2004-637, IN RE JUVENILE 2004-637 & a.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial
errors in order that corrections may be made before the opinion goes to press.
Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court's home
page is: http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Grafton
No. 2004-637
IN RE JUVENILE 2004-637 & a.
Argued: October 20, 2005
Opinion Issued: December 9, 2005
Bronwyn Asplund-Walsh, of Franklin, by brief and orally, for the mother.
Boyle Law Office, PLLC, of Plymouth (John F. Boyle on the memorandum
of law and orally), for the father.
Kelly A. Ayotte, attorney general (Michael K. Brown, senior assistant
attorney general, on the memorandum of law and orally), for the New
Hampshire Division for Children, Youth and Families.
DALIANIS, J. The mother appeals the Superior Court’s (Burling, J.)
refusal to hold a de novo hearing on an appeal of an adjudicatory order issued
by the Plymouth Family Division dismissing abuse and neglect petitions
against the father. We reverse and remand.
The family division found the following facts. The mother and father
were married on June 17, 1994, in Austin, Texas. The parties have three
children. In June 2001, the mother moved with the children to Plymouth. On
September 10, 2001, the mother contacted the New Hampshire Division for
Children, Youth and Families (DCYF) to allege that the father had sexually
abused the children while they were living in Texas. DCYF initiated an

2
investigation. The father subsequently filed for divorce in Texas. On
September 8, 2003, a Texas court issued a final divorce decree and awarded
the father permanent physical custody of the parties’ children. Between
September 23 and December 4, 2003, DCYF filed eight abuse and neglect
petitions against the father in the family division. Prior to the commencement
of trial, the children were placed in foster care under the supervision of DCYF.
The family division held three days of trial on DCYF’s petitions in February and
March of 2004.
On April 21, 2004, the Family Division (MacLeod, Jr., J.) issued an
adjudicatory order dismissing all eight abuse and neglect petitions against the
father based upon DCYF’s failure to meet its burden of proof. The mother
appealed the order to the superior court pursuant to RSA 169-C:28. At the
mother’s request, the family division suspended the adjudicatory order pending
the outcome of the appeal. All three children were to remain in foster care in
New Hampshire during the appeal. RSA 169-C:28, I (2002) states, in pertinent
part:
An appeal under this chapter may be taken to the superior
court by the child or the child’s authorized representative or
any party having an interest . . . 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 . . . . For purposes
of this chapter, a “final dispositional order” includes a dismissal
of a petition for abuse and neglect by the district court.
RSA 169-C:3, XXI-a (2002) defines a “Party having an interest” to mean
“the child; the guardian ad litem of the child; the child’s parent, guardian or
custodian; the state; or any household member subject to court order.”
On August 5, 2004, the superior court held a hearing at which DCYF
withdrew its abuse and neglect petitions against the father. The superior court
ruled that the mother was entitled to bring an appeal pursuant to RSA 169-
C:28 as a “party having an interest.” Nonetheless, the superior court granted
the father’s motion to dismiss the appeal on the ground that the superior court
“no longer ha[d] a petition over which the appeal [could] further proceed.” The
superior court also directed the mother to file her own petition against the
father in the family division. Later that day, the mother filed three abuse and
neglect petitions against the father with the family division. The children
returned to Texas with the father and remain there today.
On August 20, 2004, the Family Division (MacLeod, Jr., J.) dismissed the
mother’s petitions, stating, “The [mother] has not exhausted her appellate
remedies in these cases in the Superior Court or the Supreme Court.” The

