In Re Guardianship of Matthew L: A call for non-biological parents to secure parental rights


The Supreme Court issued an opinion In Re Guardianship of Matthew L. on December 21, 2012. 

The Facts

Mary and Joan began a committed relationship in 2004. Two years later, they began to plan for a family. Mary became pregnant in 2006 through artificial insemination, and gave birth to Matthew in April 2007. In June 2007, Mary and Joan petitioned to establish a co-guardianship to secure a legal, familial relationship between Matthew and Joan.

Mary ended her relationship with Joan in March 2008, and petitioned to terminate the co-guardianship a few months later. The motion was denied in October 2009. Mary renewed her request to terminate the co-guardianship in June 2010, and the issue went to trial in December 2011. Following the first day of trial, the Supreme Court issued its opinion In Re Guardianship of Reena D. Reena D. held that a guardianship established by consent requires the guardian to bear the burden of proof by clear and convincing evidence that substitution or supplementation of parental care and supervision is necessary to provide for the essential physical and safety needs of the minor and that terminating the guardianship will adversely affect the minor’s psychological well-being.

The trial resumed in March 2012, and the parties agreed that Reena D. applied. Joan asked for a continuance to prepare additional evidence and hire an expert since it was now her burden of proof. The trial court denied the motion, and following completion of the trial, ruled that Joan had failed to carry her burden that the continuation of the co-guardianship was necessary to provide for Matthew essential physical and safety needs. The court terminated the co-guardianship.

The Appeal

Joan appealed the trial court’s decision, arguing that the trial court erred by refusing to grant her motion to continue and that the trial court misinterpreted Reena D. to require her to prove both that the guardianship continued to be necessary to provide for Matthew’s essential physical and safety needs and that terminating the guardianship would adversely affect his psychological well-being.

The Holding

On the first question regarding the continuance, the Supreme Court held that it could not conclude that the trial court’s ruling was an unsustainable exercise of discretion. Where the trial court has broad discretion over its proceedings, and the record showed that the trial court had access to the GAL’s investigation and report which included information from Matthew’s therapist and the parent’s co-parenting counselor, the Supreme Court concluded that the trial court could have reasonably concluded that neither a continuance nor a new trial was required.

On the issue interpreting Reena D., the Supreme Court held that the question had not been preserved before the trial court because the general rule requires a specific and contemporaneous objection before the trial court. The court noted that “this rule, which is based on common sense and judicial economy, recognizes that trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court. Despite affirming the appeal, the opinion provides a lengthy discussion of the parties’ arguments because they raise public policy concerns that the legislature may wish to address. The resolution before the court is left to another day.

The thrust of Joan’s argument is that by requiring her to prove both parts of a conjunctive test, instead of either part, it creates a dissimilar standard between the test to obtain a guardianship over the objection of a parent and to continue a guardianship previously consented to. For example, to obtain a guardianship when a parent objects requires the petitioner to prove pursuant to RSA 463:8, III(B) that the guardianship is necessary to either provide for the physical and safety needs of the child or to avoid adverse effects to the child’s psychological well-being. Joan argues that the termination of the guardianship should also be granted only if neither of the situations is true. She argues that “having different standards for the creation and termination of guardianships would foster instability in children’s lives, thereby contravening the entire purpose of guardianships.”

Mary, on the other hand, argues that Joan is “comparing apples to oranges.” She says that it should be easier to terminate a guardianship obtained through consent then to win guardianship over the objection of a parent. Otherwise, it would be contrary to the public policy of encouraging a struggling parent to make a difficult choice and allow for a guardianship if it will be near impossible to terminate that guardianship over the objection of the guardian.

The Takeaway

This is an interesting case in that the major, important question before the court remains unanswered despite a lengthy discussion of the issue by the court. Prior to the holding in Reena D., the trial courts generally applied a standard requiring the parent to prove that neither the physical safety of the child required supplementation of care nor would the child’s psychological well-being be impacted by the termination of the guardianship. It is a significant change to then require it to be proved that both are still true. Where a parent may be able to care for the child’s physical and safety needs without the guardianship in place, it will more often be the case where there will be a significant adverse effect on the child taken away from his caregiver who he has formed an attachment. The amicus brief filed by the National Association of Social Workers aptly points out that “just as courts have recognized that children form attachment bonds with caregivers, and do so without regard to biological or legal relationships, so they have recognized that disrupting a child’s attachment bonds can severely harm him or her.” With the burden shifted by Reena D., the legislature should act to make the test for the termination of a previously consented to guardianship disjunctive.

