Doe, In re

• Decision Date: 03 July 1985
• Docket Number: Docket No. 83-454
• Citation: 495 A.2d 1293,126 N.H. 719
• Parties: In re Jane DOE.
• Court: New Hampshire Supreme Court

Page 1293

495 A.2d 1293

126 N.H. 719

In re Jane DOE.

Docket No. 83-454.

Supreme Court of New Hampshire.

July 3, 1985.

McLane, Graf, Raulerson & Middleton P.A., Manchester, and Ronald K. Lospennato, Developmental Disabilities Advocacy Center, Inc., Concord (Robert E. Murphy, Jr. and Mr. Lospennato on brief and orally), for the father of Jane Doe.

Engel & Morse P.A., Exeter (Lynn D. Morse on brief and orally), for the Town of Kingston.

Soule, Leslie, Bronstein & Zelin, Salem (Gerald M. Zelin on brief and orally), for the Sanborn Regional School Dist.

Gregory H. Smith, Atty. Gen. (Douglas L. Patch, Asst. Atty. Gen., on brief and orally), for the State.

Kenyon, McCaffrey & Sisemoore, Exeter (Brian D. Kenyon), for Jane Doe, filed no brief.

SOUTER, Justice.

The plaintiff has petitioned this court to exercise original jurisdiction by issuing a writ of certiorari or a writ of prohibition directed to the Plaistow District Court. The plaintiff seeks review of orders issued ostensibly under RSA 169-C:27 (Supp.1983), requiring him to reimburse the Town of Kingston for certain services rendered to his child, known herein as Jane Doe. We grant the petition for writ of certiorari and exercise our jurisdiction thereunder by vacating the district court's orders in question.

An abbreviated statement of facts follows. At all relevant times the plaintiff and his family were residents of the Town of Kingston and of the Sanborn Regional School District. On May 7, 1982, the Kingston Police Department filed a complaint in the Plaistow District Court, charging that the plaintiff's daughter Jane Doe was an abused child within the meaning of RSA 169-C:3, II(e) (Supp.1983) (providing that abuse may consist of non-accidental physical injury). The complaint alleged that the plaintiff had allowed his wife, the child's stepmother, to beat the child with a lawnmower belt.

On May 14, 1982, at a preliminary hearing under RSA 169-C:15 (Supp.1983), the Court (Andernacht, J.), found reasonable cause to believe that Jane was abused, awarded custody to the New Hampshire Division of Welfare, and found the Town of Kingston responsible for expenses in the first instance. See RSA 169-C:27 (Supp.1983). The court held a further hearing on June 11, 1982, at which it made no further findings but continued the custody order and ordered psychological evaluations of the plaintiff and his wife.

At a hearing on October 8, 1982, the court examined reports from a psychologist and a social worker. The psychologist concluded that the plaintiff and his wife were not abusive or neglectful. The social worker concluded that they were not "unfit," "abusive or neglectful," but that Jane was "disturbed." There was no question that the stepmother had struck the child once. The court then made a finding that Jane was "a disturbed child rather than an abused child." It nonetheless continued custody in the division of welfare and ordered that Jane be placed in "an appropriate residential treatment facility." No party objected to or appealed the finding that Jane was not an abused child.

The division of welfare then enrolled Jane in a residential school in Massachusetts. The Town of Kingston thereafter petitioned the court for an order holding the plaintiff liable to reimburse the town for expenses incurred on the child's behalf. See id.

In response to the town's petition, on February 1, 1983, the court ordered the plaintiff to pay the town the amount he received each month in certain social security payments for Jane's benefit. The plaintiff responded by motion dated February 28, 1983, seeking reconsideration of the February 1 order. He argued that the order exceeded the authority of the court and claimed that Jane was an emotionally handicapped child within the meaning of RSA 169-C:20 (Supp.1983), and thus entitled to a "free and appropriate education" under 20 U.S.C.A. §§ 1401-1454 (West 1978 and Supp.1984) and RSA chapter 186-C (Supp.1983) at the expense of the school district. On March 25, 1983, a Special Justice (Hurd, J.), vacated the February 1 order but instead ordered the plaintiff to pay the town $80.00 a week as reimbursement. The court did not rule on the claim that Jane was educationally handicapped, which was the subject of administrative proceedings.

