Guardianships, grandparents and substance abuse: New statute changes standard for terminating a guardianship in some cases

             Until 2012, the burden of proof to terminate a guardianship of a child was placed upon the parent to show, by a preponderance of the evidence, that the substitution or supplementation of parental care and supervision was no longer necessary to provide for the child’s essential physical and safety and that terminating the guardianship would not adversely impact the child’s psychological well-being. Then, the Supreme Court issued its opinion on In the Matter of Reena D.  which implemented a two-tier standard for fit and unfit parents. The above standard still applied in cases where parents had contested a guardianship and the guardianship was granted over their objection.

However, parents that consented to a guardianship had an easier path to termination of the guardianship. Parents who consented retained their status as a “fit parent” and were entitled to the Troxel v. Granville presumption that a fit parent acts in their child’s best interests. Thus, the standard for termination of a guardianship established by consent shifts the burden to the guardian to prove 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 New Hampshire Supreme Court juxtaposed this standard with a guardianship established over a parents’ objection pointing out that the Troxel presumption is overcome during the establishment of a contested guardianship.

            The New Hampshire Legislature recently updated the guardianship statute to implement a new standard for termination of a guardianship if the guardian is the grandparent of the child. Effective January 1, 2018, the statute provides that if guardianship over a child was granted to a grandparent as the result of the parent's substance abuse or dependence, the standard for termination of the guardianship is:

the burden of proof shall be on the parent to demonstrate by a preponderance of the evidence that substitution or supplementation of parental care and supervision is no longer necessary to provide for the essential physical and safety needs of the minor and termination of the guardianship will not adversely affect the minor's psychological well-being.

This standard applies whether the guardianship was contested or uncontested. With this change, a fit parent who agrees to a guardianship because of the parent’s substance abuse or dependence will have the same standard for terminating the guardianship as any parent whose children are under guardianship over their objection. At first glance, this change appears ripe for constitutional challenge. The fact that a parent has a substance abuse problem does not negate their rights under Troxel. A parent with a substance problem can still have the insight to act in their child’s best interests by finding alternative care for the child while they seek treatment.