In re Baby Girl P.

DUGGAN, J. Jeffrey and Melinda S., the prospective adoptive parents of Baby Girl P., appeal the decision of the Merrimack County Probate Court {Hampe, J.) dismissing their petition for adoption and returning the child to her biological father, Colton L. We reverse. The record supports the following facts. Baby Girl P. was born in November 2000 in Phoenix, Arizona. Her natural parents were not married and the birth certificate issued on the date of the child’s birth is blank as to the name of the father. When the baby was ten days old, her birth mother signed a consent to adoption and, pursuant to Arizona law, an — 774 — affidavit naming “Jamal [L.]” as the natural father. See Ariz. Rev. Stat. Ann. § 8-106(F) (West Supp. 2001); RSA 170-B:9,11(b) (Supp. 2001) (“if the [natural] parent does not reside in New Hampshire, ... consent may be taken pursuant to the laws of the state where [he or she] resides”). In the affidavit, the birth mother indicated that the child was conceived in Arizona, that the pregnancy was a result of a one-night relationship and that she did not know any identifying information of the natural father. On November 20, Jeffrey and Melinda S., who reside in New Hampshire, took custody of the child and, on December 4, filed a petition for adoption in the New Hampshire probate court. In January 2001, a search of the Arizona putative fathers registry indicated that no one had filed notice of a paternity claim pertaining to Baby Girl P. See Ariz. Rev. Stat. Ann. § 8-106.01(B) (West 1999). In April 2001, the probate court in New Hampshire published notice of the adoption in an Arizona newspaper. Colton L. responded, indicating his intent to claim paternity. Colton L., also known as “Jamal [L.],” claims that he and the birth mother had a several-month relationship. He states that he knew of the pregnancy and that the birth mother had contemplated adoption, but that he was incarcerated during most of the pregnancy and at the time of the child’s birth. After a paternity test ordered by the probate court in May 2001 confirmed him to be the biological father, he refused to consent to the adoption. The probate court, applying New Hampshire law, ruled that when it becomes aware of the alleged biological father’s name, it must provide notice to him, and, if his paternity is established, he must either consent to the adoption or have his parental rights terminated in order for the adoption to be granted. The court found that the adoption in this case could not go forward since Colton L. did not consent to the adoption and since none of the statutory grounds for termination of his parental rights applied. The court dismissed the petition for adoption and ordered custody of the child to be with Colton L. This appeal followed. On appeal, Jeffrey and Melinda S. argue that the probate court erred in: (1) applying New Hampshire law to the issue of consent; (2) waiving New Hampshire’s requirement that the biological father claim paternity before the mother’s consent or relinquishment; (3) disregarding Arizona’s putative fathers registry; (4) not conducting a home study of Colton L.; and (5) placing the child in the custody of Colton L., who they allege is a poor role model. We review a decision of the probate court for errors of law and will not disturb its factual findings “unless they are so plainly erroneous that such findings could not be reasonably made.” RSA 567-A:4 (1997); see In re Sky — 775 — D., 138 N.H. 543, 545 (1994). “Adoption is a creature of statute, and, as such requires strict observance of the statutory requirements.” In re Micah HH, 690 N.Y.S.2d 309, 311 (App. Div. 1999) (quotation and ellipses omitted). Accordingly, our analysis begins with an interpretation of the applicable state statutes. See In re Sky D., 138 N.H. at 545. Our first task is to decide which State’s law applies to the issue of consent. In general, the law of the forum State applies to adoption cases. Restatement (Second) of Conflicts of Laws §289 (1971). Other courts have recognized that this rule is not to be strictly construed, as “[c]ireumstances might permit or compel a state exercising adoption jurisdiction to defer to the substantial and dominant interest of a foreign state and to apply the law of that state in deciding some or all of the issues.” Matter of Adoption of Child by T.W.C., 636 A.2d 1083, 1090 (N.J. Super. Ct. App. Div. 1994). Here, the natural mother’s consent contemplated that the adoption would take place pursuant to New Hampshire law. Moreover, the prospective adoptive parents reside in this State and filed their adoption petition here. We therefore turn to New Hampshire’s adoption statute, RSA chapter 170-B, to determine if Colton L. was entitled to notice and the right to consent to the adoption. On questions of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Petition of Hoyt, 143 N.H. 533, 535 (1999). It is well established that the intention of the legislature expressed by the words in the statute itself is the touchstone to its meaning. Id. Accordingly, when a statute’s language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we refuse to consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute. Id. Under our adoption statute, consent to a proposed adoption must be obtained from the mother, the legal father and, in certain circumstances, the natural lather. RSA 170-B.