In re Guardianship of Madelyn B.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

10th Circuit Court – Derry Family Division
Nos. 2013-403
2013-445
2013-593

IN RE GUARDIANSHIP OF MADELYN B.

Argued: April 3, 2014
Opinion Issued: July 2, 2014

Gay & Lesbian Advocates & Defenders, of Boston, Massachusetts
(Janson Wu on the brief and orally), and Crusco Law Office, PLLC, of Bedford
(Kysa Crusco on the brief), for the appellant, Susan B.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the
brief and orally), for the appellee, Melissa D.

Upton & Hatfield, LLP, of Concord (Marilyn Billings McNamara on the
brief), for Susan Frelich Appleton & a., as amici curiae.

Pierce Atwood, LLP, of Portsmouth (Lawrence M. Edelman and Michele E.
Kenney on the brief), and Lambda Legal Defense and Education Fund, Inc., of
New York, New York (Karen L. Loewy on the brief), for American Academy of
Assisted Reproductive Technology Attorneys, American Fertility Association,
Reproductive Science Center of New England, New Hampshire Civil Liberties
Union, COLAGE, Family Equality Council, Human Rights Campaign, Lambda
Legal Defense and Education Fund, Inc., National Center for Lesbian Rights,
and National Gay and Lesbian Task Force, as amici curiae.

HICKS, J. The appellant, Susan B., appeals orders of the 10th Circuit
Court – Derry Family Division (Sadler, J.) that: (1) terminated her
guardianship over the person of Madelyn B., a child; (2) dismissed her verified
parenting petition; and (3) denied her motion to intervene in adoption
proceedings involving Madelyn B. The appellee, Melissa D., is Madelyn B.’s
biological mother. We reverse in part, vacate in part, and remand.

Susan’s pleadings allege, in part, the following: She and Melissa met in
1997 and soon became romantically involved. They held a commitment
ceremony on August 16, 1998, and “considered [them]selves to be as fully
committed to one another as any married couple.” Melissa took Susan’s last
name as her own. We note that, at that time, same-sex marriage was
prohibited in New Hampshire, and did not become legal until 2010. Compare
RSA 457:1, :2 (1992) (amended 2009) with RSA 457:1, :1-a, :2 (Supp. 2013).

Susan and Melissa intended to raise a family together, and they jointly
bought a house in which to raise their family. When Melissa sought to become
pregnant using an anonymous sperm donor, they searched for a donor who
shared Susan’s Irish heritage. After the initial course of fertility treatments
failed, Susan sought insurance coverage for another course of treatments.
Melissa became pregnant and, in 2002, gave birth to Madelyn. Susan and
Melissa decided to give Madelyn Susan’s middle and last names.

Susan and Melissa were both named as Madelyn’s parents in the birth
announcements sent to friends and family and printed in the local newspaper,
as well as in a “dedication ceremony” held in the Unitarian Universalist Church
when Madelyn was a year old. Susan was listed as Madelyn’s parent in her
preschool documents and in her medical records. Susan was involved in the
daily care of Madelyn, and Susan and Melissa jointly made all decisions
involved in raising Madelyn, including decisions regarding health care,
education, and religion.

An attorney for Susan and Melissa advised them that Susan could not
legally adopt Madelyn, and that “a guardianship was the best available option
to protect [Susan’s] parental relationship with her.” Susan was appointed
Madelyn’s guardian on March 15, 2002. Melissa also amended her will to

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appoint Susan as Madelyn’s guardian should Melissa die while Madelyn was a
minor.

In November 2008, when Madelyn was six years old, Susan and Melissa’s
relationship ended. Melissa and Madelyn moved in with Eugene D., who
Melissa later married. Susan and Melissa agreed upon a schedule for regular
visitation. Susan saw Madelyn every weekend, had overnight visits every other
week, and continued to be actively involved in Madelyn’s life. Susan paid
weekly child support and, in addition, helped with the cost of Madelyn’s
extracurricular activities. She also provided Madelyn with food, clothing, and
gifts.

In February 2013, Melissa stopped cashing Susan’s child support
checks. Susan avers that she nevertheless continued to send them. On March
2, 2013, when Susan attempted to pick up Madelyn for her weekly visitation,
she was informed that Madelyn no longer wanted a relationship with her. At a
meeting the two had later to discuss the situation, Melissa “claimed that
[Madelyn] no longer wanted to see Susan.” Melissa did not return Susan’s
subsequent phone calls, and Susan was unable to contact Madelyn directly
through online social media because Madelyn’s settings had been changed.

