In re Baby Girl P.

DALIANIS, J.,

concurring in part and dissenting in part. I agree that adherence to the general rule that the law of the forum State governs adoptions should be followed in this case. New Hampshire has the most substantial connection to the proceeding and application of New Hampshire law will best uphold the reasonable expectations of the parties. See Stubbs v. Weatkersby, 892 P.2d 991, 997-98 (Or. 1995).

I disagree, however, with the majority’s conclusion that the consent of the biological father was not required because he was not entitled to notice and an opportunity to prove paternity. See RSA 170-B:5,1(d) (Supp. 2001); RSA 170-B:6 (Supp. 2001).

*781RSA 170-B:5, 1(d) provides that consent must be obtained from the natural father “provided that he was found to be entitled to notice and ... the right to consent under RSA 170-B:5-a.” See also RSA 170-B:6. RSA 170-B:5-a, 1(a) (Supp. 2001) provides that notice and an opportunity to prove paternity must be given to “[a] person named by the natural mother in an affidavit filed with the court, prior to ... the mother consenting to an adoption pursuant to RSA 170-B:9.” RSA 170-B:5-a, 1(b) (Supp. 2001) similarly provides that notice and an opportunity to prove paternity must be given to “[t]he natural or legal father, if his identity is known by the court, ... or the proposed adoptive parents or their attorney prior to ... the mother consenting to an adoption pursuant to RSA 170-B:9.”

The majority reasons that the biological father was not entitled to notice and an opportunity to prove paternity under RSA 170-B:5-a, I, because the biological mother named him in an affidavit that was not filed with the court before she consented, and because his identity was not known by the prospective adoptive parents, their attorney, or the court before she consented. The majority concludes, therefore, that the biological father’s consent was not required under RSA 170-B:5,1(d).

At the outset, I note the majority’s conclusion is based upon an argument which the prospective adoptive parents did not preserve. In probate court, the petitioners affirmatively requested that notice to the biological father be provided pursuant to RSA 170-B:5~a (Supp. 2001). On appeal, they argue, for the first time, that the court erroneously granted their own motion. This argument by the adoptive parents is disingenuous to say the least.

Moreover, I believe that the majority’s interpretation is incorrect. “Adoption statutes are strictly construed in favor of the rights of the natural parents.” 2 Am. Jur. 2d Adoption § 13 (1994). With respect to a proceeding regarding a nonconsenting parent, “every reasonable intendment is made in favor of that parent’s claims.” Id.

“When examining statutory language ... we do not merely look at isolated phrases, but construe all parts of the statute together to effectuate its overall purpose and to avoid an absurd result.” DeVere v. Attorney General, 146 N.H. 762, 768 (2001). “Although we will not look beyond the language of a statute to determine legislative intent if the statute’s language is clear and unambiguous, where the statute’s language is ambiguous or where more than one reasonable interpretation exists, we review legislative history to aid in our analysis.” Kaplan v. Booth Creek Ski Group, 147 N.H. 202, 204-05 (2001) (quotations and citations omitted).

The threefold purpose of RSA chapter 170-B is to protect:

*782I. The adoptive child, from unnecessary separation from the child’s natural parents and from adoption by parents who should not have such responsibility.
II. The natural parent or parents, from hurried and coerced decisions to give up the child.
III. The adoptive parent or parents and guaranteeing them an undisturbed relationship with the child from and after the date of adoption.

RSA 170-B:1 (Supp. 2001).

The majority interprets the phrase “prior to ... the mother consenting to an adoption,” which was added to RSA 170-B:5-a, I, in 1996, as governing the events that must occur before a putative father is entitled to notice. See N.H.H.R. JOUR. 467 (1996). In my view, the phrase governs when, not whether, an individual has a right to notice and a hearing on the question of paternity. Thus, a putative father who is named in an affidavit by the natural mother or who is known by the court, the prospective adoptive parents, or their attorney, must be given notice of the pending adoption proceedings before the natural mother consents and relinquishes the child.

