In re Guardianship of Nicholas P.

• Decision Date: 28 June 2011
• Docket Number: No. 2010–609.,2010–609.
• Citation: 27 A.3d 653,162 N.H. 199
• Court: New Hampshire Supreme Court
• Parties: In re GUARDIANSHIP OF NICHOLAS P.

162 N.H. 199

27 A.3d 653

In re GUARDIANSHIP OF NICHOLAS P.

No. 2010–609.

Supreme Court of New Hampshire.

Argued: May 5, 2011.Opinion Issued: June 28, 2011.

Krans Law Firm, of Dover (Hamilton R. Krans, Jr. on the brief and orally), for the petitioner.Kay Oppenheimer, of Barrington, on the brief and orally, for the respondent.Michael Alfano, guardian ad litem, of Portsmouth, by memorandum and orally.CONBOY, J.

The respondent, Rebecca P., appeals an order of the Rochester Family Division ( Ashley, J.) awarding guardianship of her son, Nicholas P., to Jonathan P., her son's half-brother. We affirm.

The trial court found the following facts. Nicholas is the son of Rebecca P. and Martin P. Jonathan P. is Martin's son from a previous relationship. In May 2007, Martin and Rebecca lived in Dover with then nine-year-old Nicholas, fifteen-year-old Jonathan, and Rebecca's teenage daughter from a previous relationship, Danielle. The couple were having marital difficulties, and on May 14, 2007, Rebecca left with Danielle for South Carolina without advance notice to the rest of the family. Rebecca left behind a note addressed to Martin, Jonathan, and Nicholas in which she promised to return in a month, but she never relocated back to New Hampshire.

Martin and Nicholas briefly visited Rebecca in South Carolina in the summer of 2008, and Nicholas spent six weeks with her there the following summer. Otherwise, mother and son saw each other only briefly over the next two years. Nicholas was upset and angry, and felt abandoned. In August 2009, Martin initiated divorce proceedings against Rebecca.

Martin died suddenly on October 13, 2009. Soon thereafter, Rebecca sought ex parte approval in the divorce case to take Nicholas with her to South Carolina. Her request was denied. Jonathan then petitioned for guardianship of Nicholas. A hearing on Jonathan's guardianship petition was held on June 25, 2010. A guardian ad litem (GAL) represented Nicholas's interests.

At the time of the hearing, Jonathan was eighteen years old. His high school record evidenced a history of “skipping classes, defiance, and disrespect.” He testified that Rebecca had introduced him to drug and alcohol use at age fourteen, and that he had experimented with both. However, the trial court found that “almost overnight following the death of the boys' father, [Jonathan] transformed himself into a man and a parent figure for Nicholas. By all accounts, including that of Rebecca P[.], Jonathan ... ‘stepped up to the plate.’ ” Jonathan had not used drugs or alcohol since Martin's death. He was working thirty-one hours a week at a Wendy's restaurant, keeping weekends and one weekday available to take Nicholas to counseling and medical appointments. At home, he was cooking, cleaning, supervising Nicholas's studying, and enforcing reasonable rules. He and Nicholas were interacting in a “gray area between parent and older sibling.” In sum, the trial court found that “Jonathan's devotion to his brother ... has allowed Nicholas to remain in his home environment and not just survive his many losses, but actually grow and succeed educationally, socially and emotionally.”

The court found that Nicholas and Rebecca love each other, but their relationship is strained. Nicholas described his relationship with his mother to the GAL: “I don't know her. I have no connection to her. We rarely talk on the phone and when we do we talk for only a minute.” The court found that Rebecca had not fulfilled her parental responsibilities since 2007, and that Nicolas remains “terribly upset” and angry about her abandonment of him. He also does not feel safe in her “environment.” Rebecca and Nicholas have not seen each other on a consistent basis since 2007. They have not spent any substantial periods of time together since Nicholas's six-week trip to South Carolina in 2009.

While noting that, in the context of a guardianship proceeding, it was unnecessary to make a determination as to Rebecca's fitness as a parent, the trial court observed that the recent birth of Rebecca's youngest daughter was “surrounded by alleged confusion over the identification of [the baby's] birth father, her mother's ongoing drug use, and the baby's safety in her mother's care.” Although Rebecca completed an intensive six-month drug rehabilitation program, the trial court disbelieved her claim that she entered this program because of one “aberrant” positive test result for marijuana during her pregnancy. Further, the trial court noted witness testimony that Rebecca was a “challenged mother” before 2007 and had mistreated Jonathan, Nicholas, and Danielle. Rebecca responded to this testimony “by calling the people making the accusations liars, including Jonathan and Nicholas.”

