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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


9th Circuit Court - Nashua Family Division
No. 2014-224


                   IN THE MATTER OF P.B. & a. and T.W. & a.

                             Argued: March 5, 2015
                          Opinion Issued: May 12, 2015

      Law Office of Thomas Morgan, PC, of Salem (Thomas Morgan on the brief
and orally), for the petitioners.


      Pierce Atwood LLP, of Portsmouth (Lawrence M. Edelman on the brief
and orally), for the respondents.

       HICKS, J. The petitioners, P.B. and S.B., appeal an order of the Circuit
Court (Ryan, J.) approving the Judicial Referee’s (Rein, M.) recommendation
that their petition for visitation with their grandson C.W. be denied. The
respondents, T.W. and S.W., cross-appeal an order of the circuit court denying
their earlier motion to dismiss the petition. On appeal, the petitioners argue
that the trial court erred in balancing the factors regarding the best interests of
the child. In their cross-appeal, the respondents argue that the trial court
erred in interpreting RSA 461-A:13 (Supp. 2014) to permit the petitioners to
maintain their petition for grandparent visitation after the respondents adopted
C.W. We affirm.

      The trial court found, or the record reflects, the following facts. C.W. was
born to M.M. and K.B. on March 31, 2011. His birth parents died tragically on
January 11, 2012. Since then, the respondents, M.M.’s sister and brother-in-
law, have cared for C.W., initially as guardians and, since June 24, 2013, as
adoptive parents. The petitioners, K.B.’s mother and father, had “consistent –
but not extensive – contact” with C.W. before his birth parents died and
approximately 16 visits between January 17, 2012, and September 1, 2012,
after C.W. began residing with the respondents.

       On February 15, 2012, the petitioners filed a petition for grandparent
visitation in the trial court. After a hearing, the trial court entered a temporary
visitation order that mandated unsupervised visitation from 9:00 a.m. to 2:00
p.m. on the first and third Saturdays of every month. After the respondents
adopted C.W., they moved to dismiss the petition for grandparent visitation and
vacate the temporary order. The trial court denied this request.

       On February 12, 2014, the trial court issued a final ruling on the petition
for grandparent visitation. After considering the criteria set forth in RSA 461-
A:13, the trial court concluded that the respondents’ testimony and conduct
before the temporary visitation order demonstrated their intention to support a
relationship between C.W. and the petitioners, that the respondents “have
[C.W.’s] best interests uppermost in their minds and . . . will utilize appropriate
judgment in determining whether and how best to integrate [the petitioners]
into [C.W.’s] life[,]” and that “[C.W.’s] best interests will be served by a full
integration into his adopted family . . . from which he can explore his
relationship with the [petitioners’] family, under the supervision and judgment
of his parents.” Accordingly, the trial court denied the petition for grandparent
visitation. This appeal followed.

      We first address the cross-appeal. The respondents assert that the trial
court misconstrued RSA 461-A:13. They contend that RSA 461-A:13 applies
only when a nuclear family is absent; therefore, they argue, once they adopted
C.W., the petitioners lacked standing to sue for grandparent visitation. We
disagree.

       Usually, in ruling upon a motion to dismiss, the trial court is required to
determine whether the allegations contained in the petitioners’ pleadings are
sufficient to state a basis upon which relief may be granted. In the Matter of
Dufton & Shepard, 158 N.H. 784, 787 (2009). To make this determination, the
court would accept all facts pleaded by the petitioners to be true and construe
all reasonable inferences in the light most favorable to the petitioners. Id.
When, however, the motion to dismiss does not contest the sufficiency of the
petitioners’ legal claim, but instead challenges their standing to sue, the trial
court must look beyond the allegations and determine, based upon the facts,
whether the petitioners have sufficiently demonstrated a right to claim relief.
Id. Because the underlying facts are not in dispute, we review the trial court’s
decision de novo. Id. at 787-88.



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      Regarding the right of grandparents to petition for visitation, RSA 461-
A:13, I, states, in relevant part:

       Grandparents, whether adoptive or natural, may petition the court
       for reasonable rights of visitation with the minor child as provided
       in paragraph III. The provisions of this section shall not apply in
       cases where access by the grandparent or grandparents to the
       minor child has been restricted for any reason prior to or
       contemporaneous with the divorce, death, relinquishment or
       termination of parental rights, or other cause of the absence of a
       nuclear family.

