2019-0743, In re J.P.

relating to genetic testing. adoption, but vacate and remand the award of attorneys ’ fees and costs award of attorney s ’ fees and costs relating to the petition to vacate the I(d) (2014), we affirm its decision to vacate the adoption. We also affirm its petitioner was entitled to notice of the adoption proceeding under RSA 170 - B:6, petitioner. Because the record supports the trial court’s determination that the attorney s ’ fees and costs, including the cost of a genetic paternity test, to the adoption proceeding to the petitioner, J.P.’s biological father; and (2) awardi ng J.): (1) vacating the stepfather’s adoption of J.P. due to lack of notice of the minor child, appeal orders of the Probate Division of the Circuit Court (Quigley, DONOVAN, J. The respondents, the mother and stepfath er of J.P., a

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

petitioner. Holmes and Jacqueline A. Leary on the brief, and Ms. Leary orally), for the McLane Middleton, Professional Association, of Manchester (Ralph F.

No. 2019 - 0743 9th Circuit - Nashua Probate 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

preschool, he increased the payments to approximately $800 per month. In check s issued to the mother. Beginning in Septem ber, when J.P. started and August p. 2 2016, he provided approximately $300 to $400 each month by providing the mother with regular financial support for J.P. Between January Shortly after th e petitioner became involved in J.P.’s life, he also began

and “Papa.” photographs of J.P. to the petitioner’s parents, addressing them as “Grandm a” “daddy” and were signed with J.P. ’s name. The mother also sent cards and Father’s Day and Valentine’s Day cards, which addressed the petitioner as to J.P. as his father. J.P. called him “D ada.” The mother sent the petitioner During this period, the petitioner and the mother identified the petitioner

attended J.P.’s birthday parties at the mother’s residence. petitioner’s family members, who accepted J.P. as family. The petitioner also with J.P. at the petitioner’s apartment and take J.P. to visit with the him, and put him to bed. Eventually, the mother allowed the petitioner to visit home, where the petition er played with J.P., read to him, gave him baths, fed J.P. overnight. Thus, the petitioner ’s visits usually took place at the mother’s and J.P. lived with her sister, and she declined the petitioner’s requests to take with time. The mother preferred that visits occur at her residence, where she subject to the mother’s restrictions, the petitioner’s responsibilities increased with J.P. on a regular — often weekly — basis. Although the visits were Between December p. 2 2015 and the summer of 2018, the petitioner visited

December p. 2 2015. met with the petitioner before allowing him to visit J.P. for the first time in Because the mother was initially reluctant for the petitioner to meet J.P., she contacted the mother because he wanted to be involved as a father to J.P. and mother did not communicate until November 2015, when the petitioner power to introduce him to both sides of his family.” However, the petitioner involved in his lif e, and stated that it was her desire to do “everything in [her] which she informed them that J.P. was their grandson, invited them to be In April 2014, the mother sent a letter to the petitioner’s parents, in

certificate; instead she gave the child her last name. two years. The mother did not identify an yone as J.P.’s father on his birth was born, the mother and petitioner did not otherwise have contact for nearly mother reached out to the petitioner to request his medical history when J.P. the pregnancy. In January p. 2 2014, the mother gave birth to J.P. While the mother became pregnant. That summer, the mother informed the petitioner of 2013, following a casual but intimate relationship with the petitioner, the The trial court found, or the record supports, the following facts. In

putative father registry, indicated that the adoption was final. noting that no father was identified in the affidavit, the birth certificate, or respondents both answered “[n] o.” The trial court then reviewed the file, and, The trial court, in response, asked whether there is an identi fied father. The father were to ever attempt to show up, would that change anything for me?” hearing came to a close, the stepfather asked the court, “If [J.P.’s] biological granted the petition after the mother orally consented to the adoption. As the mother, stepfather, J.P., and their counsel were present. The trial court Division (Quigley, J.) held a hearing on the adoption petition at which only the petition or alert the court of his identity. On December p. 3 31, 2018, the Probate stepfather did not provide notice to the petitioner of the pending adoption person holds himself out to be the father of [her] child.” The mother and Mother. In the affidavi t, she attested that, “[t]o the best of [her] knowledge, no 2 9, in connection with this petition, the mother filed a n Affidavit of Birth subsequently filed it with the probate division on November 8. On November respondents signed an adoption petition for the stepfather to adopt J.P., and Meanwhile, unbeknownst to the petitioner, on October 8, the

