2021-0199, In re Guardianship of B.C.

chapter 463. A ccordingly, we vacate and remand. 169 - C does not prec lude the appointment of a guardian pursuant to RSA 2020). We conclude that an award of legal custody pursuant to RSA chapter ongoing abuse and neglect pro ceedings, see RSA ch. 169 - C (2014 & Supp. and Families (DCYF) already had legal custody of the child as a result of obtain guardianship because the New Hampshire Division for Children, Youth the petitioner challenges the circuit court’s determination that she could not minor child, pursuant to RSA chapter 463 (2018 & Supp. 2020). On appeal, (Leonard, J.) denying her petition for guardiansh ip of her great - nephew, a DONOVAN, J. The petitioner appeals an order of the Circuit Court

Division for Children, Youth and Families. attorney general, on the memorandum of law and orally), for the New Hampshire John M. Formella, attorney general (Laura E. B. Lombardi, senior assistant

Michael S. Lewis on the brief, and Craig T. McMahon orally), for the petitioner. Rath, Young and Pignatelli, P.C., of Concord (Craig T. McMahon and

No. 2021 - 0199 6th Circuit Court - Concord Family Division

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are availabl e on the Internet by 9:00 to press. Errors may be reported by email at the following address: 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 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

[B.C.] in the [RSA chapter] 169 - C case. investigated as an appropriate relative placement for in the guardianship proceeding, [t he petitioner] should be live. Based upon the information provided to the Court authority to determine where and with whom [B.C.] shall awarding legal custody of [B.C.] to DCYF, DCYF has the In light of the orders in the [RSA chapter] 169 - C case

order, the court stated, in part: On April 9, the circuit court d ismissed the guardianship petition. In its

169 - C:4, III. orally and by written motion, disagreeing with DCYF’s interpretation of RSA placement” for B.C. The petitioner objected to the m otion to dismiss, both procedure to determine whether she would be an approp riate relative it was “working with [the petitioner] through [its] normal pro cess and proceedings “tak e priority over this guardians hip case.” DCYF also stated that already “establish[ed] a legal relationship w ith [B.C.],” the RSA chapter 169 - C Relying upon RSA 169 - C:4, III, DCYF argued, in part, that because it had heard arguments on DCYF’s motion to dismiss the guardianship petition. custody” of B.C. through the RSA chapter 169 - C proceedings. The court also been issued two days prior, and observed that DCYF had obtained “legal adjudicatory order. The court then obtained the adjudicatory order, which had guardianship hearing, DCYF informed the court that it h ad not yet received the case, the circuit court held a hearing on the guardianship petition. At the O n March 18, after the adjudicatory hearing for the abuse and neglect

with the child.” dismiss the petition, noting that it had already “established a legal relationship give her consent to the guardianship several days later. DCYF moved to immediate temporary guardianship. B.C.’s mother signed a form purporting to pursuant to RSA chapter 463, together with an ex parte emergency motion for On February 11, the petitioner filed a petition for guardianship of B.C.

remains. See RSA 169 - C:6 - a. As a result, B.C. was placed in foster care, where he court is sued an ex parte order granting DCYF protective supervision of B.C. proceedings pursuant to RSA chapter 169 - C. O n February 5, p. 2 2021, the circuit his welfare. Following an investigation, DCYF commenced abuse and neglect issues. Shortly after B.C.’s birth, DCYF received a report of concern regarding child, B.C., is an infant. His parents are homeless and have substance use The following facts are undisputed or are supported by the record. The

the child; other decisions of substantial legal significance concerning (4) to represent the child in legal actions; and (5) to make ( p. 3 3) to major medical, psychiatric and surgical treatment, enlistment in the armed forces of the United States, and (a) The authority to consent: (1) to marriage, (2) to

but are not necessarily limited either in number or kind to: general welfare of the child. Such duty and au thority include development of the child, and to be concerned about the matters having a permanent effect on the life and with the duty and authority to make important decisions in [A] parent or pers on appointed by a court having jurisdiction