On April 2, 2013, Melissa filed a motion to terminate Susan’s
guardianship over Madelyn, asserting that the guardianship was “no longer
necessary because Madelyn no longer wishes to have a relationship with
Susan.” On April 4, Melissa filed an ex parte emergency motion to terminate
the guardianship alleging that Susan had been “showing up at Madelyn’s
school, contacting family members and behaving in such a way that both
Madelyn and [Melissa] fear [for Madelyn’s] safety.” The court suspended the
guardianship that day “pending response to [r]equest to terminate . . . and
subsequent order,” and ordered “[n]o hearing to be scheduled pending further
order.” Susan, representing herself, filed an objection on April 5. On April 12,
the court terminated the guardianship on the grounds that it was “no longer
necessary to provide for Madelyn’s essential physical and safety needs and
termination would not adversely affect Madelyn psychologically.” The court
found that the guardianship had been created to give Susan the “right and
duty” to care for Madelyn if Melissa were not available to do so. It further
found that following the termination of Susan and Melissa’s relationship and
Melissa’s subsequent marriage, Melissa’s “husband is the logical choice to care
for Madelyn in Melissa’s absence as they are now the family unit.”

On April 18, Susan, represented by counsel, moved for an immediate
hearing. Melissa objected, noting, “We have begun the process of my husband,
Madelyn[’]s stepfather, adopting her.” The court denied the motion and
Susan’s subsequent motion to reconsider.

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 On April 29, 2013, Susan moved to intervene in the pending adoption
proceeding. On the same day, she filed a verified parenting petition seeking
temporary and final orders on child support and a parenting plan, as well as a
determination that she “is a legal parent to,” or “stands in loco parentis to[,]
Madelyn.” The court denied the motion to intervene, and dismissed Susan’s
verified parenting petition, finding that she “is not [a] parent.” (Quotation and
bolding omitted.) The court denied Susan’s subsequent motion for
reconsideration of the order denying her motion to intervene and for an order
“providing [her] with notice and the right to request a hearing to prove her legal
parentage of Madelyn.”

On appeal, Susan argues, in part, that the family division erred by: (1)
terminating the guardianship without a hearing or opportunity to conduct
discovery; (2) ruling that the legal standard for termination of a guardianship
had been satisfied; (3) dismissing her parenting petition; and (4) denying her
motion to intervene in the adoption case. Melissa counters that the
guardianship was created to allow Susan to provide health insurance for
Madelyn and to further “the daily practicalities of child-rearing.” She argues
that since “Madelyn’s sustenance is being adequately met by her new family,”
the guardianship is no longer necessary.

We first address Susan’s parenting petition claim because it is dispositive
of her other claims at this stage of the proceedings. Susan characterizes the
trial court’s sua sponte dismissal of her verified parenting petition as a
dismissal for failure to state a claim upon which relief can be granted. See
Kennedy v. Titcomb, 131 N.H. 399, 402 (1989) (noting that “[a] trial court has
the discretion to dismiss an action sua sponte where the allegations contained
in a writ do not state a claim upon which relief can be granted”). In essence,
the trial court ruled that Susan’s petition failed to state a claim on any of her
asserted bases for claiming to be a parent of Madelyn. Cf. In the Matter of J.B.
& J.G., 157 N.H. 577, 580 (2008) (holding that petitioner could maintain his
action seeking “parental rights and responsibilities under RSA chapter 461-A,”
notwithstanding his lack of biological relationship to the child, “so long as he
alleges sufficient facts to establish his status as a parent by other means”).

“[I]n reviewing the trial court’s order of dismissal [for failure to state a
claim], [we] must determine whether the plaintiff’s writ contains facts which are
sufficient to constitute a cause of action. [We] must rigorously scrutinize the
complaint to determine whether, on its face, it asserts a cause of action.”
Kennedy, 131 N.H. at 401 (quotation and citation omitted). “[W]e assume the
truth of the facts alleged by the plaintiff and construe all reasonable inferences
in the light most favorable to the plaintiff.” Farm Family Cas. Ins. Co. v. Town
of Rollinsford, 155 N.H. 669, 670 (2007).

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 Susan first argues that the family division erred in dismissing her
parenting petition because she sufficiently alleged a claim under RSA 168-B:3,
I(d)’s “holding out” provision. See RSA 168-B:3, I(d) (2002). Because this
argument raises an issue of statutory interpretation, our review is de novo. See
Town of Newbury v. N.H. Fish & Game Dep’t, 165 N.H. 142, 144 (2013).

