2013-0403, 2013-0445, and 2013-0593, In re Guardianship of Madelyn B.

New York, New York (Karen L. Loewy on the brief), for American Academy of Kenney on the brief), and Lambda Legal Defense and Education Fund, Inc., of Pierce Atwood, LLP, of Portsmouth (Lawrence M. Edelman and Michele E.

brief), for Susan Frelich Appleton & a., as amici curiae. Upton & Hatfield, LLP, of Concord (Marilyn Billings Mc Namara on the

brief and orally), for the appellee, Melissa D. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

(Kysa Crusco on the brief), for the appel l ant, Susan B. (Janson Wu on the brief and orally), and Crusco Law Office, PLLC, of Bedford Gay & Lesbian Advocates & Defenders, of Boston, Massachusetts

2013 - 593 2013 - 445 No s. 2013 - 403 10th Circuit Court – Derry 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

Madelyn’s guardian on March 15, p. 2 2002. Melissa also amended her will to to protect [Susan ’s] parental relationship with her.” Susan was appointed legally adopt Madelyn, and that “a guardian ship was the best available option An attorney for Susan and Melissa advised them that Susan could not

education, and religion. involved in raising Madelyn, including decisions regarding health care, daily care of Madelyn, and Susan and Melissa jointly made all decisions preschool documents and in her medical records. Susan was involved in the when Madelyn was a year old. Susan was listed as Madelyn’s parent in her a s well as in a “dedication ceremony” held in the Unitarian Universalist Church announcement s sent to friends and family and printed in the local newspaper, Susan and Melissa were both named as Madelyn’s parents in the birth

Melissa decided to give Madelyn Susan ’s middle and last names. Melissa became pregnant a nd, in p. 2 2002, gave birth to Madelyn. Susan and failed, Susan s ought insurance coverage for another course of treatments. shared Susan ’s Irish heritage. After the initial course of fertility treatments pregnant using an anonymous sperm donor, they search ed for a donor who bought a house in which to raise their family. W hen Melissa sought to bec ome Susan and Melissa intended t o raise a family together, and they jointly

RSA 457:1,: p. 2 2 (1992) (amended 2009) with RSA 457:1, :1 - a, :2 (Supp. 2013). prohibited in New Hampshire, and did not become legal until 20 10. Compare name as her own. We note that, at that time, same - sex marriage was committed to one another as any married couple.” Melissa took Susan ’s last cer emony on August 16, 1998, and “considered [them]selves to be as fully 1997 and soon became romantically involved. They held a commitment Susan’s pleadings allege, in part, the following: She and Melissa met in

biological mother. We reverse in part, vacate in part, and remand. proceedings involving Madelyn B. T he appellee, Melissa D., is Madelyn B.’s parenting petition; and (3) denied her motion to intervene in adoption guardianship over the person of Madelyn B., a child; ( p. 2 2) dismissed her verified Court – Derry Family Division (Sadler, J.) that: (1) terminated her HICKS, J. The appellant, Susan B., appeals orders of the 10 th Circuit

and National Gay and Lesbian Task Force, as amici curiae. Legal Defense and Education Fund, Inc., National Center for Lesbian Rights, Union, COLAGE, Family Equality Council, Human Rights Campaign, Lambda Reproductive Science Center of New England, New Hampshire Civil Liberties Assisted Reproductive Technology Attorneys, American Fertility Association, p. 3 3

Susan’s subsequent motion to reconsider. Madelyn [’] s stepfather, adopting her.” The court denied the motion and hearing. Melissa objected, noting, “We have begun the process of my husband, On April 18, Susan, represented by counsel, moved for an immediate

for Madelyn in Melissa’s absence as they are now the famil y unit.” Melissa’s subsequent marriage, Melissa’s “husband is the logical choice to care found that following the termination of Susan and Melissa’s relationship and duty” to care for Madelyn if Melissa w ere not available to do so. It further found that the guardianship had been created to give Susan the “right and termination would not adversely affect Madelyn psychologically.” The court necess ary to provide for Madelyn’s essential physical and safety needs and the court terminated the guardianship on the grounds that it was “no longer order.” Susan, representing herself, filed an object ion on April 5. O n April 12, subsequent order,” and ordered “[n]o hearing to be scheduled pending further guardianship that day “pending response to [r]equest to termin ate . . . and Madelyn and [Melissa] fear [for Madelyn’s] safety.” The court suspended the school, contacting family members and behaving in such a way that both the guardianship alleging that Susan had been “showing up at Madelyn’s Susan.” On April 4, Melissa filed an ex parte emergency motion to terminate necessary because Madelyn no longer wishes to have a relationship with guardianship over Madelyn, asserting that the guardianship was “no longer On April 2, 201 p. 3 3, Melissa filed a motion to terminate Susan’s

