City of Claremont v. Truell, s. 83-206

Citation489 A.2d 581,126 N.H. 30
Decision Date07 February 1985
Docket NumberNos. 83-206,84-123,s. 83-206
PartiesCITY OF CLAREMONT v. Elroy TRUELL et al. TOWN OF WALPOLE v. John and Kathleen FOSTER.
CourtSupreme Court of New Hampshire

Elliott, Jasper & Bennett, Newport (Louie C. Elliott, Jr., Newport, on brief and orally), for City of Claremont.

Law Office of Michael J. Work, Newport (Peter Y. Wolfe, Newport, on brief and orally), for Elroy and Doris Truell.

Bradley, Talbot & Burnett, Keene (Homer S. Bradley, Keene, on brief and orally), for Town of Walpole.

Cristiano, Kromphold, Green, McMahon & Heed, Keene (Peter W. Heed, on brief, and Charles A. Donahue, Keene, on brief and orally), for John and Kathleen Foster.

DOUGLAS, Justice.

These are two separate, but consolidated, cases involving issues of liability for child placement costs. The defendants in No. 83-206, Elroy and Doris Truell, appeal an order of the Claremont District Court holding them liable for the expenses incurred in the placement of their child pursuant to RSA chapter 169-D (Supp.1983). The Fosters, defendants in No. 84-123, appeal an order of the superior court permitting the Town of Walpole to place a real estate lien on their home pursuant to RSA 165:28 to secure reimbursement for expenses incurred under RSA chapter 169-D (Supp.1983).

I. Truell

On September 3, 1981, defendant Doris Truell sought the help of the New Hampshire Division of Welfare in dealing with her stepdaughter, who is the daughter of defendant Elroy Truell. An employee of the division advised her to petition the Claremont District Court to declare the girl to be a child in need of services (CHINS) under RSA chapter 169-D (Supp.1983). On September 4, 1981, Mrs. Truell filed the petition and on September 8, 1981, the girl was adjudicated a child in need of services. See RSA 169-D:14 (Supp.1983).

On September 29, 1982, a dispositional hearing was held, see RSA 169-D:17 (Supp.1983), and the Court (Burling, J.) ordered placement of the child. Although it was not then a party to the proceeding, the plaintiff, City of Claremont, was found to be the legally liable unit under former RSA 169-D:29 (Supp.1981) (current version at RSA 169-D:29 (Supp.1983) ), and pursuant to that same provision was liable for all the expenses incurred in the disposition. The court further determined that the defendants could afford to contribute $25.00 per week to the costs of the child's placement, and they were ordered to pay that amount. After the September 29 disposition, additional placements were made under the original petition.

The defendants interpreted the court's order to mean that they were to pay $25.00 per week only while the child was receiving services. The city, however, interpreted the order to mean that the defendants were to pay $25.00 per week until the city had been reimbursed for the total amount of its expenditures.

Consequently, the city filed a motion for clarification of the court's order. A hearing was held, and the court rendered a decision stating that it was its intention to order the payment of $25.00 per week only while the child was actually placed. The court informed the city that if it felt the court lacked the authority to determine the total liability of the parties, then the city should file suit seeking recovery against the parents.

On January 4, 1983, the city commenced the present action against the defendants seeking reimbursement of the $4,924.96 incurred by the city for the care of the child. The defendants responded by way of a motion to dismiss claiming, among other things, that the doctrine of res judicata barred relitigation of the issue, and that they were not notified of their financial obligations, in violation of their due process rights. On April 19, 1984, judgment was rendered for the city in the amount of $4,924.96, plus interest and costs. The Truells appeal that decision.

II. Foster

On October 6, 1981, Deputy Sheriff Thomas MacQuarrie of the Cheshire County Sheriff's Department filed a petition in the Keene District Court, alleging that Barry Foster, the son of defendant John Foster and stepson of defendant Kathleen Foster, was a child in need of services. See RSA 169-D:5 (Supp.1983). Barry was adjudicated a child in need of services, see RSA 169-D:14 (Supp.1983), and, after a dispositional hearing, was placed at Odyssey House, Inc. in Hampton. See RSA 169-D:17 (Supp.1983). The Town of Walpole was found to be the legally liable unit under former RSA 169-D:29 (Supp.1981) (current version at RSA 169-D:29 (Supp.1983) ) and was thereby liable for all the expenses incurred in the disposition.

