From In re Guardianship of J.H., determined at the moment by the New Hampshire Supreme Courtroom (in an opinion by Justice Anna Barbara Hantz Marconi):
J.H. is a six-year-old baby. His father has been incarcerated since December 2017 and has a historical past of legal fees involving home violence and drug possession. J.H.’s mom died in 2019 when J.H. was lower than three years previous. His grandmother was appointed guardian of J.H.’s individual and property shortly thereafter, and J.H. has remained in her care since.
The guardian and the daddy have been at odds all through this case. When the guardianship petition was filed, the daddy was topic to a no-contact order barring communications with J.H. Subsequently, the daddy sought contact and visitation with J.H. Over the guardian’s objections, the court docket ordered that the daddy might talk with J.H. by mail and finally progress to video visits. Each events have accused the opposite of violating the court docket’s orders. Including to the battle, the guardian has petitioned to terminate the daddy’s parental rights. In an April 2022 order, the court docket expressed its frustration that “[d]espite [J.H.’s] tragic young life that has seen him lose both of his parents before his third birthday, both sides of [J.H.’s] extended family are not able to put their differences aside and cooperate for [J.H.’s] benefit.”
The court docket positioned restrictions on each events, together with limiting the content material of father’s communications with J.H. The court docket additionally imposed restrictions on the guardian. In an October 2022 order, the court docket ordered that the guardian and her husband “are enjoined from testifying against father’s release at any parole or similar hearing without first seeking leave of this court.” The guardian moved for reconsideration, arguing that this restriction violated her proper to freedom of speech. The court docket denied her movement, reasoning that “[J.H.’s] best interests outweigh the guardian[‘s] free speech rights to keep father incarcerated if he becomes eligible for a parole hearing.”
The order wasn’t licensed by New Hampshire statutes, the court docket held, and thus prevented the necessity to determine whether or not the order additionally violated the First Modification (as I feel it did):
RSA [Revised Statutes Annotated] chapter 463 confers unique jurisdiction over the guardianship of minors to the circuit court docket. RSA 463:8 permits the court docket to “appoint a guardian of the person or of the estate or of both,” and grants the court docket authority over the guardianship proceedings. As soon as the court docket has appointed a guardian, RSA 463:12 units forth the guardian’s powers and duties….
Subsection I of the statute conveys the “powers and responsibilities of a parent regarding the minor’s support, care, and education.” Subsections II and III then articulate particular powers and duties associated to the minor’s total wellbeing, encompassing the minor’s well being, property, and authorized and monetary affairs. The statute empowers and obliges the guardian to train management over many features of the minor’s life to make sure the final wellbeing of the minor. Subsection IV then authorizes the court docket to “limit or restrict the powers of the guardian or impose additional duties.”
Learn within the context of the entire statute, the “powers” and “duties” contemplated right here relate to the guardian’s function as custodian of the minor’s affairs and welfare. Restrictions on the guardian’s and her partner’s participation in a parole listening to, nonetheless, bear no connection to the guardian’s administration of the minor’s affairs. They’re unrelated to the guardian-minor relationship. If we have been to learn subsection IV [the “additional duties” provision] as broadly as the daddy suggests, the court docket might impose restrictions that stretch far past the guardianship and into the private lifetime of the guardian. We decline to learn the statute so broadly, and thus conclude that the restriction right here just isn’t permitted underneath RSA 463:12, IV….
Anthony J. Naro (Bernazzani Regulation, PLLC) represents the grandmother.
