In re D.O.

• Decision Date: 13 February 2020
• Docket Number: No. 2019-0369,2019-0369
• Citation: 237 A.3d 256,173 N.H. 48
• Parties: IN RE D.O.
• Court: New Hampshire Supreme Court

173 N.H. 48

237 A.3d 256

IN RE D.O.

No. 2019-0369

Supreme Court of New Hampshire.

Submitted: November 20, 2019

Opinion Issued: February 13, 2020

Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior assistant attorney general, on the memorandum of law), for the petitioner.

Smith-Weiss Shepard, P.C., of Nashua (Tanya L. Spony on the brief), for the respondent.

HANTZ MARCONI, J.

The respondent, the father of the juvenile (Father), appeals an order of the Superior Court (Nicolosi, J.) denying his motion for permission to file a late appeal of an adverse ruling issued by the Circuit Court (Ryan, J.) on an abuse and neglect petition brought by the petitioner, the New Hampshire Division for Children, Youth and Families (DCYF). The superior court found that Father failed to demonstrate "good cause" for filing a late appeal. We reverse the superior court's denial of Father's motion to file a late appeal and remand.

The relevant facts follow. On December 11, 2018, the circuit court issued an adjudicatory order in an abuse and neglect proceeding, finding that Father had neglected his daughter, D.O., and that D.O.'s mother (Mother) had both abused and neglected her. The dispositional hearing was held on January 15, 2019. According to Father and not disputed by DCYF, Mother timely appealed the circuit court's final dispositional order concerning her to the superior court. Ninety-two days after the circuit court issued its final dispositional order concerning Father, he moved for permission to file a late appeal. Father averred that the attorney for the child and the attorney for the child's mother had assented to his late filing, that his attorney had not filed the motion earlier because she was out on maternity leave, that there had been "a misunderstanding regarding the filing of the appeal," and that the parties had not yet appeared in superior court.

DCYF objected, arguing that the superior court lacked subject matter jurisdiction over Father's appeal because he failed to file it within the 30-day deadline imposed by RSA 169-C:28, I (2014). Father countered that his failure to comply with the appeal period did not deprive the superior court of subject matter jurisdiction. The superior court denied Father's motion, stating: "Having considered the history of this case and the reasons provided for failing to file [an] appeal in a timely manner ..., no good cause is found to allow the late appeal."¹ This appeal followed.

Thereafter, Mother moved to recuse the superior court judge for reasons unrelated to this appeal. In its order granting that motion, the superior court noted that Father's appeal of its denial of his motion to file a late appeal was pending in this court and that "[t]he parties prefer [their] cases to be tried together in the event the decision is reversed."

"Subject matter jurisdiction is jurisdiction over the nature of the case and the type of relief sought: the extent to which a court can rule on the conduct of persons or the status of things." Appeal of Cole, 171 N.H. 403, 408, 196 A.3d 950 (2018). "In other words, it is a tribunal's authority to adjudicate the type of controversy involved in the action." Id. "A court lacks power to hear or determine a case concerning subject matter over which it has no jurisdiction." Id. "A party may challenge subject matter jurisdiction at any time during the proceeding, including on appeal, and may not waive subject matter jurisdiction." Id.

Whether compliance with a statutory appeal period is intended as a prerequisite to the appellate court having subject matter jurisdiction is a matter of legislative intent. See Phetteplace v. Town of Lyme, 144 N.H. 621, 624-25, 744 A.2d 630 (2000). Thus, determining whether the failure to comply with the 30-day appeal period in RSA 169-C:28 (2014) deprived the superior court of subject matter jurisdiction requires that we engage in statutory interpretation.

We review the superior court's statutory interpretation de novo. Petition of Carrier, 165 N.H. 719, 721, 82 A.3d 917 (2013). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole. Id. This construction enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id.