We are the final arbiter of the intent of the legislature as expressed
in the words of the statute considered as a whole. When
examining the language of the statute, we ascribe the plain and
ordinary meaning to the words used. We interpret legislative
intent from the statute as written and will not consider what the
legislature might have said or add language that the legislature did
not see fit to include. We also interpret a statute in the context of
the overall statutory scheme and not in isolation.

Id. (quotations and citations omitted).

RSA 168-B:3, I, provides, in relevant part:

I. Notwithstanding any other provision of law, a man is
presumed to be the father of a child if:

...

(d) While the child is under the age of majority, he receives
the child into his home and openly holds out the child as his
child.

RSA 168-B:3, I (2002). Susan asserts that “[a]lthough the statute uses ‘father’
and male pronouns, this Court must construe the holding out provision to
apply to mothers as well, in accordance with statutory rules of construction,
the original intent and purpose of the statute, and constitutional guarantees of
equal protection.”

The legislature has instructed that in construing all statutes, “words
importing the masculine gender may extend and be applied to females,” RSA
21:3 (2012), “unless such construction would be inconsistent with the manifest
intent of the legislature or repugnant to the context of the same statute,” RSA
21:1 (2012). We have previously declined to employ that instruction as
liberally as is urged here. In Chretien v. Company, 87 N.H. 378 (1935), we held
that “a statute requiring that words denoting the masculine gender shall
include females will not authorize us to read the word widow as including
widower.” Chretien, 87 N.H. at 379 (quotation omitted); cf. id. at 378-79
(noting also, however, that the statutory instruction to construe masculine
terms to include women would allow the words “‘workman’ and ‘his’” to include

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a female worker). In reaching that conclusion, we noted, after surveying
similar cases from other jurisdictions, that “[n]o case has been found where so
liberal a construction has been adopted as would supply ‘widower’ for ‘widow.’”
Id. at 380.

By contrast, other jurisdictions have interpreted the terms “paternity”
and “father” to apply to women. In Rubano v. DiCenzo, 759 A.2d 959 (R.I.
2000), for instance, the Supreme Court of Rhode Island noted:

While the word “paternity” implies the “fathering” of a child, we are
mindful of the Legislature’s instruction that when statutes are
construed “[e]very word importing the masculine gender only, may
be construed to extend to and to include females as well as males.”
Thus, two women may certainly be “adults who shall be involved
with paternity” of a child for purposes of this statute.

Rubano, 759 A.2d at 970 n.13 (citation omitted) (interpreting statute granting
family court jurisdiction over matters relating to adults involved with paternity
of children born out of wedlock to apply to dispute between same-sex partners
over visitation with child conceived by one, according to agreement between
them, through artificial insemination).

Susan correctly notes that courts in other jurisdictions have applied the
particular paternity presumption she asserts — the “holding out provision” —
equally to mothers. See, e.g., Chatterjee v. King, 280 P.3d 283, 293 (N.M.
2012). We note that those jurisdictions had statutory provisions, more specific
than ours, instructing that their paternity “presumptions are to be read in a
gender-neutral manner insofar as practicable in an action to determine . . . the
existence of a mother and child relationship.” Frazier v. Goudschaal, 295 P.3d
542, 559 (Kan. 2013) (Biles, J., concurring in part) (quotation omitted); see
Elisa B. v. Superior Court, 117 P.3d 660, 665 (Cal. 2005) (holding that woman
was presumed mother under Uniform Parentage Act’s (UPA) provision
presuming paternity based upon receiving the child into one’s home and
holding out child as one’s own where UPA “expressly provides that in
determining the existence of a mother and child relationship, insofar as
practicable, the provisions of this part applicable to the father and child
relationship apply” (quotation and brackets omitted)); In re S.N.V., 284 P.3d
147, 151 (Colo. Ct. App. 2011) (interpreting presumptive paternity provision of
the UPA, in light of its statutory construction provisions, so that “[a] woman’s
proof of marriage to the child’s father, or her proof of receiving the child into
her home and holding the child out as her own, . . . may establish the mother-
child relationship”); Chatterjee, 280 P.3d at 287.

