In re K.B.

• Decision Date: 25 October 2019
• Docket Number: No. 2019-0126,2019-0126
• Citation: 233 A.3d 328,172 N.H. 646
• Parties: IN RE GUARDIANSHIP OF K.B.
• Court: New Hampshire Supreme Court

172 N.H. 646

233 A.3d 328

IN RE GUARDIANSHIP OF K.B.

No. 2019-0126

Supreme Court of New Hampshire.

Argued: September 18, 2019

Opinion Issued: October 25, 2019

Hansen Law Offices, PLLC, of Kennebunk, Maine (Albert Hansen on the brief and orally), for the petitioner.

Orr & Reno, P.A., of Concord (Jeremy D. Eggleton on the brief and orally), for the respondents.

HANTZ MARCONI, J.

The petitioner appeals an order of the Circuit Court(Carroll, Referee, approved by Garner, J.) denying her petition to modify or terminate the guardianship of the respondents over her minor biological daughter, K.B.The guardianship was granted by a court of the State of Connecticut in 2010.Because we conclude that the circuit court did not have jurisdiction over this petition to modify another state's child-custody determination, seeRSA 458-A:14 (2018), we vacate and remand with instructions to dismiss the petition.

The record supports the following relevant facts.The petitioner gave birth to K.B. in Connecticut in September 2007.The State of Connecticut removed K.B. from the petitioner's care shortly thereafter.K.B. has resided with the respondents, respectively, her paternal grandmother and step-grandfather, since 2008.The respondents have been K.B.'s guardians since 2010.The respondents and K.B. lived in New Hampshire from 2008 until the summer of 2018, when they moved to Maine.The petitioner also lives in Maine.According to the circuit court's order, the whereabouts of K.B.'s biological father, who is not a party to this action, are "not known."The petitioner alleged that K.B.'s father still lives in Connecticut, though neither the petitioner nor the respondents have had any contact with him recently.

The respondents' guardianship over K.B. was originally granted by an order of the Superior Court of Connecticut dated April 13, 2010.In that order, the Connecticut court, in addition to granting the guardianship, stated the following: "court finds the child a resident of New Hampshire, in 6 months, NH would be the proper jurisdiction for reinstatement of parental guardianship."(Capitalization omitted.)In an order dated July 8, 2010, however, that same court vacated its April order and entered a new order granting the respondents a guardianship over K.B.The July order does not contain any language regarding the child's residence in New Hampshire or whether New Hampshire would be the proper jurisdiction for modification of the guardianship.

The instant petition was filed in the circuit court in 2017.It sought to modify or terminate the respondents' guardianship over K.B. on the ground that "substitution or supplementation of parental care ... is no longer necessary."The respondents filed an answer, as well as a motion to dismiss.After a hearing, the court denied the petition, concluding that, under Connecticut law, the respondents' guardianship was permanent and therefore not subject to modification.The petitioner subsequently filed a motion for reconsideration, which the court denied, and this appeal followed.

Because this appeal involves a petition to modify or terminate another state's child-custody determination, we must first determine whether the circuit court had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).SeeIn re G.B., 167 N.H. 99, 102, 105 A.3d 615(2014)("The UCCJEA governs when a court of this state has jurisdiction to make or modify a child custody determination.");see alsoUnif. Child Custody Jurisdiction & Enforcement Act § 201, cmt., 9-IA U.L.A. 673(1999)(noting that "jurisdiction to make a child custody determination is subject matter jurisdiction").Subject matter jurisdiction is jurisdiction over the nature of the case and the type of relief sought.Appeal of Cole, 171 N.H. 403, 408, 196 A.3d 950(2018).A court lacks power to hear or determine a case concerning subject matter over which it has no jurisdiction.Id.A party may challenge subject matter jurisdiction at any time during the proceeding, including on appeal, and may not waive subject matter jurisdiction.Id.The court may also raise subject matter jurisdiction suasponte.State v. Demesmin, 159 N.H. 595, 597, 992 A.2d 569(2010).The scope of a court's jurisdiction pursuant to a statute, such as the UCCJEA, presents a question of law.SeeCole, 171 N.H. at 408, 196 A.3d 950.

To resolve this jurisdictional issue, we must interpret the UCCJEA as it has been enacted in New Hampshire.We rely upon our ordinary rules of statutory construction in doing so.SeeIn the Matter of Ball & Ball, 168 N.H. 133, 137, 123 A.3d 719(2015).Under those rules, 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 look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning.Id.Where a statute defines a particular word or phrase, however, that definition will govern.SeeEEOC v. Fred Fuller Oil Co., 168 N.H. 606, 613, 134 A.3d 17(2016).We construe all parts of a statute together to effectuate its overall purpose and to avoid an absurd or unjust result.Ball, 168 N.H. at 137, 123 A.3d 719.

