2012-238, In re Guardianship of Raven G. & a.

found that the respondent had “establish [ed] by clear and convincing evidence in January 2008, at which both parents appeare d and testified, the court granted her ex parte mo tion for temporary guardianship. Following a hearing respondent petitioned for guardianship o ver her grandchildren. The court The tri al court found the following facts. In November 2007, the

petitioner, Jessica B., the minors’ biological mother. We vacate and remand. her guardianship over her grandchildren, Raven G. and Salem G., filed by the Court – Franklin Family Division (Gordon, J.) granting the petition to terminate LYNN, J. The respondent, Cheryl C., appeals an order of the 6 th Circuit

memorandum of law), for the State of New Hampshire, as amicus curiae. Michael A. Delaney, attorney general (Jeanne P. Herrick, attorney, on the

Jessica B., self - represented party, f iled no brief.

brief), for the respondent. Puckhaber Law Offices, PLLC, of Concord (Diane M. Puckhaber on the

No. 2012 - 238 6th Circuit C ourt – Franklin Family Division

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 p. 2 22 as 2

re commended that any such contact be supervised by a professional. spend time with t heir mother would be emotionally devastating for them and and her daughter Celia. Dr. Ro h rbaugh opined that forcing the children to that both children had been physically and sexually abused by the petitioner Ph.D., submitted an expert report and testified at the hearing. She concluded was biased. The respondent’s expert witness, Joanna Bunker Ro h rbaugh, recommendation, arguing that he had limited contact with the children and gradually. The respondent and Stacey G. took issue with the GAL’s would be in the best interest s of the children to terminate the guardianship relationship imposed by the guardianship. The GAL testified that he believed it integrate the children i nto her life rather than continue the artificial the January p. 2 2008 order but argued that the court should permit her to At the hearing, the petitioner admitted that she had not complied wi th

October, and November p. 2 2011. hearing on the motion to terminate on three non - consecutive days in July, unrestricted and unsupervised time with the children. The court held a Stacey G. also opposed termination, but argued that he should be given in January 200 8. The respondent objected to terminating the guardianship. asserting that she had complied with all of the conditions set forth by the court In February 2011, the petitioner moved to terminate the guardianship,

gradually increased contact between the petitioner and the children. GAL was appointed, and the parties worked out an agreement allowing p. 2 2010, she filed a motion seeking appointment of a guardian ad litem (GAL). A result of a criminal conviction and was then released on probation. In Janu ary The petitioner was subsequently incarcerated for several months as a

contact bet w een the children and their parents at the respondent’s discretion. The court made the guardianship permanent and provided for supervised not “sufficiently demonstrate[d] that [they] can act responsibly as parents.” petitioner nor Stacey G. was complying with these conditions and that they had In May p. 2 2008, after ano ther he aring, the court found that neither the

parents.” conditions to “demonstrate[] that they are responsible enough to act as remain in effect until the petitioner and Stacey G. complied with a number of were in their care. The court ordered that the temporary guardianship would domestic violence and the illegal use of controlled drugs while the child ren children because their parents, the petitioner a nd Stacey G., engaged in continuing the temporary guardianship was in the best interests of both the minor [s].” See RSA 46 p. 3 3:8, III (b) (Supp. p. 2 2012). The court found that needs of the minor [s] or to prevent specific, significant psychological harm to of parental care and supervision to provide for the essential physical and safety that the best interests of the minor [s] require substitution or supplementation 3

respondent argues that, even if the court applie d the correct standard, she has was contested rather than established by consen t. Alternatively, t he articulated in Reena D. does not apply because the guardianship in this case On appeal, the respondent and amicus argue that the standard

appeal followed. guardianship have no [fewer] rights than parents who give consent.” This The court denied reconsideration, ruling that “[p]arents who obj ect to a her e had been established over the parents’ objection rather than by consent. reconsideration, arguing that Reena D. did not apply because the guardianship respondent failed to meet this burden. The respondent moved for Stacey G. were not “fit to fulfill their parental roles.” The court ruled that t he burden of proving by clear and convincing evidenc e that the petitioner and that Reena D. applied to this case, and, therefore, that the respondent bore the Reena D., 16 p. 3 3 N.H. at 114 - 15 (emphasis added). The trial court concluded

terminate a guardianship established by consent. applies to the guardian ’ s burden of proof in a proceeding t o [W] e now hold that the clear and convincing standard of proof

. . ..

minor’ s psycholog ical well - being.” RSA 46 p. 3 3:15, V . . . . and that terminating the guardianship w ill “adversely affect the provide for the essential physical and safety needs of the minor” supplementation of parental care and supervision” is “necessary to by consent] bears the burden of proving “that substitution or [T] he guardian opposing terminating the guardianship [established

stated: N.H. 107 (2011), as requiring i t to apply a different standard. In Reena D., we However, t he court read our decision in In re Guardianship of Reena D., 16 p. 3 3

affect the minor’ s psychological well - being. the minor and termination of the guardianship w ill not adversely necessary to provide for the essential physical and safety needs of supplementation of parental care and supervision is no longer showing, by a preponderance of the evidence, that substitution or The guardianship of the person shall be termi nated upon a

forth in RSA p. 4 46 p. 3 3:15, V (2004): parents. The court first recited the standard for terminating a guardianship set address the needs of the children and the rights and responsibilities of the motion to terminate the guardianship upon approval of a parenting plan to On January 24, 2012, the court issued an order granting the petitioner’s 4

mother appealed the trial court’s order awarding guardianship of her son to the objection. In In re Guardianship of Nicholas P., 162 N.H. 199 (2011), the be overcome when the guardianship is first established over a parent ’ s By contrast, in a contested guardianship, the Troxel presumption must