One cannot help feeling bad for the little boy in this case who has lost the legal relationship to one of his parents at the urging of his other parent. The October 2009 trial court order found that “Mary and Joan referred to each other both as Matthew’s mother; encouraged Matthew to look to both of them as mothers; and held themselves out to others as Matthew’s mothers.” Furthermore, that “[b]oth Mary and Joan are excellent parents.  Both love Matthew tremendously and show their love for him. … [T]he GAL had no concerns with either Mary or Joan as a parent.  The GAL noted that each has different qualities for nurturing Matthew.”

This case is an important example, at the expense of the well-being of this little boy, that a non-biological parent, whether in a same-sex relationship or heterosexual relationship, must secure unbreakable parental rights to protect their relationship with their child. Guardianship, at least under the Reena D. standard, does not adequately secure those rights since the legal relationship and rights that come with a guardianship can be severed. Adoption is the only means that will provide permanent security to the child and the parent. 

In the Matter of Reena D: Guardian bears burden of proof in termination of guardianship established by consent

The New Hampshire Supreme Court issued an opinion In the Matter of Reena D. on December 28, 2011. 

The Facts

In 2002, mother and father petitioned the court to grant guardianship of their twenty-two month old daughter Reena to the paternal grandfather and his wife. The purpose of the guardianship was to allow mother and father to travel to India to start a tile business and visit with the mother’s family. The court appointed the grandfather and his wife as Reena’s guardians.

In 2003, the grandfather died and his wife was appointed as sole guardian of Reena. Later that year, the mother and father petitioned to terminate the guardianship, and then entered into a temporary stipulation with the guardian allowing the guardianship to continue while the father obtained an alcohol assessment. A hearing on the motion to terminate would be held two months after the submission of the assessment.

Six months later, the guardian moved to dismiss the motion to terminate, and the court denied the termination of the guardianship without prejudice. In 2007, the parents renewed their motion to terminate the guardianship. A trial was conducted in 2009, where the father submitted the required alcohol assessment on the first day. The trial court placed the burden of proof, by a preponderance of the evidence, on the parents to show “that substitution or supplementation of parental care and supervision [was] no longer necessary to provide for [their daughter’s] essential physical and safety needs” and that terminating the guardianship would not “adversely affect [their daughter’s] psychological well-being.” The court determined that the parents had failed to meet their burden and denied the termination of the guardianship.   

The Appeal

The father appealed the decision denying the termination of the guardianship over his daughter. He argues that the trial court violated his state and federal constitutional rights by requiring him and his wife to bear the burden of proof to terminate the guardianship. He asserts that it is the respondent who should have the burden of proving by clear and convincing evidence that the guardianship was necessary to provide for Reena’s essential physical and safety needs and to prevent significant psychological harm to her.

The Holding

In a guardianship established by consent, the guardian bears the burden of proof by clear and convincing  “that substitution or supplementation of parental care and supervision” is “necessary to provide for the essential physical and safety needs of the minor” and that terminating the guardianship will “adversely affect the minor’s psychological well-being.” The court determined that a fit parent, that is one who has not been adjudicated unfit, is entitled to the Troxel presumption that a fit parent will act in the best interests of their child. Thus, where a guardianship has been established by consent, a parent remains a fit parent and it is the guardian who must carry the burden of proof articulated in RSA 463:15, V. The court held that the clear and convincing standard applies, which was in keeping with other holdings of the court in disputes between parents and nonparents over custody of a minor such as In the Matter of R.A. & J.M. and In re Guardianship of Nicholas P.

Because the trial court applied the incorrect burden of proof, the Supreme Court vacated the order denying the termination of the guardianship and remanded it for further proceedings.

The Takeaway

When establishing a guardianship, the parent who consents to the guardianship will have an easier path to terminating the guardianship.

An interesting issue will occur for a guardianship established by consent and adjudication. It is often the case where one parent consents to the guardianship, while the other objects and the guardianship is granted over the objection. In a proceeding to terminate the guardianship, the parent who contested the guardianship must carry the burden of proof, where the parent who consented shifts the burden to the guardian. Having different burdens in the same matter will make things interesting.