In addition to our ordinary rules of statutory construction, we may consider the official comments to the UCCJEA.SeeIn the Matter of Scott & Pierce, 160 N.H. 354, 359, 999 A.2d 229(2010).The consideration of official comments is sensible because, as we have previously explained, " ‘the intention of the drafters of a uniform act becomes the legislative intent upon enactment.’ "Ball, 168 N.H. at 137, 123 A.3d 719(quotingHennepin County v. Hill, 777 N.W.2d 252, 256(Minn. Ct. App.2010) ).We may also consider the interpretation of the UCCJEA by other jurisdictions.Seeid.Opinions from courts in other jurisdictions are relevant " ‘because uniform laws should be interpreted to effect their general purpose to make uniform the laws of those states that enact them.’ "Id. at 137-38, 123 A.3d 719(quotingHill, 777 N.W.2d at 257 );accordIn the Matter of McAndrews & Woodson, 171 N.H. 214, 220, 193 A.3d 834(2018).

"[T]he UCCJEA establishes the criteria for deciding which state's courts have subject matter jurisdiction to make a child custody decision involving interstate custody disputes."Harshberger v. Harshberger, 724 N.W.2d 148, 153(N.D.2006).It has been adopted in all fifty states.Monica Hof Wallace, A Primer on Child Custody in Louisiana, 65 Loy. L. Rev. 1, 158(2019).New Hampshire adopted the UCCJEA in 2009.McAndrews, 171 N.H. at 218, 193 A.3d 834;see RSA ch. 458-A(2018).The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA), which New Hampshire had adopted in 1979.In the Matter of Yaman & Yaman, 167 N.H. 82, 87, 105 A.3d 600(2014).

The UCCJEA was promulgated, in part, to resolve issues resulting from decades of conflicting court decisions interpreting and applying the UCCJA.McAndrews, 171 N.H. at 218, 193 A.3d 834."The UCCJA turned out to have exploitable loopholes allowing for concurrent jurisdiction in more than one state, which encouraged jurisdictional competition ... and forum shopping."David Carl Minneman, Annotation, Construction and Operation of Uniform Child Custody Jurisdiction and Enforcement Act, 100 A.L.R.5th 1, 1(2002).The UCCJEA addressed these problems, in part, by making clear that "[t]he continuing jurisdiction of the original decree State is exclusive."Unif. Child Custody Jurisdiction & Enforcement Act § 202, cmt., 9-IA U.L.A. 674;seeid.§ 202(a), 9-IA U.L.A. 155 (Supp. 2017);RSA 458-A:13, I. In addition, the purposes of the UCCJEA, as described by its promulgating body, the National Conference of Commissioners on Uniform State Laws, are, interalia, to " ‘[a]void jurisdictional competition and conflict with courts of other States in matters of child custody,’ " to " ‘[d]iscourage the use of the interstate system for continuing controversies over child custody,’ " and to " ‘[a]void relitigation of custody decisions of other States in this State.’ "Yaman, 167 N.H. at 87, 105 A.3d 600(quotingUnif. Child Custody Jurisdiction & Enforcement Act § 101, cmt., 9-IA U.L.A. 657).

The UCCJEA provides for two primary types of jurisdiction.Id.;seeRSA 458-A:12 ;RSA 458-A:14.First, a court may have jurisdiction to make an initial child-custody determination.RSA 458-A:12 ;see alsoRSA 458-A:1, III (defining "[c]hild-custody determination" in pertinent part as "a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child," and specifying further that "[t]he term includes a permanent, temporary, initial, and modification order"), VIII (defining "[i]nitial determination" as "the first child-custody determination concerning a particular child").Second, a court may have jurisdiction to modify a previous child-custody determination.SeeRSA 458-A:14 ;see alsoRSA 458-A:1, XI (defining "[m]odification" as "a child-custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination").We first discuss initial child-custody jurisdiction.

A court has jurisdiction to make an initial child-custody determination if the state in which the court is located is the "home state of the child on the date of the commencement of the proceeding," or if it "was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state."RSA 458-A:12, I(a);see alsoRSA 458-A:1, VII (defining "[h]ome state").In addition, a court has initial child-custody jurisdiction if:

A court of another state does not have jurisdiction under [ RSA 458-A:12, I(a) ], or a court of the home state of the child

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