2010-187, In re Guardianship of Reena D.

The petitioner, Nilesh D., appeals an order of the

Jeffrey R. Crocker orally), for the guardian ad litem.

orally), for the respondent.

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: , of Keene (Kelly E. Dowd on the brief and

THE SUPREME COURT OF NEW HAMPSHIRE

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 22 as p. 2 II. Analysis

followed.

that the petitioner and his wife failed to meet this burden, and this appeal

psychological well-being.” RSA 463:15, V (2004). Ultimately, the court decided terminating the guardianship would not “adversely affect [their daughter’s] to provide for [their daughter’s] essential physical and safety needs” and that

or supplementation of parental care and supervision [was] no longer necessary

had the burden to show by a preponderance of the evidence “that substitution

alcohol use assessment. The trial court ruled that the petitioner and his wife and on the first day of the hearing, the petitioner submitted the required The trial court held an evidentiary hearing on the motion in September 2009,

The petitioner and his wife did not renew their motion until August 2007.

motion to terminate the guardianship without prejudice to its future renewal. assessment as required by the parties’ stipulation. The trial court denied the

the guardianship because the petitioner had failed to submit an alcohol use

In June 2004, the respondent moved to dismiss the motion to terminate

use. In the meantime, the guardianship would continue.

held two months after the petitioner submitted an assessment of his alcohol

among other things, that a final hearing on the motion to terminate would be

parties and their counsel entered into a temporary stipulation, which provided, necessary because its purpose had been fulfilled. In December 2003, the motion to terminate the guardianship, asserting that it was no longer

as Reena’s sole guardian. In July 2003, the petitioner and his wife filed a

In 2003, the petitioner’s father died, and the respondent was appointed

Reena’s guardians.

decree unless it is unsupported by the evidence or plainly erroneous as a reasonably made.” Id. “Consequently, we will not disturb the probate court’s appointed the respondent and her husband, the petitioner’s father, to be are final unless they are so plainly erroneous that such findings could not be statute. See RSA 567-A:4 (2007). “The findings of fact of the judge of probate Our standard for reviewing probate court decisions is set forth by

on a permanent guardianship in May 2002. Following the hearing, the court The court granted a temporary guardianship in March 2002 and held a hearing were going to India to start a tile business and to visit with the wife’s family.

respondent. The petitioner and his wife sought the guardianship because they

over their then twenty-month-old daughter to the petitioner’s father and the petitioner and his wife, Meeta D., petitioned the court to grant guardianship The following facts are taken from the record. In March 2002, the

I. Background the fit custodial parent to disprove this. Id p. 3 grandparents was in the children’s best interests and placed the burden upon

party based solely upon the judge’s view of the child’s best interests. Troxel

the best interest of his or her child.” Id

court erred when it failed to give “special weight” to the parent’s determination Reena’s essential physical and safety needs and to prevent significant not in the children’s best interests, so too did the trial court in this case err by Troxel erred by requiring the parent to prove that grandparent visitation was Relying upon Troxel, the petitioner argues that just as the trial court in with a decision by a fit custodial parent concerning visitation with any third

“directly contravened the traditional presumption that a fit parent will act in presumption that grandparent visitation was in the children’s best interests The petitioner’s argument is based, primarily, upon Troxel v. Granville

presumption that fit parents act in the best interests of their children,” the trial and convincing evidence that the guardianship was necessary to provide for 530 U.S. at 67. The Troxel plurality explained that because “there is a Process Clause, the respondent should have had the burden of proving by clear, that pursuant to Part I, Article 2 of the State Constitution and the Federal Due “breathtakingly broad” a Washington statute that allowed a court to interfere 530 U.S. 57 (2000). In Troxel, a plurality of the Court invalidated as

231 (1983), citing federal opinions for guidance only, id. at 232-33. petitioner’s claim under the State Constitution, State v. Ball B. Burden of Proof in Proceeding to Terminate Guardianshi, 124 N.H. 226,

continuing it. The petitioner makes no claim that the December 2003

burden of proof in the proceeding to terminate the guardianship. He asserts XIV, when it interpreted RSA 463:15, V to require him and his wife to bear the federal constitutional rights, see N.H. CONST. pt. I, art. 2; U.S. CONST. amend. The petitioner next asserts that the trial court violated his state and

validity of the 2002 guardianship when he entered into the 2003 stipulation that this is true, we conclude that the petitioner waived any challenge to the intelligently and voluntarily consent to it in 2002. Even assuming, arguendo, terminate the guardianship because he and his wife did not knowingly, The petitioner first argues that the trial court erred when it failed to

