The opinion of the court was delivered by: Lynn, J.
6th Circuit Court -- Franklin Family Division
Submitted: April 17, 2013
The respondent, Cheryl C., appeals an order of the 6th Circuit Court -- Franklin Family Division (Gordon, J.) granting the petition to terminate her guardianship over her grandchildren, Raven G. and Salem G., filed by the petitioner, Jessica B., the minors' biological mother. We vacate and remand.
The trial court found the following facts. In November 2007, the respondent petitioned for guardianship over her grandchildren. The court granted her ex parte motion for temporary guardianship. Following a hearing in January 2008, at which both parents appeared and testified, the court found that the respondent had "establish[ed] by clear and convincing evidence that the best interests of the minor[s] require substitution or supplementation of parental care and supervision to provide for the essential physical and safety needs of the minor[s] or to prevent specific, significant psychological harm to the minor[s]." See RSA 463:8, III(b) (Supp. 2012). The court found that continuing the temporary guardianship was in the best interests of both children because their parents, the petitioner and Stacey G., engaged in domestic violence and the illegal use of controlled drugs while the children were in their care. The court ordered that the temporary guardianship would remain in effect until the petitioner and Stacey G. complied with a number of conditions to "demonstrate that they are responsible enough to act as parents."
In May 2008, after another hearing, the court found that neither the petitioner nor Stacey G. was complying with these conditions and that they had not "sufficiently demonstrate[d] that [they] can act responsibly as parents." The court made the guardianship permanent and provided for supervised contact between the children and their parents at the respondent's discretion.
The petitioner was subsequently incarcerated for several months as a result of a criminal conviction and was then released on probation. In January 2010, she filed a motion seeking appointment of a guardian ad litem (GAL). A GAL was appointed, and the parties worked out an agreement allowing gradually increased contact between the petitioner and the children.
In February 2011, the petitioner moved to terminate the guardianship, asserting that she had complied with all of the conditions set forth by the court in January 2008. The respondent objected to terminating the guardianship. Stacey G. also opposed termination, but argued that he should be given unrestricted and unsupervised time with the children. The court held a hearing on the motion to terminate on three non-consecutive days in July, October, and November 2011.
At the hearing, the petitioner admitted that she had not complied with the January 2008 order but argued that the court should permit her to integrate the children into her life rather than continue the artificial relationship imposed by the guardianship. The GAL testified that he believed it would be in the best interests of the children to terminate the guardianship gradually. The respondent and Stacey G. took issue with the GAL's recommendation, arguing that he had limited contact with the children and was biased. The respondent's expert witness, Joanna Bunker Rohrbaugh, Ph.D., submitted an expert report and testified at the hearing. She concluded that both children had been physically and sexually abused by the petitioner and her daughter Celia. Dr. Rohrbaugh opined that forcing the children to spend time with their mother would be emotionally devastating for them and recommended that any such contact be supervised by a professional.
On January 24, 2012, the court issued an order granting the petitioner's motion to terminate the guardianship upon approval of a parenting plan to address the needs of the children and the rights and responsibilities of the parents. The court first recited the standard for terminating a guardianship set forth in RSA 463:15, V (2004):
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.
However, the court read our decision in In re Guardianship of Reena D., 163 N.H. 107 (2011), as requiring it to apply a different standard. In Reena D., we stated:
[T]he guardian opposing terminating the guardianship [established by consent] 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." RSA 463:15, V . . . .
[W]e now hold that the clear and convincing standard of proof applies to the guardian's burden of proof in a proceeding to terminate a guardianship established by consent.
Reena D., 163 N.H. at 114-15 (emphasis added). The trial court concluded that Reena D. applied to this case, and, therefore, that the respondent bore the burden of proving by clear and convincing evidence that the petitioner and Stacey G. were not "fit to fulfill their parental roles." The court ruled that the respondent failed to meet this burden. The respondent moved for reconsideration, arguing that Reena D. did not apply because the guardianship here had been established over the parents' objection rather than by consent. The court denied ...