In re Guardianship of D.E.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

6th Circuit Court-Concord Probate Division
No. 2021-0408

IN RE GUARDIANSHIP OF D.E.

Submitted: January 5, 2023
Opinion Issued: November 16, 2023

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Laura E. B. Lombardi, senior assistant attorney general, on the brief),
for the petitioner.

Brown & Bouchard PLLC, of Concord (Cassandra A. Brown on the brief),
for the respondent.

G.E., of Boxford, Massachusetts, on the brief, the self-represented
guardian.

HANTZ MARCONI, J. The respondent, D.E., appeals two decisions of the
Circuit Court (Maloney, J.). The first denies the respondent’s motion to dismiss
and grants New Hampshire Hospital’s (NHH) petition for guardianship. The
second grants NHH’s petition for involuntary admission. We affirm in part,
vacate in part, and remand.
 I

On June 15, 2021, the respondent was admitted to NHH. At the time he
was admitted and detained in the NHH facility, the respondent was subject to a
lawful involuntary emergency admission effective as of June 13, 2021. See
RSA 135-C:27 (2021). After a hearing on June 18, 2021, the circuit court
found probable cause for the involuntary emergency admission. See RSA 135-
C:31 (2021). A subsequent involuntary emergency admission petition was not
filed. On June 29, 2021, NHH filed a petition for non-emergency involuntary
admission. The court scheduled a hearing on NHH’s involuntary admission
petition for July 15, 2021. On June 30, 2021, NHH filed a petition for
guardianship and requested that it be heard simultaneously with the
involuntary admission petition. The court held a hearing on both petitions over
two days on July 15, 2021 and August 5, 2021, after which it concluded that
the respondent “is in such mental condition as a result of mental illness as to
create a potentially serious likelihood of danger to himself” and ordered him
committed to NHH for a period of two years. The trial court further concluded
that a power of attorney and springing medical proxy given by the respondent
to the respondent’s brother, G.E., were “insufficient to provide care” to the
respondent and appointed G.E. as the respondent’s guardian. This appeal
followed.

II

Before we turn to the merits of the two petitions, we address the
respondent’s argument that the trial court erred in hearing both the
guardianship petition and the involuntary admission petition simultaneously.
It is the respondent’s position that “[c]onducting both the involuntary
admissions hearing and the guardianship hearing together deprived [him] of
due process rights.” (Bolding omitted.) We note that the respondent does not
specify a state constitutional provision under which his argument arises; thus,
we construe his argument to be made under the Federal Constitution. See
Vincent v. MacLean, 166 N.H. 132, 135 (2014) (where the plaintiff did not
identify whether his due process claims arise under the State or Federal
Constitutions and failed to cite a provision of either constitution, the argument
was deemed to be made under the Federal Constitution only). Nevertheless, we
will not review constitutional issues on appeal that were not presented to the
trial court. N.H. Dept. of Corrections v. Butland, 147 N.H. 676, 679 (2002). At
the joint hearing, the respondent objected to the hearings being held
simultaneously because granting the involuntary admission petition “would
resolve the issues that were raised in the guardianship petition” and if it were
not granted, “it would then make the guardianship petition moot.” He also
articulated that he believed Massachusetts would be a more appropriate venue
for a guardianship petition, should one be necessary. However, he raised no
constitutional objection, predicated on due process or otherwise, to the

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hearings being held simultaneously. Thus, the respondent’s due process
argument, raised for the first time on appeal, is not preserved. Id.

Further, even if we were to construe the respondent’s arguments to the
trial court as raising a constitutional issue, the issue has not been sufficiently
developed in his brief. The respondent does not support, with any legal
authority, his position that he “was entitled to have two separate final
evidentiary hearings for the two separate petitions.” Rather, he summarily
states that doing so “deprived [him] of due process rights.” (Bolding omitted.)
As a result, even if preserved in the trial court, we conclude that the issue is
insufficiently developed for our review. See State v. Blackmer, 149 N.H. 47, 49
(2003) (“[A] mere laundry list of complaints regarding adverse rulings by the
trial court, without developed legal argument, is insufficient to warrant judicial
review.” (quotation omitted)).

III

We now turn to the trial court’s order on the petition for involuntary
admission. The respondent asserts that, because he was not a resident of New
Hampshire, nor was he “under arrest or held in protective custody by law
enforcement,” the trial court lacked jurisdiction to hear the petition under RSA
135-C:20, II (2021). 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. In re D.O., 173 N.H. 48, 51
(2020). 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.

Determining whether the circuit court had subject matter jurisdiction to
hear the petition requires us to engage in statutory interpretation. Id. at 51-
52. The interpretation of a statute is a question of law, which we review de
novo. Avery v. Comm’r, N.H. Dep’t of Corr., 173 N.H. 726, 733 (2020). In
matters of statutory interpretation, 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 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 to avoid an absurd or unjust result. Id. We
do not consider words and phrases in isolation, but rather within the context of
the statute as a whole, which enables us to better discern the legislature’s
intent in light of the policy or purpose sought to be advanced by the statutory
scheme. Id. Absent an ambiguity, we will not look beyond the language of the
statute. Id.

