2011-737, In the Matter of Matthew Bordalo and Meagan Carter

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parents. We reverse and remand. Orr & Reno, P.A.

No. 2011-737 6th Circuit Court - Concord Family Division

Bordalo (Father), and the intervenors, John and Karen Bordalo, the Father’s

, of Manchester (Pamela A. Peterson

responsibility of her minor child (Daughter) jointly to the petitioner, Matthew reporter@courts.state.nh.us of the Concord Family Division (Gordon, J.) awarding primary parenting HICKS, J. The respondent, Meagan Carter (Mother), appeals a decision

on the brief, and Ms. Peterson orally), for the intervenors. ___________________________ Devine, Millimet & Branch, P.A. & a. THE SUPREME COURT OF NEW HAMPSHIRE orally), for the respondent.

to press. Errors may be reported by E-mail at the following address: the petitioner.

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. a.m. on the morning of their release. The direct address of the court's home

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as that the “authorities” had expressed concern that Daughter’s emotional and

p. 2 does not indicate the legal resolution of those arrests. The court also noted

Daughter and another time for domestic violence against Mother; the record that Richard Carter had been arrested once for endangering the welfare of Daughter’s behavioral problems. The court noted in its June 2011 final order

opined that Mother is in a poor position to support Daughter in light of

animals, her younger half-sister, and others in the family. The GAL also that Daughter is a “troubled child” who has exhibited violent behaviors toward Mother’s care and recommended that she reside with the Bordalos. She noted At the hearing, the GAL opined that Daughter was being harmed in

harm.” A final hearing took place in April 2011. be in her best interests to reside with them “to prevent significant psychological

intervene and requested parental rights over Daughter, asserting that it would In March 2011, prior to the final hearing, the Bordalos were permitted to

decisions in Daughter’s interests. grandmother to be supervised and authorized the GAL to make certain interim

December 2010, the court ordered Daughter’s contact with her maternal

particularly with respect to exposure to her maternal grandmother. In of Social Services identified concerns it had about Daughter’s well-being, Carter was arrested in a domestic violence incident and the Maine Department

conflict” arising out of the previous plan. Sometime after that order, Richard

time with Daughter on alternating weekends to reduce the “opportunity for had moved back to Kittery and the court had adjusted the plan to afford Father plan, and a guardian ad litem (GAL) was appointed. By August 2010, Mother In March 2010, Mother and Father each moved to modify the parenting

at each other’s home. again made a contempt finding and ordered the parties to exchange Daughter Mother had prevented him from seeing Daughter at all. In response, the court

subsequently filed another petition for contempt, this time asserting that

find a suitable location between their homes to exchange Daughter. Father agreement. The court found Mother in contempt, and ordered the parties to Maine, making it impossible to exercise his parenting time according to the

asserting that she had moved with Daughter to a more remote location in Father filed a petition for contempt against Mother in November 2009,

Father lived with his parents, the Bordalos, in Unity, New Hampshire.

from Friday to Monday. At that time, Mother lived in Kittery, Maine, and

whereby Daughter would live with Mother during the week and with Father marriage. Mother and Father entered into a parenting agreement in July 2009 Mother married Richard Carter in October 2008 and had a child born of their

and Mother had a brief relationship that resulted in Daughter’s birth in 2006. The following facts are drawn from the trial court’s final order. Father discretion. In the Matter of R.A. & J.M.

p. 3 its determination except when there has been an unsustainable exercise of

and responsibilities under RSA 461-A:6 (Supp. 2011), and we will not overturn The trial court has wide discretion in matters involving parental rights

reconsider was denied, Mother appealed. authority of the Bordalos in making the final decision.” After a motion to “when feasible.” Mother was expressly prohibited from “interfer[ing] with the

in the responsibility for making major decisions” and consult with Mother

Mother. Under the new parenting plan, Father and the Bordalos were to “share jointly to Father and the Bordalos, and awarded weekend parenting time to The trial court awarded primary parenting and residential responsibility

Daughter.

Bordalo provided the most “safe, sound, stable and nurturing” environment for permanently. The GAL and Daughter’s therapist also believed that Karen at trial that he would need help from his parents to care for Daughter

Daughter’s counseling, therapy, or vocational rehabilitation. Father admitted

“primary residential and decision-making responsibility” jointly to them.

as a parent.” Although a “devoted” father, he was not actively engaged in processing deficit that makes it hard for him to understand his responsibilities lacked parenting skills due to a “developmental disability or information other hand, contend that the court properly exercised its discretion to award express wishes of a fit parent was not met.” The Bordalos and Father, on the “the strict test for awarding custody of a minor to grandparents over the Mother argues that the parenting award cannot be sustained because

competent parent.” Both the GAL and Daughter’s therapist believed that he The court also stated that Father is “not recognized as a particularly

has been provided for and has developed intellectually.

