Grandfamilies 3: Legal challenges a hurdle for some who seek guardianship

  • Grace Sanborn talks to her grandson, Henry, 15, at their Tilton home. before he leaves to hang out with friends.

  • A picture of two of Grace Sanborn's grandsons who were not living at her Tilton home at the time is seen on May 13, 2017. (ELIZABETH FRANTZ / Monitor staff)

  • Grace Sanborn babysits 7-month-old Molly at her Tilton home on May 13, 2017. Sanborn holds guardianship over two teenage grandchildren and is fighting for custody of two others. (ELIZABETH FRANTZ / Monitor staff)

  • Grace Sanborn talks to her granddaughter Ashia, 17, about whether or not she should delay college.

  • Grace Sanborn spends time with her grandson, Henry, 15, over whom she has legal guardianship, while baby-sitting 7-month-old Molly, who does not live with Sanborn, at their Tilton home on May 13. ELIZABETH FRANTZ / Monitor staff

  • Grace Sanborn baby-sits 7-month-old Molly at her Tilton home in May. Sanborn holds guardianship over two teenage grandchildren and is fighting for custody of two others. ELIZABETH FRANTZ photos / Monitor staff

Monitor staff
Published: 7/4/2017 12:00:26 AM

When Grace Sanborn traveled from her home in Laconia to the Seacoast to visit her two young grandsons in foster care, a little voice would inevitably pipe up with the question, “When am I coming home?”

That question filled Sanborn with dread, and she didn’t dare answer it. There are strict rules around what family members can tell children or grandchildren who are in state custody about when they might be returning home.

“I’m looking at the parent aid, scared to death that if I answer this wrong I can lose my visits,” Sanborn said during a recent interview at her kitchen table, bouncing another grandchild on her knee.

Sanborn and her husband, John, just wrapped up a lengthy court battle with the state over custody of their grandsons. After living with their grandparents and older siblings for 18 months, the two young boys were removed from the home and placed into foster care, following a ruling by Judge Ned Gordon in May 2016.

“Now you want us to see them once a month for an hour? That’s not fair,” Sanborn said, reliving her reaction to the judge’s ruling. “They want to come home, the state doesn’t understand that. They’re 5 and 6, they’re confused. They thought they’d be home by now.”

More than a year later, she is still waiting to hear whether her grandsons can return home and live with her.

Sanborn is among a growing number of grandparents going through the court system trying to gain guardianship of grandchildren who have parents battling opiod addiction. 

The boys originally came to live with their grandparents after the state’s Division for Children, Youth and Families asked them to become temporary guardians and give the boys a safe place to live.

The children’s parents were both dealing with mental health and substance abuse issues, and they were accused of neglecting their children. Sanborn’s daughter, Nicole, was dealing with substance abuse, anxiety and depression. DCYF said she failed to follow through on prior treatment plans, but Sanborn said Nicole’s made progress recently, getting therapy, treatment and moving into her own apartment.

In family court, Sanborn said she thinks she went wrong in the permanency hearing when Gordon asked her if she adopted the two boys, whether she would consider herself their mother or grandmother.

She answered that she would still consider herself their grandmother.

That gave Gordon pause. When the judge ruled in May to put the boys up for adoption, he wrote that while keeping the children with family members would be ideal, he was concerned that Sanborn was too close with her daughter.

It’s a familiar struggle for grandparents dealing with a child with addiction – sometimes they are forced to cut ties with their own child in order to care for the grandchildren.

While Sanborn wanted to provider her daughter support, she was ready to get a restraining order if it meant getting her grandchildren back.

“She fell apart for one year,” Sanborn said of Nicole. “She’s my daughter. I still want to help her. She needs a positive note.”

In court documents, Gordon wrote he was concerned the boys’ mother would continue to be a part of their lives – a negative one. Although he recognized Sanborn had provided good care and a loving home for the children in the past, he wrote “it is also clear to the Court that Ms. Sanborn cannot become the children’s parent and distance herself from Nicole.”