and asked the mother to Facetime with J.P. on Christmas. Halloween gift in October and a Happy Thanksgiving message in November, mother checks each month, in amount s of up to $860. H e also sent J.P. a “completely broke [] down.” The petitioner, nevertheless, continued to send the communication between the petitioner and the mother regarding visits September, t he petitioner continued to spend time with J.P. Thereafter, In August 2018, the mother and stepfather were married. Until early

schedule. mother and the petitioner in June 2018 regarding the summer visitation and the stepfather was present during an in - person meeting between the stepfather to be included in any communi cation she had with the petitioner, petitioner’s plans with J.P. for the summer of 2018. The mother wanted the petitioner became increasingly strained, particularly with regard to the invol ved. As time progressed, communication between the mother and the Around this time, the mother and stepfather became romantically

Neither parent made an effort to refile the form. name, and requested that she and the petitioner submit a corrected form. to several clerical erro rs, including a discrepancy in the spelling of the mother’s certificate. The Commonwealth, however, returned the form to the mother due Massachusetts to allow the petitioner’s name to be placed on J.P.’s birth Voluntary Acknowledgment of Paternity form with the Commonwealth of In October 2017, the mother and the petitioner completed and filed a

mother at least $25,250. total, b etween January 201 6 and December 2018, the petitioner gave the p. 4 4

petitioner “the costs of genetic paternity testing and attorneys’ fees for filing the bad faith in their attempt to complete an adoption of [J.P.]” and awarded to the found that the respondents “intentionally misrepresented facts and acted in convi n cing evidence, that he is J.P.’s biological father. The trial court again order, the trial court determined that the petitioner had proven, by clear and petitioner’s motion to supplement the record with the paternity test. In that In a separate order, issued th e same day, the trial court granted the

the adoption,” and granted the petitioner’s request for attorney s ’ fees. and in bad faith to deny the birth father his due process right to notice prior to determinat ions, the court concluded that the respondents “acted intentionally would have been entitled to notice under RSA 170 - B:6, I(b). Based on these court as to the petitioner’s existence, noting that, if they had, the petitioner failing to correct the record as to the A ffidavit of Birth Mother or alert the trial The trial court also faulted the stepfather and the respondents’ trial counsel for had a relationship with the child and provided financial support for the child.” did so “knowing full well that [the petitioner] held himself as the father of [J.P.], affidavit, after consultation with counsel, “with an intentional falseho od,” and consent to the adoption. The trial court further found that the mother filed her mother and J.P. and held himself out as J.P.’s father prior to the mother’s notice under RSA 170 - B:6, I(d), because he provided financial support to the motion to vacate the adoption. It found that the petitioner was entitled to Thereafter, the trial court issued an order granting the petitioner’s

fees of filing” the motion. The respondents objected. all costs related to the genetic testing,... including the costs and attorneys’ J.P.’s biological father. The motion also requested that the respondents “pay paternity test, which demonstrated a 99.9999% likelihood that the petitioner is petitioner filed a motion to supplement the record with the results of the and respondents. Following the hearing, but before the trial court ’s ruling, the motion to vacate the adoption, at whic h it heard testimony from the petitioner In August, the trial court held an evidentiary hearing on the petitioner’s

a test. The trial court granted the motion over the respondents ’ objection. would neither stipula te that the petitioner is J.P.’s biological father n or agree to motion seeking an order for a genetic paternity test because the respondents In July, while the petition to reopen was pending, the petitioner filed a

petitioner filed a petition to reopen and vacate the adoption for lack of notice. subsequently learned that the stepfather had adopted J.P. As a result, the October, November, and December. The petitioner obtained counsel and received three checks that he had previously provided to the mother in not contact any of us moving forward.” On January 3, 2019, the petitioner months back to you. Do not send anything else to my family’s home, and do message to the petitioner, stating, “we are sending your checks from the last 3 That same day, shortly after the hearing, the stepfather sent a text p. 5 5

