2004-637, IN RE JUVENILE 2004-637 & a.

abused the children while they were living in Texas. DCYF initiated an Children, Youth and Families (DCYF) to allege that the father had sexually September 10, 2001, the mother contacted the New Hampshire Divisi on for children. In June 2001, the mother moved with the children to Plymouth. On were married on June 17, 1994, in Austin, Texas. The parties have three The family division found the following facts. The mother and father

against the father. We reverse and remand. by the Plymouth Family Division dismissing abuse and neglect petitions refusal to hold a de novo hearing on an appeal of an adjudicatory order issued DALIANIS, J. The mother appeals the Su perior Court’s (Burling, J.)

Hampshire Division for Children, Youth and Families. attorney general, on the memorandum of law and orally), for the New Kelly A. Ayotte, attorney general (Michael K. Brown, senior assistant

of law and ora lly), for the father. Boyle Law Office, PLLC, of Plymouth (John F. Boyle on the memorandum

Bronwyn Asplund - Walsh, of Franklin, by brief and orally, for the mother.

No. 2004 - 637 Grafton

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

remedies in these cases in the Superior Court or the Supreme Court.” The mother’s p etitions, stating, “The [mother] has not exhausted her appellate On August p. 2 20, 2004, the Family Division (MacLeod, Jr., J.) dismissed the

returned to Texas with the father and remain there today. neglect petitions against the father with the family division. The children father in the family division. Later that day, the mother filed three abuse and superior court also directed the mother to file her own petition against the “no longer ha[d] a petition over which the appeal [could] further proceed.” The the father’s motion to dismiss the appeal on the ground that the superior court C: p. 2 28 as a “party having an interest.” Nonetheless, the superior court granted ruled that the mother was entitled to bring an appeal pursuant to RSA 169 withdrew its abuse and neglect petitions against the father. The superior court On August 5, 2004, the superior court held a hearing at which DCYF

custodian; the state; or any household member subject to court order.” “the child; the guardian ad litem of the child; the child’s parent, guardian or RSA 169 - C:3, XXI - a ( p. 2 2002) defines a “Party h aving an interest” to mean

of a petition for abuse and neglect by the district court. of this chapter, a “final dispositional order” includes a dismissal superior court shall hear the matter de novo . . . . For purposes or decision of the court unless the court so orders. The dispositional order; but an appeal shall not suspend the order any party having an interest . . . within 30 days of the final court by the child or the child’s authorized representative or An appeal under this chapter may be taken to the superior

part: New Hampshire during the appeal. RSA 169 - C: p. 2 28, I (2002) states, in pertinent the outcome of the appeal. All three children were to remain in foster care in mother’s request, the family division suspended the adjudicatory order pending appealed the order to the superior court pursuant to RSA 169 - C:28. At the father based upon DCYF’s failure to meet its burden of proof. The mother adjudicatory order dismissing all eight abuse and neglect petitions against the On April 21, 2004, the Family Division (MacLeod, Jr., J.) issu ed an

March of p. 2 2004. The family division held three days of trial on DCYF’s petitions in February and of trial, the children were placed in foster care under the supervision of DCYF. petitions against the father in the family division. Prior to the c ommencement September 2 p. 3 3 and December 4, 2003, DCYF filed eight abuse and neglect the father permanent physical custody of the parties’ children. Between September 8, 2003, a Texas cou rt issued a final divorce decree and awarded investigation. The father subsequently filed for divorce in Texas. On 3