RSA 169 - C: p. 3 3, XIV defines the term “g uardian” as:

se parate legal guardian.” (Italics and capitalization omitted.) scenarios in which a minor child has a legal relationship with DCYF and a According to the petitioner, RSA chapter 169 - C “explicitly contemplates appointment. . . as B.C.’s guardian.” (Bolding and capitalization omitted.) “concluding that DCYF’s prior legal relationship with B.C. precluded [her] On appeal, t he petitioner argues, in part, that the circuit court e rred by

scheme. Id. in light of the policy or purpose sought to be advanced by the statutory us to better discern the legislature’ s intent and to interpret statutory language isolation, but rather within the context of the statute as a whole, which enab les or unjust result. Id. Moreover, we do not consider words and phrases in parts of a statute together to effectuate its overall purpose and avoid an absurd add language that the legislature did not see fit to include. Id. We construe all statute as written and will not consider what the legislature might have said or its plain and ordinary meaning. Id. We interpret legislative intent from the language of the statute, and, if possible, co nstrue that language according to the words of the statute considered as a whole. Id. We first examine the interpretation, we are the final arbiter of the legislature’s intent as expressed in review de novo. See In re D.O., 17 p. 3 3 N.H. 48, 52 (2020). In matters of statutory interpretation. Statutory interpretation presents a question of law, which we R esolving the petitioner’s appeal requires that we engage in statutory

court denied the motion, and this appeal followed. O n May p. 4 4, the petitioner filed an emergency motion for reconsideration. The 4

effect on the life and development of the child, and to be concerned about the and authority to make important decisions in matters having a permanent RSA 169 - C:3, XVII (a). The guardian, on the other hand, maintains “the duty determine “where and with whom the child shall live,” among other things. In such cases, the individual or agen cy with legal custody has the right to individual or in an authorized agency.” RSA 169 - C:3, XIV (emphasis added). of legal custody except where legal custody has been vested in another The “duty and auth ority” of a guardian includes the “rights and responsibilities concurrently with an award of legal custody to another individual or entity. that the legislature intended that guardianship may, in some instances, exist Based, in part, upon the above - quoted statutory definitions, we conclude

RSA 169 - C:3, XVII (emphasis a dded).

judicial decree. responsibilities if these have not been terminated by child and subject to residual parental rights and rights, duties and responsibilities of the guardian of the responsibili ties shall be exercised subject to the power, ordinary medical care provided that such rights and clothing, shelter, education, emotional security and (d) The responsibility to provide the child with food,

discipline the child; and (c) The right and the duty to protect and constructively

(b) The right to have the physical possession of the child;

shall live; (a) The right to determine where and with whom the child

order: rights and responsibilities unless otherwise modified by court [A] status created by court order embodying the following

“Legal custody,” on the other hand, is defined as:

RSA 169 - C:3, XIV (emphasis added).

or in an authorized agency. where legal custody has been vested in another individual (c) The rights and responsibilities of legal custody except

by cour t order; and to the extent that such right of visitation has been limited (b) The authority and duty of reasonable visitation, except p. 5 5

169 - C. See RSA 169 - C:4, III. does not modify or change an award of c ustody made pursuant to RSA chapter 463:12, III (b); RSA 169 - C:3, XIV(c). Therefore, t he appointment of a guardian take custody if doing so is consistent with preexisting custody orders. See RSA guardian to take cus tody of the child. To the contrary, a guardian may only guardian pursuant to RSA chapter 463 does not necessarily authorize the orders, nor does it affect the child’s status. As explained above, appointing a guardian pursuant to RSA chapter 463 does not modify or change custody does not prohibit the appointment of a guardian in this case. A ppointing a of the guardianship hearing, id., we nonetheless conclude that RSA 169 - C: 4, III c ustody of B.C., and therefore “a custody award ha[d] been made” at the time Even if we assume that the circuit court correctly found that DCYF had legal changed nor shall another order affecting the status of the child be issued.” been made pursuant to this chapter, said order shall not be modified or consistent with RSA 169 - C:4, III, which states: “When a custody award has DCYF argues that dismissal of the petitioner’s guardianship petition i s

custody of B.C. pursuant to RSA chapter 169 - C. guardianship petition based solely upon its finding that DCYF already had legal therefore conclude that the circuit court erred by denying the petitioner’s proceedings precludes the circuit court from appointing a guardian. W e 463: p. 5 5, or, for that matter, RSA chapter 463, suggests that the exis tence of such RSA chapter 169 - C. RSA 463:5, IV(c). Nothing in the plain language of RSA minor or the parents of the minor,” including juvenile proceedings pursuant to to the petitioner. . . [t] he existence of any. . . pending proceeding s affecting the guardian s, requires petitions for guardianship to “set forth, so far as is known Similarly, RSA 463:5, which establis hes procedures for appointing