not limited to care, custody, and control of the child, by a parent”). XV II (defining “surrender” as “t he release of all parental rights, including but parental rights under RSA 170 - B:6.” RSA 170 - B: p. 5 5, I(c); see also RSA 170 - B:2, to be entitled to notice and found to be entitled to the right to surrender his rights... be ob tained from:... [t]he birth father, provided that he was found adoption may be finalized, the statute requires that “a surrender of parental adoptee. See RSA 170 - B:4, IV(a). However, as relevant here, before an proceedings, including adoptions by individuals married to a parent of the : 4 -: 6 (2014). RSA chapter 170 - B (2014 & Supp. 2019) gove rns adoption We turn first to the language of the relevant statute s. See RSA 170 - B: 2,

Id. might have said or add language that the legislature did not see fit to include. intent from the statute as written and wi ll not consider what the legislature did not enact superfluous or redundant words. Id. We interpret legislative to every word of a statute whenever possible and presume that the legislature because they are the t ouchstone of the legislature’s intent. Id. We give effect the statute considered as a whole. Id. We focus on the words of the statute are the final arbiter of the intent of the legislature as expressed in the words of In re J.W., 172 N.H. 332, 33 p. 5 5 (2019). In matters of statutory interpretation, we See id. Statutory interpretation is a question of law, which we review de novo. interpret the applicable statutes, applying our rules of statutory interpre tation. of the statutory requirements. Baby Girl P., 147 N.H. at 77 5. Accordingly, we Adoption is a creature of statute, and, as such, requires strict observance

uncontroverted evidence.” I d. (quotation omitted). testimony of any witness or party, and is not required to believe even brackets omitted). “The trial court may accept or reject, in whole or in part, the th e Matter of Geraghty & Geraghty, 169 N.H. 404, 416 (2016) (quotation and credibility of witnesses, and determining the weight to be given evidence.” In judgment on such issues as resolving conflicts in the testimony, measuring the not be reasonably made.” RSA p. 5 567 - A:4 (2019). “We defer to the trial court’s factual findings “unless they are so plainly erroneous that suc h findings could Adam R., 159 N.H. 788, 792 (2010). We will not disturb the probate division’s it is unsupported by the evidence or plainly erroneous as a matter of law, In re law, In re Baby Girl P., 147 N.H. 772, 774 (2002), and will not disturb it unless was entitled to notice. We review a decree of the probate division for errors of adoption, arguing that the trial court erred in concluding that the petitioner The respondents first challenge the trial court’s decision to vacate the

these decisions. The trial court denied the motions and t his appeal followed. motion for paternity testing.” The respondents moved for reconsideration o f p. 6 6

The respondents filed the adoption petition on November 8, 2018, less than a been providing to the mother, and which she had accepted, for over two years. each in the amount of $8 p. 6 60, consistent with the monthly payments he had gave the mother check s dated October 1, November 2, and December 10, 2018, action under this chapter is initiated.” (Emphasis added.) Here, t he petitioner financial suppor t to [the child’s birth mother] or the child at the time any I(d) entitles a person to notice of the adoption proceeding if he was “providing language of the statute and the undisputed facts in this case. RSA 170 - B:6, Accepting this argument would require that we ignore the relevant

mother “had rejected, by not depositing.” I(d), because the October and November checks were mere offer s that the respondents initiated the adoption proceeding, as required under RSA 170 - B: p. 6 6, that t he petitioner did not provid e financial support at the time the October, November, and December 2018. The respondents argue, h owever, court’s finding that the petitioner sent the mother checks during the months of between January 2016 and September 2018. Nor do they dispute the trial petitioner provided, and the mo ther accepted, the petitioner’s payments T he respondents do not dispute the trial court’s finding that the

applicable statutory provision in turn. support nor held himself out as J.P.’s father. We address each argument and respondents argue, however, that the petitioner neither provided fina ncial the mother consenting to the adoption” on December 31, 2018. The holding himself out as the father of [J.P.] for approximately three years prior to under RSA 170 - B: p. 6 6, I(d) because he “was providing financial support and Here, the trial court concluded that the petitioner was entitled to notice