through online social media because Madelyn’s settings had been changed. subsequent phone calls, and Susan was unable to contact Madelyn directly [Madelyn] no longer wanted to see Susan.” Melissa did not return Susan’s meeting the two had later t o discuss the situation, Melissa “claimed that she was informed that Madelyn no longer wanted a relationship with her. At a 2, 201 p. 3 3, when Susan attempted to pick up Madelyn for her weekly visitation, checks. Susan avers that she nevertheless continued to send them. O n March In February 2013, Melissa stopped cashing Susan’s child support

gifts. extracurricular activities. She also provided Madelyn with food, clothing, and weekly child support and, in addition, helped with the cost of Madelyn’s week, and continued to be actively involved in Madelyn’s life. Susan paid visitation. Susan saw Made lyn every weekend, had overnight visits every other Melissa later married. Susan and Melissa agreed upon a schedule for regular relationship ended. Melissa and Madelyn moved in with Eugene D., who m In November 2008, when Madelyn was six years old, Susan and Melissa’s

minor. appoint Susan as Madelyn’s guardian should Melissa die while Madelyn was a p. 4 4

of Rollinsford, 15 5 N.H. 669, 670 (2007). in the light most favorable to the plaintiff.” Farm Family Cas. Ins. Co. v. Town truth of the facts alleged by the plaintiff and construe all reasonable inferences Kenn edy, 131 N.H. at p. 4 401 (quotation and citation omitted). “[W]e assume the complaint to determine whether, on its face, it asserts a cause of action.” sufficient to constitute a cause of action. [We] must rigorously scrutinize the claim], [we] must determine whether the plaintiff’s writ contains facts which are “[I]n reviewing the trial court’s order of dismissal [for failure to state a

alleges sufficient facts to establish his status as a parent by other means”). notwithstanding his lack of biological relationship to the child, “so long as he action seeking “parental rights and responsibilitie s under RSA chapter p. 4 461 - A,” & J.G., 157 N.H. 577, 580 (2008) (holding that petitioner could maintain his asserted bases for claiming to be a parent of Madelyn. Cf. In the Matter of J.B. the trial court ruled that Susan’s p etition failed to state a claim on any of her in a writ do not state a claim upon which relief can be granted”). In essence, the discretion to dismiss an action sua sponte where the allegations contained Kennedy v. Titcomb, 131 N.H. 399, 402 (1989) (noting that “[a] trial court has dismissal for fail ure to state a claim upon which relief can be granted. See tri al court’s sua sponte dismissal of her verified parenting petition as a of her other claims at this stage of the proceedings. Susan characterizes the We first address Susan’s parent ing petition claim because it is dispositive

the guardianship is no longer necessary. that since “Madelyn’s s ustenance is being adequately met by her new family,” Madelyn and to further “the daily practicalities of child - rearing.” She argues guardianship was created to allow Susan to provide health insurance for motion to intervene in the adoption case. Melissa counters that t he had been satisfied; (3) dismissing her parent ing petition; and ( p. 4 4) denying her discovery; (2) ruling that the legal standard for termination of a guardianship terminat ing the guardianship without a hearing or opportunity to conduct On appeal, Susan argues, in part, that the family division erred by: (1)

parentage of Madelyn.” “providing [her] with notice and the right to request a hearing to prove her legal reconsideration of the order denying her motion to intervene and for an order bolding omitted.) The court denied Susan’s subsequent motion for verified parent ing petition, finding that she “is not [a] parent.” (Quotation and Madelyn.” The court denied the motion to intervene, and dismissed Susan’s determination that she “is a legal parent to,” or “stands in loco parentis to [,] temporary and final orders on child support and a parenting plan, as well as a proceeding. On the same day, she filed a verified parenting petition seeking On April 29, 2013, Susan moved to intervene in the pending adoption p. 5 5