“Nicole will always be her daughter and the kids will always be her grandchildren,” Gordon continued in his ruling. “The potential adoption by Ms. Sanborn would continue to expose the children to the disruptive and neglectful world of their parents.”

He chose to send the boys to a foster home instead, a decision that left Sanborn distraught as she waited for a year to see if they could return home.

“I would have said anything they wanted me to say,” she said. “My grandchildren come first.”

Family law in N.H.

Sanborn’s experience is somewhat unusual in New Hampshire, where keeping kids close to family is a goal of the state. One of DCYF’s top priorities is to keep kids “safely maintained” in their homes whenever possible, or to place them with other family members, agency officials said.

In the midst of New Hampshire’s drug crisis, grandparents are looked to more and more to provide that safe home.

In certain situations, DCYF may require grandparents to keep their grandkids away from their mothers and fathers.

“We have some grandparents who are very, very skillful at establishing what those boundaries are,” said Bernadette Melton-Plant, program director for CASA New Hampshire, a nonprofit organization of court-appointed child advocates. “They’re very good about monitoring and supervising those visits in an appropriate manner. You have challenges with those grandparents who are not able to keep those boundaries established.”

Melton-Plant admits it’s a heartbreaking choice for many grandparents.

“This is a huge struggle for these grandparents because they have loyalties to their biological children and their grandchildren,” she said. “This new generation of grandparents are not always equipped to deal with the challenges of raising their own grandchildren.”

Even though it is fairly easy to get temporary guardianship of the children, the chance that the parents could demonstrate their sobriety to a judge, take their children back and promptly relapse looms large in the minds of many grandparents.

Becoming guardians

Typically, there are a two types of guardianship cases; one when the parent consents to a guardian taking over care of their children, and in which where parents fight it.

“If the parents agree, it’s pretty straightforward,” said Judge Susan Carbon, who presides over the 9th Circuit Family Division Court in Manchester, the state’s busiest family court.

If they are not willing, it gets trickier – grandparents or other family members must demonstrate a higher burden of proof to show that the parents are not fit to take care of the children.

However, even when guardianship is handed over to grandparents and other family members, it’s not permanent.

“In a child protection case, you’re not losing your parental rights,” Carbon said.

It takes a separate hearing to terminate parental rights completely. In those hearings, petitioners need to demonstrate that a parent is not only unfit, but that he or she has been unfit for a long period of time.

“We see them on occasion, not with great frequency,” Carbon said.

Manchester is often referred to as the epicenter of the state’s drug crisis, and Carbon said she is seeing heroin, opioids and other drugs like methamphetamine destroying families and separating kids from their parents often these days.

“These are really, really tough cases where grandparents who would like to become grandparents are stepping in to become parents in middle age,” she said. “At times they feel like they’ve somehow failed their children.”

The state’s largest city saw a 34 percent jump in the number of guardianship cases from 2015 to 2016, going from 172 to 231, and Carbon said it’s driven by substance abuse.

“The vast majority of cases we’re getting for guardianship involve drugs,” she said. “There is such an overwhelming presence of drugs that completely dismantles people’s ability to parent.”

Many grandparents express frustration that current state law puts a high priority on reunifying children with their parents.

But a new law, signed last week by Gov. Chris Sununu, aims to give them more rights. State Rep. Mariellen MacKay introduced the bill this year to make grandparents the preferred guardian for a child whose parents were struggling with substance abuse.

A second law that was also recently signed by the governor will establish a study committee to review barriers facing grandparents that are raising children in New Hampshire.

MacKay came up with her legislation after she went to a conference last year and heard many grandparents lamenting how difficult getting permanent guardianship could be.

“What I heard from the grandparents is they have no voice in court and they have no standing,” MacKay said. Unlike parents, “no judge has to listen to them. We wanted to give grandparents a voice.”

MacKay’s bill also included $33,200 for education classes for grandparents and required the state Department of Health and Human Services to post resources and information about food assistance, temporary financial assistance and other benefits.

“We got everything we asked for. I’m thrilled for the grandparents, I’m thrilled for the state of New Hampshire, and I’m pleased for DHHS, because they got what they needed,” MacKay said.

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