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In re A.D.

Supreme Court of New Hampshire

July 26, 2019

IN RE A.D.

          Submitted: June 18, 2019

          Bianco Professional Association, of Concord (Crystal M. Maldonado and Thomas P. Colantuono on the brief), for the petitioner.

          Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior assistant attorney general, on the brief), for New Hampshire Division for Children, Youth and Families.

          HICKS, J.

         The petitioner, Cynthia Marie Clark, appeals an order of the Circuit Court (Quigley, J.) dismissing her petition to adopt the four-year-old child, A.D. We affirm.

         The following facts were found by the trial court, relate the contents of documents submitted as part of the appellate record, or are undisputed. The petitioner and the child are not related. In November 2014, when the child was approximately two months old, the New Hampshire Division for Children, Youth and Families (DCYF) removed her from the custody of her mother. The child was placed with the petitioner to provide foster care. DCYF filed a neglect petition against the child's biological parents, and, according to the petitioner and apparently not disputed by DCYF, in December 2014, the parents were adjudicated to have neglected the child. Legal custody of the child was awarded to DCYF.

         In April 2016, the child was reunited with her mother with whom she resided until December 2016. During that time, the petitioner sometimes babysat the child. Pursuant to court orders, the child's father was allowed to have only supervised visitation with the child; those visits were to be arranged through, and supervised by, a parent aide. However, unbeknownst to DCYF, while babysitting the child, the petitioner allowed the child's father to visit and stay overnight.

         In September, the child's father informed the petitioner that he believed that the child was not safe with the mother and that he wanted to be reunited with the child. Although the petitioner, as a social worker, was a mandatory reporter, she did not contact DCYF about the father's safety concerns. Rather, unbeknownst to DCYF, she began a personal relationship with the father who, at the time, was 19 while the petitioner was 47 years old. Text messages between the petitioner and the child's father indicate that he was a regular visitor to the petitioner's home and that he was involved in her personal life. In one message, the child's father told the petitioner that he "want[ed] . . . a future" with her, that he loved her, and that he planned to "have a baby and get married" to her.

         In December, the child was removed from her mother's care and was again placed with the petitioner for foster care. A permanency hearing in the parents' ongoing neglect case was scheduled to take place in March 2017. Shortly before it took place, DCYF learned of the relationship between the petitioner and the child's father. DCYF informed the court, and the court ordered that the child be removed from the petitioner's care and placed with another foster family. The child was placed with another foster family that day.

         In June 2017, approximately three months after the child was removed from her care and before the parental rights of the child's parents had been terminated, the petitioner filed a petition to adopt the child. Her petition was held in abeyance pending the termination of the parental rights of the child's parents, which occurred in December 2017. After the parents' parental rights were terminated, DCYF became the child's legal guardian. See RSA 170-C:11, II (2014).

         In January 2018, the court ordered a home study to be submitted, as required by RSA 170-B:18 (Supp. 2018). DCYF objected, asserting that the petitioner lacks "standing to file for adoption" because she is not related to the child and because, as of January 2018, it had been approximately ten and one-half months since the child had resided with her. DCYF further asserted that the petitioner had "failed to obtain the surrenders required by RSA 170-B:5," and that DCYF did "not agree to surrender its legal rights as the legal guardian over [the child] and [would] not be executing a surrender." DCYF contended that the petitioner's adoption of the child would not be in the child's best interest. In response, the petitioner filed a copy of a home study that had been conducted in 2014, when she was first seeking to become a foster parent.

         The court held two hearings. At the first hearing in June 2018, it heard arguments on standing. Thereafter, it allowed the parties to file memoranda on that issue. At the second hearing in September 2018, the court informed the parties that it would allow them to argue the standing issue, and then, if it deferred that issue or ruled that the petitioner had standing, it would allow them to present evidence on whether the petitioner's adoption of the child was in the child's best interest. Although the petitioner's counsel stated that she thought the hearing had been noticed "for the issue of standing," she acknowledged that she had brought witnesses and was "ready to argue . . . everything." She further acknowledged that she had brought to the hearing "five copies" of all of her exhibits. Following argument, the court deferred ruling on the standing issue and allowed the parties to present their evidence regarding whether the adoption was in the child's best interest.

         In November, the trial court dismissed the petitioner's petition to adopt the child on the ground that the petitioner lacks standing. The court observed that the child had never been placed with the petitioner "for the purposes of adoption," that she had been removed from the petitioner's care "for cause," and that the child had not been in the petitioner's care and custody "for a year and a half." The petitioner unsuccessfully moved for reconsideration. Thereafter, the petitioner asked the court to stay any adoption of the child. In granting the stay, the court observed that "[t]here is another petition to adopt [the child] that has been filed by prospective adoptive parents with the consent of DCYF," and that DCYF "intends to surrender any legal rights it has prior to the petition being considered." This appeal followed.

         On appeal, the petitioner first argues that the trial court erred by dismissing her adoption petition on the ground that she lacks standing. When, as in this case, a motion to dismiss does not contest the sufficiency of the petitioner's legal claim, but instead challenges the petitioner's standing to sue, the trial court must look beyond the allegations and determine, based upon the facts, whether the petitioner has sufficiently demonstrated a right to claim relief. In the Matter of Chrestensen & Pearson, 172 N.H. ___, ___ (decided March 8, 2019) (slip ...


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