This interpretation is supported by the legislative history. The phrase “prior to ... the mother consenting to an adoption” was added pursuant to House Bill 1301 to make clear that notice must be given to the putative father before the biological mother consents to the adoption. As one of the sponsors of House Bill 1301 explained:

What happened is that the legislature over time added additional means by which the court could become aware of the fact that there was a man claiming paternity---- WTiat happened, though, is that we were inconsistent in what the court had to do with that information. In some instances, we said that the court had to notify that man that he had a right to file for a paternity hearing before the mother relinquished right to her child, and in some instances, we said after the mother relinquished right to the child.
So we have been inconsistent. WTiat this bill does, is makes it consistent that no matter how it comes to the attention to [sic] the court that there is a man who is claiming to be the father of the child who is being placed for adoption, that man must be notified prior to the mother consenting to the adoption.

*783Hearing on H.B. 1301 Before the Senate Committee on Judiciary 3 (March 13,1996) (emphasis added).

The purpose of the amendment was not to erode the father’s parental rights, but to safeguard them, as the following colloquy demonstrates:

Senator David K. Wheeler, D. 11: I’m not familiar with what paternal rights are under the kinds of situations now. Does the father have any legal power or anything like that? Currently?
Representative Hallyburton: Yes. The father must consent to the adoption just as the mother must consent.
Senator David K. Wheeler, D. 11: And nothing changes with this bill?
Representative Hallyburton: Nothing changes with this bill.
Senator David K. Wheeler, D. 11: Except for when if he’s going to be noticed?
Representative Hallyburton: Well, if the man is not married to the mother, and if he claims to be the father, and wishes to have a hearing on that matter, this is a matter of when he will be noticed of his right to file for that hearing.
Senator David K. Wheeler, D. 11: To prove paternity?
Representative Hallyburton: To prove paternity, that’s correct.
Senator George A. Lovejoy, D. 6: If the mother wishes to put the child up for adoption, and the father does not want to. Is there a pecking order?
Representative Hallyburton: No, Senator, both parents must consent.
Senator George A. Lovejoy, D. 6: If both parents do not consent. And the father wants the child. Does he get the child?
Representative Hallyburton: Of course. He’s the parent, yes.

Id. at 3-4.

As Representative Hallyburton later explained, as amended, RSA 170-B:5-a was not intended to “unilaterally disinvest [sic] the other parent of his paternal rights,” but rather to permit the paternity proceeding to go forward before the adoption proceeding, by requiring the putative father to be notified before the child is surrendered. Id. at 4.

*784The objective of RSA 170-B:5-a, I, is thus to ensure that fathers entitled to notice and an opportunity to prove paternity receive those rights before the mother surrenders the child. RSA 170-B:5-a, I, sets forth the circumstances that entitle a father to notice and an opportunity to prove paternity. Under RSA 170-B:5-a, I(a)-(b), a father who is named by the mother or known by the prospective adoptive parents, their attorney or the court, is entitled to notice before the mother consents. Once notified, RSA 170-B:5-a, II requires him to request a paternity hearing within thirty days of notice. If he fails to request such a hearing, he forfeits all of his parental rights. RSA 170-B:5-a, II. If he timely requests a paternity hearing and is declared the father, then his consent to the adoption is required. RSA 170-B:5,1(d).

RSA 170-B:5-a, I, as amended, is thus part of a statutory scheme that is intended to ensure that all of the requisite consents are obtained before the child is surrendered. See RSA 170-B:12, II (Supp. 2001) (specifying that adoption petition must include “name of any person whose consent to the adoption is required but who has not consented” and providing that if requisite consents not obtained, petition must explain “the facts or circumstances which excuse the lack of such consent normally required to the adoption”).

