2024 N.H. 3, In re Guardianship of J.H.

December 201 7 and has a history of criminal charges involving domestic record. J.H. is a six - year - old child. His father has been incarcerated since [¶ 2] The following facts are undisputed or are otherwise drawn from the

reverse in part and remand. appellee /father’s release from prison at any parole or similar hearings. We of the Circuit Court (Derby, J.) enjoining her from testifying against the [¶ 1] The minor’s guardian and maternal grandmother appeals an order HANTZ MARCONI, J.

White on the brief and orally), for the appellee. Smith - Weiss Shepard Kanakis & Spony, P.C., of Nashua (Brittney M.

orally), for the appellant. Bernazzani Law, PLLC, of Nashua (Anthony J.Naro on the brief and

Citation: In re Guardianship of J.H., 2024 N.H. 3 Case No. 2022 - 0664 9th Circuit Court - Merrimack 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 available 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, 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

Gunstock Area Comm’n, 166 N.H. 374, 377 ( p. 2 2014). This rule, however, is not arguments that were not timely raised before the trial court. Camire v. her statutory argument before the trial court. Ordinarily, we will not revie w chapter 463. As a preliminary matter, we note that the guardian did not raise Second, she asserts that the court exceeded its statutory authority under RSA that the court’s order violates her constitutional right to f reedom of expression. [¶ 6] The guardian makes two arguments on appeal. First, she argues

not erroneous as a matter of law. In re Jesse F., 143 N.H. at 194. not overturn the court’s rulings if they are supported by the evidence and are jurisdiction and powers previously conferred upon the probate courts). We will 19 p. 2 2, 193 (1998); RSA 490 - F:3 (Supp. 2023) (granting the circuit court the th at its discretion has been unsustainably exercised. In re Jesse F., 143 N.H. guardianship matters, which will not be disturbed except upon a clear showing [¶ 5] The circuit court has wide discretion in the determination of

This appeal followed. ri ghts to keep father incarcerated if he becomes eligible for a parole hearing.” reasoning that “[J.H.’s] best interests outweigh the guardian[’ s] free speech violated her right to freedom of speech. The court denied her motion, court.” The guardian moved for reconsideration, arguing that this restriction release at any parole or similar hearing without fi rst seeking leave of th is the guardian and her husband “are enjoined from testifying against father’s restrictions on the guardian. In an October p. 2 2022 order, the court ordered that content of father’s communications with J.H. The court also imposed [¶ 4] The court placed restrictions on both parties, including limiting the

[J.H.’s] benefit.” extended family are not able to put their differences aside and cooperate for him lose both of his parents before his third birthday, both sides of [J.H.’s] expressed its frustration that “[d]espite [J.H.’s] tragic young life that has seen to terminate the father’s parental rights. In an April p. 2 2022 order, the court violating the court’s orders. Ad ding to the conflict, the guardian has petitioned eventually progress to video visits. Both parties have accused the other of court ordered that the father could communicate with J.H. by mail and s ought contact and visitation with J.H. Over the guardian’s objections, the contact order barring communications with J.H. Subsequently, the father case. When the guardianship petition was filed, the father was subject to a no - [¶ 3] The guardian and the father have been at odds throughout this

person and estate shortly thereafter, and J.H. h as remained in her care since. than three years old. His grandmother was appointed guardian of J.H.’s violence and drug possession. J.H.’s mother died in p. 2 2019 when J.H. was less p. 3 3

(2018). RSA 46 p. 3 3:12 sets forth the guardian’s powers and duties. See RSA 463:12 proceedings. RSA 463:8 (2018). Once the court has appointed a guardian, estate or of both,” and grants the court authority over the guardianship F:3. RSA 463:8 permits the court to “appoint a guardian of the person or of the guardianship of minors to the circuit court. See RSA 463:4 (2018); RSA 490 - [¶ 9] RSA chapter 463 confers exclusive jurisdiction over the

language of the statute. Id. by the statutory scheme. Id. Absent an ambiguity, we will not look beyond the the legislature’s intent in light of the policy or purpose sought to be advanced within the context of the statute as a whole, which enables us to better discern result. Id. We do not consider words and phrases in isolation, but rather together to effectuate its overall p urpose and to avoid an absurd or unjust legislature did not see fit to include. Id. We construe all parts of a statute will not consider what the legislature might have said or add language that the to its plain and ordin ary meaning. Id. We interpret the statute as written and language of the statute itself, and, if possible, construe that language according 726, 7 p. 3 33 (2020). In matters of statutory interpretation, we first look to the law, w hich we review de novo. Avery v. Comm’r, N.H. Dep’t of Corr., 173 N.H. provisions of RSA chapter 463. The interpretation of a statute is a question of impose this restriction on the guardian requires us to interpret the applicable [¶ 8] Determining whether the circuit court had the statutory authority to