p. 7 784 (Dalianis, J., concurring in part and dissenting in part). constitutional rig ht, see Adam R., 159 N.H. at 792; Baby Girl P., 147 N.H. at provided to certain fathers under RSA 170 - B: p. 6 6 serves to protect this 172 N.H. at 343, the notice requirement and opportunity to prove paternity parental rights of the child’s biological father, see RSA 170 - B:25 (2014); J.W., paragraph I.” RSA 170 - B:6, III. Because the adoption of a chil d severs any in favor of providing an alleged father with notice by the court pursuant to RSA 170 - B:6, II. RSA 170 - B:6 requires that this section “be construed broadly preponderance of the evidence that he is the le gal or birth father of the child.” date of the court’s notice to request a hearing,” at which he must prove “by a entitled to notice... under paragraph I shall be provided 30 days from the father.” RSA 170 - B:6, I(d). RSA 170 - B:6 further provides that “[a]ny person under this chapter is initiated and who is holding himself out to be the child’s mother or providing financial support to her or the child at the time any action be given to “[a] person who is openly living with the child or the child’s birth RSA 170 - B:6 requires, in relevant part, that notice of a pending adoption 7

petition, we need not address the timing requirement any further. Because the petitioner made payments contemporaneously with the filing of the adoption 1

she accepted it.” The respondents provide no reason why th ese findings of fact their actions, “implicitly agreed that he would provide financial support and was for the care and support of [J.P.]” and that the mother and petitioner, by meritless. The trial court found tha t the mother “understood that the money payments other than supporting the mother and J.P. This argument is had some unknown and potentially devious motive for providing such discussed what the checks were for,” and suggest that the petitioner may have constitute “financial support” because the petitioner and mother “n ever Finally, t he respondents contend that the petitioner’s payments do not

support at th at time. See id. 1 discussed, the record demonstrates that the petitioner provided financial action under this chapter is initiated.” RSA 1 p. 7 70 - B:6, I(d). A s we have point in the child’s life; he must provide financial support “at the time any need not provide financial support during the pregnancy or at any specific argument unavailing. To qualify for not ice under the statute, an individual provide payments, the amounts and frequency fluctuated. We find this during [the] pregnancy and for two years after [J.P.’s] birth,” and, when he did and inconsisten t to qualify as ‘financial support’” because he “offered nothing The respondents next argue that the petitioner’s payments were “too late

distinctions render Anderson inapposite. she h ad the m in her possession until the adoption was finalized. These adoption proceeding, and although she did not deposit the final three checks, T he mother accept ed every payment from the petitioner leading up to the at any time, i d. at 630 (quotations and brackets omitted). The facts here differ. father “nev er provided any actual financial payments” to the biological mother Id. at 6 29 - 30 (quotation and emphasis omitted). In that case, however, the “reasonable and consistent payment for the support of the biological mother.” under the relevant North Carolina statute, which explicitly required unaccepted offers of financial support were insufficient to constitute “support” misplaced. In Anderson, the court concluded that a biological father’s Supreme Court in In re Adoption of Anderson, 624 S.E.2d 626 (N.C. 2006), is The respondents ’ re liance upon the decision of the North Carolina

deposit ed them at any time. that the petitioner provided the payments to her and that she could have petitioner shortly before she filed the adoption petition does not negate the fact mother’s decision not to deposit the two most recent checks provided by the time the adoption proceeding was initiated. See RSA 1 p. 7 70 - B:6, I(d). The demonstrates that the petitioner was providing payments to the mother at the one month before his December payment. Accordingly, the evidence week after the date of the petitioner ’s November payment, and appr oximately p. 8 8

presumption that the legislature does not enact superfluous or redundant child’s father. However, viewing the “holding out” provision in light of our may constitute evidence that one is represent ing himself to others as the Taking the legal or administrative steps identified by the respondents