For instance, in the case of an in-state adoption, RSA 170-B:9, 11(b) (Supp. 2001) requires that the parent’s consent be executed “in the presence of the court or an authorized representative of the court in which the petition for adoption has been, or is to be, filed.” RSA 170-B:9, Il-a (Supp. 2001) further provides that a consent so executed “shall give the care, custody and control of the child to be adopted to the prospective adoptive parents of said child.” Under this statutory scheme, the mother does not execute her consent and surrender the child until the parties are in court and the father has received notice and an opportunity to prove paternity. See also RSA 170-B:8, II (Supp. 2001) (relinquishments of parental rights also done in presence of and with approval of court or person designated by court).

Requiring notification to the putative father and, if he proves paternity, requiring his consent before the mother executes her consent, promotes finality and ensures that the biological father’s rights will not be divested unilaterally. It also protects the child’s interests. The child does not “languish in limbo,” Matter of Pima Cty. Juv. Severance Action, 876 P.2d 1121, 1132 (Ariz. 1994), because the mother does not surrender the child until the father is notified of the prospective adoption and given the opportunity to prove paternity and consent to the adoption.

In this case, the biological father was not only named by the mother, but his identity was known by the prospective adoptive parents and their *785attorney before the adoption proceeding was even filed. Under these circumstances, it would thwart legislative intent to curtail Ms right to prove paternity and consent to the adoption. See In re Sky D., 138 N.H. 543, 547 (1994); see also HEARING ON H.B. 1301 BEFORE SENATE Committee on Judiciary 7 (March 13, 1996) (one protection in H.B. 1301 for father who does not know that mother has given up child for adoption is requirement that if name of father is known, prospective adoptive parents must ensure that father is notified of proceeding).

The majority’s interpretation of the relevant statutes leads to an anomalous result, particularly with respect to out-of-state adoptions, such as that at issue, where neither the natural mother nor putative father resides in New Hampshire. Under the majority’s interpretation, the putative father is not entitled to notice even though he is named in the mother’s affidavit, and thus known to the court and to the prospective adoptive parents and their attorney, merely because the mother’s out-of-state consent was obtained before her affidavit was filed in court in New Hampshire. As a practical matter, under this interpretation, the only ways for the putative father to ensure that he is notified and given an opportunity to prove paternity are if he files with the putative father registry in New Hampshire before the mother consents to the adoption out-of-state, see RSA 170-B:5-a, 1(e), or if he lives with and supports the child before the mother consents, see RSA 170-B:5~a, 1(d). It is illogical to assume that a father residing out-of-state will file a paternity claim in New Hampshire before he knows that the biological mother intends to put the child up for adoption here. It is equally illogical to assume that a putative father would live openly with and support a child about whom he knows nothing.

The biological father’s parental rights should not be terminated by this adoption, absent an adjudication that he is an unfit father. This father was entitled to notice of the proceedings and, pursuant to the prospective adoptive parents’ own motion, was notified of them. Within thirty days thereof, he initiated paternity proceedings. Since that time, he has attended numerous hearings in New Hampshire, vigorously opposed this adoption, and stated his desire to raise his daughter himself. Under these circumstances, his interest in his daughter is more than merely biological and may be entitled to constitutional protection. See Lehr v. Robertson, 463 U.S. 248,261-62 (1983) (parental rights of biological father who grasps opportunity to develop relationship with child and accept responsibility for her are constitutionally protected).

Nor should the biological father’s parental rights be terminated by this adoption merely because the prospective adoptive parents claim to be better parents. New Hampshire law does not “authorize!] unrelated *786persons to retain custody of a child whose natural parents have not been found to be unfit simply because they may be better able to provide for her future and her education.” Deboer v. Deboer, 509 U.S. 1301, 1302 (1993) (Stevens, Circuit Justice). This court is “not free to take children from parents simply by deciding another home offers more advantages.” Id. (quotation omitted).

Nadeau, J., joins in the concurrence and dissent.