J.H. parole board motivated by an intent to prevent contact between the fath er and best interest s for the court to prevent the guardian from giving testimony to the because of the acrimony between the guardian and the father, it is in J.H.’s the authority to impose this restriction on the gu ardian. He contends that response, the father asserts that RSA 46 p. 3 3:12, IV (2018) grants the circuit court limited to issuing orders relative to the guardianship of the minor.” In authority conferred by RSA chapter 463 and that “the court’s authority is [¶ 7] The guardian asserts that the court’s order reaches beyond the

guardian’s statutory argument. Kardonsky, 169 N.H. 150, 152 (2016). Thus, we elect to address the interpretation, requiring no further factual development, see State v. N.H. at p. 3 377, and the issue constitutes a discrete question of statutory addressed the issue during oral argument before the court, see Camire, 166 State v. Hodgkiss, 132 N.H. 376, 379 (1989). Additionally, both parties parties, we may consider it as a way to avoid a needless cons titutional decision. ground, and even when a dispositive statutory issue is not raised by the constitutional issue in a case that can be decided on a nonconstitutional the reviewing court. Id. We follow a strong policy against reaching a absolute. Id. Preservation is a limitation on the parties to an appeal and not p. 4 4

affairs and welfare. See State v. Proctor, 171 N.H. 800, 806 (2019) (explaining contemplated here relate to the guardian’s role as custodian of the minor’s [¶ 12] Read in the context of the whole statute, the “powers” and “duties”

p. 4 463:12, IV. “limit or re strict the powers of the guardian or impose additional duties.” RSA general wellbeing of the minor. Subsection IV then authorizes the court to guardian to exercise control over many aspects of the minor’s life to ensure the financial affairs. RSA 463:12, II - III. The statute empowers and obliges the overall wellbeing, encompassing the minor’s health, property, and l egal and then articulate specific powers and responsibilities related to the minor’s minor’s support, care, and education.” RSA 463:12, I. Subsections II and III the statute conveys the “powers and responsib ilities of a parent regarding the guardian - minor relationship and the functions of the guardian. Subsection I of restriction on the guardian and her spouse. RSA 463:12 outlines the whole, we conclude that it does not authorize the court to impose this [¶ 11] Reading subsection IV within the context of RSA 463:12 as a

interests of the minor. parole hea ring, so long as the court finds that such a restriction is in the best restrict the guardian and the guardian’s spouse from speaking at the father’s RSA p. 4 463:12, IV. The father relies on this provision to assert that the court may additional duties if it deems them desirable in the best interests of the minor.” part: “The court may limit or restrict the powers of the guardian or impo se here, the statute also includes a catchall provision, which states, in pertinent professional care.” RSA 463:12, III(a) - (d); see also RSA 463:2, IV. Relevant necessary consent or approval to enable t he minor to re ceive medical or other performance by any person of a duty to support the minor,” and “[g]ive any the minor’s place of abode,” “institute proceedings... to compel the support of the minor,” “take custody of the person of the minor and establish guardian may,” in certain circumstances, “[r]eceive money payable for the the estate of the minor.”). Subsection III then provides, inter alia, that “[a] otherwise indicated, the term ‘guardian’ means guardian of the person and of future needs.” RSA 463:12, II(a) - (d); see also RSA 463:2, IV (2018) (“U nless and education,” and “[c]onserve any excess money of the minor for the minor’s available money of the minor to the minor’s current needs for support, care, proceedings if necessary to protect other property of the minor,” “[a] pply any “[t]ake reasonable care of the minor’s personal effects and commence protective capacities, limitations, needs, opportunities, and physical and mental health,” minor and maintain sufficient contact with the min or to know of the minor’s that “a guardian shall” “[b]ecome or remain personally acquainted with the and education.” RSA 463:12, I. Subsection II of the statute directs, inter alia, the powers and responsibilities of a parent regarding the minor’s support, care limited by statute or order of court... a guardian of the person of a minor has [¶ 10] RSA 463:12, I, provides that “[e]xcept as otherwise expanded or p. 5 5

M AC DONALD, C.J.