In re Guardianship of M.R.; In the Matter of Tammy Desilets & a. and Natasha Duby & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0075, In re Guardianship of M.R.; In the
Matter of Tammy Desilets & a. and Natasha Duby & a., the court
on June 26, 2017, issued the following order:

Having considered the brief, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). We affirm.

The petitioners appeal the order of the Circuit Court (Foley, J.), following
a two-day hearing, denying their parenting petition and awarding sole decision-
making responsibility and sole residential responsibility to the child’s mother,
the respondent.1

The petitioners are the child’s maternal grandmother and a friend who,
together, raised the child for most of the first nine years of her life. The record
shows that the respondent lived in her mother’s home during her pregnancy
and when the child was young, but moved out when the child was
approximately one and one-half years old, leaving the child in the
grandmother’s care. The grandmother parented the child with the assistance
of the co-petitioner. Without prior notice to the petitioners, the respondent
removed the child from school and took her to Virginia, where the mother now
lives, near the child’s maternal grandfather and his extended family. Shortly
after this incident, the petitioners filed their parenting petition, seeking sole
decision-making responsibility and sole residential responsibility for the child.

The trial court has broad discretion in matters involving parental rights
and responsibilities under RSA 461-A:6 (Supp. 2016). In the Matter of Bordalo
& Carter, 164 N.H. 310, 313 (2012). We will not disturb its decision absent an
unsustainable exercise of discretion. Id. We will uphold the trial court’s
factual findings if they are supported by the evidence. In the Matter of Nyhan
and Nyhan, 147 N.H. 768, 770 (2002).

In contested parenting matters, we have held that:

[A]n award of custody to a . . . grandparent over the objection of a
fit natural or adoptive parent is not unreasonable or unduly

1 The child’s father was also named as a respondent in the trial court; however, he was

defaulted, was awarded no specific rights or responsibilities, and has not participated in this
appeal.
 restrictive of parental rights only if the petitioning party can show
by clear and convincing evidence that: (1) the custody award
would specifically be in the child’s best interest because of a
significant psychological parent-child relationship; (2) the custody
award only be allowed where the family is already in the process of
dissolution; and (3) there is some additional overriding factor
justifying intrusion into the parent’s rights, such as a significant
failure by the opposing parent to accept parental responsibilities.
[In addition,] . . . the custody award must be necessary for the
State to enforce its compelling interest in protecting the child from
the emotional harm that would result if the child were forced to
leave the significant psychological parent-child relationship
between the child and the . . . grandparent.

In the Matter of Bordalo, 164 N.H. at 316 (quotation omitted). We have referred
to this standard as the “Broderick test.” Id.

The petitioners first argue that the trial court erred in finding that they
failed to show “some additional overriding factor justifying intrusion into the
parent’s rights, such as a significant failure by the opposing parent to accept
parental responsibilities,” the third prong of the Broderick test. They argue
that they satisfied their burden by showing that the respondent failed to accept
her parental responsibilities during most of the child’s first nine years, while
they assumed the role of the child’s parents. They also argue that the mother’s
conduct in removing the child from school without prior notice to them, and
taking her to Virginia to live, establishes a failure to accept parental
responsibilities.

The trial court found that the petitioners failed to meet the third prong of
the Broderick test because the mother “has accepted all aspects of her parental
responsibilities” since October 1, 2015, when she removed the child from
school. The court also found that, earlier, “[w]hen [the mother] was on her feet,
she tried to get [the child] back, but was not allowed to do so.” These findings
are supported by the record. In the Matter of Nyhan, 147 N.H. at 770.

The petitioners next argue that the trial court erred in finding that they
failed to show that awarding parenting rights to them is “necessary for the
State to enforce its compelling interest in protecting the child from the
emotional harm that would result if the child were forced to leave the
significant psychological parent-child relationship between the child and the
. . . grandparent,” the final factor in the Broderick test.

The trial court found that the petitioners failed to satisfy this
requirement because the child “has already been removed for over 14 months
from that relationship, and she is not suffering emotional harm.” The court
found that the child “likes her new environment in Virginia” and “loves her

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mother and her siblings.” The court noted that the child “is indeed sad and
misses her New Hampshire family,” but also noted that if the child were
returned to New Hampshire, she “would also be sad and miss her mother and
siblings and her extended Virginia family.” These findings are supported by the
record. In the Matter of Nyhan, 147 N.H. at 770. Moreover, we have adopted
the Troxel presumption that fit parents are presumed to act in the best interest
of their children. See Troxel v. Granville, 530 U.S. 57 (2000). “Provided that a
parent is fit, there will normally be no reason for the State to inject itself into
the private realm of the family to further question the ability of that parent to
make the best decisions concerning the rearing of that parent’s children.” In re
Guardianship of Reena D., 163 N.H. 107, 111-12 (2011) (quotations and
citations omitted).

The petitioners next argue that the trial court erred in finding that the
respondent is a fit parent who had not abandoned her daughter. In this State,
“biological and adoptive parents are presumed to be fit parents until they are
found to be unfit under either RSA chapter 169-C (abuse and neglect
proceedings) or RSA chapter 170-C (termination of parental rights).” In the
Matter of Bordalo, 164 N.H. at 314. The petitioners do not allege that the
mother has been found unfit pursuant to RSA chapter 169-C or RSA chapter
170-C. Moreover, the trial court found that the mother did not abandon the
child, but rather “left [the child] temporarily in a better place than [the mother]
could ever provide.” Then, “[w]hen [the mother] was on her feet, she tried to get
[the child] back, but was not allowed to do so.” Based upon this record, we
cannot conclude that the court erred in finding that the mother is a fit parent
who had not abandoned her daughter.

The petitioners next essentially invite us to reconsider the Broderick test,
as well as the presumption that parents are presumed to be fit unless found
unfit pursuant to RSA chapter 169-C or RSA chapter 170-C. It is a long-
standing rule that parties may not have judicial review of matters not raised in
the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).
Moreover, the petitioners have the burden as the appellants to provide this
court with a record sufficient to decide their issues on appeal, as well as to
demonstrate that they raised their issues in the trial court. Id. The petitioners
have failed to provide a record to show that they raised these issues in the trial
court. Even if the petitioners had raised these issues in the trial court, “[t]he
doctrine of stare decisis demands respect in a society governed by the rule of
law, for when governing legal standards are open to revision in every case,
deciding cases becomes a mere exercise of judicial will with arbitrary and
unpredictable results.” State v. Quintero, 162 N.H. 526, 532 (2011) (quotation
omitted). We have identified four factors to be considered in determining
whether precedent should be overruled. See id. at 532-33 (discussing factors).
The petitioners have failed to brief the stare decisis factors. Accordingly, we
decline to reconsider our precedent. See State v. Blackmer, 149 N.H. 47, 49
(2003) (noting that we confine our review to issues fully briefed).

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 We have considered the petitioners’ remaining arguments, and have
concluded that they do not warrant further discussion. See Vogel v. Vogel, 137
N.H. 321, 322 (1993).

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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