-5,1(b)-(d) (Supp. 2001). The statute defines legal father as the person designated as the father either (a) on that child’s birth certificate, (b) pursuant to court order resulting from a paternity action, or (c) upon legitimation when the parents marry. RSA 170-B:2, XIII (Supp. 2001). Natural father is defined as “a person other than a legal father who has been named as the father of the child, or who is the subject of a pending paternity action, or who has filed an unrevoked notice of intent to claim paternity of the child pursuant to RSA 170-B:5-a, 1(c).” RSA 170-B-.2, XIV (Supp. 2001). — 776 — Colton L. does not meet any of the statutory requirements to be the legal father. He was not listed on the child’s birth certificate, he was not designated as the father in a paternity action, and he did not legitimate the child by marrying the natural mother. In determining that Colton L.’s consent was required, the probate court relied on the fact that a paternity test conducted after the adoption proceedings had begun showed that he was the “biological father.” Although not explicit in its order, the court presumably assumed that as the biological father, Colton L. was the legal father, and thus his consent was required. The implication of this interpretation is that a putative father can circumvent the statutory scheme set forth in RSA chapter 170-B, which articulates a point in time after which a person is barred from bringing a paternity action. See RSA 170-B:5-a (Supp. 2001). We hold that the determination of Colton L.’s paternity in this case was not the type contemplated by the adoption statute. An important goal of the statute is to promote finality for the child by identifying, as early as possible in a child’s life, the rights, interests and obligations of all the parties. Consistent with this goal, a better reading of the statute is that a “person designated as the father pursuant to court order resulting from a paternity action” is one who has been adjudicated to be the father in an action such as pursuant to RSA chapter 168-A, in which the mother seeks support, and whose child is later put up for adoption. The statute is clearly not meant to allow a person to ignore his paternal obligations and then frustrate the adoption after the natural mother has consented and the adoption petition has been filed. For these reasons, Colton L. does not fall within the definition of “legal father” set forth in RSA 170-B:2, XIII(b). Because the birth mother named Colton L. as the father in an affidavit, we assume that he falls within the statutory definition of natural father. Under the statute, consent from the natural father is required if he was entitled to notice and the right to consent under RSA 170-B:5-a. RSA 170-B:5,1(d). RSA 170-B:5-a, I, lists four categories of putative fathers entitled to notice of a proposed adoption and the right to request a hearing to prove paternity: (a) A person named by the natural mother in an affidavit filed with the court, prior to the mother voluntarily relinquishing her rights pursuant to RSA 170-B:8, the mother consenting to an adoption pursuant to RSA 170-B:9, or the mother’s parental rights being involuntarily terminated; — 777 — (b) The natural or legal father, if his identity is known by the court ... or the proposed adoptive parents or their attorney, prior to the mother voluntarily relinquishing her rights pursuant to RSA 170-B:8, the mother consenting to an adoption pursuant to RSA 170-B:9, or the mother’s parental rights being involuntarily terminated; (c) A person who claims to be the father and who has filed notice of his claim of paternity with the office of child support enforcement ... prior to the mother’s rights being voluntarily relinquished pursuant to RSA 170-B:8, the mother consenting to an adoption pursuant to RSA 170-B:9, or involuntarily terminated.... (d) A person who is openly living with the child or the child’s mother and providing financial support to the mother or child at the time any action under this chapter is initiated and who is holding himself out to be the child’s