By motion dated April 7, 1983, the plaintiff moved for reconsideration of the March 25 order, claiming that the October 8, 1982, order "exceeded the authority of this Court" in that it continued the custody of the division of welfare over Jane, even though it found that she was not an abused child. For reasons not relevant here, the court did not act on this motion until October 6, 1983. In the meantime the plaintiff engaged unsuccessfully in the administrative proceedings to have Jane declared educationally handicapped and entitled to receive the Massachusetts schooling at public expense.

In September 1983, in anticipation of the hearing on the plaintiff's April 7 motion, the division of welfare filed a motion in limine, seeking a ruling that the October 8, 1982, order was a final order within the meaning of RSA 169-C:21 (Supp.1983). On October 6, 1983, a new Special Justice (Swasey, J.), granted the motion in limine. He reasoned that the finding that Jane was disturbed but not abused was an attempt to "avoid stigmatizing the parties," which nonetheless functioned implicitly as a "valid and supportable finding" that Jane was an abused child within the meaning of RSA 169-C:3, II(d) (Supp.1983) (providing that abuse may consist of psychological injury manifested in "symptoms of emotional problems generally recognized to result from consistent mistreatment or neglect").

The special justice concluded that the October 8, 1982, order implying this finding, was both a final and a dispositional order, for which the appeal period had expired after 30 days in accordance with the terms of RSA 169-C:28 (Supp.1983). Having thus concluded that on October 8, 1982, the court had actually found Jane to be an abused child, the special justice rejected the argument that the court lacked jurisdiction to continue custody in the division of welfare at the plaintiff's ultimate expense. Accordingly, the special justice reaffirmed the earlier order of March 25, 1983, requiring the plaintiff to reimburse the town for expenses. On November 4, 1983, the plaintiff filed the present petition.

Although the plaintiff has raised a number of legal and constitutional issues before this court, our affirmative rulings on the following claims are dispositive: it is appropriate for this court to grant a writ of certiorari to determine whether the district court had jurisdiction to issue the order of October 8, 1982, relating to custody and placement, despite the finding that Jane was not abused; the district court lacked jurisdiction to issue the custody and placement provisions of that order; consequently, the court lacked jurisdiction to order the plaintiff to reimburse the town for the expenses incurred on behalf of the child.

We take up first the issue of the plaintiff's right to seek review of the jurisdictional question by means of a writ of certiorari issued by this court in the first instance at this time. Review on certiorari is an extraordinary remedy, usually available only in the absence of a right to appeal and only at the discretion of the court, to determine whether another tribunal has acted "illegally in respect to jurisdiction, authority or observance of the law ... or has abused its discretion or acted arbitrarily or capriciously." State v. Brackett, 122 N.H. 716, 718, 449 A.2d 1210, 1212 (1982). Although petitions for writs of certiorari are not generally subject to a statute of limitations, such a statute may provide a guide for determining the timeliness of a request for certiorari review. Wilson v. Personnel Comm'n, 117 N.H. 783, 784, 378 A.2d 1375, 1377 (1977).

Given these standards, we must determine whether the plaintiff could have obtained review of the district court orders in question by means of an appeal or other form of review without invoking the certiorari jurisdiction of this court in the first instance. If any other form of review was possible we must then determine whether the plaintiff was at fault for not availing himself of it. If after these inquiries we conclude that this court's review on certiorari was open to the plaintiff, we must determine whether his petition for review was timely.

We begin by considering the availability of other means of reviewing district court orders in an abuse proceeding under RSA chapter 169-C (Supp.1983). There are essentially two kinds of orders from which a parent may seek review in such a proceeding, and the means of review will vary according to the type of order in question. The first kind are orders under RSA 169- C:18 (Supp.1983) finding a child abused, and ensuing dispositional orders under RSA 169-C:19 (Supp.1983) making provision for custody and placement. RSA 169-C:28 (Supp.1983) provides for appeal and hearing de novo in the superior court within 30 days from a final dispositional order under RSA 169-C:19 (Supp.1983). The second kind are orders under RSA 169-C:27 (Supp.1983) requiring a parent to reimburse a town or other governmental entity for the expenses of dealing with an abused child. The statute provides no appeal from these latter orders, and review is available only by petition for writ of certiorari, normally in the superior court. In re John M. and David C., 122 N.H. 1120, 1130, 454 A.2d 887, 893 (1982). See Bothwick v. State, 119 N.H. 583, 590, 406 A.2d 462, 467 (1979) (superior court has concurrent jurisdiction with supreme court to issue writs of certiorari).

It would be unrealistic to consider whether either of these alternative means of review was open to the plaintiff without recognizing that the plaintiff was faced with a highly anomalous situation. The statute contemplates that there will be no order for reimbursement...