2014-0224, In the Matter of P.B. & a. and T.W. & a.

born to M.M. and K.B. on March 31, 2011. His birth parents died tragically on The trial court found, or the record reflects, the following facts. C.W. was

C.W. We affirm. maintain their petition for grandparent visitat ion after the respondents adopted erred in interpreting RSA 461 - A:13 (Supp. 2014) to permit the petitioners to the child. I n their cross - appeal, the respondents argue that the trial court that the trial court erred in balancing the factors regarding the best interests of their earlier motion to dismiss the petition. On appeal, the petitioners argue respondents, T.W. and S.W., cross - appeal an order of the c ircuit c ourt denying that their petition for visitation with their grandson C.W. be d eni ed. The Court (R yan, J.) approving the J udicial R eferee’s (Rein, M.) recommendation HICKS, J. The petitioners, P.B. and S.B., appeal an order of the Circuit

and orally), for the respondents. Pierce Atwood LLP, of Portsmouth (Lawrence M. Edelman on the brief

and orally), for the petitioners. Law Office of Thomas Morgan, PC, of Salem (Thomas Morgan on the brief

IN THE MATTER OF P. B. & a. and T. W. & a.

No. 2014 - 224 9 Circuit C ourt - Nashua Family Division th

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

decision de novo. Id. at 787 - 88. Id. Because the underlying facts are not in dispute, we review the trial court’s whether the petitioner s ha ve sufficiently demonstrated a right to claim relief. court must look beyond the allegations and determine, based upon the facts, petitioners ’ legal claim, but instead challenges the ir standing to sue, the trial When, however, the motion to dismiss does not contest the sufficiency of the all reasonable inferences in the light most favorable to the petitioner s. Id. court would accept all facts ple a d ed by the petitioner s to be true and construe Dufto n & Shepard, 158 N.H. 784, 787 ( p. 2 2009). To make this determination, the sufficient to state a basis upon which relief may be granted. In the Matter of determine whether the allegations contained in the petitioners ’ pleadings are Usually, in ruling upon a motion to dismiss, the trial court is required to

disagree. C.W., the petitioners lacked standing to sue for grandparent visitation. We only when a nuclear family is absent; therefore, they argue, once they adopted court mis construed RSA 461 - A:13. They contend that RSA 461 - A:13 applies We first address the cross - appeal. The respondents assert that the trial

visitation. This appeal followed. of his parents.” Accordingly, the trial court denied the petition for grandparent relationship with the [petitioners’] family, under the supervision and judgment integration into his adopted family . . . fro m which he can explore his into [C.W. ’s] life[,]” and that “[C.W. ’s] best interests will be served by a full judgment in determining whether and how best to integrate [the petitioners] [C.W. ’s] best interests uppermo st in their minds and. . . will utilize appropriate relationship between C.W. and the petitioners, th at th e respondents “have before the temporary visitation order demonstrated their intention to support a A:13, the trial court concluded that the respondents ’ testimony and conduct for grandparent visitation. After considering the criteria set forth in RSA 461 - On February 1 p. 2 2, 2014, the trial court issued a final ruling on the petition

vacate the temporary order. The trial court denied this request. adopted C.W., they moved to dismiss the petition for grandparent v isitation and p. m. on the first and third S atur days of every month. After the respondents visitation order that mandated unsupervised visitation from 9:00 a. m. to p. 2 2:00 visitation in the trial c ourt. After a hearing, t he trial court entered a temporary On February 15, 2012, the petitioners filed a petition for grandparent

after C.W. began residing with the respondents. approximately 16 visits between January 17, p. 2 201 2, and September 1, 201 2, but not extensive – contact” with C.W. before his birth parents died and adoptive parents. The petitioners, K. B.’s mother and father, had “consistent – law, have cared for C.W., initially as guardians and, since June 2 4, 201 p. 3 3, as January 11, 2012. Since then, the respondents, M.M.’s sister and brother - in - 3

