In re Juvenile 2004–637
| Decision Date | 09 December 2005 |
| Docket Number | No. 2004–637.,2004–637. |
| Citation | 152 N.H. 805,888 A.2d 422 |
| Court | New Hampshire Supreme Court |
| Parties | In re JUVENILE 2004–637 and another. |
Bronwyn Asplund–Walsh, of Franklin, by brief and orally, for the mother.
Boyle Law Office, PLLC, of Plymouth (John F. Boyle on the memorandum of law and orally), for the father.
Kelly A. Ayotte, attorney general (Michael K. Brown, senior assistant attorney general, on the memorandum of law and orally), for the New Hampshire Division for Children, Youth and Families.
The mother appeals the Superior Court's (Burling , J.) refusal to hold a de novo hearing on an appeal of an adjudicatory order issued by the Plymouth Family Division dismissing abuse and neglect petitions against the father. We reverse and remand.
The family division found the following facts. The mother and father were married on June 17, 1994, in Austin, Texas. The parties have three children. In June 2001, the mother moved with the children to Plymouth. On September 10, 2001, the mother contacted the New Hampshire Division for Children, Youth and Families (DCYF) to allege that the father had sexually abused the children while they were living in Texas. DCYF initiated an investigation. The father subsequently filed for divorce in Texas. On September 8, 2003, a Texas court issued a final divorce decree and awarded the father permanent physical custody of the parties' children. Between September 23 and December 4, 2003, DCYF filed eight abuse and neglect petitions against the father in the family division. Prior to the commencement of trial, the children were placed in foster care under the supervision of DCYF. The family division held three days of trial on DCYF's petitions in February and March of 2004.
On April 21, 2004, the Family Division (MacLeod, Jr. , J.) issued an adjudicatory order dismissing all eight abuse and neglect petitions against the father based upon DCYF's failure to meet its burden of proof. The mother appealed the order to the superior court pursuant to RSA 169–C:28. At the mother's request, the family division suspended the adjudicatory order pending the outcome of the appeal. All three children were to remain in foster care in New Hampshire during the appeal. RSA 169–C:28, I (2002) states, in pertinent part:
On August 5, 2004, the superior court held a hearing at which DCYF withdrew its abuse and neglect petitions against the father. The superior court ruled that the mother was entitled to bring an appeal pursuant to RSA 169–C:28 as a "party having an interest." Nonetheless, the superior court granted the father's motion to dismiss the appeal on the ground that the superior court "no longer ha[d] a petition over which the appeal [could] further proceed." The superior court also directed the mother to file her own petition against the father in the family division. Later that day, the mother filed three abuse and neglect petitions against the father with the family division. The children returned to Texas with the father and remain there today.
On August 20, 2004, the Family Division (MacLeod, Jr. , J.) dismissed the mother's petitions, stating, "The [mother] has not exhausted her appellate remedies in these cases in the Superior Court or the Supreme Court." The family division denied the mother's motion for reconsideration, and she did not appeal the dismissal of her own petitions to the superior court.
On August 25, 2004, the superior court denied the mother's motion to reconsider the dismissal of her de novo appeal of the adjudicatory order. On September 21, 2004, the mother appealed to this court to review the superior court's dismissal of her appeal of the adjudicatory order.
The sole issue on appeal is whether the superior court erroneously granted the father's motion to dismiss the mother's appeal. The superior court dismissed the appeal on the ground that it "no longer ha[d] a petition over which the appeal [could] further proceed," as DCYF had withdrawn its underlying petitions. On appeal, we will sustain the findings and rulings of the trial court unless they are unsupported by the evidence or tainted by error of law. In re Thomas M., 141 N.H. 55, 57, 676 A.2d 113 (1996).
The superior court ruled that the mother was entitled to bring an appeal pursuant to RSA 169–C:28 as a "party having an interest." The father does not challenge this ruling. We have held that the statutory mandate under RSA 169–C:28 that "[t]he superior court shall hear the matter de novo" leaves no room for the exercise of discretion. Id. at 59, 676 A.2d 113 (quotation omitted); see also In re Robyn W., 124 N.H. 377, 379, 469 A.2d 1351 (1983) (). Therefore, the superior court must conduct a hearing de novo on the family division's dismissal of DCYF's abuse and neglect petitions.
The father argues that notwithstanding the mother's statutory entitlement to a hearing, the superior court's dismissal was proper as there was "no case or controversy" before the superior court once DCYF withdrew its petitions. That argument is unsupported by the plain language of RSA 169–C:28, I, which requires the superior court to "hear the matter de novo." We have defined a "hearing de novo " in the context of RSA 169–C:28 to mean: (1) A reviewing court's decision of a matter anew, giving no deference to a lower court's...
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...was before the court in both instances; and (3) the first action ended with a final judgment on the merits. In re Juvenile 2004–637, 152 N.H. 805, 808, 888 A.2d 422 (2005). Examination of this doctrine reveals that it does not apply here. A cause of action is “the underlying right that is p......
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...was before the court in both instances; and (3) the first action ended with a final judgment on the merits. In re Juvenile 2004–637, 152 N.H. 805, 808, 888 A.2d 422 (2005). Gray does not contest the first and the third elements. Accordingly, we must determine only whether the February 2006 ......
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...that could have been litigated, in an earlier action between the same parties for the same cause of action. In re Juvenile 2004–637, 152 N.H. 805, 808, 888 A.2d 422 (2005). For the doctrine to apply, three elements must be met: (1) the parties must be the same or in privity with one another......
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Meier v. Town of Littleton, 2005-399.
...that could have been litigated, in an earlier action between the same parties for the same cause of action. In re Juvenile 2004-637, 152 N.H. 805, 808, 888 A.2d 422 (2005). For the doctrine to apply, three elements must be met: (1) the parties must be the same or in privity with one another......