father prior to the mother voluntarily relinquishing her rights pursuant to RSA 170-B:8, the mother consenting to an adoption pursuant to RSA 170-B:9, or the mother’s parental rights being involuntarily terminated. In 1996, the legislature amended the statute, making these four provisions consistent with one another. Laws 1996, 46:4, :5. As amended, each provision refers to the time period before the natural mother relinquishes her rights, consents to the adoption or has her rights involuntarily terminated to determine whether a putative father is entitled to notice. Thus, in order for Colton L. to have been entitled to notice, one of the following must have occurred prior to the natural mother consenting to the adaption: (1) an affidavit in which the natural mother names him as the father must have been filed with the court; (2) his identity must have been known by the court, the adoptive parents or their attorney; (3) he must have filed notice of intent to claim paternity with the office of child support enforcement; or (4) he must have been holding himself out to be the child’s father. Interpreting the statute to require that the affidavit be filed with the court or that the father’s identity be known by the court, the adoptive parents or their attorney prior to the mother consenting to the adoption is consistent with sections (c) and (d), both of which provide a specific time period during which a father can act to protect his interests in the child. For example, in section (c), the father can preserve his rights by filing a notice of his paternity claim with the office of child support enforcement. RSA 170-B:5-a, 1(c). “The notice form may be filed prior to the birth of the — 778 — child but must be filed prior to ... the mother consenting to an adoption ____Failure to file the notice prior to this time shall bar the alleged father from thereafter bringing an action to establish his paternity of the child ----”,RSA 170-B:5-a, 1(c) (emphasis added). Similarly, in section (d), a putative.father protects his rights by “openly living with the child or the child’s mother and providing financial support to the mother or child at the time, any action under this chapter is initiated and who is holding himself out to be the child’s father prior to ... the mother consenting to an adoption____” RSA 170-B:5-a, 1(d). Thus, sections (c) and (d) of the statute explicitly provide that the moment the mother consents to the adoption serves as the cutoff point, after which the putative father is barred from asserting his parental rights. Under section (c), for instance, a father who files a notice of intent to claim paternity after the mother consents, and who does not fit into any of the other categories in RSA 170-B:5-a, I, is deemed to have abandoned the child and is not entitled to notice of the adoption proceeding. It would be illogical to interpret the statute to confer lesser rights, by limiting the time frame by which he can act, to a father who affirmatively asserts his interest in the child, than to the father who does not come forward but who becomes known by the court in some other way. One of the stated purposes of the statute is to protect the adoptive child from unnecessary separation from his or her natural parents. RSA 170-B:l, I (Supp. 2001). A corollary goal is to promote “prompt finality that protects the child’s interests____Otherwise a young child languishes in limbo - surrendered by the mother, unclaimed by the father, and bonding with others - from which the law cannot extricate the child without lengthy proceedings compounding the harm.” Matter of Pima Cty. Juv. Severance Action, 876 P.2d 1121, 1132 (Ariz. 1994) (citation omitted). ■ Consistent with this purpose, the legislature has articulated a time period during which a putative father has the opportunity to establish his parental rights. If, before the mother’s consent is given, the father’s identity is not known by the courts, the adoptive parents or their attorney or he fails to come forward, he is thereafter barred from bringing any action to establish paternity. That the natural mother knows of his identity is irrelevant to the statutory analysis. Indeed, under the statute, a natural mother is not required to identify anyone as the father. If she does name someone and, prior to her consenting, his identity becomes known by the court - either through a filed affidavit or otherwise - or to the adoptive parents or their attorney, then he is entitled to notice of the adoption proceedings. This statutory scheme protects a putative father’s rights by giving him several avenues by which he can preserve his parental interests whüe, at the same time, protecting the privacy of unwed mothers and — 779 — allowing