Submitted: February 16, 2017
Circuit Court-Keene Family Division
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.
Wyman, self-represented party, filed no brief.
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.
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
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
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VI (1983 & Supp. 1991) (amended 2003) (repealed 2005) and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(repealed 2005), which were succeeded by RSA 461-A:6, V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.
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).
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.
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