Had the legislature intended otherwise, it would have said so expressly. See id. of legal custody merely limits a guardian’s ability to take custody of the child. demonst rates that, rather than precluding guardianship altogether, an award minor.” RSA 463:12, III(b). T he language of RSA 463:12 therefore “consistent with the terms of any order . . . relating to the custody . . . of the establish the minor’s place of abode,” provided that such actions are provides: “A guardian may . . . take custody of the person of the minor and .. . .” RSA 463:12, I. Similar to RSA 169 - C:3, XIV(c), t he statute further responsibilities of a parent regarding the minor’s support, care and education relevant part: “[A] guardian of the person of a minor has the powers and minors, further support this conclusion. For example, RSA 463:1 2 pr ovides, in Several provisions of RSA chapter 463, governing guardianships of

appointment of the petitioner as B.C. ’s guardian. with whom [B.C.] shall live,” RSA 1 p. 6 69 - C:3, XVII(a), does not preclude court’s co nclusion, the fact that DCYF ha s “[t] he right to determine where and general welfare of the child.” RSA 169 - C:3, XIV. Thus, contrary to the circuit 6

dispositional hearing to review the status of all dispositional orders iss ued under this chapter.”). 1 p. 6 69 - C:24, I (“The court shall conduct an initial review hearing within 3 months of the The only other use of the word “status” in RSA chapter 169 - C is not applicable here. See RSA 1

M oreover, a guardian may only “take custody of the person of the minor and power, rights, duties and responsibilities” of the child’s guardian. Id. added). The status of “legal custody” is, therefore, inherently limited by “the responsibilities of the guardian of the child.” RSA 1 p. 6 69 - C:3, XVII(d) (emphasis responsibilities shall be exercised subject to the power, rights, duties and emotional sec urity and ordinary medical care provided that such rights and “[t]he responsibility to provide the child with food, clothing, shelter, education, legal custody. The status of “legal custody” embodies, among other things, We conclude that guardianship does not affect the status at issue here:

agency pending the adjudicatory hearing” (emphasis a dded)). supervision” as “the status of a child who has been placed with a child placing and parole officer” (emphasis added)); RSA 1 p. 6 69 - C:3, XXV (defining “protective has been taken into physical cust ody by a police officer or juvenile probation C:3, XXIV (defining “protective custody,” in part, as “the status of a child who under the supervision of a child placing agency” (emphasis added)); RSA 169 created by court order wherein the child is permitted to remain in his home RSA 169 - C:3, XVIII (defining “legal supervision,” in part, as “a legal status embodying” certain enumerated rights and responsibilities (emphasis added)); XVII (defining “legal custody,” in part, as “a status created by court order supervision; protective custody; and protective supervision. See RSA 169 - C:3, 1 children subject to abuse and neg lect proceedings: legal custody; legal RSA 169 - C:3 identifies four statuses that courts may designate for

Co. v. Town of Pelham, 1 p. 6 6 p. 7 7 N.H. 180, 185 (2014) (quotation omitted). “status” is informed by its use elsewhere in the statute. K.L.N. Construction isolation, but together with all associated sections,” our interpretation of Therefore, because we construe the meaning of statutory language “not in little guidance as to the meaning of the word “status” in RSA 169 - C:4, III. (9th ed. 2009). These definitions are not dispositive, however, as they offer particular group of them separately considered.” Black’s Law Dictionary 1542 person’s legal rights, duties, liabilities, and other le gal relations, or any person’s legal condition, whether personal or proprietary; the sum total of a 2002). Similarly, Black’s Law Dictionary defines the word “status” as “[a] enter.” Webster’s Third New International Dictionary 2230 (unabridged ed. nature of the legal relations to the state or to other persons into which he may determines the nature of his legal personality, his legal capacities, and the Dictionary defines the word “status” as “the condition . . . of a person that State v. Ruff, 155 N.H. 536, 539 (2007). Webster’s Third New International “status,” we look to the dictionary for guidance as to its ordinary meaning. See child.” RSA 169 - C:4, III. Because RSA chapter 169 - C does not define the word Nor would appointment of a guardian necessarily affect “the status of the 7

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

guardianship petition. Accordingly, we vacate and remand for the court to consider the merits of the case. T herefore, RSA 169 - C:4, III does not preclude guardianship here. petit ioner as B.C.’s guardian will not affect B.C.’s “status,” in the context of this “legal custody,” that may apply here, we conclude that appointing the RSA 463:12, III(b). Because DCYF has not identified a “status,” other than child from his or her home, foster home, or other residential placement. See has “legal custody” of the child, the guardian has no authority to remove the 169 - C:3, XIV(c). I f an individual or authorized agency other than the guardian preexisting custody orders relating to the child. RSA 463:12, III(b); see RSA estab lish the minor’s place of a bode” if such actions are consistent with any