“hearing de no vo” above. this contention, and we decline to read that requirement into the definition of who appeared in the family division. The father cites no authority to support a hearing de novo, as contemplated by RSA 169 - C:28, without the same parties The father also argues that the superior court could not have cond ucted

irrelevant that DCYF withdrew its petitions after the mother appealed. whether the family division properly dismissed the petitions. It is, thus, the merits of the abuse and neglec t petitions filed by DCYF and determine definition here, we hold that the superior court was required to hear de novo (200 p. 3 3) (citing Black's Law Dictionary 725 (7th ed. 1999)). Applying this hearin g had not taken place. In re Juveniles 2002 - 511 - A, 149 N.H. 592, 594 court's findings; (2) A new hearing of a matter, conducted as if the original reviewing court's decision of a matter anew, giving no deference to a lower have defined a "hearing de novo" in the context of RSA 169 - C:28 to mean: (1) A C:28, I, which requires the superior court to “hear the matte r de novo.” We petitions. That argument is unsupported by the plain language of RSA 169 was “no case or controversy” before the superior court once DCYF withdrew its entitlement to a hearing, the supe rior court’s dismissal was proper as there The father argues that notwithstanding the mother’s statutory

the family division’s dismissal of DCYF’s abuse and neglect petitions. prescription). Therefore, the superior court must conduct a hearing de novo on Robyn W., 124 N.H. p. 3 377, 379 (1983) (“shall” denotes a mandatory statut ory room for the exercise of discretion. Id. at 59 (quotation omitted); see also In re 169 - C:28 that “[t]he superior court shall hear the matter de novo” leaves no challenge this ruling. We have held that the sta tutory mandate under RSA pursuant to RSA 169 - C:28 as a “party having an interest.” The father does not The superior court ruled that the mother was entitled to bring an appeal

law. In re Thomas M., 141 N.H. 55, 57 (1996). trial court unless they are unsupported by the evidence or tainted by error of underlying petitions. On appeal, we will sustain the findings and rulings of the which the appeal [could] further proceed,” as DCYF had withdrawn its dismissed the appeal on the ground that it “no longer ha[d] a petition over granted the father’s motion to dismiss the mother’s appeal. The superior court The sole issue on appeal is whether the superior court erroneously

court’s dismissal of her appeal of the adjudicatory order. September 21, 2004, the mother appealed to this court to review the superior reconsider the dismissal of her de novo appeal of the adjudicatory order. On On August 25, 2004, the superior court denied the mother’s motion to

appeal the dismissal of her own petit ions to the superior court. family division denied the mother’s motion for reconsideration, and she did not p. 4 4

concurred. BRODERICK, C.J., and NADEAU, DUG GAN and GALWAY, JJ.,

pending final order. court to take any action concerning the present custody of these children the father's actions in that regard. Nothing in this opinion requires the trial Texas with the father and remain there today. The mother di d not challenge superior court dismissed the appeal. The next day, the children returned to Hampshire during the pendency of the appeal. On August 5, 200 p. 4 4, the the superior court. All th ree children were to remain in foster care in New motion to suspend the adjudicatory order pending the outcome of the appeal to upon remand. On April 21, 2004, the family division granted the mother's Finally, we briefly address the custody and placement of the children

judicata effect upon rem and. that the family division’s dismissal of the mother’s petitions will have no res mother’s abuse and neglect petitions on their merits. Accordingly, we conclude Cour t or the Supreme Court.” Thus, the family division did not dismiss the she had not “exhausted her appellate remedies in these cases in the Superior The family division dismissed the mother’s petitions on the ground that

judgment on the merits must have been rendered on the first action. Id. same cause of action must be before the court in both instances; and (3) a final be met: (1) the parties must be the same or in privity with one another; (2) the the same cause of action. Id. For the doctrine to apply, three elements must that could have been litigated, in an ear lier action between the same parties for precludes the litigation in a later case of matters actually litigated, and matters Trustees of Dartmouth College, 1 p. 4 47 N.H. 443, 454 (2002). Res judicata parties in a subsequen t litigation involving the same cause of action. Brzica v. a final judgment by a court of competent jurisdiction is conclusive upon the the doctrine of res judicata. The essence of the doctrine of res judicata is that dis missal will bar any hearing in the superior court upon remand pursuant to division’s dismissal of her own petitions and her failure to appeal that The father argues that even if the mother prevails here, the family

and present the case in the superior court. on appeal. Th us, upon remand, the mother must assume the role of petitioner, and properly did not, force DCYF to go forward with its case against the father father’s motion to dismiss the appeal. The superior court, however, cannot, We, therefore, conclude that the superior court erred by granting the