(quotations omitted); see RSA p. 4 463:15, V. will adversely affect the minor’ s psychological well - being.” Id. at 114 physical and safety needs of the minor and that terminating t he guardianship of parental care and supervis ion is necessary to provide for the essential show by clear and convincing evidence “that substitution or supplementation the Troxel presumption. Id. at 113 - 14. T he guardian bears the burden to a parent’s requested termination of a consensual guardianship must overcome must therefore be accorded “special weight,” we held that a guardian opposing consent to a guardianship is presumed to be in the child’s best interests and proceeding to terminate the guardianship.” Id. at 113. Given that a fit parent’s a guardianship, and, thus, is entitled to the Troxel presumption in a relinquish his fundamental liberty interest in raising his child by consenting to We adopted the view held by the majority of states: “a parent does not

burden of proof should apply.” Reena D., 163 N.H. at 112 (emphasis added). 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 163 N.H. a t 111 - 12; see Troxel, 530 U.S. at 68 - 69. We then address ed to a fit parent’s determination of what is in the child’s best interests. Reena D., interests of the child, and t he trial court must therefore accord “special weight” a parent who has not been adjudicated unfit, is presumed to act in the best presumption, see Troxel v. Granville, 530 U.S. 57 (2000), that a fit parent, i.e., On appeal, w e vacated and remanded. We relied on the so - called Troxel

(200 p. 4 4).” Id. ‘ adversely affect [t heir daughter ’ s] psychological well - being. ’ RSA 463:15, V physical and safety needs ’ and that terminating the guardianship would not supervision [was] no longer necessary to pro vide for [their daughter’ s] essential the evidence ‘ that substitution or supplementation of parental care and that the parents had not met their burden of “show[ing] by a prepondera nce of terminate the guardianship. Id. at 110. Following a hearing, th e court ruled permanent guardianship. Id. Several years later, the parents sought to India to start a business. Id. The court established a temporary and then N.H. at 109. The parents sought guardianship because they were going to their infant daughter to the child’s grandfather and his wife. Reena D., 163 In Reena D., the p arents petitioned the court to grant guardianship over

guardianship in this case was contested and not consensual. unfit parents. We agree that Reena D. does not apply because the shown by clear and convincing evidence that the petitioner and Stacey G. are p. 5 5

provide for the essential physical and safety needs of the minor and supplementation of parental care and supervision is no longer necessary to “show[], by a preponderance of the evidence, that substitution or convincing evidence to be in the children’s best interests, the p etitioner must to terminate a contested guardianship that was established by clear and this burden again when opposing the termination of the guardianship. Rather, Nicholas P., 162 N.H. at 20 p. 5 5. Troxel does not require the respo ndent to meet to this exacting burden of proof in order to obtain the guardianship. See the benefit of the Troxel presumption when the court subjected the respondent of RSA 463:8, III(b) by clear and convincing evidence. The petitioner received permanent after concluding that the respondent had satisfied the requirements Reena D. does not apply. The trial court ordered the guardianship to be made established over the petitioner’s and Stacey G.’s objection, our holding in Because t he original guardianship in this case was contested and was

114. This is not the situation here. necessary and that it is still in the child’s best interests. Reena D., 163 N.H. at show by clear and convincing evidence both that the guardianship is still guardianship to which the parent once consented by requiring the guardian to Reena D. restored the Troxel presumption when a parent seek s to terminate a the child. Compare RSA 463:8, III(a), with RSA 463:8, III (b). Our decision in preponderance of the evidence that the guardianship is in the best interests of a guardianship with the parents’ consent, however, need show only by a interests of the child. Id.; RSA 463:8, III(b). A n individual seeking to establish convincing evidence that the guardianship is, in fact, necessary and in the best objection must overcome the Troxel presumption by showing by clear and Thus, an individual seeking to establish a guardianship over a parent ’ s

Id. at 20 p. 5 5.

standard. presumption is subsumed in the clear and convincing evidence that fit parents act in the best interests of their children, that it by clear and convincing evidence. While there is a presumption parent seeking a substitute guardianship to establish the need for imposing a high evidentiary standard – that is, by requiring a non - Our statu t e . . . safeguards a parent ’ s fundamental rights by

burden of proof for a party to establish guardianship over a parent ’s object ion. presumption is subsumed within RSA 4 p. 6 63:8, III(b), the statute setting forth the required by Troxel. Id. at 204. We disagreed and held that the Troxel accord “special weight” to her assessment of her son’s best interests, as CONST. pt. I, art. 2; U.S. CONST. amend. XIV, and that the trial court failed to court’s decision violated her fundamental right to parent her child, N.H. son’s half - brother. Nicholas P., 162 N.H. at 200, 202. She argued that the trial 6

DALIANIS, C.J.