appeared “to the world” as the child’s parent). under the surrogacy statute where the facts showed that she, inter alia, petitioner pleaded sufficient facts to prove that she was the presumed parent Guardianship of Madelyn B., 166 N.H. 453, 462 - 63 (2014) (concluding that the alia, the person “openly holds out the child as that person’s child”); In re (2014 & Supp. 2019), a person is presumed to be the parent of a child if, inter (Supp. 2019) (providing that, under the surrogacy statute, see RSA ch. 16 p. 8 8 - B the business” of buying and selling real estate); see also RSA 168 - B:2, V(d) “broker” as anyone who “[a]dvertises or holds oneself out as being engaged in physician without state authorization); RSA 331 - A:2, III(g) (2017) (defining s ee, e.g., RSA 329:24, I (2017) (making it unlawful to “hold oneself out” as a (unbridged ed. 2002) (defining “hold out” as “to make out to be : represent”); role or identity. See Webster’s Third New International Dictionary 1079 commonly understood as representing oneself to others as having a particular Belmont, 172 N.H. 61, 65 (2019) (quotation omitted), holding oneself out is the phrase according to its “common and approved usage,” Appeal of Town of we have yet to consider it in the context of this statute. However, in construing RSA chapter 170 - B does n ot define the phrase “holding himself out,” and

child support proceeding, or obtain ing a genetic test. have his name placed on J.P.’s birth certificate, initiating a parenting plan or putative father registry, successfully comple ting the necessary paperwork to establishing paternity through a paternity action, plac ing his name in the he failed to take one or more legal or administrative measures, including not hold himself out as J.P.’s father because, prior to the adoption proceeding, satisfying the “holding out” provision. They first cont end that the petitioner did respondents argue, however, that the petitioner’s behavior fell short of period, the trial court concluded that he held himself out as J.P.’s father. The consistent and supportive father - so n relationship with J.P. over the three - year I(d). Based upon the evidence demonstrating that the petitioner had a himself out” as the child’s father to be entitled to notice under RSA 170 - B:6, In addition to providing financial support, an individual must “hold []

to credit the mother’s testimony. See Geraghty, 16 p. 9 9 N.H. at 416. may accept or reject the testimony of any witness or party, it was not compelled expressly found that this testimony was not credible. Because t he trial court discussed, and she did not know, the purpose of the money, the trial court RSA 567 - A:4. Further, although the mother testified that they never “are so plainly erroneous that such findings could not be reasonably made.” 9

visits were “infrequent, brief, [and] irregular,” and contend that he “did not father. They characterize the petitioner’s role as that of a “babysitter” whose J.P.’s life was insufficient to demonstrate that he held himself out as J.P.’s The respondents nevertheless argue that the petitioner’s involvement in

demonstrated their father - child relationships through their actions. legally formalized their father - child relationship s, but have nonetheless intended RSA 170 - B:6, I(d) to apply to individual s who ha ve not necessaril y meaning of the phrase “holding himself out,” we conclude that the legislature in specific legal and administrative measures, and in light of the common 170 - B:6, I(b) and I(c) entitle individuals to notice based upon their involvement the child’s birth certificate, by the court, or upon legitimation). Because RSA B:6”), X (defining “legal father” as a person who is “designated as the father” on unrevoked notice of intent to claim paternity of the child pursuant to RSA 170 child, or who is the subject of a pending paternity action, or who has filed an person “who has been named, pursuant to RSA 170 - B:6, as the father of the individual or court has ta ken. See RSA 170 - B:2, III (defining “birth father” as a this statute, based upon certain legal or administrative measures that the birth or legal father.” A person is a “birth father” or “legal father,” as used in provid es notice, under certain circumstances, to an individual who is “[t]he registered with the putative father registry. Similarly, RSA 170 - B:6, I(b) For example, RSA 170 - B:6, I(c) provides notice to an individual who has that provide notice to individuals who do take legal or administrati ve action. measures in light of the other, independent categories under RSA 170 - B:6, I, out” provision to require an individual to have taken legal or administrative Moreover, we fail to see why the legislature would intend for the “holding

