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In Re Guardianship of Matthew L.

December 21, 2012

IN RE GUARDIANSHIP OF MATTHEW L.


The opinion of the court was delivered by: Hicks, J.

10th Circuit Court Brentwood Family Division

Argued: November 27, 2012

The respondent, Joan M., appeals an order of the 10th Circuit Court - Brentwood Family Division (MacLeod, J.) granting the petition to terminate her co-guardianship over the minor, Matthew L., filed by the petitioner, Mary S., the minor's biological mother and co-guardian. We affirm.

The trial court found, or the record supports, the following facts. The parties were involved in a serious relationship from mid-2004 until March 2008.

In 2006, the petitioner became pregnant through artificial insemination, and in April 2007, she gave birth to Matthew. In June 2007, the parties petitioned the court to appoint them as Matthew's co-guardians so as to "establish[ ] a familial relationship between the child and both [the petitioner] and [the respondent]."

In March 2008, the petitioner ended her relationship with the respondent and, in June 2008, she filed a motion to terminate the guardianship. In October 2009, the motion was denied. In June 2010, the petitioner filed a new motion to terminate the guardianship. In December 2011, after the first day of the hearing on the petitioner's motion had concluded, we issued our decision in In re Guardianship of Reena D., 163 N.H. 107 (2011).

Reena D. involved a proceeding to terminate a consensual guardianship over the petitioner's minor daughter. Reena D., 163 N.H. at 109; see RSA 463:8, III(a), :15, V (2004). The petitioner argued that the trial court violated his state and federal constitutional rights when it required him and his wife, rather than the guardian, to bear the burden of proof in the termination proceeding. Reena D., 163 N.H. at 110-11.

RSA 463:15, V governs the termination of both consensual and nonconsensual guardianships over minors. It provides:

The guardianship of the person shall be terminated upon a showing, by a preponderance of the evidence, that substitution or supplementation of parental care and supervision is no longer necessary to provide for the essential physical and safety needs of the minor and termination of the guardianship will not adversely affect the minor's psychological well-being.

RSA 463:15, V. In Reena D., we held that by interpreting RSA 463:15, V to place the burden of proof on the petitioner and his wife, the trial court "contravened the traditional presumption that a fit parent will act in the best interest of his or her child." Reena D., 163 N.H. at 111 (quotation omitted); Troxel v. Granville, 530 U.S. 57, 69 (2000). We concluded that in light of our obligation to construe RSA 463:15, V consistent with constitutional requirements, the guardian opposing the termination of a consensual guardianship must bear the burden of proof and must meet a clear and convincing evidentiary standard. Reena D., 163 N.H. at 114-15. Relying upon the language of RSA 463:15, V, we stated that the guardian opposing the termination of a consensual guardianship "bears the burden of proving 'that substitution or supplementation of parental care and supervision' is 'necessary to provide for the essential physical and safety needs of the minor' and that terminating the guardianship will 'adversely affect the minor's psychological well-being.'" Id. at 114 (quoting RSA 463:15, V).

The hearing in the instant matter resumed in March 2012, three months after Reena D. was issued. The parties agreed that Reena D. applied and that it required the respondent to bear the burden of proof by clear and convincing evidence. Because she now had the burden of proof, the respondent renewed an earlier motion to obtain an expert to "testify on the . . . impact of the termination on the minor child's psychological well-being," and asked either for a continuance or to "start [the trial] anew." The trial court denied these motions, and ultimately decided that the respondent had failed to prove by clear and convincing evidence that it was necessary for Matthew's essential physical and safety needs to substitute or supplement the petitioner's parental care and supervision of him. The trial court, therefore, granted the petition to terminate the guardianship, and this appeal followed.

Under RSA 567-A:4 (2007): "The findings of fact of the judge of probate are final unless they are so plainly erroneous that such findings could not be reasonably made." Consequently, we will not disturb the probate division's decree "unless it is unsupported by the evidence or plainly erroneous as a matter of law." Id. at 110 (quotation omitted).

The respondent first argues that the trial court erred when it denied her motion to continue the trial or for a new trial. The trial court has broad discretion in managing the proceedings before it. In the Matter of Sawyer & Sawyer, 161 N.H. 11, 18 (2010). "We review a trial court's rulings in this area under an unsustainable exercise of discretion standard." Id. (quotation omitted).

We cannot conclude that the trial court's decision was an unsustainable exercise of its discretion. Our decision in Reena D. was issued three months before the evidentiary hearing reconvened. Three months before the hearing, the respondent's counsel knew or should have known that the respondent had the burden of proof. Moreover, as the petitioner aptly observes, "[a]lthough . . . Reena D. shifted the burden of proof, it did not change the substantive evidence involved in the termination hearing." Regardless of which party had the burden of proof, the issues in the hearing remained the same: (1) whether the guardianship was ...


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