We find these cases instructive, not only for our application of RSA 21:3,
but also for our application of other canons of statutory construction. One

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such canon recognizes that “[o]ur goal is to apply statutes in light of the
legislature’s intent in enacting them, and in light of the policy sought to be
advanced by the entire statutory scheme.” Sheehan v. N.H. Dep’t of Resources
& Economic Dev., 164 N.H. 365, 368 (2012). RSA 168-B:3 is contained within
a chapter entitled “Surrogacy.” See RSA ch. 168-B (2002). The chapter’s
statement of purpose provides that “[t]he purpose of this act is to establish
consistent state standards and procedural safeguards for the protection of all
parties, and to determine the legal status of children born as a result of
[surrogacy] arrangements.” Laws 1990, 87:1, II. Specifically, the Legislature
noted that the chapter ensures, among other things, that “the resulting child’s
status is legally certain in order that the child not be the chief remedial focus of
litigation; and that adequate support be assured for the resulting child.” Id. In
furtherance of the chapter’s stated purpose, RSA 168-B:7 provides: “If, under
the provisions of this chapter, a parent-child relationship is created between 2
persons, the child shall be considered, for all purposes of law, the legitimate
child of the parent.” Further, RSA 168-B:8 declares that “[a]ny person who is
determined to be the parent of a child under the provisions of RSA 168-B:2-5
shall support the child.” RSA 168-B:8, I.

In addition, the chapter indicates an implicit legislative preference for the
recognition of two parents. See, e.g., RSA 168-B:2 (mother-child relationship),
:3 (father-child relationship). “By recognizing the value of determining
paternity, the Legislature implicitly recognized the value of having two parents,
rather than one, as a source of both emotional and financial support, especially
when the obligation to support the child would otherwise fall to the public.”
Elisa B., 117 P.3d at 669; cf. In the Matter of Gendron & Plaistek, 157 N.H.
314, 321 (2008) (noting, in the context of paternity determinations, that
“stability and continuity of support, both emotional and financial, are essential
to a child’s welfare” (quotation omitted)); RSA 461-A:2, I (Supp. 2013) (stating
as premise of statutory policy that “children do best when both parents have a
stable and meaningful involvement in their lives”). The Chatterjee court
similarly noted:

[T]he state has a strong interest in ensuring that a child will be
cared for, financially and otherwise, by two parents. If that care is
lacking, the state will ultimately assume the responsibility of
caring for the child. This is one of the primary reasons that the
original UPA was created, and it makes little sense to read the
statute without keeping this overarching legislative goal in mind.

Chatterjee, 280 P.3d at 292 (citation omitted).

The policy goals of ensuring legitimacy and support would be thwarted if
our interpretation of RSA 168-B:3 failed to recognize that a child’s second
parent under that statute can be a woman. Cf. id. at 287-88 (noting that

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“[b]ecause the [UPA’s holding out] presumption is based on a person’s conduct,
not a biological connection,” it “is reasonably capable of being accomplished by
either a man or a woman”). Without that recognition, a child in a situation
similar to Madelyn’s could be entitled to support from, and be the legitimate
child of, only her birth mother. See RSA 168-B:2, :7, :8. Two adults — Melissa
and Susan — intentionally brought Madelyn into the world and held her out as
their child; we cannot read RSA 168-B:3 so narrowly as to deny Madelyn the
legitimacy of her parentage by, and her entitlement to support from, both of
them. Cf. In re Jessica W., 122 N.H. 1052, 1056-57 (1982) (interpreting
adoption statute liberally, “in accordance with the legislative intent to protect,
not injure, adopted children,” to allow unwed natural parents to utilize the
stepparent exception to the general rule that “adoption severs the rights of the
natural parent(s),” so that their child would “not have to be deprived of its
relationship with its mother in order to be legitimized by its natural father
through the adoption process”). We note that the intention of Melissa’s
husband to adopt Madelyn does not alter our view.

Consistent with the above-noted policy goals is the recognition that “[t]he
paternity presumptions are driven, not by biological paternity, but by the
state’s interest in the welfare of the child and the integrity of the family.” In re
Salvador M., 4 Cal. Rptr. 3d 705, 708 (Ct. App. 2003). “The familial
relationship between a nonbiological [parent] and an older child [over two years
of age], resulting from years of living together in a purported parent/child
relationship, is considerably more palpable than the biological relationship of
actual paternity and should not be lightly dissolved.” Id. (quotations omitted);
cf. Roberts v. Ward, 126 N.H. 388, 392-93 (1985) (noting that “[p]sychiatrists
and psychologists unanimously counsel that children should maintain and
retain meaningful relationships and that to deny them continuing contacts is a
deprivation” (quotation and ellipses omitted)).

