In re J.P., 073120 NHSC, 2019-0743

Docket Nº:2019-0743
Opinion Judge:DONOVAN, J.
Party Name:IN RE J.P.
Attorney:McLane Middleton, Professional Association, of Manchester (Ralph F. Holmes and Jacqueline A. Leary on the brief, and Ms. Leary orally), for the petitioner. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the respondents.
Judge Panel:HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
Case Date:July 31, 2020
Court:Supreme Court of New Hampshire


No. 2019-0743

Supreme Court of New Hampshire

July 31, 2020

Argued: June 10, 2020

9th Circuit-Nashua Probate Division

McLane Middleton, Professional Association, of Manchester (Ralph F. Holmes and Jacqueline A. Leary on the brief, and Ms. Leary orally), for the petitioner.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the respondents.


The respondents, the mother and stepfather of J.P., a minor child, appeal orders of the Probate Division of the Circuit Court (Quigley, J.): (1) vacating the stepfather's adoption of J.P. due to lack of notice of the adoption proceeding to the petitioner, J.P.'s biological father; and (2) awarding attorneys' fees and costs, including the cost of a genetic paternity test, to the petitioner. Because the record supports the trial court's determination that the petitioner was entitled to notice of the adoption proceeding under RSA 170-B:6, I(d) (2014), we affirm its decision to vacate the adoption. We also affirm its award of attorneys' fees and costs relating to the petition to vacate the adoption, but vacate and remand the award of attorneys' fees and costs relating to genetic testing.

I. Facts

The trial court found, or the record supports, the following facts. In 2013, following a casual but intimate relationship with the petitioner, the mother became pregnant. That summer, the mother informed the petitioner of the pregnancy. In January 2014, the mother gave birth to J.P. While the mother reached out to the petitioner to request his medical history when J.P. was born, the mother and petitioner did not otherwise have contact for nearly two years. The mother did not identify anyone as J.P.'s father on his birth certificate; instead she gave the child her last name.

In April 2014, the mother sent a letter to the petitioner's parents, in which she informed them that J.P. was their grandson, invited them to be involved in his life, and stated that it was her desire to do "everything in [her] power to introduce him to both sides of his family." However, the petitioner and mother did not communicate until November 2015, when the petitioner contacted the mother because he wanted to be involved as a father to J.P. Because the mother was initially reluctant for the petitioner to meet J.P., she met with the petitioner before allowing him to visit J.P. for the first time in December 2015.

Between December 2015 and the summer of 2018, the petitioner visited with J.P. on a regular - often weekly - basis. Although the visits were subject to the mother's restrictions, the petitioner's responsibilities increased with time. The mother preferred that visits occur at her residence, where she and J.P. lived with her sister, and she declined the petitioner's requests to take J.P. overnight. Thus, the petitioner's visits usually took place at the mother's home, where the petitioner played with J.P., read to him, gave him baths, fed him, and put him to bed. Eventually, the mother allowed the petitioner to visit with J.P. at the petitioner's apartment and take J.P. to visit with the petitioner's family members, who accepted J.P. as family. The petitioner also attended J.P.'s birthday parties at the mother's residence.

During this period, the petitioner and the mother identified the petitioner to J.P. as his father. J.P. called him "Dada." The mother sent the petitioner Father's Day and Valentine's Day cards, which addressed the petitioner as "daddy" and were signed with J.P.'s name. The mother also sent cards and photographs of J.P. to the petitioner's parents, addressing them as "Grandma" and "Papa."

Shortly after the petitioner became involved in J.P.'s life, he also began providing the mother with regular financial support for J.P. Between January and August 2016, he provided approximately $300 to $400 each month by checks issued to the mother. Beginning in September, when J.P. started preschool, he increased the payments to approximately $800 per month. In total, between January 2016 and December 2018, the petitioner gave the mother at least $25, 250.

In October 2017, the mother and the petitioner completed and filed a Voluntary Acknowledgment of Paternity form with the Commonwealth of Massachusetts to allow the petitioner's name to be placed on J.P.'s birth certificate. The Commonwealth, however, returned the form to the mother due to several clerical errors, including a discrepancy in the spelling of the mother's name, and requested that she and the petitioner submit a corrected form. Neither parent made an effort to refile the form.

Around this time, the mother and stepfather became romantically involved. As time progressed, communication between the mother and the petitioner became increasingly strained, particularly with regard to the petitioner's plans with J.P. for the summer of 2018. The mother wanted the stepfather to be included in any communication she had with the petitioner, and the stepfather was present during an in-person meeting between the mother and the petitioner in June 2018 regarding the summer visitation schedule.

In August 2018, the mother and stepfather were married. Until early September, the petitioner continued to spend time with J.P. Thereafter, communication between the petitioner and the mother regarding visits "completely broke[] down." The petitioner, nevertheless, continued to send the mother checks each month, in amounts of up to $860. He also sent J.P. a Halloween gift in October and a Happy Thanksgiving message in November, and asked the mother to Facetime with J.P. on Christmas.

Meanwhile, unbeknownst to the petitioner, on October 8, the respondents signed an adoption petition for the stepfather to adopt J.P., and subsequently filed it with the probate division on November 8. On November 29, in connection with this petition, the mother filed an Affidavit of Birth Mother. In the affidavit, she attested that, "[t]o the best of [her] knowledge, no person holds himself out to be the father of [her] child." The mother and stepfather did not provide notice to the petitioner of the pending adoption petition or alert the court of his identity. On December 31, 2018, the Probate Division (Quigley, J.) held a hearing on the adoption petition at which only the mother, stepfather, J.P., and their counsel were present. The trial court granted the petition after the mother orally consented to the adoption. As the hearing came to a close, the stepfather asked the court, "If [J.P.'s] biological father were to ever attempt to show up, would that change anything for me?" The trial court, in response, asked whether there is an identified father. The respondents both answered "[n]o." The trial court then reviewed the file, and, noting that no father was identified in the affidavit, the birth certificate, or putative father registry, indicated that the adoption was final.

That same day, shortly after the hearing, the stepfather sent a text message to the petitioner, stating, "we are sending your checks from the last 3 months back to you. Do not send anything else to my family's home, and do not contact any of us moving forward." On January 3, 2019, the petitioner received three checks that he had previously provided to the mother in October, November, and December. The petitioner obtained counsel and subsequently learned that the stepfather had adopted J.P. As a result, the petitioner filed a petition to reopen and vacate the adoption for lack of notice.

In July, while the petition to reopen was pending, the petitioner filed a motion seeking an order for a genetic paternity test because the respondents would neither stipulate that the petitioner is J.P.'s biological father nor agree to a test. The trial court granted the motion over the respondents' objection.

In August, the trial court held an evidentiary hearing on the petitioner's motion to vacate the adoption, at which it heard testimony from the petitioner and respondents. Following the hearing, but before the trial court's ruling, the petitioner filed a motion to supplement the record with the results of the paternity test, which demonstrated a 99.9999% likelihood that the petitioner is J.P.'s biological father. The motion also requested that the respondents "pay all costs related to the genetic testing, . . . including the costs and attorneys' fees of filing" the motion. The respondents objected.

Thereafter, the trial court issued an order granting the petitioner's motion to vacate the adoption. It found that the petitioner was entitled to notice under RSA 170-B:6, I(d), because he provided financial support to the mother and J.P. and held himself out as J.P.'s father prior to the mother's consent to the adoption. The trial court further found that the mother filed her affidavit, after consultation with counsel, "with an intentional falsehood," and did so "knowing full well that [the petitioner] held himself as the father of [J.P.]...

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