(Emphasis added.) We have construed this statute to authorize grandparents
to petition for visitation “only when one of the conditions listed at the end of
the second sentence has come to pass.” O’Brien v. O’Brien, 141 N.H. 435, 437
(1996) (construing predecessor to RSA 461-A:13).1 Accordingly, under RSA
461-A:13, I, standing to seek visitation vests in a grandparent, whether natural
or adoptive, whenever a grandchild’s family is the subject of one of the
enumerated conditions listed at the end of the second sentence “unless the
grandparent’s access to the grandchild has been earlier, or contemporaneously,
restricted.” Id. Nothing in the statute divests a petitioning grandparent of
standing when the child is subsequently adopted and becomes part of a new
family unit. See RSA 461-A:13, I. When the legislature has clearly delineated
the class that can petition to enforce a statutory scheme, we “will implement
that determination meticulously.” O’Brien, 141 N.H. at 437. Here, because
C.W.’s parents did not restrict the petitioners’ ability to visit C.W. “prior to or
contemporaneous with” their deaths, their deaths conferred standing upon the
petitioners to file for grandparent visitation. Accordingly, we conclude that the
trial court did not err in refusing to grant the respondents’ motion to dismiss.

       The respondents’ reliance upon In the Matter of Dufton & Shepard is
unavailing. In Dufton, we noted that in O’Brien, “we explained that
grandparent visitation rights existed only in the absence of the grandchild’s
nuclear family.” Dufton, 158 N.H. at 788 (emphasis omitted). But in Dufton
we were asked only to determine whether the term “grandparent” included a
grandmother who had relinquished her parental rights to her daughter, the
child’s mother. Id. at 787-88. We were not asked to consider the impact of a
subsequent adoption or creation of a new family unit on a grandparent’s
standing to petition for visitation.




1 In 2005, the legislature reorganized RSA Title XLIII and moved the section on grandparent
visitation from RSA 458:17-d to the newly created RSA 461-A:13. See Laws 2005, 273:1, :20.
Thus, cases prior to 2005 discuss RSA 458:17-d. Nevertheless, those decisions control in
interpreting and applying RSA 461-A:13.


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       Furthermore, we do not read Dufton as narrowly as do the respondents.
The respondents argue that Dufton stands for the proposition that
grandparents can petition for visitation if and only if a nuclear family is absent
at the time of the petition. We disagree, and clarify that a grandparent’s
standing to petition for visitation vests at the point when the statutory
conditions are met. Here, those conditions were met when the child’s parents
died. Absent statutory language to the contrary, subsequent creation of a new
family unit does not divest a grandparent of the standing necessary to
prosecute a petition. This interpretation comports with both our case law and
the statute, which has no provision for terminating a grandparent’s right to
petition for visitation. See, e.g., RSA 461-A:13; O’Brien 141 N.H. at 437.

       Also unavailing is the respondents’ argument that permitting the
petitioners to file for grandparent visitation after the adoption places adoptive
parents in an unconstitutional “subclass” of parents. The statute does not
target adoptive parents and has been relied upon by grandparents to petition
for visitation when restricted by either adoptive or natural parents. See, e.g.,
In re Athena D., 162 N.H. 232, 234 (2011) (adoptive parents); In the Matter of
Rupa & Rupa, 161 N.H. 311, 312 (2010) (natural parent); Dufton, 158 N.H. at
786 (natural parent); O’Brien, 141 N.H. at 436 (natural parent). Furthermore,
we have long recognized that the rights of parents are natural, essential, and
inherent rights to which great judicial deference must be accorded. Roberts v.
Ward, 126 N.H. 388, 391 (1985). We have held that when a trial court applies
RSA 461-A:13, it must weigh the first two statutory factors more heavily than
the other statutory factors because, by so doing, the court accords deference to
a fit parent’s judgment as to the child’s best interests. See Rupa, 161 N.H. at
318; see also RSA 461-A:13, II(a), (b). This deference must be accorded to both
natural and adoptive parents. See RSA 170-B:25, I (2014) (considering an
adoptee to be the child of the adopting parents and granting the adoptee all the
rights and privileges, as well as all the duties and obligations, of a child born of
the adopting parents). Because RSA 461-A:13 permits grandparents to seek
visitation with both natural and adopted grandchildren and requires judicial
deference to a natural or adoptive parent’s judgment, the statute does not place
adoptive parents in an unconstitutional “subclass.” See Troxel v. Granville,
530 U.S. 57, 67 (2000) (plurality opinion) (holding unconstitutional, as applied,
a third party visitation statute that accorded no judicial deference to parental
decisions regarding the rearing of children). Accordingly, we conclude that the
trial court did not err in denying the respondents’ motion to dismiss.

