NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court's home
page is: http://www.courts.state.nh.us/supreme.

                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


9th Circuit Court-Nashua Family Division
No. 2015-0103


        PETITION OF PAMELA LUNDQUIST AND ROBERT LUNDQUIST

                          Argued: November 10, 2015
                         Opinion Issued: March 8, 2016

      Law Offices of Pamela J. Khoury, of Salem (Pamela J. Khoury on the brief
and orally), for the petitioners.


      Law Offices of Lydon & Richards, P.C., of Nashua (Kalie L. Lydon on the
brief and orally), for the respondent.

      HICKS, J. The petitioners, Pamela and Robert Lundquist, appeal an
order of the Circuit Court (Introcaso, J.) approving the Judicial Referee’s (Love,
M.) recommendation that their petition for visitation with their grandchildren
be dismissed for lack of standing. See RSA 461-A:13 (Supp. 2015). We
reverse.

      The relevant facts follow. The petitioners are the parents of the
respondent, and the natural grandparents of the respondent’s three minor
children. The respondent’s husband, and natural father of the minor children,
died in August 2010. In June 2014, the petitioners filed a petition for
grandparent visitation in the trial court. The respondent filed a motion to
dismiss, arguing that the statute “contemplates grandparent visitation rights
when a child’s nuclear family is absent due to ‘divorce, death, relinquishment
or termination of parental rights, or other cause,’” but that “[t]he nuclear family
here is intact” because “[t]he Mother is entirely capable of raising her three
boys and has done so.” The respondent asserted that “[t]he Paternal
grandparents may have standing since the death of their son in 2010 but
maternal grandparents have no standing to bring forth this petition.” The
petitioners objected, arguing, among other things, that they “have stated a
claim for relief based upon the death of Respondent’s husband as well as ‘other
cause.’”

       After a hearing, the trial court granted the motion to dismiss, concluding
that it “agrees with the position of the respondent.” The court reasoned that
“[t]he statute grants grandparents standing to seek visitation only when the
grandchild’s family structure is threatened by one of the triggering events
under the statute. The threat to their relationship in this case does not come
from the death of the children’s father, but from mother’s own determination of
what is in her children’s best interests vis a vis her parents.” The trial court
subsequently denied the petitioners’ motion for reconsideration, and this
appeal followed.

       On appeal, the petitioners argue that the trial court erred in granting the
motion to dismiss because “the Grandparents are the natural grandparents of
the minor children and the nuclear family is not intact. Although the decedent
is the Petitioner[s’] son-in-law, his death has caused the absence of a nuclear
family.” They assert that “the statute does not distinguish or require that only
the decedent’s parents in the event of the death of a parent may petition.” The
respondent argues that the trial court correctly granted the motion to dismiss
because it “found that a nuclear family was present, therefore Petitioners’
burden to prove the existence of a prerequisite condition (as referred to by the
trial court as standing) was not met.” (Bolding omitted.)

       “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
P.B. & T.W., 167 N.H. 627, 629 (2015). “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.

      Resolving the issues on appeal requires that we engage in statutory
interpretation. “Statutory interpretation is a question of law, which we review
de novo.” Appeal of Local Gov’t Ctr., 165 N.H. 790, 804 (2014). In matters of


                                        2
statutory interpretation, we are the final arbiter of the intent of the legislature
as expressed in the words of the statute considered as a whole. In re Estate of
McCarty, 166 N.H. 548, 550 (2014). We first look to the language of the statute
itself, and, if possible, construe that language according to its plain and
ordinary meaning. Id. 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. Id.

      RSA 461-A:13 provides in pertinent part:

        I. 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.

Under this provision, “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.” In the Matter of P.B., 167 N.H. at 630
(quotation omitted); see O’Brien v. O’Brien, 141 N.H. 435, 437 (1996) (first
sentence of the statute is triggered only when one of the conditions listed at the
end of the second sentence has come to pass).

       “When the legislature has clearly delineated the class that can petition to
enforce a statutory scheme, we will implement that determination
meticulously.” In the Matter of P.B., 167 N.H. at 630 (quotation omitted).
Here, the record supports that the parents of the minor children did not
restrict the petitioners’ ability to visit the children prior to or contemporaneous
with their son-in-law’s death. Thus, the grandparents’ standing to petition for
visitation in this case vested when the statutory condition was met due to the
children’s father’s death. See id. (death of child’s parents conferred standing
upon the petitioners to file for grandparent visitation); see also O’Brien, 141
N.H. at 437 (defendant’s status as unwed parent qualified as a statutory
circumstance of “other cause” resulting in the absence of a nuclear family,
thereby vesting standing in grandparent to petition for visitation); In re Athena
D., 162 N.H. 232, 235 (2011) (termination of parental rights resulted in
absence of nuclear family under the terms of the statute).

       We are not persuaded that the fact that the petition is sought by the
parents of the respondent requires a different result. Under the plain language
of the statute, standing to seek visitation does not depend upon “notions of


                                         3
bloodlines or kinship,” and we will not add language to the statute that the
legislature did not see fit to include. Preston v. Mercieri, 133 N.H. 36, 42
(1990). Once a petitioner has established standing under RSA 461-A:13, I,
whether the trial court will grant visitation rights depends upon weighing the
criteria set forth in the statute, including whether such visitation “would be in
the best interest of the child,” and whether it “would interfere with any parent-
child relationship or with a parent’s authority over the child.” RSA 461-A:13,
II(a), (b). Such determinations “must accord at least some special weight to the
parent’s own determination” of her children’s best interests. Troxel v.
Granville, 530 U.S. 57, 70 (2000) (plurality opinion); see In re Guardianship of
Reena D., 163 N.H. 107, 111 (2011) (noting that we have adopted the Troxel
plurality’s ruling that fit parents are presumed to act in the best interests of
their children).

      Accordingly, we hold that the trial court erred as a matter of law in
finding, contrary to the plain and ordinary meaning of the statutory language,
that the petitioners lack standing to petition for grandparent visitation rights
under RSA 461-A:13, I.

                                                  Reversed.

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




                                        4
