Cindy G., In re

• Decision Date: 05 October 1983
• Docket Number: Nos. 82-499,82-515,s. 82-499
• Citation: 124 N.H. 51,466 A.2d 943
• Parties: In re CINDY G. In re ROGER D.
• Court: New Hampshire Supreme Court

Page 943

466 A.2d 943

124 N.H. 51

In re CINDY G.In re ROGER D.

Nos. 82-499, 82-515.

Supreme Court of New Hampshire.

Oct. 5, 1983.

Gregory H. Smith, Atty. Gen. (Marc R. Scheer, Asst. Atty. Gen., on brief and orally), for the State in No. 82-499.

Ahlgren & Smith, Manchester (Robert D. Smith, Manchester, on brief and orally), for Cindy G. in No. 82-499.

Gregory H. Smith, Atty. Gen. (Betsy S. Westgate, Asst. Atty. Gen., on brief, and Marc R. Scheer, Asst. Atty. Gen., orally), for the State in No. 82-515.

Michael R. Chamberlain, Manchester, by brief and orally, for the mother of Roger D. in No. 82-515.

KING, Chief Justice.

These cases were consolidated because they require us to interpret two similar statutory sections, RSA 169-B:29 (Supp.1981)andRSA 169-D:20 (Supp.1981), which provide for de novo appeals to the superior court in certain circumstances in cases involving delinquent children and children in need of services.

I. Cindy G.

On March 4, 1981, Cindy G. was arraigned in Manchester District Court, Juvenile Division, on the charge that she was a delinquent child, in that she had committed the crime of simple assault.Cindy G. pleaded "true" to the charge.At a dispositional hearing on July 16, 1981, Cindy G. was committed to the Youth Development Center (YDC) for the term of her minority, but the sentence was suspended on the condition that Cindy G. reside with her parents and observe a curfew.She was also placed on probation until June 30, 1982.Cindy G. did not appeal this sentence.

In May 1982, Cindy G. was charged with a probation violation.On June 2, 1982, after a hearing on the charge, Cindy G. was found to have violated probation and was ordered to be committed to the YDC, but the execution of the sentence was stayed until June 16, 1982.On that date, the execution of the sentence again was stayed until October 28, 1982.

A hearing was scheduled for September 10, 1982, for the purpose of reviewing the stay of execution.Cindy G.'s probation officer notified Cindy G. and Cindy G.'s mother of the hearing by telephone, although Cindy G. denies receiving notice.While Cindy G. was not present at the hearing, her counsel did attend.Cindy G.'s father also attended the hearing and told the court that Cindy G. had run away from home.After being informed that Cindy G. had run away, the district court ruled that Cindy G. had forfeited her right to a hearing through her deliberate absence, and lifted the stay of execution.He ordered that she be committed to the YDC for the term of her minority.

Cindy G. was arrested several days later and taken to the YDC.She then obtained new counsel, and filed a notice of appeal to the superior court for a trial de novo.The State filed a motion in superior court to remand the case to the district court, on the ground that the period for appeal had ended on July 2, 1982, thirty days after Cindy G.'s commitment to the YDC, even though at that time the execution of the sentence had been stayed.After a hearing on the State's motion, the Superior Court(Contas, J.) granted the State's motion to remand the case to district court and Cindy G. appealed.

II.Roger D.

On March 4, 1982, Roger D. was adjudicated a "child in need of services."After a dispositional hearing, the Nashua District Court ordered Roger D. placed in the Spaulding Youth Center, finding that all parties agreed to this placement.The court directed that the disposition be reviewed in six months.Roger D. did not exercise his right to appeal provided by RSA 169-D:20 (Supp.1981), nor did his mother appeal.

Several months after Roger D.'s placement at the Spaulding Youth Center, his mother became concerned that the Spaulding program was not helping him.On July 22, 1982, and again on August 27, 1982, hearings were held in district court concerning Roger D.'s placement there.The district court refused to modify the disposition ordered on March 4, 1982, stating that there was insufficient evidence to support a finding that there had been a change of circumstances, seeRSA 169-D:19 (Supp.1981), and subsequently denied the mother of Roger D.'s motion for reconsideration.

The mother of Roger D. attempted to appeal the district court's decision to the superior court.The State filed a motion in superior court to remand the appeal for lack of jurisdiction on the ground that, under RSA 169-D:20 (Supp.1981), the mother of Roger D.'s right to appeal had ended thirty days after March 4, 1982.After a hearing, the Superior Court(Contas, J.) granted the State's motion to remand the case to district court and Roger D.'s mother appealed.