RSA 169-C:28 provides the only statutory right of appeal from a final dispositional order in an abuse or neglect proceeding. See In re C.O., 171 N.H. 748, 759, 203 A.3d 870 (2019). Pursuant to RSA 169-C:28, I, "[a]n appeal ... may be taken to the superior court by the child or the child's authorized representative or any party having an interest, including the state, or any person subject to any administrative decision pursuant to [RSA chapter 169-C], within 30 days of the final dispositional order." If an appeal is filed under RSA 169-C:28, I, the superior court must hear the matter de novo. RSA 169-C:28, I.

Father argues that RSA 169-C:28, I, does not, in fact, require that appeals be filed within thirty days of a final dispositional order because the statute uses the word "may." Although Father is correct that the word "may" is permissive, in context, the word does not modify the appeal period, but rather refers to the discretion of the party who, having received a final dispositional order from the circuit court, may then decide whether or not to appeal it. See Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 652, 745 A.2d 481 (2000) (explaining that the last antecedent rule of statutory construction generally requires that qualifying phrases are to be applied to the words or phrases immediately preceding and are not to be construed to apply to others more remote).

DCYF argues that the superior court lacked subject matter jurisdiction over Father's appeal because he failed to file it within the statutory deadline. To support its argument, DCYF relies upon cases discussing appeals from administrative bodies. In that context, we have held that compliance with a statutory deadline for filing an appeal "is a necessary prerequisite to establishing jurisdiction in the appellate body." Dermody v. Town of Gilford, 137 N.H. 294, 296, 627 A.2d 570 (1993) (quotation omitted). In Dermody, for instance, which involved a challenge to a planning board decision under RSA chapter 677, we explained that "[f]iling an appeal in a timely manner vests the superior court with subject matter jurisdiction," and that because the plaintiffs did not file their appeal within the requisite statutory appeal period, "subject matter jurisdiction was never conferred upon the superior court." Id.; see Appeal of Carreau, 157 N.H. 122, 123, 945 A.2d 687 (2008) (addressing administrative board appeals under RSA chapter 541).

In that context, we have also held that courts lack authority to waive jurisdictional deadlines for equitable reasons: if an appeal is filed just one day late, it must be dismissed. See Appeal of Cole, 171 N.H. at 408, 196 A.3d 950 ; see also United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (explaining that because "subject-matter jurisdiction ... involves a court's power to hear a case," a lack of subject matter jurisdiction "can never be forfeited or waived"); In re Doe, 126 N.H. 719, 725, 495 A.2d 1293 (1985) (clarifying that a party may waive a defect in personal jurisdiction, but may not waive a defect in subject matter jurisdiction).

In Phetteplace, we extended our reasoning from cases developed in the administrative appeal context to appeals governed by RSA 76:17 (Supp. 2019), which concerns petitions to the superior court challenging municipal denial of tax abatement requests. Phetteplace, 144 N.H. at 623-25, 744 A.2d 630. RSA 76:17 provides, in pertinent part, that "[t]he appeal shall be filed on or before September 1 following the date of notice of tax." In Phetteplace, we held that the requirement to file an appeal to the superior court by September 1 was a necessary prerequisite to vesting that court with subject matter jurisdiction over the appeal. Phetteplace, 144 N.H. at 625, 744 A.2d 630. The legislature, we explained, "could not have more clearly expressed its intent to require appeals to be filed by a date certain." Id. at 624, 744 A.2d 630. Accordingly, we held that when the plaintiffs failed to file their appeal by September 1, "the superior court did not have jurisdiction to hear their appeal and properly dismissed it." Id. at 625, 744 A.2d 630 ; cf. Appeal of City of Concord, 161 N.H. 169, 172-73, 13 A.3d 287 (2010) (deciding that a taxpayer's failure to file an abatement petition within the statutory time period deprived the New Hampshire Board of Tax and Land Appeals of appellate jurisdiction).

In the cases described above, without any extended analysis, we equated statutory appeal periods that are mandatory with statutory time limits that are jurisdictional in the subject matter sense. DCYF invites us to further extend this reasoning, developed in the administrative appeal context, to appeals brought under RSA 169-C:28, I. We decline DCYF's invitation.

In arguing that his failure to comply with the 30-day limit did not deprive the superior court of subject matter jurisdiction, Father relies upon a related line of cases in which we considered statutory...