3
 RSA 135-C:20, II states, in relevant part: “For proceedings under RSA
135-C:34-54, jurisdiction is vested in the probate court in the county where the
person sought to be admitted resides or is detained.” “Although RSA chapter
135-C refers to the ‘district court’ and the ‘probate court,’ those references are
‘deemed to be to the New Hampshire circuit court’ pursuant to RSA 490-F:18.”
Doe v. Comm’r, N.H. Dep’t of Health & Human Servs., 174 N.H. 239, 250 n.1
(2021) (quoting RSA 490-F:18 (Supp. 2022)); see also RSA 490-F:3 (Supp.
2022). “Each circuit court location shall have the authority to hear all cases
within the subject matter jurisdiction of the circuit court.” RSA 490-F:2 (Supp.
2022). Thus, any circuit court location has authority over proceedings under
RSA 135-C:34-54 (2021), so long as “the person sought to be admitted resides
or is detained” within any county in New Hampshire. See RSA 135-C:20, II;
RSA 490-F:2. Accordingly, in order for the circuit court to have subject matter
jurisdiction over the petition, the respondent must either: (1) be lawfully
detained in New Hampshire; or (2) reside in New Hampshire. RSA 135-C:20, II;
RSA 490-F:2, :3. The respondent asserts that the circuit court did not have
jurisdiction because he was not lawfully detained at the time the non-
emergency involuntary admission petition was filed and because he was not,
nor has he ever been, a resident of New Hampshire.

We first address the issue of detention. When an involuntary emergency
admission petition is filed under RSA 135-C:27, the subject of the petition
must be examined by an “approved physician, approved PA, or approved APRN,
as defined in RSA 135-C:2, II-a.” RSA 135-C:28, I (2021). If the approved
medical provider finds “that the person to be admitted meets the criteria of RSA
135-C:27,” then the person may be admitted after the provider completes a
certificate explaining the basis for admission. Id. Once the certificate for an
involuntary emergency admission is completed, the person at issue is not free
to leave, but, rather, is deemed to be in the custody of the New Hampshire
Department of Health and Human Services. Doe, 174 N.H. at 252. Thus, once
a certificate for involuntary emergency admission is issued, the admitted
person is not free to leave and is, therefore, “detained” within the plain
meaning of RSA 135-C:20, II. See Webster’s Third New International
Dictionary 616 (unabridged ed. 2002) (defining “detain” as “to hold or keep in
or as if in custody”).

However, detention pursuant to an involuntary emergency admission is
limited by RSA 135-C:32 (2021). RSA 135-C:32 provides that “[n]o person shall
be admitted for an involuntary emergency admission under RSA 135-C:27-33
for longer than a 10-day period, not including Saturdays and Sundays, unless
a subsequent petition for involuntary emergency admission . . . is
ordered . . . or unless a petition requesting a judicial hearing on the issue of
involuntary admission under RSA 135-C:34-54 has been filed with the
appropriate probate court within the involuntary admission period.” RSA 135-
C:32.

4
 Here, NHH concedes that the petition for non-emergency involuntary
admission was filed 12 days, excluding Saturdays and Sundays, after the
effective date of the involuntary emergency admission, 2 days after the 10-day
limit imposed by RSA 135-C:32. As a result, the respondent, although still
being held at NHH at the time, was not lawfully detained at NHH at the time
the non-emergency petition was filed. RSA 135-C:32. NHH asserts that the
circuit court could retain jurisdiction as a result of an unlawful detention
because “[n]othing in [the dictionary definition] suggests that ‘detain’ is limited
to a restraint pursuant to any particular legal authority.” Thus, it is NHH’s
position that a person may be subject to involuntary admission proceedings
despite an illegal detention being the only basis for the court’s jurisdiction. If
we were to accept this argument, jurisdiction could be based solely on
circumstances that violate a defendant’s due process rights and that could
otherwise justify a writ of habeas corpus. See, e.g., Doe, 174 N.H. at 246-47
(“Civil commitment for any purpose constitutes a significant deprivation of
liberty that requires due process protection.” (brackets omitted)). We do not
believe the legislature intended to grant the circuit court the authority to
conduct involuntary admission proceedings when the person sought to be
admitted is within the court’s jurisdiction only because the person is
unlawfully detained within New Hampshire. While we appreciate the dissent’s
construction of the statute to confer expansive jurisdiction on the circuit court,
we note that the circuit court is a court of specific jurisdiction, unlike courts of
general jurisdiction from which the dissent draws support. State v. Graham,
175 N.H. 61, 62 (2022). Accordingly, we conclude that the respondent was not
“detained” for the purposes of jurisdiction under RSA 135-C:20 at the time that
the non-emergency involuntary admission petition was filed.

