In re Guardianship of T.M.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit Court-Nashua Probate Division
Case No. 2025-0527
Citation: In re Guardianship of T.M., 2026 N.H. 23

IN RE GUARDIANSHIP OF T.M.

Submitted: March 26, 2026
Opinion Issued: June 10, 2026

S.T., self-represented party, on the brief.

Anne F. Zinkin, of Concord, on the memorandum of law, for the Office of
Public Guardian.

Clancy & O’Neill, P.A., of Nashua (Martha E. O’Neill), for T.M., filed no
brief.

DONOVAN, J.

¶1 The petitioner, the mother of T.M., appeals a decision of the Circuit
Court (Kissinger, J.) denying her motion seeking to remove the Office of Public
Guardian (OPG) as guardian of the person of her son (ward) and be appointed
as his successor guardian. See RSA 464-A:39 (Supp. 2025). The mother
argues that the trial court erred by, among other things, requiring her to
establish that there was cause to remove OPG. We vacate and remand.

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I. Facts

¶2 The trial court found, or the record otherwise supports, the following
facts. The mother served as the guardian of the person of the ward from 2010
until 2020, when the Circuit Court (Quigley, J.) removed her on an ex parte
basis. The trial court appointed OPG as the ward’s temporary successor
guardian, and the parties later agreed to appoint OPG as the ward’s guardian
on an enduring basis.

¶3 In 2021, the mother filed a motion seeking to remove OPG as the
ward’s guardian and be appointed as his successor guardian. Following a
hearing, the Circuit Court (Kissinger, J.) denied the relief sought by the
mother. The trial court determined that “there is no cause for removal of OPG”
and that it was therefore not in the ward’s best interests to remove OPG as
guardian. The trial court also found that “it is not readily foreseeable that [the
mother] would be able to carry out the duties of a guardian” and that the
mother was “not an appropriate person to be appointed.”

¶4 In December 2024, the mother filed a second motion seeking the
removal of OPG as the ward’s guardian and to be appointed as the ward’s
successor guardian. The trial court held a hearing on the motion in July and
August 2025 and issued an order denying the relief sought by the mother. The
trial court found that the mother had failed to demonstrate by a preponderance
of the evidence that OPG was not acting in the ward’s best interests “or
otherwise [that] there is cause to remove it as Guardian.” The trial court
acknowledged the mother’s concerns with OPG’s performance in its role as the
ward’s guardian but determined that those concerns were “not sufficient to
show good cause for removal of OPG.” The trial court also found that, although
the mother had made certain improvements regarding her ability to serve as
the ward’s guardian, it remained “uncomfortable with the prospect of
appointing” her to serve in that role.

¶5 The mother moved for reconsideration, which the trial court denied.
This appeal followed.

II. Analysis

¶6 We first address the mother’s argument that the trial court erred by
requiring her to establish cause for the removal of OPG as guardian, rather
than more broadly considering whether OPG’s removal was in the ward’s best
interests. As an initial matter, OPG asserts that this argument is not preserved
for appellate review because the mother did not object to the use of the same
standard, requiring a showing of cause for removal of a guardian, in the trial
court. The mother responds that she objected to the trial court’s proposed

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“‘cause’ framework” at the structuring hearing, thus preserving her argument
for appellate review. We agree with the mother.

¶7 “The purpose behind our preservation rule is to allow trial courts the
opportunity to rule on issues and to correct errors before they are presented to
the appellate court.” In re J.D., 175 N.H. 108, 111 (2022) (quotation omitted).
The record before us establishes that the trial court considered which standard
to apply after the mother objected to the burden of proof at the structuring
hearing. The trial court stated that “in [this] case . . . the burden would be on
[the mother] to show that there’s cause to remove the [OPG] and then show
that [the mother] is the appropriate successor” guardian. The mother objected
to the trial court’s characterization, arguing that the burden of proof is “explicit
in the New Hampshire statute”; the removal of a guardian requires
prioritization of a family member over a public guardian and consideration of
the “least restrictive form of intervention.” In response, OPG stated that
“removal has to be in the ward’s best interest. And that also means that there
has to be cause to remove the guardian.” Although the mother’s objection did
not expressly challenge whether cause was required to remove a guardian, it
argued for a standard that did not include cause and thereby prompted the
trial court to consider the appropriate legal standard for removal of a guardian.
When addressing the mother’s objection, the trial court stated that “there is no
priority in the statute . . . [s]o I still think you need to prove that there’s cause
to remove” OPG as guardian. We conclude that the mother’s arguments and
OPG’s response provided the trial court with the opportunity to rule on the
appropriate legal standard. See id.1

¶8 We therefore turn to the merits of the mother’s argument. Resolving
this issue requires that we engage in statutory interpretation. Statutory
interpretation presents a question of law, which we review de novo by applying
our standard principles of statutory construction, such as examining the
language of the statute and, if possible, construing that language according to
its plain and ordinary meaning. In re Guardianship of K.C., 177 N.H. 353, 355
(2025), 2025 N.H. 22, ¶5. Moreover, we interpret the statute as written and

1 OPG also contends that the doctrine of res judicata procedurally bars the mother’s argument
because the mother did not challenge the trial court’s application of the same standard for the
removal of a guardian when it denied her prior motion to be appointed as the ward’s successor
guardian. We are not persuaded. “The essence of the doctrine of res judicata is that a final
judgment by a court of competent jurisdiction is conclusive upon the parties in a subsequent
litigation involving the same cause of action.” In re Juvenile 2004-637, 152 N.H. 805, 808 (2005).
Res judicata, also referred to as claim preclusion, prevents parties from relitigating claims that
were litigated or could have been litigated in the prior action. In the Matter of Hampers &
Hampers, 166 N.H. 422, 429 (2014); see McNair v. McNair, 151 N.H. 343, 352-53 (2004). Here,
OPG does not assert that res judicata bars the mother’s claim for relief. Rather, it contends only
that the mother is barred from asserting her legal argument regarding the statutory standard for
removal of a guardian. Thus, OPG’s asserted application of the doctrine of res judicata to the
mother’s legal argument, rather than her claim for relief, is unpersuasive.