III.Right of De Novo Appeal Under The Applicable Statutes.

These cases require us to construe the right of de novo appeal provided for in the two statutes governing delinquent children and children in need of services.The language providing for de novo appeal in both statutes is virtually identical.RSA 169-B:29 (Supp.1981) defines the right of appeal in cases involving delinquent children.It provides:

"An appeal, under this chapter, may be taken to the superior court by the minor within 30 days of the final dispositional order; but an appeal shall not suspend the order or decision of the court unless the court so orders.The superior court shall hear the matter de novo, and shall give an appeal under this chapter priority on the court calendar.

(Emphasis added.)RSA 169-D:20 (Supp.1981) defines the right of appeal in cases involving children in need of services.It provides:

"An appeal, under this chapter, may be taken to the superior court by the child, parent, guardian or custodian, within 30 days of the final dispositional order, but an appeal shall not suspend the order or decision of the court unless the court so orders.The superior court shall hear the matter de novo, and shall give an appeal under this chapter priority on the court calendar.

(Emphasis added.)These sections providing for de novo appeals were adopted in 1979 as part of the comprehensive reorganization of RSA chapter 169, the law dealing with abused, neglected and delinquent children, and children in need of services.In re Russell C., 120 N.H. 260, 264, 414 A.2d 934, 936(1980).Under RSA chapter 169, which was repealed in 1979 with the passage of RSA chapters 169-B, 169-C, and 169-D, the right to appeal in cases involving neglected and delinquent children, and children in need of services was defined as follows:

"An appeal may be taken to the superior court from any order or decision of whatever nature made by a district or municipal court, pursuant to this chapter, but an appeal shall not suspend the order or decision of the court unless the court so orders.Such appeal may be taken within thirty days by any party having an interest, including the state, in matters of neglected children.The superior court shall give appeals under this section priority on the court calendar."

Laws 1972, 16:1.

The State contends that in amending the language dealing with appeals in the two statutes under consideration, the legislature intended to limit de novo review of juvenile cases to a single review of the district court's adjudication that a child is delinquent or is in need of services, and of the final disposition by the court immediately after this adjudication.The State claims that the appeal provisions were not intended to apply to a district court's lifting of a stay of execution of a sentence or, to a subsequent district court review of the disposition, such as the district court's review which is required annually, seeRSA 169-B:31 (Supp.1981);RSA 169-D:21 (Supp.1981), or, in the case of children in need of services, the district court's review required upon receipt of a motion for modification, seeRSA 169-D:19 (Supp.1981).

On the other hand, Cindy G. and the mother of Roger D. argue that the amendment of the language of the appeal provision was only intended to eliminate interlocutory appeals and was not intended to limit the de novo review of district court orders to the adjudication and final disposition made immediately after the adjudicatory hearing.They argue that the legislature intended to permit de novo review of every dispositional order of the district courts.

In both RSA chapter 169-B(Supp.1981) and RSA chapter 169-D(Supp.1981), the language creating the right to de novo appeal is the same: "an appeal, under this chapter, may be taken to the superior court ... within 30 days of the final dispositional order...."SeeRSA 169-B:29 (Supp.1981)(emphasis added);RSA 169-D:20 (Supp.1981)(emphasis added).In order to decide whether a party can appeal the lifting of a stay of execution of a sentence or the denial of a motion for modification, we must determine what the legislature meant by the term "the final dispositional order."

In any case involving the interpretation of a statute, we begin by examining the language of the statute itself.N.H.-Vt. Health Serv. v. Comm'n of Ins., 122 N.H. 268, 272, 444 A.2d 508, 509-10(1982).We note initially, that the sections provide for appeals within thirty days of "the final dispositional order."The legislative use of the definite article"the " indicates that the legislature intended to provide for a single appeal.If the legislature had provided for appeals within a limited time after "a final dispositional order,"we would view this as an indication that the right to appeal was not so limited.

In addition, language used in other sections of the statutes also supports this interpretation.Under both statutes a juvenile is entitled to an adjudicatory hearing in district court to determine whether he is a delinquent or a child in need of services.SeeRSA 169-B:16 (Supp.1981);RSA 169-D:14 (Supp.1981).If the district court finds that the child is delinquent or in need of services, the court holds a "hearing on final disposition" or a "final dispositional hearing" within a certain period of time to determine the most...