On December 17, 1981, the Keene District Court conducted a "hearing on liability of parents." The Court (Davis, J.) found "no ability on the parents to contribute to the support of the minor."

In August 1982, the Town of Walpole, relying on former RSA 169-D:29 (Supp.1981) (current version at RSA 169-D:29 (Supp.1983) ) and RSA chapter 165 (1977 & Supp.1983), initiated the present action against the Fosters. It sought reimbursement of $11,235, together with costs and interest, for the placement of Barry at Odyssey House. The town also petitioned the court for permission to place a lien on the Fosters' home, pursuant to RSA 165:28, to secure reimbursement of the expenses that the town incurred under RSA chapter 169-D (Supp.1983).

The Fosters responded to the writ, asking the court to dismiss the action on the grounds that, first, they had not been afforded notice that the town could seek reimbursement of the expenses incurred in the placement of their child and, second, the town was not entitled to a lien under the provisions of RSA chapter 165 (1977 & Supp.1983). On January 23, 1984, the Superior Court (O'Neil, J.) authorized the town to place a real estate lien on the Fosters' home to secure the reimbursement sought. The Fosters brought this appeal.

III. Due Process Claims

The defendants in both actions first argue that the municipalities failed to provide them with adequate notice of the claims against them in violation of the due process protections guaranteed by part I, article 15 of the New Hampshire Constitution and the fourteenth amendment to the United States Constitution. The substance of their argument is that they were entitled to notice that the proceedings under RSA chapter 169-D (Supp.1983) could affect their property interests. It is their position that for notice of their statutory liability to pass constitutional scrutiny, it must be adequate and it must be given at a meaningful time.

A reimbursement proceeding pursuant to RSA chapter 169-D (Supp.1983) is one in which an individual may be deprived of significant property rights and, therefore, implicates due process considerations. See Duffley v. N.H. Intershol. Ath. Assoc., Inc., 122 N.H. 484, 490, 446 A.2d 462, 466 (1982); White v. Lee, 124 N.H. 69, 75, 470 A.2d 849, 853 (1983). It is well settled that "[a]n elementary and fundamental requirement of due process ... is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950); Sununu v. Clamshell Alliance, 122 N.H. 668, 672-73, 448 A.2d 431, 434 (1982). The type of notice that is required in a given case depends upon the nature of the governmental interest and the private interests affected. See Royer v. State Dep't of Empl. Security, 118 N.H. 673, 678, 394 A.2d 828, 831 (1978).

An analysis of the governmental and private interests affected must begin with an examination of the statute. RSA 169-D:5 (Supp.1983) permits any person to file a petition alleging a child is in need of services and prescribes the information to be contained in the petition. Once a legally sufficient petition has been filed, RSA 169-D:6 (Supp.1983) directs the court to issue a summons to the person having custody or control of the child and to the parents of the child, if the parents do not have custody and control, informing them of the pendency of the petition and requiring them to appear with the child within a specified time period. An adjudicatory hearing is then held to determine whether the child is in need of services. RSA 169-D:14, I (Supp.1983). If the court so determines, an investigation must be conducted and a report prepared. RSA 169-D:14, III (Supp.1983). The court then holds a dispositional hearing and orders the least restrictive and most appropriate disposition on the basis of the facts of the case, the investigation report and the dispositional recommendation of the parties and counsel. RSA 169-D:17, I (Supp.1983).

Once a dispositional order is issued, any expenses incurred are paid in the first instance by the city or town in which the child resided at the time of the filing of the CHINS petition. RSA 169-D:29, I (Supp.1983). The town has a statutory right to reimbursement from the person chargeable by law for the child's support. Id. When the town seeks reimbursement, the court orders payment "as may be reasonable and just, based on the person's ability to pay." Id.

The government's interests under RSA chapter 169-D (Supp.1983) are that the child receives needed services and that the town recovers the costs of those services from the person responsible for the child's support. The private interest is significant, in that the proceedings under RSA chapter 169-D (Supp.1983) may result in the permanent loss of property. In many instances, the parents from whom reimbursement is sought already are burdened with financial difficulties. Consequently, such a deprivation could have a meaningful impact on a family's well-being.

RSA chapter 169-D (Supp.1983) was enacted to provide services to children experiencing behavioral difficulties. RSA 169-D:1, I (Supp.1983). Parents were to be made aware of their role in the contribution to and solution of their child's...

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