Shenanne Tucker

Supreme Court At-a-Glance Conributor Shenanne Tucker, Practiced law in New Hampshire and Maine since 2002, and currently is predominantly privately employed working in insurance.

An appeal from 6th Cir. Court-Concord Family Div. 2021-0199

Nov. 16, 2021

Vacated and remanded.

 

  • Whether the circuit court erred in denying petition guardianship over her great-nephew because NH DCYF had legal custody under orders issued in association with its abuse and neglect proceedings.

In early February 2021, the circuit court granted DCYF’s ex parte petition to place B.C. into foster care.  B.C. was an infant born to homeless parents with substance use issues. DCYF had undertaken its abuse and neglect investigation and RSA Ch. 169-C proceeding following a report it had received.  Shortly thereafter, B.C.’s great-aunt petitioned for temporary and permanent guardianship under RSA ch. 463 (2018 & Supp. 2020). The infant’s mother consented to the guardianship. DCYF opposed on the basis that “it had already ‘established a legal relationship with the child’” through the RSA Ch. 169-C proceeding.

An adjudicatory hearing on DCYF’s RSA Ch. 169-C occurred, followed by a hearing on the petitioner’s guardianship proceedings.  It was learned at this hearing that orders had issued two days prior which granted DCYF custody under RSA Ch. 169-C.  DCYF argued that these orders precluded the guardianship petition and that it would review petitioner to determine if she was an appropriate family placement for B.C.  Thereafter, the circuit court dismissed the guardianship petition holding that the prior-issued orders giving DCYF custody were determinative and that under them, DCYF had the authority to decide whether B.C. would be placed with the petitioner. Following denial of petitioner’s motion for reconsideration, the petitioner appealed.

Construing RSA Ch. 169-C and RSA ch 463 together, the Court found on appeal that, under certain circumstances, the statutes permitted guardianship to “exist concurrently with an award of legal custody to another individual or entity.”  In particular, in enumerating the duties and authority of a guardian, RSA ch 463 contains a provision whereby it vests in guardians, among other decision making rights, the “rights and responsibilities of legal custody.” However, the grant of “rights and responsibilities of legal custody” is only granted to guardians to the extent legal custody has not been “vested in another individual or in an authorized agency.” The Court found other statutory provisions supported this conclusion. Appointment of the guardianship would not change or modify the order granting custody to DCYF or “affect the status,” deemed by the Court on the facts of this case to be legal custody, of B.C. within the meaning of the statutes. Therefore, granting guardianship to the petitioner would not violate RSA 169-C:4, III.

Accordingly, the Court vacated and remanded.

 

Rath, Young and Pignatelli, P.C., of Concord (Craig T. McMahon and Michael S. Lewis on the brief, and Mr. McMahon orally), for the petition.

 

John M. Formella, attorney general, with Laura E. B. Lombardi, senior assistant attorney general (on the memorandum of law and orally) for the NH DCYF.