In re Baby Girl P.
| Decision Date | 21 June 2002 |
| Docket Number | No. 2001-729.,2001-729. |
| Citation | 802 A.2d 1192 |
| Parties | In re BABY GIRL P. |
| Court | New Hampshire Supreme Court |
Colton L., of Phoenix, Arizona, by brief and orally, pro se.
Jeffrey and Melinda S., the prospective adoptive parents of Baby Girl P., appeal the decision of the Merrimack County Probate Court (Hampe, J.) dismissing their petition for adoption and returning the child to her biological father, Colton L.
We reverse. The record supports the following facts. Baby Girl P. was born in November 2000 in Phoenix, Arizona. Her natural parents were not married and the birth certificate issued on the date of the child's birth is blank as to the name of the father. When the baby was ten days old, her birth mother signed a consent to adoption and, pursuant to Arizona law, an affidavit naming "Jamal [L.]" as the natural father. See Ariz.Rev.Stat. Ann. § 8-106(F) (West Supp.2001); RSA 170-B:9, II(b) (Supp.2001) ("if the [natural] parent does not reside in New Hampshire, ... consent may be taken pursuant to the laws of the state where [he or she] resides"). In the affidavit, the birth mother indicated that the child was conceived in Arizona, that the pregnancy was a result of a one-night relationship and that she did not know any identifying information of the natural father. On November 20, Jeffrey and Melinda S., who reside in New Hampshire, took custody of the child and, on December 4, filed a petition for adoption in the New Hampshire probate court.
In January 2001, a search of the Arizona putative fathers registry indicated that no one had filed notice of a paternity claim pertaining to Baby Girl P. See Ariz.Rev. Stat. Ann. § 8-106.01(B) (West 1999). In April 2001, the probate court in New Hampshire published notice of the adoption in an Arizona newspaper. Colton L. responded, indicating his intent to claim paternity.
Colton L., also known as "Jamal [L.]," claims that he and the birth mother had a several-month relationship. He states that he knew of the pregnancy and that the birth mother had contemplated adoption, but that he was incarcerated during most of the pregnancy and at the time of the child's birth. After a paternity test ordered by the probate court in May 2001 confirmed him to be the biological father, he refused to consent to the adoption.
The probate court, applying New Hampshire law, ruled that when it becomes aware of the alleged biological father's name, it must provide notice to him, and, if his paternity is established, he must either consent to the adoption or have his parental rights terminated in order for the adoption to be granted. The court found that the adoption in this case could not go forward since Colton L. did not consent to the adoption and since none of the statutory grounds for termination of his parental rights applied. The court dismissed the petition for adoption and ordered custody of the child to be with Colton L. This appeal followed.
On appeal, Jeffrey and Melinda S. argue that the probate court erred in: (1) applying New Hampshire law to the issue of consent; (2) waiving New Hampshire's requirement that the biological father claim paternity before the mother's consent or relinquishment; (3) disregarding Arizona's putative fathers registry; (4) not conducting a home study of Colton L.; and (5) placing the child in the custody of Colton L., who they allege is a poor role model.
We review a decision of the probate court for errors of law and will not disturb its factual findings "unless they are so plainly erroneous that such findings could not be reasonably made." RSA 567-A:4 (1997); see In re Sky D., 138 N.H. 543, 545, 643 A.2d 529 (1994). "Adoption is a creature of statute, and, as such requires strict observance of the statutory requirements." In re Micah HH, 261 A.D.2d 723, 690 N.Y.S.2d 309, 311 (1999) (). Accordingly, our analysis begins with an interpretation of the applicable state statutes. See In re Sky D., 138 N.H. at 545, 643 A.2d 529.
Our first task is to decide which State's law applies to the issue of consent. In general, the law of the forum State applies to adoption cases. Restatement (Second) of Conflicts of Laws § 289 (1971). Other courts have recognized that this rule is not to be strictly construed, as "[c]ircumstances might permit or compel a state exercising adoption jurisdiction to defer to the substantial and dominant interest of a foreign state and to apply the law of that state in deciding some or all of the issues." Matter of Adoption of Child by T.W.C., 270 N.J.Super. 225, 636 A.2d 1083, 1090 (1994). Here, the natural mother's consent contemplated that the adoption would take place pursuant to New Hampshire law. Moreover, the prospective adoptive parents reside in this State and filed their adoption petition here. We therefore turn to New Hampshire's adoption statute, RSA chapter 170-B, to determine if Colton L. was entitled to notice and the right to consent to the adoption.