At the hearing, Nicholas's sixth-grade teacher testified that he told her, “I don't even know my mom. I would be scared to live with her.” The teacher also testified that Nicholas has strong friendships with his Dover classmates and a “really strong bond” with his brother. In contrast to Jonathan being “very involved” during Nicholas's sixth grade year, the teacher never heard from Rebecca. She expressed her opinion that it was in Nicholas's best interests to stay with his brother and friends. She also testified that she believed a move to South Carolina “would be damaging.”

The GAL recommended that Nicholas remain in Dover with his brother: “ It would be psychologically harmful to move Nicholas from his brother, friends, and Dover at this time.” He observed mother and son during a joint interview and concluded that there was “no connection” between them.

Nicholas's counselor agreed that relocating to his mother's home in South Carolina would be psychologically harmful to Nicholas. She also reported that Nicholas was tearful, worried, and suffering from anxiety, sleeplessness, and headaches over the possible move. Nicholas said to her: “This is where I have been my whole life. My friends are here[,] and everyone is starting to really know me.... Why should I leave where I feel safe?”

As noted by the trial court, Rebecca became Nicholas's guardian by operation of law when Martin died. RSA 463:3, I (2004) (“Upon the death of either parent, the survivor shall be the sole guardian of the person of the minor.”). Jonathan's petition to be substituted as guardian is governed by RSA 463:8, III(b) (Supp.2010), which requires a non-parent seeking to establish guardianship over the objections of a parent to show “by clear and convincing evidence that the best interests of the minor require substitution or supplementation of parental care and supervision to provide for the essential physical and safety needs of the minor or to prevent specific, significant psychological harm to the minor.” The trial court ruled that Jonathan had sustained his burden, and granted him sole guardianship of Nicholas. It also ordered the parties to negotiate Rebecca's parenting time with Nicholas to take place in South Carolina.

On appeal, the respondent argues that the trial court's award of guardianship of her son to a non-parent over her objections: (1) violated the guardianship of minors statute (RSA chapter 463); (2) violated her fundamental right to parent her child as guaranteed by Part I, Article 2 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution; and (3) was a de facto termination of her parental rights.

At the outset, we note that the respondent did not provide a record in support of her appeal. It is the burden of the appealing party to provide this court with a record sufficient to decide her issues on appeal. See Rix v. Kinderworks Corp., 136 N.H. 548, 553, 618 A.2d 833 (1992); see also Sup.Ct. R. 13. Absent a transcript of the hearing in the trial court, we must assume that the evidence was sufficient to support its decision. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250, 855 A.2d 564 (2004). We must also assume that the trial court made all findings necessary to support its decision. In re Jonathan T., 148 N.H. 296, 304, 808 A.2d 82 (2002). We further note that the respondent does not challenge the constitutionality of the guardianship statute. Accordingly, we review the trial court's order for legal errors only. See Atwood v. Owens, 142 N.H. 396, 397, 702 A.2d 333 (1997).

Parental rights are “natural, essential, and inherent” within the meaning of Part I, Article 2 of the New Hampshire Constitution. In re Adam R., 159 N.H. 788, 792, 992 A.2d 697 (2010). “Similarly, the United States Supreme Court has recognized that ‘the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.’ ” In the Matter of R.A. & J.M, 153 N.H. 82, 90, 891 A.2d 564 (2005). Nevertheless, the fundamental rights of parents are not unassailable. In re Adam R., 159 N.H. at 788, 992 A.2d 697.

Resolution of this appeal requires us to interpret RSA chapter 463, which governs guardianship of minors. We review the trial court's interpretation of a statute de novo. Kenison v. Dubois, 152 N.H. 448, 451, 879 A.2d 1161 (2005). We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of a statute is clear on its face, its meaning is not subject to modification. Dalton Hydro LLC v. Town of Dalton, 153 N.H. 75, 78, 889 A.2d 24 (2005). We will neither consider what the legislature might have said nor add words that it did not see fit to include. Id.

As to her first claim of error—that the trial court's decision violated the guardianship statute—the respondent appears to argue, first, that RSA 463:3, I, mandates that, upon the death of one parent, the surviving parent is entitled to guardianship of the...