terms to include women would allow the words “‘ workman ’ and ‘ his ’” to include (noting also, however, that the statutory instruction to construe masculine widower.” Chretien, 87 N.H. at 379 (quotation omitted); cf. id. at 378 - 79 include females will not authorize us to read the word widow as including that “a statute requiring that words denoting the masculine gender shall liberally as is urged here. In Chret ie n v. Co mpany, 87 N.H. 378 (193 p. 5 5), we held 21:1 (2012). We have previously declined to employ that instruction as intent of the legislature or repugnant to the context of the same statute,” RSA 21:3 (2012), “unless such construction would be inconsistent with the manifest importing the masculine gender may e xtend and be applied to females,” RSA The l egislature has instructed that in construing all statutes, “words

equal protection.” the original intent and purpose of the stat ute, and constitutional guarantees of apply to mothers as well, in accordance with statutory rules of construction, and male pronouns, this Court must construe the holding out provision to RSA 168 - B:3, I (200 2). Susan asserts that “[a]lthough the statute uses ‘father’

child. the child into his home and openly holds out the child as his (d) While the child is under the age of majority, he receives

. . .

presumed to be the father of a child if: I. Notwithstanding any other provision of law, a man is

RSA 168 - B:3, I, provides, i n relevant part:

Id. (quotations and citations omitted).

the overall statutory scheme and not in isolation. not see fit to include. We also interpret a statute in the context of legislature might have said or add language that the legislature did intent from the statute as written and will not consider what the ordinary meaning to the words used. We interpret legislative examining the language of the statute, we ascribe the plain and in the words of the statute considered as a whole. When We are the final arbiter of the intent of the legislature as expressed

Town of Newbury v. N.H. Fish & Game Dep’t, 1 p. 6 6 p. 5 5 N.H. 142, 144 (2013). argument raises an issue of statutory interpretation, our review is de novo. See I(d)’s “holding out” provision. See RSA 168 - B:3, I(d) (2002). Because this parenting petition because she sufficiently alleged a claim under RSA 168 - B:3, Susan first argues that the family division erred in dismissing her 6

but also for our a pplication of other canons of statutory construction. One W e find th e se cases instructive, not only for our application of RSA 21:3,

child relationship”); Chatterjee, 280 P.3d at 2 87. her home and holding the child out as her own, . . . may establish the mother proof of marriage to the child’s father, or her proof of receiving the child into the UPA, in light of its statutory constructi on provisions, so that “[a] woman’s 147, 151 (Colo. Ct. App. 2011) (interpreting presumptive paternity provision of relationship apply” (quotation and brackets omitted)); In re S.N.V., 284 P.3d practicable, the provis ions of this part applicable to the father and child determining the existence of a mother and child relationship, insofar as holding out child as one’s own where UPA “expressly provides that in presuming paternity based upon receiving the child into one’s home and was presumed mother under Uniform Parentage Ac t’s (UPA) provision Elisa B. v. Superior Court, 117 P.3d p. 6 660, 665 (Cal. 2005) (holding that woman 542, 559 (Kan. 2013) (Biles, J., concurring in part) (quotation omitted); s ee existence of a mother and child relationship.” Frazier v. Goudschaal, 295 P.3d gender - neutral manner insofar as practicable in an action to determine. . . the than ours, instructing that their paternity “presumptions are to be r ead in a 2012). We note that those jurisdictions had statut ory provisions, more specific e qually to mothers. See, e.g., Chatterjee v. King, 280 P.3d 283, 293 (N.M. particular paternity presumption she asserts — the “holding out provision” — Susan correctly notes that courts in other jurisdictions have applied the

them, through artificial ins emination). over visitation with child conceived by one, according to agreement between of children born out of wedlock to apply to dispute between same - sex partners f amily c ourt jurisdiction over matters relating to adults involved with paternity Rubano, 759 A.2d at 970 n.13 (citation omitted) (interpreting statute granting

with paternity” of a chil d for purposes of this statute. Thus, two women may certainly be “adults who shall be involv ed be construed to extend to and to include females as well as males.” construed “[e]very word importing the masculine gender only, may mi ndful of the Legislature’s instruction that when statutes are While the word “paternity” implies the “fathering” of a child, we are