3
family division denied the mother’s motion for reconsideration, and she did not
appeal the dismissal of her own petitions to the superior court.
On August 25, 2004, the superior court denied the mother’s motion to
reconsider the dismissal of her de novo appeal of the adjudicatory order. On
September 21, 2004, the mother appealed to this court to review the superior
court’s dismissal of her appeal of the adjudicatory order.
The sole issue on appeal is whether the superior court erroneously
granted the father’s motion to dismiss the mother’s appeal. The superior court
dismissed the appeal on the ground that it “no longer ha[d] a petition over
which the appeal [could] further proceed,” as DCYF had withdrawn its
underlying petitions. On appeal, we will sustain the findings and rulings of the
trial court unless they are unsupported by the evidence or tainted by error of
law. In re Thomas M., 141 N.H. 55, 57 (1996).
The superior court ruled that the mother was entitled to bring an appeal
pursuant to RSA 169-C:28 as a “party having an interest.” The father does not
challenge this ruling. We have held that the statutory mandate under RSA
169-C:28 that “[t]he superior court shall hear the matter de novo” leaves no
room for the exercise of discretion. Id. at 59 (quotation omitted); see also In re
Robyn W., 124 N.H. 377, 379 (1983) (“shall” denotes a mandatory statutory
prescription). Therefore, the superior court must conduct a hearing de novo on
the family division’s dismissal of DCYF’s abuse and neglect petitions.
The father argues that notwithstanding the mother’s statutory
entitlement to a hearing, the superior court’s dismissal was proper as there
was “no case or controversy” before the superior court once DCYF withdrew its
petitions. That argument is unsupported by the plain language of RSA 169-
C:28, I, which requires the superior court to “hear the matter de novo.” We
have defined a "hearing de novo" in the context of RSA 169-C:28 to mean: (1) A
reviewing court's decision of a matter anew, giving no deference to a lower
court's findings; (2) A new hearing of a matter, conducted as if the original
hearing had not taken place. In re Juveniles 2002-511-A, 149 N.H. 592, 594
(2003) (citing Black's Law Dictionary 725 (7th ed. 1999)). Applying this
definition here, we hold that the superior court was required to hear de novo
the merits of the abuse and neglect petitions filed by DCYF and determine
whether the family division properly dismissed the petitions. It is, thus,
irrelevant that DCYF withdrew its petitions after the mother appealed.
The father also argues that the superior court could not have conducted
a hearing de novo, as contemplated by RSA 169-C:28, without the same parties
who appeared in the family division. The father cites no authority to support
this contention, and we decline to read that requirement into the definition of
“hearing de novo” above.

4
We, therefore, conclude that the superior court erred by granting the
father’s motion to dismiss the appeal. The superior court, however, cannot,
and properly did not, force DCYF to go forward with its case against the father
on appeal. Thus, upon remand, the mother must assume the role of petitioner,
and present the case in the superior court.
The father argues that even if the mother prevails here, the family
division’s dismissal of her own petitions and her failure to appeal that
dismissal will bar any hearing in the superior court upon remand pursuant to
the doctrine of res judicata. The essence of the doctrine of res judicata is that
a final judgment by a court of competent jurisdiction is conclusive upon the
parties in a subsequent litigation involving the same cause of action. Brzica v.
Trustees of Dartmouth College, 147 N.H. 443, 454 (2002). Res judicata
precludes the litigation in a later case of matters actually litigated, and matters
that could have been litigated, in an earlier action between the same parties for
the same cause of action. Id. For the doctrine to apply, three elements must
be met: (1) the parties must be the same or in privity with one another; (2) the
same cause of action must be before the court in both instances; and (3) a final
judgment on the merits must have been rendered on the first action. Id.
The family division dismissed the mother’s petitions on the ground that
she had not “exhausted her appellate remedies in these cases in the Superior
Court or the Supreme Court.” Thus, the family division did not dismiss the
mother’s abuse and neglect petitions on their merits. Accordingly, we conclude
that the family division’s dismissal of the mother’s petitions will have no res
judicata effect upon remand.
Finally, we briefly address the custody and placement of the children
upon remand. On April 21, 2004, the family division granted the mother's
motion to suspend the adjudicatory order pending the outcome of the appeal to
the superior court. All three children were to remain in foster care in New
Hampshire during the pendency of the appeal. On August 5, 2004, the
superior court dismissed the appeal. The next day, the children returned to
Texas with the father and remain there today. The mother did not challenge
the father's actions in that regard. Nothing in this opinion requires the trial
court to take any action concerning the present custody of these children
pending final order.
Reversed and remanded.
BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ.,
concurred.