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In re P.B.

Supreme Court of New Hampshire

May 12, 2015

IN THE MATTER OF P.B. & a. and T.W. & a.

Argued: March 5, 2015

9th Circuit Court - Nashua Family Division

Law Office of Thomas Morgan, PC, of Salem (Thomas Morgan on the brief and orally), for the petitioners.

Pierce Atwood LLP, of Portsmouth (Lawrence M. Edelman on the brief and orally), for the respondents.


The petitioners, P.B. and S.B., appeal an order of the Circuit Court (Ryan, J.) approving the Judicial Referee's (Rein, M.) recommendation that their petition for visitation with their grandson C.W. be denied. The respondents, T.W. and S.W., cross-appeal an order of the circuit court denying their earlier motion to dismiss the petition. On appeal, the petitioners argue that the trial court erred in balancing the factors regarding the best interests of the child. In their cross-appeal, the respondents argue that the trial court erred in interpreting RSA 461-A:13 (Supp. 2014) to permit the petitioners to maintain their petition for grandparent visitation after the respondents adopted C.W. We affirm.

The trial court found, or the record reflects, the following facts. C.W. was born to M.M. and K.B. on March 31, 2011. His birth parents died tragically on January 11, 2012. Since then, the respondents, M.M.'s sister and brother-in-law, have cared for C.W., initially as guardians and, since June 24, 2013, as adoptive parents. The petitioners, K.B.'s mother and father, had "consistent – but not extensive – contact" with C.W. before his birth parents died and approximately 16 visits between January 17, 2012, and September 1, 2012, after C.W. began residing with the respondents.

On February 15, 2012, the petitioners filed a petition for grandparent visitation in the trial court. After a hearing, the trial court entered a temporary visitation order that mandated unsupervised visitation from 9:00 a.m. to 2:00 p.m. on the first and third Saturdays of every month. After the respondents adopted C.W., they moved to dismiss the petition for grandparent visitation and vacate the temporary order. The trial court denied this request.

On February 12, 2014, the trial court issued a final ruling on the petition for grandparent visitation. After considering the criteria set forth in RSA 461-A:13, the trial court concluded that the respondents' testimony and conduct before the temporary visitation order demonstrated their intention to support a relationship between C.W. and the petitioners, that the respondents "have [C.W.'s] best interests uppermost in their minds and . . . will utilize appropriate judgment in determining whether and how best to integrate [the petitioners] into [C.W.'s] life[, ]" and that "[C.W.'s] best interests will be served by a full integration into his adopted family . . . from which he can explore his relationship with the [petitioners'] family, under the supervision and judgment of his parents." Accordingly, the trial court denied the petition for grandparent visitation. This appeal followed.

We first address the cross-appeal. The respondents assert that the trial court misconstrued RSA 461-A:13. They contend that RSA 461-A:13 applies only when a nuclear family is absent; therefore, they argue, once they adopted C.W., the petitioners lacked standing to sue for grandparent visitation. We disagree.

Usually, in ruling upon a motion to dismiss, the trial court is required to determine whether the allegations contained in the petitioners' pleadings are sufficient to state a basis upon which relief may be granted. In the Matter of Dufton & Shepard, 158 N.H. 784, 787 (2009). To make this determination, the court would accept all facts pleaded by the petitioners to be true and construe all reasonable inferences in the light most favorable to the petitioners. Id. When, however, the motion to dismiss does not contest the sufficiency of the petitioners' legal claim, but instead challenges their standing to sue, the trial court must look beyond the allegations and determine, based upon the facts, whether the petitioners have sufficiently demonstrated a right to claim relief. Id. Because the underlying facts are not in dispute, we review the trial court's decision de novo. Id. at 787-88.

Regarding the right of grandparents to petition for visitation, RSA 461-A:13, I, states, in relevant part:

Grandparents, whether adoptive or natural, may petition the court for reasonable rights of visitation with the minor child as provided in paragraph III. The provisions of this section shall not apply in cases where access by the grandparent or grandparents to the minor child has been restricted for any reason prior to or contemporaneous with the divorce, death, relinquishment or termination of parental rights, or other cause of the absence of a nuclear family.

(Emphasis added.) We have construed this statute to authorize grandparents to petition for visitation "only when one of the conditions listed at the end of the second sentence has come to pass." O'Brien v. O'Brien, 141 N.H. 435, 437 (1996) (construing predecessor to RSA 461-A:13).[1] Accordingly, under RSA 461-A:13, I, standing to seek visitation vests in a grandparent, whether natural or adoptive, whenever a grandchild's family is the subject of one of the enumerated conditions listed at the end of the second sentence "unless the grandparent's access to the grandchild has been earlier, or contemporaneously, restricted." Id. Nothing in the statute divests a petitioning grandparent of standing when the child is subsequently adopted and becomes part of a new family unit. See RSA 461-A:13, I. When the legislature has clearly delineated the class that can petition to enforce a statutory scheme, we "will implement that determination meticulously." O'Brien, 141 N.H. at 437. Here, because C.W.'s parents did not restrict the petitioners' ability ...

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