facts, State v. Michelson, 160 N.H. 270, 272 (2010). 163 N.H. 326, 331 (2012), and to the trial court’s application of the law to the standard of review both to the constitutionality of a statute, Appeal of Blizzard, unsustainable exercise of discretion standard). However, we apply a de novo opinion); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining

be a competent parent for [Daughter]; in her care, [Daughter] has been well fed,

At the same time, the court noted that Mother “does, in fact, have the ability to of the emotional boundaries which should exist between a parent and a child.” Mr. Carter. The GAL also expressed concern that Mother lacks “understanding

grandmother, violent incidents in the home, and a “volatile” relationship with mental health had been harmed due to the influence of the maternal p. 4 The trial court, relying upon In the Matter of R.A.

determines that such an award is in the best interest of the child.

rights and responsibilities to a stepparent or grandparent if the court In the Matter of R.A.

for primary “physical custody” and joint “legal custody” with the parents. Id

paragraph shall be construed to prohibit or require an award of parental interpretation of RSA 461-A:6 in the instant case. grandparents of the children pursuant to RSA 461-A:13. Nothing in this shall in its decree grant reasonable visitation privileges to . . . the responsibilities to be unfit. In the Matter of R.A. even when the court has not found the parent who is denied such rights and In re Guardianship of Reena D. responsibilities to a stepparent or grandparent in appropriate circumstances

(termination of parental rights). Id

intervene in a custody dispute between the child’s mother and father, asking

RSA 458:17 (2004) (repealed 2005)). Mother does not challenge this If the court determines that it is in the best interest of the children, it, 153 N.H. at 94 (interpreting

sentence of this provision to allow a trial court to award parental rights and children. , construed the second chapter 169-C (abuse and neglect proceedings) or RSA chapter 170-C

children.” Troxel

Against this constitutional backdrop, RSA 461-A:6, V provides:

parent to make the best decisions concerning the rearing of that parent’s. into the private realm of the family to further question the ability of that presumed to be fit parents until they are found to be unfit under either RSA parent is fit, there will normally be no reason for the State to inject itself their parenting skills are less than ideal, biological and adoptive parents are & Janette P., 153 N.H. 200, 204 (2006) (quotations omitted). Even though simply because they have not been model parents.” In the Matter of Jeffrey G. in the care, custody and management of their children does not evaporate parents to make decisions concerning the care, custody, and control of their citations omitted). Moreover, “[t]he fundamental liberty interest of . . . parents

presumed to act in the best interest of their children. . . . Provided that a We have adopted the Troxel plurality’s ruling that fit parents are

, 530 U.S. at 66 (O’Connor, J.).

Process Clause of the Fourteenth Amendment protects the fundamental right of opinion). As Justice O’Connor stated for the plurality in Troxel: “[T]he Due 149 N.H. 545, 547 (2003); Troxel v. Granville, 530 U.S. 57 (2000) (plurality raising and caring for their children. See In the Matter of Nelson & Horsley, It is well-established that parents have a fundamental liberty interest in responsibilities. [In addition,] . . . the custody award must be necessary

p. 5 significant failure by the opposing parent to accept parental

overriding factor justifying intrusion into the parent’s rights, such as a is already in the process of dissolution; and (3) there is some additional child relationship; (2) the custody award only be allowed where the family

the child’s best interest because of a significant psychological parent-

convincing evidence that: (1) the custody award would specifically be in parental rights only if the petitioning party can show by clear and natural or adoptive parent is not unreasonable or unduly restrictive of

could be satisfied in the case. He stated: statute, provided that a stringent four-part test (hereinafter, “Broderick test”) Chief Justice Broderick wrote the controlling opinion upholding the

child custody disputes, the best interests of the child must be paramount.” Id

the child’s best interests. Id

in and convincing evidence: (1) the grandparent or stepparent has established an VI to be constitutional as long as three conditions were established by clear chattel”). construed would be unconstitutional under Troxel care, custody and control of their children.” Id suggestion that when it comes to parental rights, children are so much see Troxel, 530 U.S. at 89 (Stevens, J., dissenting) (urging a rejection of “any

was that courts must “stop treating children as the chattel of their parents. In that the statute was unconstitutional on its face in light of Troxel and dissenting in part). Their view, echoing Justice Stevens’s dissent in Troxel,

cause “significant emotional harm” to the child; and (3) the custody award is in loco parentis relationship with the child; (2) the denial of custody would child” relationship with the child. Id

Two justices, concurring in part and dissenting in part, believed RSA 458:17,

grandparent where a natural, fit parent also seeks custody, the statute so afoul of the “fundamental right of parents to make decisions concerning the custody award to grandparents over the objections of a fit, natural parent ran 12 (Dalianis & Duggan, JJ., dissenting). In their view, a statute permitting a requests would serve the child’s best interests. Id. Id. at 111constitutionality. Two justices, writing in dissent, agreed with the trial court In the Matter of R.A. produced three separate opinions as to the statute’s

applied to grant her custody petition because she had a significant “parentgrandmother appealed, arguing that the statute could be constitutionally

former RSA 458:17, VI were construed to permit an award of custody to a however, rejected the grandmother’s argument on the ground that, even if

