In re Jesse F.

722 A.2d 457, 143 N.H. 192, 1998 N.H. LEXIS 89
CourtSupreme Court of New Hampshire
DecidedDecember 8, 1998
DocketNo. 97-707
StatusPublished
Cited by5 cases

This text of 722 A.2d 457 (In re Jesse F.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jesse F., 722 A.2d 457, 143 N.H. 192, 1998 N.H. LEXIS 89 (N.H. 1998).

Opinion

JOHNSON, J.

The paternal grandmother of Jesse E, Brenda E, appeals the decision of the Sullivan County Frobate Court (Feeney, J.) denying her petition for guardianship over her minor grandson. We affirm.

The following facts were adduced at the guardianship hearing in August 1997. Jesse F. was born on January 2, 1994, and is the biological son of Erica E, the appellee, and Jeremy E, who is Brenda F.’s son. Shortly after Jesse was born, Erica brought the child to Brenda’s home and asked Brenda to care for him while she resolved certain personal problems. Jesse remained with Brenda between one and three months. During the following three-and-one-half years, Jesse periodically spent extended periods of time with Brenda, including weeks when Jesse stayed with Brenda under an arrangement whereby Jeremy had custody on alternating weeks. In July 1997, Brenda filed a petition for guardianship of a minor with the probate court seeking to be appointed guardian of Jesse. See RSA 463:5, II (Supp. 1997). The probate court ordered that Brenda be awarded a temporary guardianship and scheduled a hearing on August 28, 1997, to decide whether Brenda should become Jesse’s permanent guardian. At the conclusion of that hearing, the probate court denied the petition, and this appeal followed.

On appeal, Brenda contends that the probate court erred because: (1) its ruling was unsupported by the evidence; (2) it did not give due weight to the biological father’s stated preference that guardianship be granted to Brenda; and (3) it did not appoint a guardian ad litem for Jesse.

In this case, the probate court has exclusive jurisdiction over the appointment of a guardian and the right of custody incident thereto. See RSA 463:4 (Supp. 1997); Ellsworth v. Heath, 140 N.H. 833, 835, 678 A.2d 138, 139 (1996); McLaughlin v. Mullin, 139 N.H. 262, 265, 651 A.2d 934, 936 (1994). The probate court has wide discretion in the determination of guardianship matters, “which will not be disturbed except upon a clear showing that this discretion has been abused.” In re Sabolevski, 107 N.H. 256, 257, 220 A.2d 745, 746-47 (1966). By statute, “[t]he findings of fact of the judge of probate are final unless they are so plainly erroneous that such findings could not be reasonably made.” RSA 567-A:4 (1997). [194]*194Accordingly, we will not overturn the probate court’s ruling on guardianship if it is supported by the evidence and is not erroneous as a matter of law. See In re William A., 142 N.H. 598, 600, 705 A.2d 1196, 1197 (1998).

Brenda first contends that the probate court’s finding that “no clear and convincing evidence was presented requiring substitution of parental care” was unsupported by the evidence. We disagree. RSA 463:8, 111(b) (Supp. 1997) provides:

If a parent objects to the establishment of the guardianship of the person requested by a non-parent, the burden of proof shall be on the petitioner to establish by clear and convincing evidence that the best interests of the minor require substitution or supplementation of parental care and supervision to provide for the essential physical and safety needs of the minor or to prevent specific, significant psychological harm to the minor.

At the hearing, Brenda presented four witnesses, including herself, a family friend, and members of her immediate family, who testified that Erica inappropriately or inadequately cared for her son. However, two professionals employed by the New Hampshire Division for Children, Youth, and Families (DCYF) and a social worker from a family counseling center testified that Erica properly cared for Jesse. These three professional witnesses all concurred that Jesse should remain with his mother. The probate court, after hearing all the testimony, specifically ruled that it concurred with the recommendations of the social worker and DCYF officials, and on that basis denied Brenda’s petition. “It is within the probate court’s sound discretion to evaluate credibility,” In re Angel N., 141 N.H. 158, 163, 679 A.2d 1136, 1139 (1996), because “[t]he imponderables of human relationships may be better dealt with at first hand than at second.” Pendergast v. Titus, 95 N.H. 191, 193, 60 A.2d 122, 124 (1948). Accordingly, we will uphold the probate court’s ruling, even if we would have found differently, so long as a reasonable trier of fact, could have made the same factual determinations and the probate court did not err as a matter of law. See In re Tracy M., 137 N.H. 119, 125, 624 A.2d 963, 966 (1993); Pendergast, 95 N.H. at 193-94, 60 A.2d at 124. In this case, the consistent testimony of the three professionals that it was in Jesse’s best interest not to grant the petition for guardianship supports the probate court’s order.

Brenda next contends that the probate court erred in not considering the stated preference of the biological father, Jeremy, that Brenda be appointed guardian. RSA 463:3, I (Supp. 1997) [195]*195provides that “[t]he father and mother of every minor are joint guardians of the person of such minor, and the powers, rights, and duties of the father and mother in regard to such minor shall be equal.” Brenda contends that because the father possesses guardianship rights equal to that of the mother, “the biological father’s wishes should have been considered” by the court, and because the court’s order “gives no indication of what, if any, weight was given to the wishes of the biological father, ... the decision should be overturned.” Brenda’s argument is premised exclusively on the statutory dictates of RSA chapter 463, and thus we express no opinion as to the constitutional ramifications, see, e.g., In re Taryn D., 141 N.H. 376, 378, 684 A.2d 63, 64 (1996), if any, on the question of the weight to be afforded Jeremy’s testimony. See State v. Ramos, 131 N.H. 276, 281, 553 A.2d 275, 278-79 (1988) (to trigger a State constitutional analysis, the constitutional provision must be raised in brief).

Jeremy was given the opportunity to testify at the hearing and did in fact inform the court that he believed that it was in Jesse’s best interest that the petition for guardianship be granted. Accordingly, we understand Brenda’s argument to be that the probate court erred, as a matter of law, in not giving almost presumptive weight to the father’s wishes, and that the guardianship statute requires the court to specifically enumerate in its order its reasons for discounting Jeremy’s testimony and ruling in favor of Erica. This argument is without merit. Although the guardianship statute requires the probate court to ascertain the preference of the minor and give that preference just weight, see RSA 463:8, IV (Supp. 1997), it contains no such provision with respect to the wishes of a parent. Likewise, RSA 463:8, VI (Supp. 1997) provides that if a parent objects to the “appointment or continuation

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Bluebook (online)
722 A.2d 457, 143 N.H. 192, 1998 N.H. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jesse-f-nh-1998.