interpreting and applying RSA 461 - A:1 p. 3 3. Thus, cases prior to 2005 discuss RSA 458:17 - d. Nevertheless, those decisions control in visitation from RSA 458:17 - d to the newly created RSA 461 - A:13. See Laws 2005, 273:1, :20. In 2005, the legislature reorganized RSA Title XLIII and moved the section on grandparent 1

standing to petition for visitation. subsequent adoption or creation of a new family unit on a grandparent’s child’s mother. Id. at 787 - 88. We were not aske d to consider the impact of a grandmother who had relinquished her parental rights to her daughter, the we were asked only to determine whether the t erm “grandparent” included a nuclear family.” Dufton, 158 N.H. at 788 (emphasis omitted). But in Dufton grandparent visitation rights existed only in the absence of the grandchild’s unavailing. In Dufton, we noted that in O’Brien, “we explained that The respondents ’ reliance up on In the Matter of Dufton & Shepard is

trial court did not err in refusing to grant the respondents ’ motion to dismiss. petitioners to file for grandparent visitation. Accordingly, we conclude that the contemporaneous with” their deaths, their deaths conferred standing upon the C.W. ’s parents did not restrict the petitioners’ ability to visit C.W. “prior to or that determination meticulously.” O’Brien, 141 N.H. at 4 p. 3 37. Here, b ecause the class that can petition to enfo rce a statutory scheme, we “will implement family unit. See RSA 461 - A:13, I. When the legislature has clearly delineated standing when the child is subsequently adopted a nd becomes part of a new restricted.” Id. Nothing in the statute divests a petitioning grandparent of grandparent ’s access to the grandchild has been earlier, or contemporaneously, enumerated conditions listed at the end of the second sentence “unless the or adoptive, whenever a grandchild’s family is the subject of one of the 461 - A:13, I, standing to seek visitation vests in a grandparent, whether natural (1996) (construing predecessor to RSA 461 - A:13). Accordi ngly, under RSA 1 the second sentence has come to pass.” O’Brien v. O’Brien, 141 N.H. 435, 437 to petition for visitation “only when one of the conditions listed at the end of (Emphas i s added.) We have construed this statute to authorize grandparents

nuclear family. termination of parental rights, or other cause of the absence of a contemporaneous with the divorce, death, relinquishment or minor child has been restricted for any reason prior to or cases where access by the grandparent or grandparent s to the in paragraph III. The provisions of this section shall not apply in for reasonable rights of visitation with the minor child as provided Grandparents, whether adoptive or natural, may petition the court

A:1 p. 3 3, I, states, in relevant part: Regarding the right of grandparents to petition for visitation, RSA p. 4 4 61 - 4

modifying the visitation order; and ( p. 4 4) Troxel does not apply. We disagree. visitation rights; (3) the trial court erred by termin ating visitation rather than according to them, the respondents secret ly adopted C.W. to eliminate their that both natural parents died; (2) the trial court did not consider that, interests. They argue that: (1) the trial court did not properly consider the fact determination that continued court - ordered visitation was not in C.W. ’s best We next address the petitioners’ arguments regarding the trial court’s