[the child’s] life, particularly from 2002 to 2004,” and argued that granting her 87. The grandmother “contended that she played the primary parental role in satisfying the appropriate constitutional standard for doing so. p. 6 child’s grandparents as against a fit natural or adoptive parent without parenting disputes, it has no discretion to award parental responsibilities to a

the Bordalos that a trial court normally has wide discretion in adjudicating

simple balancing of the rights between two parents. Although we agree with we think it readily apparent that the court did not rest its decision upon a responsibility not just to Father, but also to the Bordalos. For these reasons,

parents.” Furthermore, the court awarded parenting and residential

of the best things [Father] has going for him is that he resides with his specifically recognized this in his testimony.” The court also opined that “[o]ne engage in independent parenting responsibility for [Daughter] and he has

understand his responsibilities as a parent,” and finally that “he is not able to

disability or information processing deficit that makes it hard for him to

particularly competent parent,” that he had “some kind of developmental While the court did not deem Father to be unfit, it did note that he was not “a between Mother and the Bordalos, not simply between Mother and Father.

natural or adoptive parent does not comport either with Troxel responsibilities to grandparents, indicating that it considered the dispute to be concerning parental rights and responsibilities between a grandparent and a fit

and caring for their children, see In the Matter of R.A.

court, however, applied the Broderick test for awarding primary parenting standard. Applying solely a best-interests standard to adjudicate disputes standard to apply is simply that of the best interests of the child. The trial between two natural, fit parents,” and, accordingly, argue that the appropriate The Bordalos contend, at the outset, that “this was a parenting dispute

203.

or our precedents recognizing parents’ fundamental liberty interest in raising

significant psychological parent-child relationship between the child and justices agreed that it could not be applied simply using a best-interests judgment that it was, what standard should be employed to make it so, all five whether the statute was constitutional on its face and, as to the majority’s Thus, although the court in In the Matter of R.A. was divided both as to

proceedings. Id. at 108. facial attack, the court remanded the case to the trial court for further

the emotional harm that would result if the child were forced to leave the for the State to enforce its compelling interest in protecting the child from significant psychological parent-child relationship.” In the Matter of R.A.

p. 7 custody award would specifically be in the child’s best interest because of a

requirements of the Broderick test were not satisfied here. The first is that “the Nevertheless, we agree with Mother that the first and fourth

been provided for and has developed intellectually.”

in the final order that “in [Mother’s] care, [Daughter] has been well fed, has and well being” – a conclusion arguably at odds with the observation elsewhere parents factor” because of Mother’s “failure to provide for [Daughter’s] emotional safety convincing evidence that the Bordalos’ status vis-à-vis Daughter was that of

together. The court also explained that there was “some additional overriding for this child.” While this may be true, the record does not provide clear and

with whom she bore a second child and was raising that child and Daughter provided, it seems, the only consistent, coherent, and comforting parenting role constant presence in [Daughter’s] life from the day of her birth and . . . has been established, the trial court noted that “Karen Bordalo . . . has been a 7

overruled on other grounds by

child.” Id

in light of the fact that Mother had a family with her husband, Richard Carter, parents, it is not self-evident how and whether this factor should be considered never a coherent family” is arguably accurate as to Daughter’s biological on a non-temporary basis. To support its finding that such a relationship had

weeks would not be long enough to establish a “psychological family”), grandparents. Cf. In re Diana P., 120 N.H. 791, 796 (1980) (noting that a few that denial of custody to that person would be emotionally harmful to the rather than that of ordinary – though by all appearances ideal –

the trial court’s explanation that the family was in “dissolution” because “it was parenthood, such as responsibility for the child’s education and development, like relationship in which the grandparent has assumed primary obligations of the relationship under the Broderick test requires, at the very least, a parent-

. at 100 (quotation omitted). Whether “substantial” or “significant,”

be a “substantial” relationship between the child and the grandparent, “such N.H. at 101. Elsewhere in his opinion Justice Broderick stated that there must

facts of this case underscore the uncertain application of these factors. While requirements of the Broderick test were satisfied. We note, however, that the We assume, for the purposes of this analysis, that the second and third

hand, argues that none

the provisions of RSA 461-A:6, as interpreted by [In the Matter of R.A.

adoptive parent and a grandparent or stepparent. Broderick test should not govern parenting disputes between a fit natural or by clear and convincing evidence. None of the parties argues that the

granted parental rights and residential responsibility.” Mother, on the other determine whether [Father] jointly with John and Karen Bordalo should be

been met here: the trial court, they contend, “properly identified and applied The Bordalos next contend, in the alternative, that this standard has p. 8 Reversed and remanded

with this opinion. Accordingly, we reverse and remand for further proceedings consistent

grandparents.” (Citation omitted.)

and . . . grandparent,’ because the child has not been residing with the to leave a significant psychological [parent-]child relationship between the child when it concluded that “[t]his is not . . . a circumstance where a child is ‘forced

requirement was not met. Indeed, the trial court essentially stated as much

Daughter and the Bordalos, we necessarily conclude that the fourth

demonstrate the existence of a significant parent-child relationship between between the child and the grandparents. Having held that the record fails to result if the child were forced to leave the significant parent-child relationship

compelling interest in protecting the child from the emotional harm that would

DALIANIS, C.J.