On questions of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Petition of Hoyt, 143 N.H. 533, 535, 727 A.2d 1001 (1999). It is well established that the intention of the legislature expressed by the words in the statute itself is the touchstone to its meaning. Id. Accordingly, when a statute's language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we refuse to consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute. Id.
Under our adoption statute, consent to a proposed adoption must be obtained from the mother, the legal father and, in certain circumstances, the natural father. RSA 170-B:5, I(b)-(d) (Supp.2001). The statute defines legal father as the person designated as the father either (a) on that child's birth certificate, (b) pursuant to court order resulting from a paternity action, or (c) upon legitimation when the parents marry. RSA 170-B:2, XIII (Supp.2001). Natural father is defined as "a person other than a legal father who has been named as the father of the child, or who is the subject of a pending paternity action, or who has filed an unrevoked notice of intent to claim paternity of the child pursuant to RSA 170-B:5-a, I(c)." RSA 170-B:2, XIV (Supp.2001).
Colton L. does not meet any of the statutory requirements to be the legal father. He was not listed on the child's birth certificate, he was not designated as the father in a paternity action, and he did not legitimate the child by marrying the natural mother.
In determining that Colton L.'s consent was required, the probate court relied on the fact that a paternity test conducted after the adoption proceedings had begun showed that he was the "biological father." Although not explicit in its order, the court presumably assumed that as the biological father, Colton L. was the legal father, and thus his consent was required. The implication of this interpretation is that a putative father can circumvent the statutory scheme set forth in RSA chapter 170-B, which articulates a point in time after which a person is barred from bringing a paternity action. See RSA 170-B:5-a (Supp.2001).
We hold that the determination of Colton L.'s paternity in this case was not the type contemplated by the adoption statute. An important goal of the statute is to promote finality for the child by identifying, as early as possible in a child's life, the rights, interests and obligations of all the parties. Consistent with this goal, a better reading of the statute is that a "person designated as the father pursuant to court order resulting from a paternity action" is one who has been adjudicated to be the father in an action such as pursuant to RSA chapter 168-A, in which the mother seeks support, and whose child is later put up for adoption. The statute is clearly not meant to allow a person to ignore his paternal obligations and then frustrate the adoption after the natural mother has consented and the adoption petition has been filed. For these reasons, Colton L. does not fall within the definition of "legal father" set forth in RSA 170-B:2, XIII(b).
Because the birth mother named Colton L. as the father in an affidavit, we assume that he falls within the statutory definition of natural father. Under the statute, consent from the natural father is required if he was entitled to notice and the right to consent under RSA 170-B:5-a. RSA 170-B:5, I(d).
RSA 170-B:5-a, I, lists four categories of putative fathers entitled to notice of a proposed adoption and the right to request a hearing to prove paternity:
(a) A person named by the natural mother in an affidavit filed with the court, prior to the mother voluntarily relinquishing her rights pursuant to RSA 170-B:8, the mother consenting to an adoption pursuant to RSA 170-B:9, or the mother's parental rights being involuntarily terminated;
(b) The natural or legal father, if his identity is known by the court ... or the proposed adoptive parents or their attorney, prior to the mother voluntarily relinquishing her rights pursuant to RSA 170-B:8, the mother consenting to an adoption pursuant to RSA 170-B:9, or the mother's parental rights being involuntarily terminated;
(c) A person who claims to be the father and who has filed notice of his claim of paternity with the office of child support enforcement ... prior to the mother's rights being voluntarily relinquished pursuant to RSA 170-B:8, the mother consenting to an adoption pursuant to RSA 170-B:9, or involuntarily terminated....
(d) A person who is openly living with the child or the child's mother and providing financial support to the mother or child at the time any...
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