In re Tammy S.

495 A.2d 1303, 126 N.H. 734, 1985 N.H. LEXIS 357
CourtSupreme Court of New Hampshire
DecidedJuly 3, 1985
DocketNo. 84-430
StatusPublished
Cited by1 cases

This text of 495 A.2d 1303 (In re Tammy S.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Tammy S., 495 A.2d 1303, 126 N.H. 734, 1985 N.H. LEXIS 357 (N.H. 1985).

Opinion

Batchelder, J.

We are asked to decide whether the Laconia District Court (Huot, J.) properly ruled that Gilford was the town of residence, under RSA 169-B:40, I (Supp. 1983), of Tammy S. on December 16, 1983, when a petition of delinquency was filed with the court. We reverse.

A recalcitrant fourteen-year-old, Tammy has been virtually beyond the control of authorities, her mother, relatives, and friends. The record reveals that Tammy ran away from the home of her godmother, a youth home, and a foster home, twice stole a car, repeatedly “terrorized” her grandmother, was twice placed in the Youth Development Center (YDC), and stayed for various lengths of time with different friends and relatives, including her aunt Virginia Page in Gilford.

On the basis of this record, the court concluded, “After careful consideration of the voluminous records of the court, the learned and concise memoranda of the parties, and the discussion at the hearing, the court emerges from the labyrinth of placements and runnings away and finds itself in the town of Gilford.” This conclusion resulted from the court’s factual finding “that the minor voluntarily took up residence at the home of Virginia Page in Gilford on or [736]*736about November 24, 1983 and intended to make that her residence for the indefinite future.”

Under the juvenile laws, a determination of a child’s residence is significant because the locality of residence is initially liable for certain costs of care provided under the statutes. RSA 169-B:40, I (Supp. 1983) (delinquency); RSA 169-C:27, I (Supp. 1983) (child abuse or neglect); RSA 169-D:29, I (Supp. 1983) (child in need of services); RSA 186-C:13 (Supp. 1983) (special education). The parties to this appeal are the three towns which might reasonably be regarded as chargeable under RSA 169-B:40, I (Supp. 1983) with the costs of Tammy’s care incident to an adjudication of her delinquency: Gilford is the home of Tammy’s aunt, with whom Tammy was staying just prior to the filing of the delinquency petition; Belmont is the town in which Tammy was taken into custody; and Sanbornton is the town where Tammy’s mother resides. Upon a review of the applicable law and of the record, we hold that Sanbornton is the residence of Tammy for the purposes relevant here.

The legislature has defined “residence” for the purposes of statutory construction as follows:

“Residence or residency shall mean a person’s place of abode or domicile. The place of abode or domicile is that designated by a person as his principal place of physical presence for the indefinite future to the exclusion of all others. Such residence or residency shall not be interrupted or lost by a temporary absence from it, if there is an intent to return to such residence or residency as the principal place of physical presence.”

RSA 21:6-a (Supp. 1983). The district court employed this definition when it held that Gilford was Tammy’s residence on the basis of its finding that she “intended to make [Gilford] her residence for the indefinite future.” We have held, however, that the use of a child’s intent to determine her residence is “an unworkable test.” In re Gary B., 124 N.H. 28, 32, 466 A.2d 929, 931 (1983) (reviewing residency determination under RSA 186-C:13 (Supp. 1981)). This is particularly true where the child, like Tammy, has exhibited a tendency not to remain in any one place for any appreciable length of time. Indeed, after stating that she wished to live with her aunt, Tammy continued her nomadic ways. An application of an intent test also contravenes the principle that an unemancipated minor cannot normally establish a domicile other than that of her parents or guardian. See White v. White, 77 N.H. 26, 29, 86 A. 353, 355 (1913); Hart v. Lindsey, 17 N.H. 235, 243 (1845). In rejecting the [737]*737intent of the child as a basis for determining the child’s residence, we find that the nature of the parent-child relationship and the objective circumstances of her living or placement situation are more appropriate areas for inquiry.

Our case law consistently holds that, absent circumstances or law requiring a different conclusion, a child’s locality of residence is that of her parents. See In re Bryan L., 123 N.H. 420, 462 A.2d 108 (1983); In re John M. and David C., 122 N.H. 1120, 454 A.2d 887 (1982). In In re John M. and David C. supra, we were asked to determine the town of residence of a minor for the purpose of assigning liability under RSA 169-B:40, I (Supp. 1982) for the expenses of the minor’s placement at the Rivendell School. We held that, although the division of welfare had temporary custody of the child pursuant to an earlier adjudication of parental neglect, the child’s town of residence was that of his mother. Id. at 1127, 454 A.2d at 891. This conclusion was compelled by the facts that the division of welfare had only temporary custody of the child, that the mother had had custody of the child for a number of years shortly before the filing of the delinquency petition, and that custody of the child might be returned to his mother. Id. at 1126-27, 454 A.2d at 890-91.

Similarly, in In re Bryan L., supra at 422, 462 A.2d at 110, we affirmed a finding that the residence of a minor was that of his parents for the purpose of assigning liability for the expenses of his special education. See RSA 186-C:13 (Supp. 1983). The dispositive circumstance in that case was that, although the child was a charge of the YDC pursuant to a delinquency adjudication, no impairment of the parent-child legal relationship had been effected. Id.

The cases in which the residence of the child has been held to be different from that of the parents are distinguishable and thus do not disturb our reading of the two cases above. In In re Gary B., 124 N.H. 28, 466 A.2d 929 (1983), the residence of the natural parents was irrelevant because they had a decade earlier relinquished their parental rights. Id. at 30, 466 A.2d at 930; see RSA 170-B:8. And in Juvenile Case # 1089, 119 N.H. 64, 398 A.2d 65 (1979), the residence of the natural parents was not controlling due to the circumstances of the child’s placement and to certain statutory provisions. In that case, we affirmed a finding that the Keene School District was the residence of the child for the purposes of the special education statute, RSA 186-A:8 (current version at RSA 186-C:13 (Supp. 1983)), even though the parents resided in Londonderry. Id. at 67, 398 A.2d at 67. After being adjudicated neglected, the child had been placed in a foster home within the Keene School District to provide him [738]*738with an “appropriate, attentive, and caring environment.” Id. at 66, 398 A.2d at 67.

Nothing in the opinion suggests any parental involvement with the child. The nature of his foster home placement and this apparent absence of parental involvement by his natural parents indicate that the Keene foster home operated, for all practical purposes, as a substitute for the child’s parental home.

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Bluebook (online)
495 A.2d 1303, 126 N.H. 734, 1985 N.H. LEXIS 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tammy-s-nh-1985.