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Petition of Willeke

Supreme Court of New Hampshire

May 12, 2017

PETITION OF ERIC WILLEKE AND REGINA WILLEKE

          Submitted: February 16, 2017

         8th Circuit Court-Keene Family Division

          Law Offices of Joseph S. Hoppock, PLLC, of Keene (Joseph S. Hoppock on the brief), for the petitioners.

          Samantha Pelc, self-represented party, filed no brief.

          Tyler Wyman, self-represented party, filed no brief.

          HICKS, J.

         The petitioners, Eric and Regina Willeke, appeal an order of the Circuit Court (Forrest, J.) dismissing their petition for visitation with their now five-year-old great-grandchild for lack of standing. We affirm.

         The relevant facts follow. Regina Willeke is the maternal great-grandmother of the child. Eric Willeke is the child's maternal step-greatgrandfather. The Willekes' petition alleges that the child lived with the petitioners for most of her life. They were her guardians until November 12, 2015, and they sought great-grandparent visitation rights on September 22, 2015. Tyler Wyman, the child's father, responded to the petition, arguing that New Hampshire law does not confer upon great-grandparents standing to seek visitation. The trial court construed the answer as a motion to dismiss, to which the petitioners objected. In their objection, the petitioners argued that they have a common-law right to seek visitation with the child and, alternatively, that RSA 461-A:13 (Supp. 2016) should be interpreted as conferring upon great-grandparents standing to petition for visitation.

         The trial court granted the motion to dismiss, concluding "that the words of [RSA 461-A:13] are not ambiguous and are intended to afford rights to grandparents only." The trial court did not address the petitioners' common-law claim.

         On appeal, the petitioners do not argue that the trial court erred in interpreting RSA 461-A:13. Instead, they argue only that they have common-law standing, independent of RSA 461-A:13, to request that the trial court exercise its parens patriae power to grant them visitation with the child. In the petitioners' view, the common-law right to seek visitation survived the 1991 amendment of RSA 458:17, VI (1983 & Supp. 1991) (amended 2003) (repealed 2005) and the enactment of RSA 458:17-d (1992) (amended 1993, 2004) (repealed 2005), which were succeeded by RSA 461-A:6, V (Supp. 2016) and RSA 461-A:13 respectively, see Laws 2005, 273:1, :20. Thus, the petitioners conclude that the trial court's failure to "consider the availability" of its parens patriae power to order great-grandparent visitation was error. They also argue that the principles of Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion), adopted by this court in In the Matter of Rupa & Rupa, 161 N.H. 311, 317-18 (2010), "[a]re [n]ot [o]ffended" by the court's exercise of that parens patriae power. (Bolding omitted.) Because we conclude that RSA 458:17, VI, as amended in 1991, and RSA 458:17-d and their statutory successors extinguished courts' common law parens patriae power to order visitation, we need not determine whether the exercise of that power to order great-grandparent visitation would offend the principles of Troxel.

         "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." Petition of Lundquist, 168 N.H. 629, 631 (2016) (quotation omitted). "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. (quotation omitted). "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. (quotation omitted). "Because the underlying facts are not in dispute, we review the trial court's decision de novo." Id. (quotation omitted).

         Determining whether RSA 458:17, VI, as amended in 1991, RSA 458:17-d, and their successors, RSA 461-A:6, V and RSA 461-A:13, abrogated the common-law right to petition for visitation requires that we engage in statutory interpretation. "Statutory interpretation is a question of law, which we review de novo." Id. (quotation omitted). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature 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. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id.

         Prior to 1989, RSA 458:17, VI (1983) (amended 1991, 2003) (repealed 2005) empowered courts to order grandparent visitation only in divorce proceedings. See Roberts v. Ward, 126 N.H 388, 390-91 (1985). Under the common law, however, courts could use their "parens patriae power to permit grandparental visitation when it [was] in the best interests of the child, in situations where RSA 458:17, VI [was] not applicable." Id. at 392. In deciding that courts could grant grandparent visitation outside divorce proceedings, we explained that:

It would be shortsighted indeed, for this court not to recognize the realities and complexities of modern family life, by holding today that a child has no rights, over the objection of a parent, to maintain a close extra-parental ...

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