2009-917, In re Cierra L. & a.

No. 2009-917

Merrimack

Court (Brown HICKS, J. The respondent, Cara L., appeals an order of the Superior Franklin Family Division (Gordon The record supports the following facts. On November 10, 2008, the

Nixon Peabody, LLP

Michael A. Delaney ___________________________

against her. We affirm. Law Office of Nancy S. Tierney , J.) denying her motion to dismiss the abuse and neglect findings

Hampshire, Inc. of law), for the guardian ad litem, Court Appointed Special Advocates of New

THE SUPREME COURT OF NEW HAMPSHIRE Youth and Families. on the memorandum of law), for the New Hampshire Division for Children,

brief), for the respondent, Cara L.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as motion to dismiss because it failed to give her de p. 2 The respondent argues that the superior court erred in denying her

followed. thirty days warrants the extraordinary remedy of dismissal.” This appeal motion to dismiss because it did not give her de case alone, the Court declines to accept that the minimal delay beyond the The respondent first argues that the superior court erred in denying her 2 Regarding RSA 169-C:18, VII, the court ruled that “[b]ased on the facts of this petition was principally due to the respondent’s own motion practice.” A de 169-C:28, I, the court found “that any delay in scheduling the hearing on the The superior court denied the respondent’s motion. With respect to RSA

did, the respondent waived any time limit by virtue of her motion practice. the superior court must conduct a de novo adjudicatory hearing and, even if it contends that RSA 169-C:28, I, does not set a specific time limit within which priority on the court’s calendar in accordance with RSA 169-C:28, I. The State

pursuant to RSA 169-C:18, VII. We will address each argument in turn. dispositional hearing within thirty days of its findings of abuse and neglect calendar in accordance with RSA 169-C:28, I, and it failed to conduct a final

rescheduled the status conference for June 29. pursuant to RSA 169-C:18, VII (Supp. 2009). status conference. The superior court granted the respondent’s motion and Thereafter, the respondent filed an assented-to motion to continue the June 5 the dispositional hearing within thirty days of its finding of abuse and neglect the matter as a priority under RSA 169-C:28, I, and that it failed to schedule superior court granted the motion, setting the new date for June 5, 2009. findings against her on the grounds that the superior court failed to schedule April 20. The respondent moved to reschedule the status conference and the On April 8, 2009, the superior court scheduled a status conference for respondent moved to dismiss both the superior court and the family division dispositional hearing for November 17, 2009. On October 30, 2009, the family division’s finding of abuse and neglect and subsequently scheduled a 3, 2009. On September 28, the superior court issued an order affirming the

novo adjudicatory hearing was held from September 1 to September

169-C:28. See RSA 169-C:28, I (2002). respondent requested an appeal de novo in superior court pursuant to RSA issued a final dispositional order after a hearing on November 21, 2008. The against the respondent with respect to her child and two step-children. It enforcement.” Fournier p. 3 limits are to be enforced, we must determine the appropriate mode of enforcement. “Where the legislature has not provided how its mandatory time on the superior court, the statute does not provide a remedy for its Even assuming, without deciding, that the language imposed a time limit general interest in hastening adjudicative dispositions.” Id two types of time limits: those involving a liberty interest and those involving a “When interpreting the goals of a statute, we have distinguished between shall give an appeal under this chapter priority on the court

orders. The superior court shall hear the matter de novo, and relief has shown prejudice as a result of the statutory violation.” Id. factors: consideration of the statutory goals and whether the party seeking See, 158 N.H. at 446. “Our inquiry focuses upon two that the superior court give priority to an appeal is mandatory or discretionary. We first must determine whether the prescription under RSA 169-C:28, I,

impose a specific time limit on the superior court. legal authority in support of her proposition that the legislature intended to specific time period . . . is mentioned”), and the respondent does not cite any construed as imposing a time constraint on the superior court” but that “[n]o suspend the order or decision of the court unless the court so (noting that a similar provision in the delinquent children statute “could be days of the final dispositional order; but an appeal shall not delineate a specific time limit, cf to any administrative decision pursuant to this chapter, within 30. In re Raymond K., 120 N.H. 456, 457 (1980) 169-C priority on its calendar. See party having an interest, including the state, or any person subject id. The statute, however, does not 169-C:28, I, requires the superior court to give appeals under RSA chapter court by the child or the child’s authorized representative or any enforcement.” Id. (quotation omitted). Therefore, by its express terms, RSA construction is that the word ‘shall’ is a command which requires mandatory meaning. In re Christopher K., 155 N.H. at 229. “The general rule of statutory the statute itself, ascribing to the words used their plain and ordinary 2004-469, 151 N.H. 706, 707 (2005). We start by examining the language of as expressed in the words of the statute considered as a whole. In re Juvenile 158 N.H. 441, 445 (2009). We are the final arbiters of the legislature’s intent question of statutory interpretation, our review is de novo. State v. Fournier, In re Christopher K., 155 N.H. 219, 229 (2007). Because this presents a