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will not consider what the legislature might have said or add language that the
legislature did not see fit to include. Id.

¶9 Regarding the removal of a guardian, RSA 464-A:39, I, provides:

I. Any person appointed as guardian of the person or an estate
or both shall serve until:
(a) His or her resignation is accepted by the court;
(b) He or she dies;
(c) The court finds removal of the guardian to be in the ward’s
best interests; or
(d) The guardianship is terminated pursuant to this section or
RSA 464-A:40.

“[A]ny person interested in the ward’s welfare may file a motion for the removal
of the guardian of the person or the estate or both, if removal would be in the
ward’s best interests.” RSA 464-A:39, III.

¶10 The trial court stated in its order that, to remove a guardian, it
“must find that removal is in the best interest of the” ward. See RSA 464-A:39,
I(c). The trial court also stated, however, that “[a]s such, the Court must be
presented with evidence justifying the removal — in other words, that there is
cause to do so.” By its plain language, RSA 464-A:39 does not require that a
moving party establish that there is cause to remove an existing guardian. The
sole inquiry prescribed by statute is that the court consider whether removing
a guardian would be “in the ward’s best interests.” Id.; RSA 464-A:39, III. The
trial court’s construction of RSA 464-A:39, as requiring a showing of cause for
the removal of a guardian, adds language to the statute that the legislature did
not see fit to include, contrary to our principles of statutory interpretation. See
In re Guardianship of K.C., 177 N.H. at 355, 2025 N.H. 22, ¶5.

¶11 We do not share OPG’s interpretation of the trial court order as
“merely set[ting] forth its understanding of the evidence required to establish
that it is in the ‘best interests’ of the protected person for the incumbent
guardian to be removed.” “The interpretation of a trial court order is a question
of law, which we review de novo.” In re Guardianship of D.E., 173 N.H. 550,
563 (2020). In its order, the trial court “carefully considered certain instances
raised by [the mother] as reasons to remove OPG for cause.” The trial court
denied the mother’s motion “primarily on the basis that [the mother] did not
carry her burden to demonstrate by a preponderance of the evidence that OPG
was not acting in [the ward’s] best interest or otherwise [that] there is cause to
remove it as Guardian.” It concluded that the mother’s concerns with OPG’s
performance were “not sufficient to show good cause for removal of OPG.”
While the trial court correctly considered the best interests of the ward, its

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requirement that “the Court must be presented with evidence justifying the
removal” of OPG was inconsistent with the standard set forth in RSA 464-A:39.

¶12 The existence of cause for the removal of a guardian certainly may
factor into a court’s determination as to whether removal is in the ward’s best
interests. However, while cause for removal of a guardian may be sufficient to
show that removal is in the ward’s best interests, there is no statutory
requirement that a moving party establish cause for removal. Consistent with
the “best interests” standard under RSA 464-A:39, I(c), a moving party may be
able to establish that the removal of a guardian would be in the ward’s best
interests even absent a showing that there is cause for removal of the existing
guardian.

¶13 We note that, in contrast to RSA chapter 464-A, RSA chapter 463,
which governs guardianship of minors, provides that “[a]ny person appointed
as guardian over the person or of an estate or both shall serve until [inter alia]
removal by the court for cause.” RSA 463:14, I (2018) (emphasis added). That
chapter also provides that “[a]ny person interested in the welfare of the minor
may petition for the removal of the guardian of the person or of the estate or of
both for cause.” RSA 463:14, IV (2018) (emphasis added). As discussed above,
however, the statute applicable to removal of a guardian of the person of an
adult, RSA 464-A:39, I(c), does not contain any such language specifying that
removal must be for cause.

¶14 The trial court relied upon In re Guardianship of Luong, 157 N.H.
429, 436 (2008), in its discussion of the legal standard applicable to the
removal of a guardian. In Luong, we addressed whether a trial court had erred
by adopting an estate plan drafted by the referee, rather than the ward’s
guardians. Luong, 157 N.H. at 436. We stated that “[i]f the probate court
believes that the guardians are not acting in the best interests of the ward or
have a conflict of interest, it may consider whether they should continue to
serve in that capacity.” Id. Nothing in Luong, however, alters the best
interests standard under RSA 464-A:39, III. Nor does our discussion in that
case, addressing an issue distinct from the issues presented here, stand for the
proposition that a moving party must demonstrate that there is cause for
removal of a guardian. See id.

¶15 For the foregoing reasons, we conclude that RSA 464-A:39, I(c) does
not require a moving party to establish that there is cause to remove a
guardian. Rather, courts must more broadly consider whether removal would
“be in the ward’s best interests.” RSA 464-A:39, I(c). Given our conclusion, we
need not address the mother’s remaining challenges to the trial court’s findings
regarding OPG’s compliance with its statutory obligations and the impact of the
mother’s conduct on her suitability to be appointed as successor guardian. We
likewise need not address the mother’s argument that the trial court erred by
denying her request for an extension of time to file a request for findings of fact

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and rulings of law following the structuring conference. Because the trial court
imposed a standard not required by the statute, we vacate its order and
remand for further proceedings consistent with this opinion.

Vacated and remanded.

MACDONALD, C.J., and COUNTWAY, GOULD, and WILL, JJ., concurred.