463:8 in

assuming, without deciding, that the trial court was required to make specific

guardianship statute does not require the non-parent to present expert

RSA 463:8, III(b). Contrary to the respondent’s assertions, the

find the parent unfit. a non-parent guardian for a parent; that procedure does not require a court to this argument. RSA 463:8 plainly provides a procedure for the substitution of

to guardianship of the minor unless she has been declared unfit. We reject I, mandates that, upon the death of one parent, the surviving parent is entitled de p. 6 proposition that her alleged inability to exercise visitation rights amounts to a time awarded by the court. The respondent cites no legal authority for the

not have the resources to visit with Nicholas and cannot exercise the parenting

the Federal Constitution under these circumstances, see Because the State Constitution provides at least as much protection as

distance between her home in South Carolina and New Hampshire, she does Termination of the Parent-Child Relationship”). She alleges that, given the have applied the standard set forth in RSA 170-C:5 (Supp. 2010) (“Grounds for

clear and convincing evidence to rebut the presumption.”).

convincing evidence standard. See Finally, the respondent argues the trial court’s order had the practical

or ‘some weight.’ That is precisely what [the statute] does when it requires

best interests of their children, that presumption is subsumed in the clear and Constitution as we do under the State Constitution. facto termination of parental rights.

interests, a court need give the parent’s decision only a ‘presumption of validity’

convincing evidence. While there is a presumption that fit parents act in the N.H. 200, 204-05 (2006), we reach the same result under the Federal seeking a substitute guardianship to establish the need for it by clear and imposing a high evidentiary standard – that is, by requiring a non-parent In re Jeffrey G., 153 Our statute, however, safeguards a parent’s fundamental rights by

Troxel (Mich. 2009) (“Although a fit parent is presumed to act in his or her child’s best

would be in the best interests of the child. Id. at 67. because it did not accord any weight to the parent’s determination of what statute unconstitutionally infringed on the parent’s fundamental rights , 530 U.S. at 60. The United States Supreme Court concluded that the such visitation whenever “visitation may serve the best interest of the child.” allowed “any person” to petition for visitation rights and allowed courts to grant reversal in this case. That decision involved a Washington state statute that is best for Nicholas. We do not agree that the holding in Troxel requires the trial court was required to accord special weight to her assessment of what Citing Troxel v. Granville, 530 U.S. 57 (2000), the respondent argues that

Ball, 124 N.H. 226, 231-33 (1983). State Constitution, using federal cases only to aid in our analysis. State v. the United States Constitution. We first consider her arguments under the Article 2 of the New Hampshire Constitution and the Fourteenth Amendment to violated her fundamental right to parent her child as guaranteed by Part I, The respondent’s second claim of error is that the trial court’s decision p. 7 7

that the GAL’s report to the court is meritless. See

In re Guardianship of Elizabeth H. parental rights. . . . [A] guardian is subject to removal at any time. the child from the parent and removes the entire bundle of DALIANIS, C.J., and DUGGAN, HICKS and LYNN, JJ., concurred.

9 p. 7 7.

decision for legal errors only, we do not address the respondent’s argument Because, in the absence of a transcript, we review the trial court’s

parental rights, which results in a final and complete severance of The appointment of a guardian is not a de facto termination of