An appeal under this chapter may be taken to the superior (Emphasis added.)

calendar.

RSA 169-C:28, I, states, in relevant part: time limit does not apply to de p. 4 prescribed in RSA 169-C:18, VII is mandatory. However, it argues that the also deprived the court of jurisdiction. The State concedes that the time limit the adjudicatory hearing, as mandated by RSA 169-C:18, VII, and this failure superior court failed to schedule the dispositional hearing within thirty days of

Turning to the respondent’s second argument, she contends that the disposition within 30 days after a finding of neglect or abuse.” RSA 169-C:3, IX RSA 169-C:18, VII provides that “[t]he court shall hold a hearing on final

denying her motion to dismiss based on RSA 169-C:28. argument. Accordingly, we conclude that the superior court did not err in Finally, we note that the respondent has not raised any prejudice court, dismissal is not warranted. State further contends that, even if the time limit does apply to the superior

adjudicatory hearing in a de that RSA 169-C:28, I, delineates no particular time frame for conducting an child abuse or neglect cases.” RSA 169-C:2, I (2002). It bears emphasizing framework to protect the rights of all parties involved in the adjudication of children whose life, health or welfare is endangered and to establish a judicial of suspected instances of child abuse or neglect, to provide protection to The purpose of RSA chapter 169-C is “through the mandatory reporting

whose parental rights may be terminated”). disposition for the sake of the child’s welfare and the interest of the parent decision in termination of parental rights cases is “to provide a speedy 381 (1983) (discussing that the purpose of the sixty-day time limit for issuing a novo appeal process in the superior court. Cf. In re Robyn W., 124 N.H. 377, Rather, it appears that the priority mandate was intended to hasten the de alleged delinquency or ‘need for services’ rooted in his right to due process”). “legislative pronouncement of a child’s right to the expeditious resolution of his adjudicatory hearings under RSA chapter 169-B and RSA chapter 169-D are a N.H. 260, 266 (1980) (finding that the mandatory time limits on juvenile the adjudication of child abuse and neglect cases. Cf. In re Russell C., 120 RSA 169-C:28, I, was enacted to protect the liberty interest of those involved in review of the legislative history of the statute reveals nothing to indicate that

omitted). have been unwilling to treat the time limit as jurisdictional.” Id. (quotation adjudicative dispositions for the benefit of all parties involved, however, we legislature has prescribed time limits out of a general interest in hastening within the statutory period.” Id. at 447 (quotation omitted). “Where the jurisdiction over a defendant is lost, absent waiver, if the case is not heard mandated time limits for holding hearings, we have held that personal (quotation omitted). “Where the legislature, out of liberty concerns, has disposition, including placement and legal custody of the child. See p. 5 C:18, VII. The district court then may determine the appropriate final final disposition within 30 days after a finding of neglect or abuse.” RSA 169- Following the adjudicatory hearing, “[t]he court shall hold a hearing on

dispositional order during a de novo appeal under RSA chapter 169-C). authority to the district court, not the superior court, to suspend a final Thomas M., 141 N.H. 55, 60 (1996) (finding that RSA 169-C:28, I, grants or decision of the court unless the court so orders.” RSA 169-C:28, I; In re days of the final dispositional order; but an appeal shall not suspend the order 2009). Thereafter, an appeal may be taken to the superior court “within 30 individual or family therapy, or medical treatment.” RSA 169-C:19, IV (Supp. guardian, relative, custodian, household member, or child to undergo legislature intended RSA 169-C:18, VII to apply solely to the district court. See custodian or a household member,” RSA 169-C:19, II, and “order any parent, Moreover, viewing the entire statutory framework, we conclude that the setting forth conditions of behavior by a parent, relative, sibling, guardian, C:19 I, III (Supp. 2009). The court also may issue an “order of protection

