2005-212, IN RE JUVENILE 2005-212

son, who was then ten years old. She alleged that her son had been diagnosed before us. In September 2004, the petitioner filed a CHINS petition against her

The following facts were found by the trial court or appear in the record

We vacate and remand. (CHINS) petition against the juvenile. See RSA ch. 169-D (2002 & Supp. 2006). order of the Trial Court (Emery, J.) dismissing her child in need of services HICKS, J. The petitioner, the mother of Juvenile 2005-212, appeals an

litem. I. Kristine Bergstrom, of Concord, by brief and orally, for the guardian ad

Health and Human Services. general, on the memorandum of law), for the New Hampshire Department of Kelly A. Ayotte, attorney general (Karen A. Schlitzer, assistant attorney to press. Errors may be reported by E-mail at the following address: Maryellen Biletch, of Manchester, by brief and orally, for the juvenile.

Paula J. Werme, of Boscawen, by brief and orally, for the petitioner.

editorial errors in order that corrections may be made before the opinion goes No. 2005-212 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Manchester District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as temple over a dozen times. p. 2 academic or dead.” presents a justiciable controversy because issues involved have become hard-and-fast rules. Generally, however, a matter is moot when it no longer

by the mental health system. 2

the head; and (3) put his brother in a headlock and punched his head near the same finding and dismissed the case.

question of mootness is one of convenience and discretion and is not subject to

provide [CHINS] services to [the juvenile]” and that services must be provided out instead of speaking about his emotions. [He] is deficit [ mild mental retardation. He is impulsive . . . [and] is prone to act

(1990) (quotations and citation omitted). The State argues:

responsible for his care” in which the juvenile: (1) “kicked his teacher and commit the acts alleged in the [CHINS] petition.” The trial court made the failure to obey the reasonable commands of [the petitioner] and others We first address the State’s contention that this appeal is moot. “[T]he

legislative history, the court concluded that it did not “have authority to action following a finding of incompetence. After reviewing the available and has a limited vocabulary. [He] has an intelligence range of The trial judge aptly observed that the statute fails to specify a course of

the Philbrook Center. The court noted Dr. Cabibi’s opinion that the juvenile “was not competent to the Philbrook Center. The petitioner alleged three “specific acts of violence and from irrelevant data. sequential processing and he has difficulty discerning relevant juvenile was competent to commit the acts alleged in the CHINS petition. sic] in

[The juvenile] suffers from ADD. He is developmentally delayed

The trial court found:

court also considered previous testimony of the juvenile’s treating physician at submitted a report to the court, and testified at the adjudicatory hearing. The his brothers and me, other children in the neighborhood” and at his school and RSA 169-D:18-a (2002). John V. Cabibi, Ph.D, performed two evaluations, middle of the night, stolen and used credit cards from me, assaulted teachers, petitioner also alleged that the juvenile had “been leaving the house in the See The juvenile’s attorney requested a hearing to determine whether the

attention deficit disorder (ADD), depression and bi-polar disorder. The with pervasive developmental disorder/childhood disintegrative disorder, conducted by an agency other than the Philbrook center which is

p. 3 completed within 60 days of the date of such order and shall be

offenses or acts alleged in the petition. The evaluation shall be determining whether the child is competent to have committed the submit to a mental health evaluation for the purpose of phrases found therein. as a whole, and not simply by examining isolated words and

words of the statute considered as a whole.” interpretation, we are the final arbiter of legislative intent as expressed in the

on its own motion or that of any of the parties, order the child to

which is determined by examining the construction of the statute

found ‘incompetent to commit the acts alleged.’” “In matters of statutory moot. transitioned back to his biological family. The issue is, therefore I. At any point during the proceedings, the court may, either

RSA 169-D:18-a provides, in relevant part: words used. We must keep in mind the intent of the legislation, where possible, we ascribe the plain and ordinary meaning to the fit to include.” State v. Smith, 154 N.H. ___, ___, 908 A.2d 786, 788 (2006). “consider what the legislature might have said, or add words that it did not see AIMCO Props. v. Dziewisz, 152 N.H. 587, 590 (2005). We will not, however, statute is ambiguous, we will “consider legislative history to aid our analysis.” Thayer v. Town of Tilton, 151 N.H. 483, 486-87 (2004) (citation omitted). If the

finding against the child or placement of a child in a treatment facility if he is as the child’s therapists and providers indicate that he can be

statutorily eligible has not “already been resolved.” When construing a statute, we first examine its language and,

Center, 154 N.H. ___, ___, 910 A.2d 1262, 1266 (2006) (quotation omitted).