A. Validity of 2002 Guardianship

(quotation omitted). matter of law.” In re Guardianship of Domey, 157 N.H. 775, 778 (2008) p. 4 4

proceeding, is a presumptively fit parent. See

examined the issue since Troxel

We first examine whether the Troxel

Boisvert v. Harrington, 796 A.2d 1102, 1108 (Vt. 2002); In re SRB-M, 201 P.3d (Neb. 200 p. 4 4); In re Guardianship of Barros, 701 N.W.2d 402, 407 (N.D. 2005); 10 A.3d 684, 686 (Me. 2010); In re Guardianship of D.J., 682 N.W.2d 238, 246 P.3d 775, 783, 784 (Colo. 2011) (citing cases); In re Guardianship of David C. has not been found unfit in an abuse/neglect or termination of parental rights,

to terminate a guardianship established by consent. Most courts that have

burden of proof should apply. We have also ruled that fit parents are those who have not been proceeding to terminate a guardianship established by consent, and, if so, what whether a fit biological parent is entitled to the Troxel presumption in a We have not previously addressed the issues in this case, which are

proceeding” (quotation omitted)). Thus, in this case, the petitioner, because he parent’s children.” In the Matter of Nelson & Horsley unfit in an abuse/neglect proceeding or a termination of parental rights adoptive parents are “presumed to be fit parents . . . until they are found to be

custody, and management of their children.” Id. “[p]arents have a natural entitlement to the exclusive companionship, care, Horsley, 1 p. 4 49 N.H. at 548. Absent such “unusual and serious” circumstances, abrogated in favor of an unrelated third person.” In the Matter of Nelson & unusual and serious of cases” may a parent’s fundamental parental rights “be (quotation omitted); see Troxel, 530 U.S. at 68-69. Thus, “[o]nly in the most

ability of that parent to make the best decisions concerning the rearing of that State to inject itself into the private realm of the family to further question the well-being. See p. 4 420. Provided that a parent is fit, “there will normally be no reason for the needs and that its termination would not adversely affect her psychological raising and caring for her children. In the Matter of Huff & Huff, 158 N.H. at of the State Constitution protects a parent’s fundamental liberty interest in & Horsley, 149 N.H. 545, 547 (2003). We have explained that Part I, Article 2 Huff, 158 N.H. 414, 419 (2009) (quotation omitted); see In the Matter of Nelson presumed to act in the best interest of their children.” In the Matter of Huff & We have adopted the Troxel plurality’s ruling that “fit parents are

U.S. at 69. that a fit parent will act in the best interest of his or her child.” Troxel, 530 his wife, the trial court, he asserts, “contravened the traditional presumption

RSA p. 4 463:15, V. By placing the burden upon the petitioner and

longer necessary to provide for their daughter’s essential physical and safety requiring the petitioner and his wife to prove that the guardianship was no p. 5 5

explained:

by consenting to a guardianship, and, thus, is entitled to the Troxel

but serves important policy interests. As the Colorado Supreme Court has

in that role.” Id parent does not relinquish his fundamental liberty interest in raising his child We align ourselves with the majority of courts, which have held that a

conclusion best comports with Troxel guardianship established by consent not only satisfies constitutional concerns, Recognizing the Troxel presumption in a proceeding to terminate a not entitled to the constitutional protection afforded to parents who are acting no less fit merely because he is not exercising his custodial rights. proceeding). The parent of a child in a guardianship established by consent is parent presumed fit because he had not been declared unfit in judicial interests of the child to remain with the parent.). equally to custodial and noncustodial parents. See jurisdiction, has forfeited the right” to the presumption that it is in the best id. at 420 (incarcerated relinquishes custody of a minor child, through a court of competent fit. See In the Matter of Huff & Huff, 1 p. 5 58 N.H. at 419. This principle applies abuse/neglect or termination of parental rights proceeding are presumptively Hampshire, all parents who have not been adjudicated unfit in an

presumption in a proceeding to terminate the guardianship. Such a

parents have relinquished their day-to-day parental relationship, “they were

child “and from acting in the role of parent.” In re Guardianship of L.V.

rearing decisions of a fit, custodial children is of such great importance . . . a natural parent who voluntarily consent “because they dealt with judicial interference in the day-to-day child Martin, 7 p. 5 57 So. 2d 264, 266 (Miss. 2000) (“Because stability in the lives of with intact parental rights, actively raising their children”); see also Grant v. dissenting) (fit parents entitled to Troxel presumption “are custodial parents, consenting to a guardianship also relinquishes his entitlement to the Troxel. at 904; see In re D.I.S., 249 P.3d at 788 (Martinez, J., voluntarily relinquishes the care, custody and control of his child by

