Robyn W., In re, 82-549

• Citation: 124 N.H. 377,469 A.2d 1351
• Decision Date: 29 December 1983
• Docket Number: No. 82-549,82-549
• Parties: In re ROBYN W.
• Court: New Hampshire Supreme Court

Page 1351

469 A.2d 1351

124 N.H. 377

In re ROBYN W.

No. 82-549.

Supreme Court of New Hampshire.

Dec. 29, 1983.

The Legal Clinics, Portsmouth (John M. Lewis, Portsmouth, on brief, and David M. Cline, Portsmouth, on brief and orally), for plaintiff.

Bernard J. Robertson, Exeter, on brief and orally, for defendant.

KING, Chief Justice.

In June 1979, the New Hampshire Legislature amended RSA 170-C:11, V (Supp.1983) to provide that a court in a parental rights termination proceeding issue a decision within sixty days after the final hearing. The issue in this case is whether RSA 170-C:11, V (Supp.1983) requires that a decision of a probate court, terminating the parental rights of a parent, released 206 days after the statutory deadline, be vacated. We hold that the language and legislative intent of RSA 170-C:11, V (Supp.1983) mandate that a court issue a decision within sixty days after the final hearing, unless its failure to comply with the prescribed time limit is de minimis. For the following reasons, we affirm.

On September 28, 1981, the plaintiff, Dorothy S., filed a petition in Rockingham County Probate Court to terminate the parental rights of the defendant, Mark W., over Robyn W., their three-year-old child. A hearing was held on February 17, 1982 (Cassavechia, Acting Judge). On April 22, 1982, four days after the end of the sixty-day time limit for issuance of a decision, an order had not been issued by the probate court, and the defendant moved to dismiss the case for lack of jurisdiction. The probate court never acted upon this motion. The probate court had also failed to render a decision by October 20, 1982, when the plaintiff petitioned the probate court for judgment. The petition for judgment and the defendant's subsequent objection to the petition were never addressed by the court. Finally, on November 10, 1982, 266 days after the hearing, the probate court issued a decree terminating the parental rights of the defendant.

The defendant appeals the decision of the probate court, asserting that the probate court did not have jurisdiction to issue a decision terminating parental rights, after sixty days had elapsed from the date of the hearing.

RSA 170-C:11, V (Supp.1983) provides that a court in a parental rights termination proceeding "shall issue a decision which shall include a disposition not later than 60 days after the date of the final hearing." (Emphasis added.)

Our inquiry requires us to construe the meaning of RSA 170-C:11, V (Supp.1983) to determine whether its language is directory or mandatory. We must determine the intent of the legislature in enacting the statute. Corson v. Brown Products, Inc., 119 N.H. 20, 23, 397 A.2d 640, 642 (1979). We begin our inquiry with an examination of the language of the statute itself. State Employees' Ass'n of N.H. v. Bd. of Trustees, 120 N.H. 272, 273, 415 A.2d 665, 666 (1980). This court will ascribe to the crucial words of the statute their plain and ordinary meaning. See RSA 21:2.

The general rule of statutory construction is that the word "shall" is a command which requires mandatory enforcement. Town of Nottingham v. Harvey, 120 N.H. 889, 895, 424 A.2d 1125, 1129 (1980); In re Russell C., 120 N.H. 260, 264, 414 A.2d 934, 936 (1980). "This rule is particularly forceful when the command is addressed to a public official." Silva v. Botsch, 120 N.H. 600, 602, 420 A.2d 301, 302 (1980).

The plain meaning of the word "shall" in RSA 170-C:11, V (Supp.1983) clearly indicates that the legislature intended to make mandatory the sixty-day time limit for the issuance of a parental rights termination decision.

The plaintiff, however, argues that a literal interpretation of the word "shall" would produce an illogical result by nullifying the basic purpose of RSA chapter 170-C, which is to protect the best interests of children. See In re Russell C., 120 N.H. at 264, 414 A.2d [124 N.H. 380] at 936 (a statute should not be interpreted to lead to an absurd, unjust, or illogical result). The plaintiff contends that a strict interpretation of the sixty-day requirement would only result in continued uncertainty in this case over who is the father of Robyn W. Thus, the plaintiff concludes that the legislature intended that the statute be directory. We disagree.

While we are sympathetic to the laudable concerns of the plaintiff, we believe that the interpretation of the word "shall" in its mandatory sense is consistent with the goals of the legislature. The legislative history of Chapter 332, section 3, of the New Hampshire Laws of 1979 (codified at RSA 170-C:11, V (Supp.1983)) (formerly House Bill 852) indicates that the legislature sought to prevent lengthy delays in probate court decision-making in parental rights termination proceedings:

"[H.B. 852] ... requires more specifically that the probate court issue a decision within 60 days after the final hearing. In these cases there are proposed parents who want to adopt these children and sometimes the probate court has held up these evaluations for literally months and sometimes years. It is the feeling of the committee ... unanimously that this bill should pass so that the probate court will speed up its passage and in fact have an answer within 60 days."

Senator Roy, N.H.S.Jour. 1269 (1979).

In view of the intent of the legislature in passing H.B. 852, we do not find it absurd, unjust, or illogical to construe RSA 170-C:11, V (Supp.1983) to require that a court render its decision within sixty days of the final hearing.

Here, the order was issued on a date well beyond the statutorily prescribed limit. Furthermore, the...