On appeal, the petitioner argues that “[n]othing in the statute prohibits a that it will continue to provide services in this case until such time not moot. mother. DHHS has indicated to both the mother and her counsel child on a voluntary basis since July of 2005 at no cost to the Id. This appeal is therefore entitlement to services as long as he is in need of them and otherwise presumably unenforceable and subject to revocation. Thus, the juvenile’s equivalent of a court-ordered placement. This “voluntary” arrangement is However well-intentioned, DHHS’s provision of services is not the

disclosure to the Court, DHHS has been providing services to the Although it is not a part of the record, in the interest of full we are saying. Put them where they belong.

p. 4 children should be in a mental health situation and that is what they don’t understand, it’s not going to work. And maybe those you to help supervise them and get them through this period. If

has to be able to understand what is right and wrong in order for

so. incompetence to be of jurisdictional magnitude, we believe it would have said of a juvenile as a CHINS. If the legislature had intended a finding of

mandate of dismissal upon a finding of incompetence would require us to “add program. We have added competency in here to say that a child have been under a mental health program, not under a CHINS served by the mental health system. what we are trying to do is to get that out of there. They should

competence as a jurisdictional requirement for, or a predicate to, adjudication

ratified and adopted by the legislature.”

matter to use language unequivocally expressive of that purpose.”). To infer a Cf. id. at 198 (“If such had been the purpose, it would have been an easy

CHINS system are not helped by the program and would be more appropriately who really didn’t belong in the CHINS program, in some cases, and writing prior to the hearing on the merits. We do not discern, in the final legislative enactment, an intent to treat

(1914), superseded by statute on other grounds.

question is what is the effect and meaning of the language of the act finally intent to “get [some children] out of” the CHINS system. However, “[t]he We acknowledge that Representative McCain’s comments evince an

Thus, Representative McCain’s apparent concern was that some children in the Services] was that situations where they were treating children human services. The evaluation shall be submitted to the court in

lack of competence arguably creates an ambiguity.

What we have heard from the Division [for Children and Youth evaluation by the commissioner of the department of health and the bill that produced RSA 169-D:18-a, who stated, in part: receiving prior approval for admission of the child for such The court cited testimony of Representative William McCain, sponsor of qualified psychiatrist, or by the Philbrook center only upon

legislative history. 908 A.2d at 788. Thus, we cannot say that the trial court erred by consulting

RSA 169-D:18-a, I. The statute’s silence as to the consequences of a finding of

conducted by a psychologist licensed in New Hampshire or a approved by the commissioner of health and human services, or point during the proceedings,”

p. 5 appears to have interpreted the CHINS statute to

sentence of section I provides that the court may order an evaluation “[a]t any

determine the appropriate placement for the juvenile. As the trial court juvenile meets the definition of a CHINS; and/or in the dispositional phase, to phase of the proceeding: in the adjudicatory phase, to determine whether the 5

the recommendations of the parties and counsel. by the probation department or other appropriate agency . . . , and for the child on the basis of the facts, the investigation report made evaluation is to be used in the adjudicatory phase. On the other hand, the first adjudicatory hearing. RSA 169-D:18-a, I. This seems to imply that the the court in writing prior to the hearing on the merits,” or in other words, the

evaluation may be used, in the sound discretion of the trial judge, in either

be adjudicated a CHINS, he must have a sufficient ability to consult with his Finally, the juvenile argues that due process requires that before he can

inconsistent with this opinion. finding of incompetence, we vacate and remand for further proceedings not determines the most appropriate and least restrictive disposition did not enact RSA 169-D:18-a as a superfluous provision. require dismissal upon a

sentence of section I directs that the competence evaluation “be submitted to

We conclude, absent further clarification from the legislature, that the

may be used at either stage in the case.

child is in need of services, is the dispositional phase. The court does play in a CHINS proceeding. We presume, of course, that the legislature

the “adjudicatory phase.” RSA 169-D:18-a is unclear as to which phase it applies. The last

the court determines whether the child is in need of services.” Id.

superfluous “would not be consistent with legislative intent”).

The next stage of the proceeding, if the court finds that the a CHINS adjudication raises the question of what role a competency evaluation

127 N.H. 585, 590 (1986). This stage of the proceeding may be referred to as

151 N.H. at 486. CHINS cases “begin with an adjudicatory hearing, in which We first “examin[e] the construction of the statute as a whole.” Thayer,

120 N.H. 600, 602 (1980) (construing a statute to render some provisions

Our determination that competence is not a jurisdictional prerequisite to

will not undertake. Smith, 154 N.H. at ___, 908 A.2d at 788. words [to the statute] that [the legislature] did not see fit to include,” a task we p. 6 6

concurred.

address this argument.

and the juvenile did not file a cross-appeal. properly before us. It was not raised by the petitioner in her notice of appeal

BRODERICK, C.J.