RSA 170 - B:6, II. statute contemplates that the individual has not yet taken steps to do so. S ee parental interests”). Thus, by providing an opportunity to prove paternity, the father’s rights by giving him several avenues by which he can preserve his 147 N.H. at 778 (explaining that the “statutory scheme protects a putative his paternity before the adoption occurs. See RSA 170 - B:6, II; Baby Girl P., one of these categories, the statute provides him with the opportunity to prove individual have proven paternity. If an individual is entitled to notice under individuals who are entitled to notice — none of which require s that the B:6, III (emphasis added). RSA 170 - B:6, I, sets forth four distinct categories of interpretation. RSA 170 - B:6 provides notice to “an allege d father.” RSA 170 the court to prove his paternity, the statute does not support this individual has not held himself out as the father unless he already petitioned As an initial matter, to the extent that the respondents contend that an

be necessary to fall within the “holding out” provision under RSA 170 - B:6, I(d). 170 - B:6, III, we conclude that the legislature did not intend for such actions to its provisions broadly in favor of providing an alleged father with notice, RSA words, see J.W., 172 N.H. at 335, and the statute’s command that we construe p. 10 10

as J.P.’s father despite his lack of daily involvement or overnight visits. did not preclude the trial court from finding that the petitioner held himself out openly held the child out as her own. See id. Thus, our decision in Madelyn B. reaching our conclusion that the parent received the child into her home and B., we did not s pecifically rely upon the petitioner’s day - to - day involvement in “holding out” provision of the statute. See id. at 462 - 63. I n fact, in Madelyn requires an individual to have daily involvement or overnight visits to meet the h ome to be entitled to notice of an adoption. Moreover, nothing in Madelyn B. RSA 170 - B:6, I(d) does not require an individual to receive the child into his as his or her own and receive d the child into his or her home. See id. at 458. was presumed to be the parent of a child if the person openly held the child out We first note that, under the statute at issue in Madelyn B., a person

N.H. at 455 - 56. mother, with whom she was in a relationship, separated. See Madelyn B., 166 overnight and weekend visits — after the petitioner and the child’s biological child’s life” and her continued involvement — which included scheduled point to the Madelyn B. petitioner’s “daily involvement in every aspect of the see RSA 168 - B:3, I(d) (2014) (repealed 2014). Specifically, the respondents under the surrogacy statute in effect at the time. Madelyn B., 166 N.H. at 462; received [the child] into her home and openly held [the child] out” as her own the petitioner in Madelyn B., who, we concluded, “adequately pleaded that she The respondents contrast the involvement of the petitioner with that of

father. the trial court’s determination that the petitioner held himself out as J.P.’s time with J.P. as his relationship with J.P. progressed. T his evidence supports members as J.P.’s father; and he sought to increase his responsibilities and residence, and represented himself to the stepfather and the mother’s family petitioner attended and helped with J.P.’s birthday parties at the mother’s accepted J.P. as family and m a intained a familial relationship with him; t he putting him to bed; the petitioner introduced J.P. to his family m embers, who reading to him, taking him to the playground, feeding and bathing him, and as his father and J.P. called him “D ada”; the petitioner acted as J.P.’s father by apartment, where her sister also lived; the petiti oner identified himself to J.P. the adoption, the petitioner spent time with J. P. as his father at the mother’s become involved in J.P.’s life as his father; for nearly three years leading up to he was J.P.’s biological father; in November 2015, the petitioner sought to demonstrate that: at all times, the petitioner accepted and acknowledged that Specific ally, the evidence in the record, and inferences drawn therefrom,

evidence in the record amply supports. respondents’ assertions directly contradict the trial court’s findings, which the “dropped involvement” when “visitation became inconvenient.” The participate in d ay - to - day child rearing,” such as feeding and bathing, and p. 11 11