Accordingly, in some cases, we have refused to allow a presumption of
paternity to be rebutted by proof of biological paternity. In Watts v. Watts, 115
N.H. 186 (1975), for instance, we affirmed the denial of a divorcing husband’s
request for blood tests to dispute the paternity of children of the marriage.
Watts, 115 N.H. at 189. We held that although, in general, common law and
statutory paternity presumptions may be rebutted by blood tests, “those rules
do not apply . . . where defendant has acknowledged the children as his own
without challenge for over fifteen years.” Id. Similarly, we have allowed a
determination of paternity to stand despite a confirmed lack of biological
connection. Thus, in In the Matter of J.B. & J.G., we held that the petitioner —
who was listed as the father on the child’s birth certificate, had filed an
affidavit of paternity, had a child support order entered against him, and had
“consistently maintained contact with the child” — had “standing to seek full
parental rights and responsibilities under RSA chapter 461-A” notwithstanding
that paternity testing had confirmed he was not the child’s biological father. In

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the Matter of J.B. & J.G., 157 N.H. at 578, 581. We rejected the contention of
the respondent, the child’s biological mother, that the petitioner could not be a
“parent” under RSA chapter 461-A because he did not meet the dictionary
definition of “one that begets or brings forth offspring.” Id. at 580. We
reasoned:

After considering the overarching statutory scheme in this area, as
we must, we observe that the legislature has set forth too many
alternative routes to establish parental status that do not require
proof of biological ties for us to give the respondent’s argument
much weight. The petitioner’s lack of a biological connection to
[the child] is therefore not fatal to his request for parental rights
and responsibilities under RSA chapter 461-A, so long as he
alleges sufficient facts to establish his status as a parent by other
means.

Id. (citations omitted). Accordingly, we conclude that the lack of a biological
connection between Susan and Madelyn is not a bar to application of the
holding out presumption.

Given our construction of RSA 168-B:3, I (d), we need not address
Susan’s constitutional arguments. See Olson v. Town of Fitzwilliam, 142 N.H.
339, 345 (1997) (noting that we decide cases on constitutional grounds only
when necessary).

For all of the foregoing reasons, we hold that RSA 168-B:3, I(d) applies
equally to women and men. We must now determine whether Susan has
alleged sufficient facts to state a claim under that statute. We conclude that
she has.

Assuming the truth of Susan’s alleged facts, and construing all
reasonable inferences in the light most favorable to her, Farm Family Cas. Ins.
Co., 155 N.H. at 670, we conclude that she adequately pleaded that she
received Madelyn into her home and openly held Madelyn out as her child. She
and Melissa planned to have and raise children together. They prepared
Madelyn’s nursery together in the home they had jointly purchased because
they “thought it would be a good place to raise a family.” When Madelyn was
born, Susan was in the delivery room. She alleges: “From the very beginning,
Maddie, Melissa, and I were a family. Melissa was the ‘Mommy,’ and I was the
‘Momma.’ Together we were . . . Maddie’s parents, and Maddie was our
daughter. I loved Maddie as my daughter, treated her as my daughter, and
saw her as my daughter.”

Susan’s allegations, taken as true, indicate that Melissa also regarded
Susan as Madelyn’s parent as evidenced by, among other things, giving Susan

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a greeting card commemorating the “Birth of Our Baby,” and including her as
“Momma,” and her parents as Madelyn’s grandparents, on Madelyn’s family
tree. The allegations also indicate that Susan appeared “to the world” to be
Madelyn’s parent. Madelyn shares Susan’s last name. Susan was named as a
parent, along with Melissa, in birth announcements and in a church ceremony.
Susan was named as a parent in Madelyn’s school and medical records, and
was treated as a parent at Madelyn’s preschool.

Taking Susan’s allegations as true and drawing all reasonable inferences
in her favor, we hold that she has stated a claim for presumed parentage under
RSA 168-B:3, I(d). Cf. Elisa B., 117 P.3d at 670 (holding birth mother’s same-
sex partner was “a presumed mother . . . because she received the children into
her home and openly held them out as her natural children”); Chatterjee, 280
P.3d at 296 (holding same-sex partner of adoptive mother asserted sufficient
facts to give her standing to establish parentage “because her allegations
satisfy the [statutory] hold out provision”). Accordingly, we reverse the family
division’s dismissal of Susan’s verified parenting petition and remand. We
direct the family division to schedule a prompt hearing on Susan’s request for
temporary orders. In light of our holding regarding Susan’s parentage claim
based upon the statutory holding out provision, we need not address her other
asserted bases of parental rights, and we express no opinion with respect to
them.

Consequently, we also vacate the family division’s denial of Susan’s
motion to intervene in the adoption proceedings and stay those proceedings
until the issue of Susan’s parentage of Madelyn is finally determined.

Similarly, we vacate the family division’s termination of Susan’s
guardianship over Madelyn and stay those proceedings until the issue of
Susan’s parentage of Madelyn is finally determined.

Reversed in part; vacated in
part; and remanded.

DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

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