adoptions to take place soon after birth. By specifying the time period in which an alleged father must either be known or have acted in some way, the statute promotes safe and secure placements. Our interpretation of the statute does not allow the mother to unilaterally divest a father of his paternal interests. As previously stated, a biological father has an opportunity to come forward. However, in order to protect the interests of the child, the legislature has provided that the unwed father’s opportunity to preserve his right is decidedly limited in duration. Choosing the point at which the natural mother consents to the adoption ensures that the placement is effectuated in an expedient manner. Other States similarly require a biological father to take immediate action. See, e.g., Mont. Code Ann. §42-2-206 (2001) (to be entitled to notice, putative father must file with putative father registry within seventy-two hours of child’s birth); Ohio Rev. Code Ann. § 3107.07(B) (Anderson 2000) (consent not required from putative father who fails to register with the putative father registry within thirty days of child’s birth); cf. Matter of Adoption of Doe, 548 So. 2d 741, 746 (Fla.), cert denied, 493 U.S. 964 (1989) (father’s lack of prenatal support is relevant to determination of abandonment for purposes of adoption). The dissent contends that the phrase “prior to the mother consenting to an adoption” modifies when a court must give notice to a putative father. It reads the statute to mean that regardless of when the father becomes known to the probate court, he is entitled to notice. Under the dissent’s interpretation, the mother is not able to effectively consent or surrender the child until the putative father has received notice, is given an opportunity to prove paternity and, if he is in fact the father, provides his consent. As a practical matter, this would require a birth mother to wait more than thirty days, the period required for notice to the putative father plus the time necessary to have paternity testing done. The statute simply does not say this. In fact, the statute allows consent to be executed seventy-two hours after birth. RSA 170-B:7 (1994). The record in this case indicates that, before the natural mother consented to the adoption, none of the conditions in RSA 170-B:5-a, I, was met. The affidavit in which the natural mother named Colton L. as the father was not filed with the court prior to her consenting to the adoption. Likewise, there is nothing in the record indicating that a court in either Arizona or New Hampshire, the adoptive parents or their attorney knew of Colton L.’s identity before the natural mother’s consent was given. Moreover, Colton L. did not take any action, such as filing a notice of intent to claim paternity or holding himself out to be the child’s father, prior to the natural mother consenting. Both of these avenues were — 780 — available to him and would have protected his interests in the child. Because Colton L. does not fit into any of the categories in RSA 170-B:5-a, I, we hold that he was not entitled to notice and, therefore, under RSA 170-B:5,1(d), his consent to the adoption was not required. Colton L. argues that his parental rights have not been terminated, and therefore the adoption cannot go forward. This is a misconstruction of the law. Termination of the natural parent’s parental rights is not a prerequisite for all adoptions. In New Hampshire, parents whose parental rights have been terminated are just one category of persons not required to consent to an adoption. See RSA 170-B:6 (Supp. 2001). Consent is also not required of an “unwed father who has not met the requirements of RSA 170-B:5,1 or RSA 170-B:5-a.” RSA 170-B:6,1. For reasons previously stated, Colton L. did not meet these requirements. Colton L. further argues that the adoption should not go forward because the birth mother committed perjury by falsely swearing in her affidavit that the natural father’s whereabouts and identifying information were unknown. Since he did not meet the requirements under New Hampshire’s adoption statute, he was not entitled to notice regardless of any alleged improper actions of the birth mother. Finally, in his response to the notice of appeal, Colton L. makes passing reference to a federal constitutional claim. Because he neither addresses this argument in his brief nor argued it below, we deem it waived. See Keenan v. Fearon, 130 N.H. 494, 499 (1988) (“off-hand invocations” of constitutional rights supported by neither argument nor authority warrant no extended consideration). Reversed. Brock, C.J., and Broderick, J., concurred; Dalianis, J., with whom NADEAU, J., joined, concurred in part and dissented in part.