In re Jeffrey G.

• Decision Date: 27 January 2006
• Docket Number: No. 2004–738.,2004–738.
• Citation: 892 A.2d 1234,153 N.H. 200
• Court: New Hampshire Supreme Court
• Parties: In the Matter of JEFFREY G. and Janette P.

153 N.H. 200

892 A.2d 1234

In the Matter of JEFFREY G. and Janette P.

No. 2004–738.

Supreme Court of New Hampshire.

Argued: Sept. 29, 2005.

Opinion Issued: Jan. 27, 2006.

Jeffrey G., by brief and orally, pro se.

Janette P., by brief, pro se.

Lisa S., by brief, pro se.

Mary Pilkington–Casey, of Concord, by brief, for the Franklin Pierce Administrative Law and Advocacy Clinic, as amicus curiae.

GALWAY, J.

The petitioner, Jeffrey G., appeals the Trial Court's (DiMeo , J.) order granting primary physical custody of two minor children to Lisa S., the children's paternal aunt, arguing that it violated his constitutional right to make decisions concerning the care, custody, and control of his children. We reverse and remand.

The record supports the following facts. Jeffrey G. and Janette P. are the parents of J.G., born in 1996, and L.G., born in 1997. They were granted a divorce on August 7, 2002, after a three-day contested hearing in the Family Division at Salem. Both Jeffrey G. and Janette P. were represented by counsel, and a Guardian Ad Litem (GAL) represented the children's interests. The issue of the children's custody has been intensely disputed since the parents' initial separation in 1998.

Throughout the pendency of the couple's divorce and post-divorce proceedings, three different GALs have represented the children's interests. Prior to the final divorce decree, Jeffrey G. had primary physical custody of the children from approximately October 1999 through August 2002. Prior to the final divorce hearing, the GAL filed a report documenting the parents' turbulent history together, much of which arose from and/or affected custody arrangements pertaining to the children. In the final divorce decree, the Trial Court (Taube , J.) awarded Janette P. sole legal custody and primary physical custody of the two children, while granting Jeffrey G. "reasonable physical custodial rights," including liberal visitation as detailed in the decree.

The parents' acrimonious and volatile relationship continued to deteriorate and reportedly had a negative impact on all parties, including the children. Both parents filed multiple motions and petitions with the trial court, which were addressed in a subsequent custody modification hearing conducted in June 2004. Prior to that hearing, the third GAL filed a written report, dated March 11, 2004, which, among other things, revealed that: (1) both parents had violated conditions and provisions contained in the divorce decree; (2) during 2003, both parents were involved in four assessments by child reporting agencies in Massachusetts and New Hampshire, one of which resulted in a finding of neglect against Janette P.; and (3) the children received inconsistent counseling and their behavioral, health and educational needs were affected by the lack of cooperation and hostility between their parents. Despite her conclusion that the children were being harmed by the parents' behavior, the GAL recommended that they share joint legal custody and that Janette P. retain physical custody of the children.

In June 2004, the court conducted a modification of custody hearing. Over two days, the trial court heard evidence, including testimony from the children's therapist and the GAL. After the completion of the first two days of testimony, but prior to the conclusion of the hearing, the court issued an order, acknowledging its "grave concerns about the emotional, physical and mental health of the children," and ordering the GAL to investigate the parents' relatives for potential placement of the children. On July 30, 2004, when the parties reconvened to continue the custody modification hearing, the GAL recommended that the children reside with their paternal aunt, Lisa S., in Maine.

Jeffrey G. asserts that the hearing was never completed and that both he and Janette P. were denied the opportunity to complete their testimony and fully present evidence pertaining to their case. Nevertheless, it is undisputed that, in light of the GAL's recommendation, the parents reached another consent agreement, which the trial court approved, whereby the parents shared joint legal custody and Jeffrey G. assumed primary physical custody of the children.

On October 1, 2004, the GAL filed an "Interim Case Update" with the court "to document the failure of co-parenting and communication between Janette and Jeffrey." In addition to detailing several incidents of concern to the GAL, the report concluded, "[t]he children deserve better than their parents are willing and able to provide at this time," and recommended that the children be placed with Lisa S. "for the school year." The court conducted a review hearing on October 8, 2004, at which the GAL reported that both parents' circumstances had changed since the July 30, 2004 stipulation, resulting in their noncompliance with the terms of that agreement. The GAL also described a proposed custodial change, to which the parents agreed, granting Janette P. primary physical custody of the children. However, recognizing that the proposed change would be the fourth custodial change in four years, the trial court determined that "[t]he children will reside with their aunt in [Maine], end of discussion." The court further stated:

You can come back in a year after the parents have been through co-parenting classes, after [J.G.] has received the appropriate special education services he's to receive. Parents can pay. This is outrageous what the two of you are doing to your children. We have done this before and before, and again and again and again and again. That will be my order. This hearing's over. Thank you.

After denying Jeffrey G.'s counsel's repeated requests to be heard, the court further stated:

I've heard this case. I've heard it every two weeks for the last two months. I'm not going to hear it again. These children are in grave danger remaining with their parents. We've already heard testimony from the therapist how damaged they are as a result of their parents [sic ] behavior. I will not allow it to continue. The hearing is over.

The hearing lasted seventeen minutes. The court denied both counsels' requests to reconsider.

On October 13, 2004, prior to the proposed custodial change, the trial court granted the GAL's ex parte request that the two children be placed in Lisa S.' immediate custody. By order dated October 15, 2004, the court found that "[r]esiding with either parent is detrimental to these children," and granted physical custody to Lisa S. and supervised visitation to both parents.

The petitioner appeals the trial court's custody determination, arguing that the trial court: (1) did not have jurisdiction to grant custody of the children to Lisa S. under RSA 458:17 ; and (2) violated his fundamental procedural due process rights when it denied him custody of the children without following the requisite procedures set forth in RSA chapter 169–C.

Lisa S. urges us to uphold the trial court's custody determination, arguing that the trial court properly considered the best interests of the children when it: (1) found that the children were in danger if left in the care of their parents; and (2) required continuing protection for the children by limiting the parents to supervised visits.

We also permitted the filing of an amicus curiae brief, which argues that the trial court properly considered the best interests of the children when it found that the parents were unfit and granted physical custody to Lisa S. It contends the trial court's custody determination comports with precedent set in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion).

The right of biological and adoptive parents to raise and care for their children is a fundamental liberty interest protected by Part I, Article 2 of the New Hampshire Constitution. In the Matter of Nelson & Horsley, 149 N.H. 545, 547, 825 A.2d 501 (2003). Similarly, the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Troxel, 530 U.S. at 66, 120 S.Ct. 2054. This fundamental right is not absolute, but is subordinate to the State's competing parens patriae power to intervene if a child's welfare is at stake. Preston v. Mercieri, 133 N.H. 36, 40, 573 A.2d 128 (1990). We first address this issue under the State Constitution and cite...