2000), for instance, the Supreme Court of Rhode Island noted: and “father” to apply to women. In Rubano v. DiCenzo, 759 A.2d 959 (R.I. By contrast, other jurisd ictions have interpreted the terms “paternity”

Id. at 380. liberal a construction has been adopted as would supply ‘widower’ for ‘widow.’” similar cases from other jurisdictions, that “[n]o case has been found where so a female worker). In reaching that conclusion, we noted, after surveying p. 7 7

parent under that statute can be a woman. Cf. id. at 28 p. 7 7 - 88 (noting that our interpret ation of RSA 168 - B:3 failed to recognize that a child’s second The policy goals of ensuring legitimacy and support would be thwarted if

Chatterjee, 280 P.3d at 292 (citation omitted).

statute without keeping this overarching legislative goal in mind. original UPA was created, and it make s little sense to read the caring for the child. This is one of the primary reasons that the lacking, the state will ultimately assume the respo nsibility of cared for, financially and otherwise, by two parents. If that care is [T]he state has a strong interest in ensuring that a child will be

similarly noted: stable and meaningful involve ment in their lives”). The Chatterjee court as premise of statutory policy that “children do best when both parents have a to a child’s welfare” (quotation omitted)); RSA 461 - A:2, I (Supp. 2013) (stating “stability and continuity of support, both emotional and financial, are essential 314, 321 (2008) (noting, in the context of paternity determinations, that Elisa B., 11 p. 7 7 P.3d at 669; cf. In the Matter of Gendron & Plaistek, 157 N.H. when the obligation to support the child would otherwise fall to the public.” rather than one, as a source of both emotional and financial support, especially paternity, the Legislature implicitly recognized the value of having two parents, :3 (father - child relationship). “By recognizing the value of determining recognition of two parents. See, e.g., RSA 1 6 8 - B:2 (mother - child relationship), In addition, the chapter indicates a n implicit legislative preference for the

shall support the child.” RSA 16 p. 8 8 - B:8, I. de termined to be the parent of a child under the provisions of RSA 168 - B:2 - 5 child of the parent.” Further, RSA 168 - B:8 declares that “[a]ny person who is person s, the child shall be considered, for all purposes of law, the legitimate the provisions of this chapter, a parent - child relationship is created between 2 furtherance of the chapter’s stated purpose, RSA 168 - B: p. 7 7 provides: “I f, under litigation; and that adequate support be assured for the resulting child.” Id. In status is legally certain in order that the child not be the chief remedial focus of noted that the chapter ensures, among other things, that “the resulting child’s [surrogac y] arrangements.” Laws 1990, 87:1, II. Specifically, the L egislature parties, and to determine the legal status of children born as a result of consistent state standards and procedural safeg u ards for the protection of all statement of purpose provides that “[t]h e purpose of this act is to establish a chapter entitled “Surrogacy.” S ee RSA ch. 168 - B (2002). The chapter’s & Economic Dev., 164 N.H. 365, 368 (2012). RSA 168 - B:3 i s contained within advanced by the entire statutory scheme.” Sheehan v. N.H. Dep’t of Resources legislature ’ s intent in enacting the m, and in light of the policy sought to be such canon recognizes that “[o] ur goal is to apply statutes in light of the 8

that paternity testing had confirmed he was not the child’s biological father. In parenta l rights and responsibilities under RSA chapter 461 - A” notwithstanding “consistently maintained contact with the child” — had “standing to seek full affidavit of paternity, had a child support order entered against him, and had who was listed as the father on the child’s birth certificate, had filed an connection. Thus, in In the Matter of J.B. & J.G., we held that t he petitioner — determination of paternity to stand despite a confirmed lack of biological without challenge for over fifteen years.” Id. Similar ly, we have allowed a do not apply. . . where defendant has acknowledged the children as his own statutory paternity presumptions may be rebutted by blood tests, “those rules Watts, 115 N.H. at 1 p. 8 89. We held that although, in general, common law and request for blood tests to dispute the patern ity of children of the marriage. N.H. 186 (1975), for instance, we affirmed the denial of a divorcing husband’s paternity to be rebutted by proof of biological paternity. In Watts v. Watts, 115 Accordingly, in some cases, we have refused to allow a presumption of