trial co urt did not err in denying the respondents ’ motion to dismiss. decisions regarding the rearing of children). Accordingly, we conclude that the a third party visitation statute that accorded no judicial deference to parental 530 U.S. 57, 67 (2000) (plurality opinion) (holding unconstitutional, as applied, adoptive parents i n an unconstitutional “subclass.” See Troxel v. Granvil le, deference to a natural or adoptive parent’s judgment, the statute does not place visitation with both natural and adopt ed grandchildren and requires judicial the adopting parents). Because RSA p. 4 461 - A:13 permi ts grandparents to seek rights and privileges, as well as all the duties and obligations, of a child born of adoptee to be the child of the adopting parents and granting the adoptee all the natural and adoptive parents. See RSA 170 - B:25, I (2014) (considering an 318; see also RSA 461 - A:13, II(a), (b). This deference must be accorded to both a fit parent’s judgment as to the child’s best interest s. See Rupa, 161 N.H. at the other statutory factors because, by so doing, the court accord s deference to RSA 461 - A:13, it must weigh the first two statutory factors more heavily than Ward, 12 6 N.H. 388, 391 (1985). W e have held that when a trial court applies inherent rights to which great judicial deference must be accorded. Roberts v. we have long recognized that the rights of parents are natural, essential, and 786 (natural parent); O’Brien, 141 N.H. at 436 (natural parent). Furthermore, Rupa & Rupa, 161 N.H. 311, 31 2 (2010) (natural parent); Dufton, 15 8 N.H. at In re Athena D., 162 N.H. 232, 234 (2011) (adoptive parents); In the Matter of for visitation when restricted by either adoptive or natural parents. See, e.g., target adoptive parents and has been relied upon by grandparents to petition parents in an unconstitutional “subclass” of parents. The statute does not petitioners to file for grandparent visitation after the adoption places adoptive Also unavailing is t he respondents’ argume nt that permitting the

petition for visitation. See, e.g., RSA p. 4 461 - A:13; O’Brien 141 N.H. at 437. the statute, which has no provision for terminating a grandparent’s right to prosecute a petitio n. This interpretation comports with both our case law and family unit does not divest a grandparent of the standing necessary to died. A bsent statutory language to the contrary, subsequent creation of a new conditions are met. Here, those conditions were met when the child’s parents standing to petition for visitation vests at the point when the s tatutory at the time of the petition. We disagree, and clarify that a g randparent ’ s grandparents can petition for visitation if and only if a nuclear family is absent The respondents argue that Dufton stands for the proposition that Furthermore, we do not read Dufton as narrowly as do the respondents. p. 5 5

natural or adoptive. Id.; see also Troxel, p. 5 530 U.S. at 69. judgment for that of fit parents, regardless of whether those parents are to the first factor in RSA 461 - A:13, II. A trial court cannot simply substitute its trial court s must accord deference to the parents’ determinations with respect act in the best inter ests of their children. See Rupa, 161 N.H. at 318. Thus, We have recognized that trial courts must presume that fit parents naturally

or relevant to the petition for visitation. (h) Any such other factors as the court may find appropriate

. . . .

termina tion of parental rights, or other cause. nuclear family, whether divorce, death, relinquishment or (e) The circumstances which resulted in the absence of a

have on the child. grandparent and the parent, and the effect such friction would and the parent o f the minor child, including friction between the (d) The nature of the relationship between the grandparent

would be endangered by such visitation or lack of it. cause to believe that the child’s physical and emotional health leng th of time of such residence, and when there is no reasonable contact, and whether the child has lived with the grandparent and and the minor child, including but not limited to, the frequency of (c) The nature of the relationship between the grandparent

child relationship or with a parent’s authority over the child. (b) Whether such visitation would interfere with any parent -

the child. (a) Whether such visitation would be in the best interest of

rights: the following criteria in making an order relative to a grandparent’s visitation RSA 461 - A:13, II requires, in relevant part, that the trial court consider

court’s application of law to facts de novo. Bordalo, 1 p. 6 64 N.H. at 314. made. State v. Lambert, 147 N.H. 29 p. 5 5, 296 (2001). However, we review a trial establishes an objective basis sufficie nt to sustain the discretionary judgment unsustainable exercise of discretion, we are deciding whether the record Bordalo & Carter, 164 N.H. 310, 313 (20 12). When we review for an t here has been an unsustainable exercise of discretion. See In the Matter of and responsibilities and we will not overturn its determination except when The trial court has wide discretion in matters involving parent al rights 6

N othing in the record demonstrates that the adoption was improperly conducted. nonetheless, they acknowledge that they were notified of the res pondents’ intention to adopt C. W. We note that the petitioners we re not entitled to notice of the adoption, see RSA 170 - B:17 (2014); 2

DALIANIS, C.J.