to discourage frivolous lawsui ts. Id. acted in bad faith, the purpose is to do justice and vindicate rights, as well as action. Id. When attorneys ’ fees are awarded against a private party who has should ha ve been unnecessary for the successful party to have brought the can be characterized as unreasonably obdurate or obstinate, and when it vexatiously, wantonly, or for oppressive reasons, when the litigant’s conduct award of attorney s ’ fees is appropriate when one party has acted in bad faith, faith litigation theory. See Fat Bullies, 170 N.H. at 30. Unde r this theory, an P’ship, 169 N.H. 469, 482 (2016). One judicially - crafted exception is the bad general rule that precludes recovery of such fees. Jesurum v. WBTSCC Ltd. agreement between the parties, or an established judicial exception to the may be awarded attorney s ’ fees when that recovery is authorized by statute, an We have, h owever, recognized exceptions to this rule. Id. A prevailing party attorney s ’ fees. Fat Bullies Farm, LLC v. Devenport, 170 N.H. 17, 29 (2017). The general rule in New Hampshire is that parties pay their own

genetic testing. erred in awarding attorney s’ fees and costs for the litigation relating to the who held himself out as J. P.’s father. They further argue that the trial court therefore, the mother was truthful when she attested that she knew of no one meaning of the “holding out” provision presented a novel question of law, and, costs f or litigation relating to the petition to vacate the adoption because the and costs. They argue that the trial court erred in awarding attorney s ’ fees and The respondents next challenge the trial court’s award of attorney s ’ fees

entitled to notice under the statute. respondents’ arguments pertaining to the other categories of individuals entitled to notice under RSA 170 - B:6, I(d), we need not address the Because we uphold the trial court’s determination that the petitioner was

P.2d at 901. Thus, this case is not relevant to our analysis. right to withhold consent to an at - birth, third - party adoption. Michael H., 898 involved the question of whether an unwed father had a federal constitutional proposition, that case did not in volve a statutory “holding out” provision; it decision in Adoption of Michael H., 898 P.2d 891 (Cal. 1995), to support this birth. Although the respondents rely upon the California Supreme Court’s individ ual to hold himself out at the time of the pregnancy or at the child ’s entitled to notice of an adoption, RSA 170 - B:6, I(d) does not require an old, the petitioner did not meet the “holding out” provision of the statute. To be petitioner did not become involved in J.P.’s life until he was nearly two years requires “prompt attention to parenthood.” They argue that, because the Finally, the respondents contend that the “holding out” provision p. 12 12

made material misstatements during the adoption proceeding for the purpose clearly untenable nor unreasonable for the court t o conclude that the mother financial support and attempting to maintain contact with J.P., it was neither proceedings without any notice to the petitioner, who was still providing his father for nearly three ye ars, and the respondents’ initiation of the adoption her knowledge and acceptance of the petitioner’s involvement in J.P.’s life as mother’s acknowledgment of the petitioner as J.P.’s father since the pregnancy, the negative. Taking into consideration this representation, the evidence of the “identified father.” (Emphasis added.) The mother and stepfather responded in forward, the trial court expressly asked the respondents if there was an whether the adoption could b e jeopardized if J.P.’s biological father came adoption proceeding. At the hearing, in response to the stepfather’s question of that she did not know of anyone who held himself out as the father during the This argument is unavailing because the mother did not simply attest

accordingly, “truthfully swore that no man held himself out as the father.” a father would act with far more diligence than [the petitioner],” and, “holding out” provision, the mother believed that “a man holding himself out as respondents contend that, because we had not yet addressed the scope of the awarded the petitioner attorney s ’ fees against both respondents. Rather, the court ’s findings regarding the stepfather’s role, even though the trial court record. In fact, the respondents’ argument does not even mention the trial The respondents do not argue that these findings are un supported by the

notify the court or correct the record. father. The trial cour t also faulted the respondents’ trial counsel for failing to notify the court about the petitioner, despite his knowledge of him as J.P.’s accept ing his involvement and financial support; and (2) the stepfather failed to no tice, despite years of acknowledging the petitioner as J.P.’s father and himself out as the father — which prevented the petitioner from receiving adoption hearing — including her statement that she knew of no one who held “knowingly misstated material issues of fact” in her affidavit and during the conclusion was based upon the trial court’s find ings that: (1) the mother court for the purpose of depriving him of notice of the proceeding. Th is an intentional, concerted effort to conceal the identity of the petitioner from the concluded that the mother and the stepfather acted in bad faith by engaging in litigation stemming from the petition to vacate the adoption. The trial court We begin with the trial court’s decision to award attorney s ’ fees for the

