Diana P., In re

• Decision Date: 10 December 1980
• Docket Number: No. 79-410,79-410
• Citation: 120 N.H. 791,424 A.2d 178
• Parties: , 21 A.L.R.4th 522 In re DIANA P.
• Court: New Hampshire Supreme Court

Page 178

424 A.2d 178

120 N.H. 791, 21 A.L.R.4th 522

In re DIANA P.

No. 79-410.

Supreme Court of New Hampshire.

Dec. 10, 1980.

Michael R. Chamberlain, Manchester, by brief and orally for the foster parents.

Snierson, Chandler & McKean, Laconia (John P. Chandler, Laconia, orally), for the natural mother, Beverly P.

Hanrahan, Brennan & Michael, Manchester (William B. Brennan, Manchester, orally), for the New Hampshire Division of Welfare.

McLane, Graf, Raulerson & Middleton, Manchester (Charles A. DeGrandpre, Manchester, orally), for Child and Family Services of New Hampshire, amicus curiae.

DOUGLAS, Justice.

The central issue in this case is whether people who receive children into their homes through the New Hampshire Division of Welfare's foster parent program have standing to bring a proceeding under RSA ch. 170-C to terminate the rights of the natural parents. We hold that they may.

Diana P., the third of three children of Edgar and Beverly P., was born on October 30, 1973. At the time of Diana's birth, Beverly and Edgar were separated. Responding to several complaints about Beverly's ability to care properly for her children, the division filed a neglect petition in Laconia District Court in March 1974. The court found that Beverly had neglected the children and awarded temporary custody of the children to the division. With Beverly's consent, the division placed the children in a foster home. Because this home became unsatisfactory after four months, the division moved Diana's brothers to a second foster home and placed Diana, who was then eleven months old, in the home of Anne and Bruce B., the plaintiffs in this case.

Although Beverly was incapable of caring for Diana at the time the division gained custody of her children, she remained in contact with the division and visited Diana only irregularly. There is evidence, however, that by 1977 Beverly had acquired certain mothering and homemaking skills that she previously lacked. In late 1977, therefore, the division informed Diana's foster parents that it intended to return Diana to Beverly's care. On December 19, 1977, Anne and Bruce B. filed a petition for termination of parental rights under RSA ch. 170-C in Belknap County Probate Court. On October 25, 1978, the Probate Court (Burlingame, J.) terminated Beverly's and Edgar's parental rights with respect to Diana. Beverly and the division appealed pursuant to RSA 170-C:15, and all questions of law were reserved and transferred to this court.

The key issue in this case is whether Anne and Bruce B. may bring a proceeding to terminate the parental rights of Beverly. RSA 170-C:4 II provides: "A petition for termination of the parent-child relationship may be filed by ... (t)he guardian of the person or the legal custodian of the child or the person standing in loco parentis to the child."

In their termination petition the plaintiffs alleged that they stood in loco parentis to Diana, conceding that the division was her legal custodian. In its final order, the probate court found that the plaintiffs stood in loco parentis to Diana and therefore had standing to petition for termination of Beverly's parental rights under RSA 170-C:4 II. We agree.

Generally, courts interpret words and phrases that are defined in the common law according to their common-law meanings, unless defined by the statute in which they appear. 2A C. Sands, Sutherland Statutory Construction § 50.03 (4th ed. 1973). Because RSA ch. 170-C does not define "in loco parentis," we will apply the generally accepted common-law definition. Under the common law as it now stands, and as it stood in 1973 when the General Court enacted the statute, a person in loco parentis is one who intentionally accepts the rights and duties of natural parenthood with respect to a child not his own. See Niewiadomski v. United States, 159 F.2d 683, 686 (6th Cir.), cert. denied, 331 U.S. 850, 67 S.Ct. 1730, 91 L.Ed. 1859 (1947); 59 Am.Jur.2d Parent and Child § 88 (1971).

The existence of the parental relationship is a factual question. Dodd v. United States, 76 F.Supp. 991, 995 (W.D.Ark.1948). The fact that a child is placed by an agency with foster parents may weigh against a finding that the foster parents stand in loco parentis to the child, but it is not conclusive. D'Auria v. Liposky, 197 Pa.Super. 271, 274, 177 A.2d 133, 134 (1962). The ultimate determination depends upon a consideration of all the facts.

