In the Matter of Jessika Greene and Curtis Billups

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0145, In the Matter of Jessika Greene
and Curtis Billups, the court on April 3, 2019, issued the
following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
petitioner, Curtis Billups (father), appeals an order of the Circuit Court (Boyle,
J.) approving the recommendation of the Judicial Referee (Cyr, J.) denying his
petition to enforce and modify a divorce decree from Virginia. We affirm.

The following facts were found by the trial court or are supported by the
record. The parties were divorced in June 2014 by final decree of a Virginia
court. The decree ordered the father to pay child support and stated that “legal
custody . . . will be joint,” “primary physical custody . . . will be with [Jessika
Greene (mother)],” and that the father had a “right to reasonable visitation as
the parties may mutually agree upon.”1 Initially, the father made several child
support payments into a bank account opened for that purpose, but stopped
making payments shortly thereafter. In July 2015, the father was convicted for
attempting to entice a child to have sex, a felony level offense. He is
incarcerated in the federal prison system and is scheduled for release in March
2026. The mother learned of his conviction when, after not hearing from him
for a considerable period, she searched for information about him on the
internet.

In early 2017, the mother and the child moved to New Hampshire. In
May 2017, the mother closed the bank account that the father had used to pay
child support. In August 2017, the father filed a petition seeking to register the
Virginia divorce decree in New Hampshire, stating that he “wants to establish
communication and potentially visitation between the minor and his family.”
Later that month, he filed another petition requesting that the court register
the decree and order the mother to accept child support. He also sought “to
explore the possibility of having written and telephonic communication with his
[child] and possibly visitation if circumstances allow visits to take place.” The
mother agreed that the decree should be registered in New Hampshire, objected

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The divorce decree explicitly incorporates by reference a “Final and Permanent Separation,
Support, Custody and Property Settlement Agreement” dated May 12, 2014. However, because
the trial court did not reference this agreement, and neither party makes arguments about the
document or provided it to this court on appeal, our interpretation of the parties’ rights and
responsibilities is based solely on the final divorce decree and the trial court’s order.
to the father’s other requests, and requested a hearing. At some point, the
paternal grandparents motioned to intervene and petitioned for grandparent
visitation rights.

The trial court registered the Virginia decree and, in October 2017, held a
hearing on the paternal grandparents’ motion to intervene and the father’s
motion to enforce and modify the decree. Following the hearing, the trial court
denied the grandparents’ requests. It also ruled that the mother should set up
a bank account so that the father could pay child support. However, it denied
the father’s petition to enforce and modify the Virginia decree, reasoning that it
would not be in the best interest of the child for the father to be re-introduced
into her life at that time. The trial court denied the father’s motion to
reconsider, and this appeal followed.

On appeal, the father argues that the trial court order denies him the
ability “to have written and telephonic contact with his [child] resulting in a de
facto termination of his parenting rights in violation of his constitutional rights
protected under the Fourteenth Amendment to the U.S. Constitution and Part
I, Article 2 of the New Hampshire Constitution.” He asserts that the trial court
erred because it did not apply the standards and procedures set forth in RSA
chapter 170-C (2014) including the right to appointed counsel, the requirement
of a guardian ad litem, and a higher burden of proof. He also contends that
the trial court erred when it concluded that it was not in the child’s best
interest to have contact with him. See RSA 461-A:11, II (2018) (allowing the
court to modify a permanent order concerning parental rights and
responsibilities based on its determination of what would be in the child’s “best
interest”).

When reviewing a trial court’s decision on parenting rights and
responsibilities, our role is limited to determining whether it clearly appears
that the trial court engaged in an unsustainable exercise of discretion. In the
Matter of Kurowski & Kurowski, 161 N.H. 578, 585 (2011). We consider only
whether the record establishes an objective basis sufficient to sustain the
discretionary judgment made, and we will not disturb the trial court’s
determination if it could reasonably have been made. Id. To the extent an
appealing party argues that the trial court committed an error involving
questions of law, we review such issues de novo. Id.

Central to all of the father’s appellate arguments is his contention that
the trial court order — by denying his petition to enforce and modify the
Virginia decree — forbids him from communicating with his child. He asserts
that the inability to communicate effectuates a de facto termination of his
parental rights. Although the trial court order does not explicitly state that the
father is forbidden from communicating with his child, because the trial court
denied the father’s motion to enforce and modify — which included his request
for communication — we interpret the trial court order as barring the father

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from initiating written or telephonic communication with the child. See In the
Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008) (interpretation of a trial
court order presents a question of law for this court).

The father contends that the trial court erred when it concluded that it
was not in the child’s best interests to have contact with the father. We
disagree. Based upon the evidence before it, the trial court could have
reasonably determined that receiving communication from the father — which
would likely involve disclosure of his incarceration and the offense of which he
was convicted — was not in the child’s best interest because that information
could negatively impact the child’s emotional well-being and relationship with
family members. Accordingly, because the record establishes an objective
basis to sustain the trial court’s discretionary judgment, we conclude that the
father has not met his burden to prove that the trial court’s “best interests”
determination is not sustainable. See Kurowski, 161 N.H. at 585.

Nor are we persuaded by the father’s argument that a present inability to
communicate with the child effectuates a de facto termination of his parental
rights. The trial court order does not permanently terminate any of the father’s
parental rights. Under the Virginia divorce decree, which the trial court did not
modify, the father retains joint legal custody of the child. Under Virginia law,
“‘[j]oint custody’ means . . . joint legal custody where both parents retain joint
responsibility for the care and control of the child and joint authority to make
decisions concerning the child even though the child’s primary residence may
be with only one parent.” Va. Code Ann. § 20-124.1 (West, Westlaw through
end of Reg. Sess. 2018 and 2018 Sp. Sess.).

Additionally, the father retains the right to petition the court for future
modification of the parenting plan. See RSA 461-A:11. Thus, the trial court
order lacks permanency, which is the hallmark of a true termination of
parental rights. Cf. In re C.M., 163 N.H. 768, 774-75 (2012) (reasoning that an
abuse and neglect proceeding is distinguishable from a proceeding to terminate
parental rights because the former order “is not permanent and is subject to
review,” whereas the purpose of the latter is to “permanently sever the parent-
child relationship”). Because the trial court order does not have the practical
effect of terminating the father’s parental rights, the statutory and
constitutional protections afforded in the context of a termination of parental
rights proceeding are not implicated.

On appeal, for the first time, the father asserts that because the trial
court order does not allow him to have contact with his child, it leaves him
“defenseless against a Petition to Terminate Parental Rights if one is eventually
filed,” and is therefore “unjust and not aligned with the purpose of RSA 461-A.”
We decline to address this argument because the father did not raise it before
the trial court. See State v. Blackmer, 149 N.H. 47, 48 (2003) (noting that

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“trial forums should have an opportunity to rule on issues and to correct errors
before they are presented to the appellate court” (quotation omitted)).

Affirmed.

LYNN, C.J., and HICKS, BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Eileen Fox,
Clerk

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