support in the record for the trial court’s determination, we will uphold it. Id. given to a trial court’s decision regarding attorney s ’ fees. Id. If there is some evaluating the trial court’s ruling on this issue, we acknowledge the deference extent clearly u nreasonable, to the prejudice of the objecting party. Id. In discretion must have been exercised for reasons clearly untenable, or to an absent an unsustainable exercise of discretion. Id. To warrant reversal, the We will not overturn a trial court’s decision concerning attorney s ’ fees p. 13 13

issues that the [appellant] has fully briefed.”). Nevertheless, we note that the trial court did not Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018) (“[W]e confine our review to only those testing.” This sentence is inadequate to sufficiently brief this issue. See Halifax - American Energy “[b]ecause biology is irrelevant, the court erred by accepting and considering the results of genetic and considering the results of the genetic test. The respondents’ brief states, i n a footnote, that, The respondents’ notice of appeal raises the issue of whether the trial court erred in admitting 2 award fees and costs in light of this opinion. 2 rem and for the trial court to determine whether there exists a proper basis to unsustainable exercise of discretion. We, therefore, vacate the award and the genetic testing, on the basis articulated by the trial court, was an instance. Accordingly, we conclude that the award of fees and costs relating to testing, this determination must be made by the t rial court in the first respondents’ refusal to stipulate to paternity or their opposition to genetic there may be a proper legal basis to award attorney s ’ fees and costs for the paternity by a preponderan ce of the evidence. See RSA 170 - B:6, II. Although petitioner properly received notice, he would have had the burden of proving for the motion for genetic testing or for the genetic test itself, because, had t he However, it does not provide a basis for the award of attorney s ’ fees and costs litigation to enforce his right s to notice and the opportunity to prove paternity. because, due to the respondents’ bad faith, the petitioner was forced to pursue petitioner attorney s ’ fees and costs for his petition to vacate the adoption The trial court’s finding provides a reasonable basis for awarding the

for the purpose of depriv ing him of notice. the adoption, was their intentional failure to identify the petitioner to the court complete” the adoption, which, as identified in the trial court’s order vacating material misrepresentations and acted in bad faith “in their attempt to the adoption action altogether. Rather, it found that the respondents made award fees on the basis that the respondents acted in bad faith by initiating paternity or by opposing his motion for genetic testing. Nor did the tria l court upon a finding that the respondents acted in bad faith by contesting his The trial court did not award fees relating to the genetic testing based

paternity” regardless of what occ urred in the adoption proceeding. argue that the trial court erred because the petitioner “would have had to prove bad faith in their attempt to complete an adoption of [J.P.].” The respondents costs because the respondents “intentionally misrepresented facts and acted in associated with the genetic testing. The trial court awarded these fees and We now address the trial court’s award of attorney s ’ fees and costs

Stratford, p. 13 139 N. H. 629, 632 (1995) (quotation omitted). trial court’s conclusion, we will not second guess it. Emerson v. Town of faith or is patently unreasonable,” and, given the support in the record for the court is in the best position to decide whether a party’s claim constitutes bad misunderstood the meaning of the phrase “holding himself out.” “[T]he tri al of concealing the petitioner’s identity from the court — not simply because she p. 14 14

had proven that he was J.P.’s father, which the respondents do not appeal. See RSA 170 - B:6, II. test. Rather, it considered the results of the genetic test in its determination that the petitioner base its determination that the petitioner was entitled to notice on the results of the biolo gical

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

252, 255 (2017). not brief, are deemed waived. See In the Matter of Patie nt & Patient, 170 N.H. Any issues that the respondents raised in their notice of appeal, but did

attorney s ’ fees and costs relating to the genetic testing. vacate the adop tion. However, we vacate and remand the trial court’s award of the trial court’s award of attorney s ’ fees and costs relating to the petition to affirm the trial court’s decision to vacate the adoption. Furthermore, we affirm was entitled to notice of the adoption proceeding under RSA 170 - B:6, I(d), we Because the record supports the trial court’s finding that the petitioner