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2012-384, In re Guardianship of Matthew L.
Chapter, as amic i curiae. Social Workers a nd the National Association of Social Workers New Hampshire Turley and Daniel S. Volchok on the brief), for the National Association of Wilmer Cutler Pickering Hale and Dorr LLP, of Washington, D.C. (Kyle
amicus curiae. Rebecca G. Whitley, of Concord, for Disabilities Rights Center, Inc., as
(Janson Wu on the brief and orally), for the responden t. brief), and Gay & Lesbian Advocates & Defenders, of Boston, Massachusetts Harvey & Ma h oney, P.A., of Manchester (J. Campbell Harvey on the
and orally), for the petitioner. Bragdon, Dowd & Kossayda, P.C., of Keene (Kelly E. Dowd on the brief
Opinion Issued: December 21, 2012 Argued: November 27, 2012
IN RE GUARDIANSHIP O F MATTHEW L.
No. 2012 - 384 10th Circuit Court – Brentwood Family Division
___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
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, Concor d, 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 2
guardianship must bear the burden of proof and must meet a clear and requirements, the guardian opposing the termination of a consensual obligation to construe RSA 463:15, V consistent with constitutional Troxel v. Granville, 530 U.S. 57, 69 ( 2000). We concluded that in light of our interest of his or her child.” Reena D., 163 N.H. at 111 (quotat ion omitted); “contravened the traditional presumption that a fit parent will act in the best place the burden of proof on the petitioner and his wife, the trial court RSA 463:15, V. In Reena D., we held t hat by interpreting RSA 463:15, V to
affect the minor’ s psychological well - being. the minor and termination of the guardianship will not adversely necessary to provide for the essential physical and safety needs of supplementation of pare ntal care and supervision is no longer showing, by a preponderance of the evidence, that substitution or The guardianship of the person shall be terminated upon a
nonconsensual guardianships over minors. It provides: RSA 463:15, V governs the termination of both consensual and
proceeding. Reena D., 163 N.H. at 110 - 11. rather than the guardian, to bear the burden of proof in the termination his state and federal constitutional rights when it required him and his wife, 463:8, III(a),:15, V ( 2004). The pe titioner argued that the trial court violated over the petitioner’s minor daughter. Reena D., 163 N.H. at 109; see RSA Reena D. involved a proceeding to terminate a consensual guardianship
I n re Guardianship of Reena D., 163 N.H. 107 ( 2011). the hearing on the petitioner’s motion had concluded, we issu ed our decision in motion to terminate the guardianship. In December 2011, after the first day of October 2009, th e motion was denied. In June 2010, the petitioner filed a new and, in June 2008, she filed a motion to terminate the guardianship. In In March 2008, the petitioner ended her relationship with the respondent
and [the respondent].” “establish[ ] a familial relationship between the child and both [the petitioner] petitioned the court to appoint the m as Matthew’s co - guardian s so as to and in April 2007, she gave birth to Matthew. In June 2007, the parties 2008. In 2006, the petitioner became pregnant through artificial insemination, partie s were involved in a serious relationship from mid - 2004 until March The trial court found, or the record supports, the following facts. The
petitioner, Mary S., the minor’s biological mother and co - guardian. We affirm. terminate her co - guardianship over the minor, Matthew L., filed by the Court – Brentwood Family Division (MacLeod, J.) g ranting the petition to HICKS, J. The respondent, Joan M., appeals an order of the 10th Circuit 3
minor’s psychological well - being. and safety needs; and (2) whether terminating it would adversely affect the the guardianship was necessary to provide for the minor’s essential physical the burden of proof, the issues in the hearing remained the same: (1) whether evidence involved in the termination hearing.” Regardless of which party had Reena D. shifted the burden of proof, it did not change the substantive the burden of proof. Moreover, as the petiti oner aptly observes, “[a]lthough . . . the respondent’s counsel knew or should have known that the respondent had before the evidentiary hearing reconvened. Three months before the hearing, exercise of its dis cretion. Our decision in Reena D. was issued three months We cannot conclude that the trial court’s decision was an unsustainable