originate in the district court by the filing of a petition. See 2009). relative to the protection and placement of the child. RSA 169-C:16 (Supp. petition, at a preliminary disposition, the court may” issue certain orders III(d) (Supp. 2009). Further, “[i]f the court finds sufficient facts to sustain the completed within 30 calendar days of the filing of the petition.” RSA 169-C:15, court shall . . . [s]et a date for an adjudicatory hearing to be held and “Upon a finding of reasonable cause that the child is abused or neglected, the believe that the child is abused or neglected.” RSA 169-C:15, I (Supp. 2009). must conduct a preliminary hearing “to determine if reasonable cause exists to (2002). After an abuse and neglect proceeding is initiated, the district court

together with all associated sections”). Abuse and neglect proceedings id. (stating that we review a particular statutory provision “not in isolation, but

a statute to lead to a reasonable result . . . .”). Fisher Scientific, 160 N.H. ___, ___ (decided September 17, 2010) (“We interpret dispositional hearing in another section of the statute. See Appeal of Thermoassign it a specific time period, jurisdictional in nature, to conduct a final novo appeals priority on its calendar in one section of the statute and then incongruous that the legislature would require the superior court to give de appeal under this chapter priority on the court calendar.” We regard it as contrast, RSA 169-C:28, I, expressly requires the “superior court” to “give an without giving any indication that the term includes the superior court. In 169-C:28, II (2002). The time limit in RSA 169-C:18, VII speaks only of “court” includes proceedings in the family division. See RSA 490-D:14 (2010); RSA Neither party disputes that the term “district court” as used in the statute (Supp. 2009) defines “court” as “the district court, unless otherwise indicated.” p. 6 Having previously determined that the de

The respondent contends that our decision in In re Juvenile 2002-511-A

RSA 169-C:28 provides clear indication that the term “court” in RSA 169-C:21 by the legislature at the district court level. Id. As such, we concluded that limit the scope of de novo hearings in superior court to less than that provided dispositional proceedings of an abuse and neglect case de novo, we declined to 169-C:28 required the superior court to hear both the adjudicatory and

omitted). shall meet before the child is returned home.’” Id. at 594 (ellipsis and brackets neglected’ and that the order of ‘the court shall include conditions the parents ‘the court shall enter a final order in writing finding that the child has been facts are presented at the adjudicatory hearing to sustain the neglect petition, 2002-511-A, 149 N.H. at 593-94. “RSA 169-C:21 provides that if sufficient court in a de novo appeal conducted pursuant to RSA 169-C:28. In re Juvenile considered whether the term “court” in RSA 169-C:21 applies to the superior applies to the superior court. We disagree. In In re Juvenile 2002-511-A, we 149 N.H. 592 (2003), dictates that the term “court” in RSA 169-C:18, VII

only on district courts). RSA 169-B:14, II refer only to “courts” and, thus, impose statutory time limits 120 N.H. at 45 p. 7 7 (concluding that the time limit sections in RSA 169-B:7, I, and applies only to the district court. See RSA 169-C:18, VII; cf. In re Raymond K., the statutory framework, we conclude that the thirty-day statutory time limit RSA 169-C:28, I; In re Thomas M., 141 N.H. at 60. Based upon our review of the de novo appeal process unless the district court provides otherwise. See with a final dispositional order and that order shall not be suspended during superior court level because the district court has already provided the parties finding of abuse or neglect has been rendered. This need lessens at the parties are not left for a lengthy period of time without a resolution once a speedy disposition is necessary at the district court level to provide that the within thirty days of an abuse and neglect finding. See RSA 169-C:18, VII. A legislature provided that the district court shall conduct a dispositional hearing stability and resolution for all parties involved. To further that end, the great importance at the district court stage of the proceedings to ensure emphasizes avoiding delay in child protection cases). A quick disposition bears Cf. In re Melissa M., 127 N.H. 710, 712 (1986) (noting that RSA chapter 169-C speedy disposition of such cases once it renders a finding of abuse or neglect. understandable that the legislature intended for the district court to provide a and legal custody of the child in the first instance, RSA 169-C:19, it is court’s final disposition that resolves such significant issues as the placement child abuse or neglect cases,” RSA 169-C:2, I (2002), and that it is the district framework to protect the rights of all parties involved in the adjudication of children whose life, health or welfare is endangered and to establish a judicial Given that the purpose of RSA chapter 169-C is “to provide protection to 7

BRODERICK, C.J.