deprivation” (quotation and ellipses omitted)). retain meaningful relationships and that to deny them continuing contacts is a and psychologists unanimously counsel that children should maintain and cf. Roberts v. Ward, 126 N.H. 3 p. 8 88, 392 - 93 (1985) (noting that “[p]sychiatrists actual paternity and should not be lightly dissolved.” Id. (quotations omitted); relationship, is considerably more palpable than the biological relationship of of age], resulting from years of living together in a purported parent/child relationship between a nonbiological [parent] and an older child [over two years Salvador M., 4 Cal. Rptr. 3d 705, 708 (Ct. App. 2003). “The familial state’s interest in the welfare of the child and the integrity of the family.” In re paternity presumptions are driven, not by biological paternity, but by the Consistent with the above - noted policy goals is the recognition that “[t]he

husband to adopt M adelyn does not alter our view. through the adoption process”). We note that the intention of Melissa’s relationship with its mother in order to be legitimized by its natural father natural parent(s),” so that the ir child would “not have to be deprived of its stepparent exception to the general rule that “adoption severs the right s of the not injure, adopted children,” to allow unwed natural parents to utilize the adoption statute liberally, “in accordance with the legislative intent to protect, them. Cf. In re Jessica W., 122 N.H. 1052, 1056 - 57 (1 p. 9 9 p. 8 82) (interpreting legitimacy of her parentage by, and her entitlement to support from, both of their child; w e cannot read RSA 168 - B:3 so narrow ly as to deny Madelyn the and Susan — intentionally brought Madelyn into the world and held her out as child of, only her birth mother. See RSA 168 - B:2, :7, :8. Two adults — Melissa similar to Madelyn ’s c ould be entitled to support from, and be the legitimate either a man or a woman”). Without th at recognition, a child in a situation not a biological connection,” it “is reasonably capable of being accomplished by “[b]ecause the [UPA’s holding out] presumption is based on a person’s conduct, 9

Susan as Madelyn’s parent as evidenced by, among other things, giving Susan Susan’ s allegations, taken as true, indicate that Melissa also regarded

saw her as my daughter.” daughter. I loved Maddie as my daughter, treated her as my daughter, and ‘ Momma.’ Together we were. . . Maddie’s paren t s, and Maddie was our Maddie, Melissa, and I were a family. Melissa was the ‘Mommy,’ and I was the born, Susan was in the delivery room. She alleges: “From the very beginning, they “thought it would be a good place to raise a family.” When Madelyn was Madelyn’s nursery together in the home they had jointly purchased because and Melissa planned to have and raise children toge ther. They prepared received Madelyn into her home and openly held Madelyn out as h er child. She Co., 155 N.H. at 670, we conclude that she adequately pleaded that she reasonable inferences in the light most favorable to her, Farm Family Cas. Ins. Assuming the truth of Susan’s alleged facts, and construing all

she has. alleged sufficient facts to state a claim under that statute. We conclude that equally to women and men. We must now determine whether Susan has For all of the foregoing reasons, we hold that RSA 168 - B:3, I(d) applies

when necessary). 33 p. 9 9, 345 (1997) (noting that we decide cases on constitutional grounds only Susan’s constit utional arguments. See Olson v. Town of Fitzwilliam, 142 N.H. Given our construction of RSA 168 - B:3, I (d), we need not address

holding out presumption. connection between Susan and Madelyn is not a bar to application of the Id. (ci tations omitted). Accordingly, we conclude that the lack of a biological

means. alleges sufficient facts to establish his status as a parent by other and responsibilities under RSA chapter 461 - A, so long as he [the child] is therefore not fatal to his request for parental rights much weight. The petitio ner’s lack of a biological connection to proof of biological ties for us to give the respondent’s argument alternative routes to establish parental status that do not require we must, we observe that the legislature has set forth too many After considering the overarching s tatutory scheme in this area, as

reasoned: definition of “one that begets or brings forth offspring.” I d. at 580. We “parent” u nder RSA chapter 461 - A because he did not meet the dictionary the respondent, the child’s biological mother, that the petitioner could not be a the Matter of J.B. & J.G., 157 N.H. at 578, 581. We reject ed the contention of p. 10 10

DALIANIS, C.J.