omitted). under an unsustainable exercise of discretion standard.” Id. (quotation Saw yer, 161 N.H. 11, 18 (2010). “We review a trial court’ s rulings in this area discretion in managing the proceedings before it. In the Matter of Sawyer & motion to continue th e trial or for a new trial. The trial court has broad The respondent first argues that the trial court erred when it denied her
matter of law.” Id. at 11 0 (quotation omitted). decree “unless it is unsupported by the evidence or plainly erroneous as a reasonably made.” Consequently, we will not disturb the probate division’s are final unless they are so plainly erroneous that such findings could not be Under RSA 567 - A:4 (2007): “The findings of fact of the judge of probate
terminate the guardianship, and this appeal followed. care and supervision of him. The trial court, therefore, granted the petition to physical and safety needs to substi tute or supplement the petitioner’s parental clear and convincing evidence t hat it was necessary for Matthew’s essential motions, and ultimately decided that the respondent had failed to prove by a cont inuance or to “start [the trial] anew.” The trial court denied these termination on the minor c hild ’s psychological wellbeing,” and asked either for an earlier motion to obtain an expert to “testify on the . . . impact of the evidence. Because she now had the burden of proof, the respondent renewed it required the respondent to bear the burden of proof by cle ar and convincing after Reena D. was issue d. The parties agreed that Reena D. applied and that The hearing in the instant matter resumed in March 2012, three months
well - be ing. ’” Id. at 11 4 (quoting RSA 46 3:15, V). terminating the guardianship will ‘ adversely affect the minor’s psychological to provide for the essential physica l and safety needs of the minor’ and that substitution or supplementation o f parental care and supervision’ is ‘ necessary termination of a consensual guardianship “bears the burd en of p roving ‘ that the language of RSA 463:15, V, we stated that the guardian opposing the convincing evidentiary standard. Reena D., 163 N.H. at 114 - 15. Relying upon 4
RSA 463:15, V. The test we articulated in Reena D. is, thus, conjunc tive. psychological well - being. ’” Reena D., 163 N.H. at 114 (emphasis added); see and that terminating the guardianship will ‘ adversely affect the minor’ s ‘ necessary to provide for the essential phy sical and safety needs of the minor ’ that “‘ substitution or supplementation of parental care and supervision ’ is terminate a previously consensual guardianship, a guardian must prove both By contra st, in Reena D., we stated that to prevail in a proceeding to
is, thus, disjunctive. (emphas i s added). The test to obtain a guardianship over a parent’s objection specific, significant psychological harm to the minor.” RSA 463:8, III(b) (2004) provide for the esse ntial physical and safety needs of the minor or to prevent substitution or supplementation of parental care and supervision [either] to prospective guardian must show that “the best interests of the minor require The respondent observes that to obtain a nonconsensual guardianship, a
set forth the parties ’ arguments about this issue in more d etail. policy concerns that the legislature may wish to address. For this reason, we However, a lthough the argument is not preserved, the respondent raises public standard regarding the factors sh e needed to prove in order to prevail. respondent never argued to the trial court that it had held her to an incorrect (quotation omitted). In this case, the record on appeal demonstrates that the to the appellate court.” Petition of Guardarramos – Cepeda, 15 4 N.H. 7, 9 (2006) an opportunity to rule on issues and to correct errors before they are presented common sense and judicial economy, recognizes that trial forums should have N.H. 397, 406 (2012) (quotation omitted). “This rule, which is based on required to preserve an issue for appellate review.” Appeal of Alexa nder, 163 “The general rule is that a contemporaneous and specific objection is
contends that the respondent did not preserve this argument for our review. it would adversely affect his psychologica l well - being. The petitioner rightly provide for Matthew’s essential physical and safety needs and that terminating to require her to prove both that the guardianship remained necessary to The respon dent next argues that the trial court misinterpreted Reena D.
