In re B.C.
| Decision Date | 16 November 2021 |
| Docket Number | 2021-0199 |
| Citation | 174 N.H. 628,273 A.3d 383 |
| Parties | IN RE GUARDIANSHIP OF B.C. |
| Court | New Hampshire Supreme Court |
Rath, Young and Pignatelli, P.C., of Concord (Craig T. McMahon and Michael S. Lewis on the brief, and Craig T. McMahon orally), for the petitioner.
John M. Formella, attorney general (Laura E. B. Lombardi, senior assistant attorney general, on the memorandum of law and orally), for the New Hampshire Division for Children, Youth and Families.
The petitioner appeals an order of the Circuit Court (Leonard, J.) denying her petition for guardianship of her great-nephew, a minor child, pursuant to RSA chapter 463 (2018 & Supp. 2020). On appeal, the petitioner challenges the circuit court's determination that she could not obtain guardianship because the New Hampshire Division for Children, Youth and Families (DCYF) already had legal custody of the child as a result of ongoing abuse and neglect proceedings, see RSA ch. 169-C (2014 & Supp. 2020). We conclude that an award of legal custody pursuant to RSA chapter 169-C does not preclude the appointment of a guardian pursuant to RSA chapter 463. Accordingly, we vacate and remand.
The following facts are undisputed or are supported by the record. The child, B.C., is an infant. His parents are homeless and have substance use issues. Shortly after B.C.’s birth, DCYF received a report of concern regarding his welfare. Following an investigation, DCYF commenced abuse and neglect proceedings pursuant to RSA chapter 169-C. On February 5, 2021, the circuit court issued an ex parte order granting DCYF protective supervision of B.C. See RSA 169-C:6-a. As a result, B.C. was placed in foster care, where he remains.
On February 11, the petitioner filed a petition for guardianship of B.C. pursuant to RSA chapter 463, together with an ex parte emergency motion for immediate temporary guardianship. B.C.’s mother signed a form purporting to give her consent to the guardianship several days later. DCYF moved to dismiss the petition, noting that it had already "established a legal relationship with the child."
On March 18, after the adjudicatory hearing for the abuse and neglect case, the circuit court held a hearing on the guardianship petition. At the guardianship hearing, DCYF informed the court that it had not yet received the adjudicatory order. The court then obtained the adjudicatory order, which had been issued two days prior, and observed that DCYF had obtained "legal custody" of B.C. through the RSA chapter 169-C proceedings. The court also heard arguments on DCYF's motion to dismiss the guardianship petition. Relying upon RSA 169-C:4, III, DCYF argued, in part, that because it had already "establish[ed] a legal relationship with [B.C.]," the RSA chapter 169-C proceedings "take priority over this guardianship case." DCYF also stated that it was "working with [the petitioner] through [its] normal process and procedure to determine whether she would be an appropriate relative placement" for B.C. The petitioner objected to the motion to dismiss, both orally and by written motion, disagreeing with DCYF's interpretation of RSA 169-C:4, III.
On April 9, the circuit court dismissed the guardianship petition. In its order, the court stated, in part:
In light of the orders in the [RSA chapter] 169-C case awarding legal custody of [B.C.] to DCYF, DCYF has the authority to determine where and with whom [B.C.] shall live. Based upon the information provided to the Court in the guardianship proceeding, [the petitioner] should be investigated as an appropriate relative placement for [B.C.] in the [RSA chapter] 169-C case.
On May 4, the petitioner filed an emergency motion for reconsideration. The court denied the motion, and this appeal followed.
Resolving the petitioner's appeal requires that we engage in statutory interpretation. Statutory interpretation presents a question of law, which we review de novo. See In re D.O., 173 N.H. 48, 52, 237 A.3d 256 (2020). In matters of statutory interpretation, we are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole, which enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id.
On appeal, the petitioner argues, in part, that the circuit court erred by "concluding that DCYF's prior legal relationship with B.C. precluded [her] appointment ... as B.C.’s guardian." (Bolding and capitalization omitted.) According to the petitioner, RSA chapter 169-C "explicitly contemplates scenarios in which a minor child has a legal relationship with DCYF and a separate legal guardian." (Italics and capitalization omitted.)
"Legal custody," on the other hand, is defined as:
Based, in part, upon the above-quoted statutory definitions, we conclude that the legislature intended that guardianship may, in some instances, exist concurrently with an award of legal custody to another individual or entity. The "duty and authority" of a guardian includes the "rights and responsibilities of legal custody except where legal custody has been vested in another individual or in an authorized agency." RSA 169-C:3, XIV (emphasis added). In such cases, the individual or agency with legal custody has the right to determine "where and with whom the child shall live," among other things. RSA 169-C:3, XVII(a). The guardian, on the other hand, maintains "the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child, and to be concerned about the general welfare of the child." RSA 169-C:3, XIV. Thus, contrary to the circuit court's conclusion, the fact that DCYF has "[t]he right to determine where and with whom [B.C.] shall live," RSA 169-C:3, XVII(a), does not preclude appointment of the petitioner as B.C.’s guardian.
Several provisions of RSA chapter 463, governing guardianships of minors, further support this conclusion. For example, RSA 463:12 provides, in relevant part: "[A] guardian of the person of a minor has the powers and responsibilities of a parent regarding the minor's support, care and education ...." RSA 463:12, I. Similar to RSA 169-C:3, XIV(c), the statute further provides: "A guardian may ... take custody of the person of the minor and establish the minor's place of abode," provided that such actions are "consistent with the terms of any order ... relating to the custody ... of the minor." RSA 463:12, III(b). The language of RSA 463:12 therefore demonstrates that, rather than precluding guardianship altogether, an award of legal custody merely limits a guardian's ability to take custody of the child. Had the legislature intended otherwise, it would have said so expressly. See id.
Similarly, RSA 463:5, which establishes procedures for appointing guardians, requires petitions for guardianship to "set forth, so far as is known to the petitioner ... [t]he existence of any ... pending proceedings affecting the minor or the parents of the minor," including juvenile proceedings pursuant to RSA chapter 169-C. RSA 463:5, IV(c). Nothing in the plain language of RSA 463:5, or, for that matter, RSA chapter 463, suggests that the existence of such proceedings precludes the circuit court from appointing a guardian. We therefore conclude that the circuit court erred by denying the petitioner's guardianship petition based solely upon its finding that DCYF already had legal custody of B.C. pursuant to RSA chapter 169-C.
DCYF argues that...
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