Cal. Rptr. 3d at 903 (emphasis omitted). Thus, the court reasoned, when

parent’s decision to terminate the guardianship is entitled to due regard. See fundamental right to parent derives from a parent’s biological connection to the

progeny have no application” to a case involving a guardianship established by 894, 896, 902 (Ct. App. 2006), the court ruled that “Troxel and its California presumption. For instance, in In re Guardianship of L.V., 38 Cal. Rptr. 3d

A minority of jurisdictions disagree, holding that a parent who

In re D.I.S., 249 P.3d at 784.

guardianship established by consent is presumptively fit and, thus, the 111 p. 5 5, 1119-20 (Wyo. 2009). These courts reason that a parent of a child in a p. 6 “adversely affect the minor’s psychological well-being.” RSA 463:15, V; see

In re D.I.S.

safety needs of the minor” and that terminating the guardianship will

interests. Troxel

relationship or the child’s development. care and supervision” is “necessary to provide for the essential physical and

evidence standard or a clear and convincing evidentiary standard. Compare federal constitutional requirements, see We next turn to whether the guardian must meet a preponderance of the

must be accorded “special weight,” and is presumed to be in the child’s best (Ga. 2010) (same). (clear and convincing evidence), and Boddie v. Daniels, 702 S.E.2d 172, 175 N.W.2d at 408-09 (same), with address significant problems that could impair the parent-child In re Guardianship of D.J., 682 N.W.2d at 246 bears the burden of proving “that substitution or supplementation of parental of David C. guardianship laws as a means to care for the child while they, 10 A.3d at 686 (same), and In re Guardianship of Barros, 701 Troxel re D.I.S. establish the guardianship and deter parents from invoking the, 249 P.3d at 786 (preponderance of the evidence), In re Guardianship

requires only that trial court give parent’s decision presumption of validity). guardianship is de facto termination of parental rights and holding that Troxel re Guardianship of Nicholas P., 162 N.H. 199, 205 (2011) (rejecting claim that guardianship because the fit parent’s decision to terminate the guardianship In

N.H. 311, 317 (2010), the guardian opposing terminating the guardianship turn to the applicable burden of proof. Most courts hold that because of the by parental consent would penalize their initial decision to In the Matter of Rupa & Rupa, 161

We agree with these courts and conclude that in the context of RSA Having concluded that fit parents are entitled to the Troxel

, 530 U.S. at 69; see In re D.I.S., 249 P.3d at 783-84.

The guardian bears the burden of proof in a proceeding to terminate the re Guardianship of D.J., 682 N.W.2d at 246; In re SRB-M, 201 P.3d at 1121. termination of the guardianship. See, e.g., In re D.I.S., 249 P.3d at 784-86; In presumption, the burden of proof is on the guardian opposing

when they seek to terminate a guardianship established by consent, we now in favor of their decision to terminate a guardianship established child’s best interests. Failure to accord fit parents a presumption presumption place their child in the custody of another . . . [to] further[ ] the 682 N.W.2d at 246.

, 249 P.3d at 783 (citation omitted); see In re Guardianship of D.J.,

consent is that parents have exercised their fundamental right to An important characteristic of a guardianship by parental arguments under the Federal Constitution. See

p. 7 petitioner has prevailed under the State Constitution, we need not decide his

and remand for further proceedings consistent with this opinion. Because the trial court applied the incorrect burden of proof in this case, we vacate its order proceeding to terminate a guardianship established by consent. Because the

convincing standard of proof applies to the guardian’s burden of proof in a

In keeping with our prior decisions, we now hold that the clear and

convincing evidence that the stepparent or grandparent should obtain custody.

Vacated and remanded the stepparent or grandparent seeking custody to prove by clear and

which, we held, is all that Troxel obligated the trial court to give the parent’s decision a presumption of validity, DUGGAN, HICKS, CONBOY and LYNN, JJ., concurred.

if the award was in the child’s best interests, the State Constitution required

(2004). We explained that the clear and convincing evidentiary standard

of our decision, we also need not address the petitioner’s remaining arguments. provision that allowed a court to award custody to a stepparent or grandparent Ball, 124 N.H. at 237. In light

Similarly, in In the Matter of R.A. & J.M.

to prevent “specific, significant psychological harm” to the child. RSA 463:8, III supervision” to provide for the child’s “essential physical and safety needs” or best interests required “substitution or supplementation of parental care and

opposition of the child’s biological mother comported with Troxel (2005), a majority of the court ruled that, for the purposes of a statutory

162 N.H. at 205.

had been required to prove, by clear and convincing evidence, that the child’s

that granting the child’s half-brother’s petition for guardianship over the

disputes between parents and nonparents over custody of a minor. For We have previously applied a clear and convincing standard of proof in