In Re Guardianship of Nicholas P.
162 N.H. 199
| N.H. | 2011Background
- Nicholas P. is the minor son of Rebecca P. and Martin P.; Jonathan P. is Martin's son from a prior relationship.
- In May 2007 Rebecca left with Danielle for South Carolina and did not relocate back; the family largely remained in New Hampshire with limited contact.
- After Martin’s death in October 2009, Rebecca sought to remove Nicholas to South Carolina; ex parte approval was denied, and Jonathan petitioned for guardianship of Nicholas.
- A guardian ad litem represented Nicholas; Jonathan demonstrated substantial care and stability for Nicholas, including employment, supervision, and parenting, while Rebecca’s relationship with Nicholas was strained.
- The trial court granted Jonathan sole guardianship under RSA 463:8, III(b), with parenting time arranged to take place in South Carolina; Rebecca appealed on statutory, constitutional, and termination grounds.
- On appeal, Rebecca challenges the guardianship under the statute and constitutional rights, while the court reviews for legal error due to absence of a transcript.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Guardianship order comply with RSA 463? | Rebecca argues non-parent substitution requires unfitness and procedural flaws. | Jonathan argues the statute permits substitution by clear and convincing evidence. | Yes; the order aligns with the statute; non-parent substitution is permitted under RSA 463:8, III(b). |
| Was the correct standard and burden of proof applied? | Rebecca claims the court misapplied standards or shifted burden to her. | Jonathan contends proper clear-and-convincing standard applied; no burden shift. | Correct standard applied; burden not improperly shifted; findings supported by the record. |
| Did the guardianship violate Rebecca’s fundamental parental rights? | Rebecca asserts NH and federal constitutional rights to parental decisions were infringed. | Jonathan argues the statute’s high standard balances parental rights with child’s best interests. | Constitutional rights are protected under a high clear-and-convincing standard; no constitutional violation found. |
| Is guardianship a de facto termination of parental rights? | Rebecca contends guardianship effectively ends parental rights given distance and parenting limits. | Guardian appointment is not de facto termination and can be revocable. | Not a termination of parental rights; guardianship can be reassessed and guardianship is removable. |
Key Cases Cited
- In re Adam R., 159 N.H. 788 (2010) (recognizes parental rights are fundamental but subject to strong state interests in guardianship)
- In re Jeffrey G., 153 N.H. 200 (2006) (constitutional protections apply with equal force under state and federal law)
- In re Guardianship of Elizabeth H., 771 N.W.2d 193 (Neb. App. 2009) (guardianship not equivalent to termination; guardian may be removed)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental rights have fundamental protection; weight for third-party visitation varies by statute)
- Bean v. Red Oak Prop. Mgmt., 151 N.H. 248 (2004) (records of appeal require proper transcripts for thorough appellate review)