warranted. trial court reasonably concluded that neither a continuance nor a new trial was her deposition was accepted as evidence. Given all of the circumstances, the the p arties’ co - parenting counselor, the GAL was deposed, and the transcript of providing a report, which included information from Matthew’s therapist and the effect on Matthew if the guardianship were terminated. In addition to shows that the court appointed a guardian ad litem (GAL) specifically to assess With regard to evidence of Matthew’s psychological wel l - being, the record 5
previou sly consensual guardianship by showing only that its termination would guardianships.” The petitioner asserts that if a guardian can maintain a foster instability in children’s lives, thereby contravening the entire purpose of different standards for the creation and termination of guardianships would their respective positions. The respondent, for instance, argu es that “having Both parties and the amici argue that important public policies support
maintain a previously consensual guardianship over objection. to obtain a guardianship over objection is more exacting than that required to Reena D., 163 N.H. at 114. Thus, t he petitioner asserts that the proof required adversely affect the minor’s psychologic al well - being,” RSA 463:1 5, V; s ee con sensual guardianship, a guardian must show that its termination “will . . . harm to the minor,” RSA 463:8, III(b), whereas to maintain a previously the guardianship is necessary “to prevent specific, significant psychological guardianship over a parent’s objection, a potential guardian must show that guardianship over a parent’s objection would still be inconsistent. To obtain a respondent’s argum ent, the standards for creating, and for maintaining, a The petitioner also observes that even if we were to adopt the
comparing apples to oranges. consensual guardianships. In effect, the peti tioner argues, the respondent is applies only t o nonconsensual guardianships, and Reena D. applies only to Reena D. to be consonant with RSA 463:8, III(b), because RSA 463:8, III(b) The petitioner counters that there is no need f or the test we set forth in
interpreted Reena D. to require her to prove both parts of a conjunctive test. guardianship.” She argues, therefore, that the trial court erred when it that only one, but not both, of those situations exists in order to continue the is to be preserved, “the correct standard must be that the guardian need p rove termination proceeding, consistent with Reena D., and if the above framework Thus, she argues, if the burden of proof is placed on the guardian in a
neither of t h o se situations still exists. why [RSA 463:1 5, V] allows a guardianship to be terminated only if parenta l objection if either of those situations exist s, and that is 463:8, III(B)]. . . allows a guardianship to be established despite effects to the child’s psych ological well - being. That is why [RSA safety needs of the child, or (B) if it is necessary to avoid adverse two separate situations: (A) if it is necessary for the physical and New Hampshire law basically requires that a guardianship exist in
respondent, bot h tests sh ould be disjunctive: a parent’s objection – were intended to be consonant. According to the a parent’s objection and to maintain a previously consensual guardianship over The respondent argues that the two tests – to obtain a guardianship over 6
DALIANIS, C.J.
, and CONBOY, LYNN and BASSETT, JJ., concurred.
Affirmed.
Reena D. governed these proceedings. preserve for our review. In the trial court, the respondent expressly agreed that parentis to Matthew.” This is also an argument that the respondent did not guardianship to create a two - parent family, and the respondent “stands in loco interpreted Reena D., that case does not apply because the parties used the Finally, t he respondent asserts that even if the trial court correctly
clear and convincing evidentiary standard. Reena D., 1 63 N.H. at 115. consensual guardianship, the opposing guardian has the burden of proof by a with the central holding of Reena D. that in a proceeding to terminate a (2004) and RSA 463:15, V and make such changes as it sees fit, consistent legislative re solution. We encourage th e legislature to review RSA 463:8, III our review, we leave them for another day, we note that they may be ripe for a Although, because the respondent did not preserve these arguments for
over the objection of the parents.” to terminate a [consen sual] guardianship than it is to create a guardianship children. “As a public policy matter,” the petitioner argues, “it should be easier struggling parents to enter into consensual guardianships to protect their This, the petitioner asserts, is contrary to the public policy of encouraging fit parent will only rarely be able to terminate a consensual guardianship. “adversely affect the minor’s psychological well - being,” RSA 4 63:15, V, then a