The Bulletin Board

Parental rights case divides New Hampshire Supreme Court 

By: - November 15, 2023 11:17 am
Exterior of the New Hampshire Supreme Court on a sunny day

The parental rights case divided state Supreme Court justices, 3-2. (Dave Cummings | New Hampshire Bulletin)

A lower court’s decision to terminate a mother’s parental rights has divided the state Supreme Court, resulting in two justices arguing the other three are using the bench to write state policy. 

The case involves a mother who while living in Maine was convicted of sexually assaulting one of her children. A Maine court sentenced her to a minimum of eight years in prison and 18 years of supervised release. A court also terminated her parental rights for that child. 

The question before the Supreme Court was whether that Maine conviction was justification to terminate the mother’s parental rights for her second child, who has been living with New Hampshire relatives most of her life. 

In an opinion released Monday, Justices James Bassett, Gary Hicks, and Patrick Donovan said yes, upholding a lower court ruling last year to terminate the mother’s rights for the second child. Chief Justice Gordon MacDonald and Justice Barbara Hantz Marconi disagreed, vehemently. 

“To incorporate crimes from other states presents a policy decision and, under our system of separated powers …, such a policy decision is for the Legislature to make,” MacDonald and Hantz Marconi wrote in their five-page dissent. 

They did not dispute the facts of the convictions nor the “concerning circumstance” at the center of the case. Instead, they noted that while Maine’s law explicitly allows for the consideration of crimes committed outside the state, New Hampshire’s law does not in this circumstance. 

“Notably, the majority does not conclude that the (New Hampshire) statute is ambiguous, rather that it would be ‘unjust’ not to apply Maine law,” MacDonald and Hantz Marconi wrote. “To that end, we fail to see how it would necessarily be unjust for the Legislature to limit the potential grounds for terminating a fundamental constitutional right to convictions under statutes which it itself has enacted and crimes which it itself has defined.”

New Hampshire’s laws governing the termination of parental rights explicitly allow the consideration of convictions of a “similar” law in another state in just one place, according to the dissent: In cases where the child’s birth is the result of a sexual assault. 

That explicit language does not appear in the section of the law governing this situation.

Attorney Joshua Gordon represented the couple who has raised the child since she was almost 2 and sought to terminate the mother’s parental rights so they could adopt her. 

“My argument was you can’t interpret a statute that produces an absurd result,” Gordon said, referring to a common legal principle. “If you commit a terrible crime in New Hampshire you can be terminated, but if you cross the Saco River into Maine you can’t? That was the crux of my argument.”

The majority of justices agreed. 

“We conclude that to construe the statute as providing for termination of parental rights of a parent who commits a felony assault upon a sibling in New Hampshire, but not doing so if the same parent commits the same felony assault upon the sibling across the border in Maine, would be both illogical and unjust,” they wrote. “We have long held that we will not give effect to the plain and ordinary meaning of the language used in a statute when that interpretation leads to an unjust and seemingly illogical result.”

Split decisions sometimes lead lawmakers to revise state law. Gordon said he doesn’t expect that to happen here because the majority upheld the termination of rights. Its opinion will serve as clarifying guidance on similar cases in the future. 

Gordon believes lawmakers would have been more likely to add clarifying language to the law had the minority view prevailed and reversed the termination of the mother’s rights. 

He said the court’s opinion allows his clients to move forward with the adoption. 

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Annmarie Timmins
Annmarie Timmins

Senior reporter Annmarie Timmins is a New Hampshire native who covered state government, courts, and social justice issues for the Concord Monitor for 25 years. During her time with the Monitor, she won a Nieman Fellowship to study journalism and mental health courts at Harvard for a year. She has taught journalism at the University of New Hampshire and writing at the Nackey S. Loeb School of Communications. Email: [email protected]