       We next address the petitioners’ arguments regarding the trial court’s
determination that continued court-ordered visitation was not in C.W.’s best
interests. They argue that: (1) the trial court did not properly consider the fact
that both natural parents died; (2) the trial court did not consider that,
according to them, the respondents secretly adopted C.W. to eliminate their
visitation rights; (3) the trial court erred by terminating visitation rather than
modifying the visitation order; and (4) Troxel does not apply. We disagree.


                                         4
      The trial court has wide discretion in matters involving parental rights
and responsibilities and we will not overturn its determination except when
there has been an unsustainable exercise of discretion. See In the Matter of
Bordalo & Carter, 164 N.H. 310, 313 (2012). When we review for an
unsustainable exercise of discretion, we are deciding whether the record
establishes an objective basis sufficient to sustain the discretionary judgment
made. State v. Lambert, 147 N.H. 295, 296 (2001). However, we review a trial
court’s application of law to facts de novo. Bordalo, 164 N.H. at 314.

       RSA 461-A:13, II requires, in relevant part, that the trial court consider
the following criteria in making an order relative to a grandparent’s visitation
rights:

            (a) Whether such visitation would be in the best interest of
      the child.

             (b) Whether such visitation would interfere with any parent-
      child relationship or with a parent’s authority over the child.

            (c) The nature of the relationship between the grandparent
      and the minor child, including but not limited to, the frequency of
      contact, and whether the child has lived with the grandparent and
      length of time of such residence, and when there is no reasonable
      cause to believe that the child’s physical and emotional health
      would be endangered by such visitation or lack of it.

            (d) The nature of the relationship between the grandparent
      and the parent of the minor child, including friction between the
      grandparent and the parent, and the effect such friction would
      have on the child.

            (e) The circumstances which resulted in the absence of a
      nuclear family, whether divorce, death, relinquishment or
      termination of parental rights, or other cause.

      ....

             (h) Any such other factors as the court may find appropriate
      or relevant to the petition for visitation.

We have recognized that trial courts must presume that fit parents naturally
act in the best interests of their children. See Rupa, 161 N.H. at 318. Thus,
trial courts must accord deference to the parents’ determinations with respect
to the first factor in RSA 461-A:13, II. A trial court cannot simply substitute its
judgment for that of fit parents, regardless of whether those parents are
natural or adoptive. Id.; see also Troxel, 530 U.S. at 69.


                                         5
       The petitioners first argue that the trial court erred in not according
proper weight to the deaths of C.W.’s natural parents. In its order, the trial
court sympathized with the plight of the petitioners but recognized that it
must, “first and foremost,” consider the best interests of C.W. The trial court
also concluded that consideration of the remaining four factors militated
against court-ordered visitation, especially given that the respondents had
“arranged regular and consistent visits with [C.W.] even before the court issued
an order in that regard.” The petitioners have failed to establish that the trial
court’s determination lacks an objective basis in the record or that it is legally
erroneous. Accordingly, we conclude that the trial court did not unsustainably
exercise its discretion when, after weighing the statutory factors, it denied the
petition.

       The petitioners next argue that the trial court failed to consider that the
respondents obtained a “secret adoption” to deny them the ability to petition for
visitation. The trial court made no finding that the adoption was in any way
“secretive.” Moreover, the record does not establish that any aspect of the
adoption proceeding undermined the trial court’s best interest determination.2

       They next argue that the trial court erred in denying the petition instead
of modifying the temporary visitation order. However, although they assert
that modification was an option for the trial court, the petitioners fail to
identify, and the record does not disclose, any evidence demonstrating that it
was an unsustainable exercise of discretion for the trial court to deny the
petition rather than modify the visitation order.

      The petitioners conclude by arguing that the Supreme Court’s decision in
Troxel does not apply in the present situation because both natural parents
died and the visitation petition was filed before the adoption. As we have
discussed above, Troxel accords natural and adoptive parents the same
constitutional protections.

       Accordingly, we conclude that the trial court did not err in denying the
petition for grandparent visitation.

                                                            Affirmed.

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




2We note that the petitioners were not entitled to notice of the adoption, see RSA 170-B:17 (2014);
nonetheless, they acknowledge that they were notified of the respondents’ intention to adopt C.W.
Nothing in the record demonstrates that the adoption was improperly conducted.


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