Providing for a child's financial support is one of the duties of parenthood. The record indicates that the division has paid to the plaintiffs eighty-one dollars per month for Diana's support. While some courts have held that the mere receipt of public money bars in loco parentis status, Miller v. Davis, 49 Misc.2d 764, 268 N.Y.S.2d 490 (1966), others have taken a broader view, Lorden v. United States, 83 F.Supp. 822 (D.Mass.1949). The amount paid to the B.'s is hardly sufficient to demonstrate that the primary responsibility for Diana's support is the division's and not the foster parents'. The cost of properly feeding, clothing, transporting, housing, and caring for a growing child Diana's age clearly exceeds twenty dollars per week. See, e. g., "How Much Does a Kid Really Cost?" Philadelphia Magazine, Oct. 1978, at 171; (estimating expenses of $29,585 for raising a child from age one through five); Hyatt, "Costs of Being a Parent Keep Going Higher," Wall St. J., Oct. 2, 1980, at 33, Col. 3.

The amount of time the child has lived with her foster parents is another factor in determining whether they stand in loco parentis. Although a biological family does not exist, a psychological one has arisen in the time that Diana has lived with the B.'s. It is the foster parents who would be at home when Diana gets off a school bus, prepare her meals, read to her, tuck her into bed at night, calm her fears, give her medicine, and hold her in their arms. It is they, and not the division of welfare, who take her on trips, answer her questions, bandage her cuts, and see that she is clean and dressed appropriately. In a factually similar case, we held that a couple who had raised an unrelated child from the age of four months to six years stood in loco parentis. See Durivage v. Vincent, 102 N.H. 481, 161 A.2d 175 (1960).

To conclude that foster parents can never stand in loco parentis to a child in their care would be unrealistic. The foster parents, however, should have had the child or children in their home long enough to have formed a "psychological family." While a few weeks would not be long enough, at least two or three years would seem sufficient to convert a temporary foster parent status into that of in loco parentis in the psychological bonding sense, although the time may vary in a particular case. The New York legislature, for example, has provided that foster parents have standing to petition to terminate parental rights if they have cared for the child for at least eighteen months. N.Y.Soc.Serv.Law § 392 (McKinney) (Supp.1979-80).

Our finding in this case is reinforced by the legislative history of RSA chs. 170-B and 170-C. See Bianco, Chamberlain and DeGrandpre, The New Hampshire Adoption Statute: An Overview, 18 N.H.B.J. 199 (1977) (hereinafter Bianco). In 1973 the Governor's Commission on Laws Affecting Children introduced to the General Court proposals for a new adoption law (RSA ch. 170-B) and a new termination statute (RSA ch. 170-C). The commission presented these pieces of legislation as "companion" bills. II N.H.H.R.Jour. 1765-55 (1973). One reason for enacting these laws was to facilitate the adoption of children by removing "arbitrary and broad restrictions" on who could adopt and to enable the courts to respond to the varied circumstances of individual cases. Bianco, supra at 206.

RSA 170-B:4 IV provides foster parents with the right to petition the probate court to adopt a child who is in their care. The petitioner must show either that the child's natural parents have consented to the adoption or that consent is not required, RSA 170-B:12 II, as in cases in which courts have terminated parental rights, RSA 170-B:6 II. The facts of this case demonstrate that the legislative purpose in enacting the statute could be frustrated by a narrow reading of RSA 170-C:4 II, because it would effectively preclude foster parents who have a statutory right to petition for adoption from doing so.

An apparent purpose of the foster family program is to encourage natural parents who are temporarily incapable of maintaining a proper home to consent to their children's placement in foster care. The division asserts that depriving foster parents of termination rights is consistent with this objective. It is easy to see that caring natural parents who hope to reunite eventually with their children would be much less likely to consent to temporary foster care placement if they knew that the foster parents could bring an action to permanently dissolve the natural parent-child relationship. But after a long period of separation from the natural parent, a child may look upon his foster parent as his psychological parent. At that point, any change in custody based solely on a biological relationship might be emotionally harmful to the child. Note, Alternatives to "Parental Rights" in Child Custody Disputes Involving Third Parties, 73 Yale L.J. 151, 159 (1963).

This case presents a situation where the division of welfare is legal custodian of Diana, yet a status of in loco parentis has arisen out of the foster parents' relationship as well. Usually there is no conflict because the division as an "authorized agency" would petition to terminate and the foster parents would then adopt under RSA 170-B:4 IV. The division in this instance did not seek termination and, in fact, planned to reunite mother and child. Not all foster families are interested in adopting their wards. In some cases, the children are old enough that the psychological bond...