Next, we consider residency. See RSA 135-C:20, II. The respondent
asserts that the circuit court lacked jurisdiction because he was not a resident
of New Hampshire. He asserts that he “was a resident of Massachusetts and
was accessing healthcare at [a clinic] in Massachusetts” before coming to New
Hampshire. NHH argues that the circuit court has jurisdiction because the
respondent “was homeless, living in hotels in Manchester,” “did not have any
other place to stay,” and “was receiving medical care through the Manchester
VA.” NHH urges us to conclude that because the word “resides” is not defined
in the statute, we should conclude that the dictionary definition of the term,
rather than the statutory definition of “resident” contained in RSA 21:6 (2020),
controls.

Through RSA chapter 21 (2020), the legislature provides guidance on
how to engage in statutory construction. RSA 21:1 (2020) directs that “[i]n the
construction of all statutes the following rules shall be observed, unless such
construction would be inconsistent with the manifest intent of the legislature
or repugnant to the context of the same statute.” (Emphasis added.) RSA

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chapter 21 further directs that a

resident or inhabitant or both of this state and of any city, town, or
other political subdivision of this state shall be a person who is
domiciled or has a place of abode or both in this state . . . and who
has, through all of his or her actions, demonstrated a current
intent to designate that place of abode as his or her principal place
of physical presence to the exclusion of all others.

RSA 21:6.

NHH asserts that this definition “cannot be what the legislature
intended” when it used the term “resides” in RSA 135-C:20, II. We agree. To
establish jurisdiction under the definition of “resident” in RSA 21:6, a person
would need to intend to designate New Hampshire as his or her “principal place
of physical presence to the exclusion of all others.” RSA 21:6 (emphasis
added). Such a rigid definition would exclude seasonal residents, college
students, or other inhabitants who are present in New Hampshire for extended
periods, but who maintain a residence out-of-state. This interpretation runs
counter to the purpose of RSA chapter 135-C, which is, inter alia, to “[p]revent
mentally ill persons from harming themselves or others.” RSA 135-C:1, I(c)
(2021). A mentally ill person need not reside exclusively in New Hampshire to
pose a danger in New Hampshire to themselves or others. Accordingly, the
dictionary definition of “reside” provides a definition more consistent “with the
manifest intent of the legislature”: “[t]o dwell permanently or for a considerable
time, to have one’s settled or used home in or at a particular place.” Oxford
English Dictionary,
https://www.oed.com/dictionary/reside_v1?tab=meaning_and_use#25944831
(last visited August 28, 2023); RSA 21:1. Pursuant to this definition, whether a
person “resides” in New Hampshire for the purposes of RSA 135-C:20, II
depends on the circumstances of their presence in New Hampshire. We note
that mere physical presence is not enough to meet this definition. Had the
legislature wished to grant jurisdiction in cases when the person was merely
physically present within the state, it could have done so. Compare RSA 135-
C:20, II (resides), with RSA 464-C:10 (2018) (granting special jurisdiction to the
court to appoint a guardian or conservator where the subject of the
guardianship is “physically present in this state” (emphasis added)).

Here, whether the respondent resided in New Hampshire at the time the
emergency admission expired and the non-emergency involuntary admission
petition was filed presents a question of fact, which the trial court should
consider in the first instance. Cf. McGee v. Bragg, 94 N.H. 349, 351 (1947);
Ayer v. Weeks, 65 N.H. 248, 249 (1889). For this reason, we vacate the trial
court’s decision regarding the respondent’s involuntary admission and remand
for the trial court to determine whether it has subject matter jurisdiction to
hear the petition under RSA 135-C:20.

6
 IV

We next turn to the respondent’s appeal of the trial court’s order
appointing a guardian over the respondent’s person and estate. On appeal, the
respondent challenges the sufficiency of the evidence. Our task is to review the
record to determine whether it supports the trial court’s finding that the
petitioner proved these statutory components beyond a reasonable doubt. In
re Guardianship of G.S., 157 N.H. 470, 473-74 (2008). We examine whether
the trial court’s actual or implicit factual findings on the statutory components
required for guardianship are reasonably supported by competent evidence. Id.
at 474. However, we defer to a trial court’s judgment on such issues as
resolving conflicts in testimony, measuring the credibility of witnesses, and
determining the weight to be given to testimony. Id. “The findings of fact of the
judge of probate are final unless they are so plainly erroneous that such
findings could not be reasonably made.” RSA 567-A:4 (2019). Therefore, we do
not reweigh the evidence to determine whether we would have ruled differently.
In re G.S., 157 N.H. at 474.

The respondent first asserts that “[t]here was insufficient evidence to
support the trial court’s finding that [the respondent] should be in a
guardianship.” (Bolding omitted.) He argues that he is not “incapacitated”
within the meaning of RSA 464-A:2, XI (2018). In addition, he asserts that
guardianship “is not the least restrictive option” and that G.E.’s “springing
healthcare proxy and durable power of attorney” are sufficient to address the
respondent’s needs.

“Incapacity” is a “legal, not a medical, disability,” and refers to “any
person who has suffered, is suffering or is likely to suffer substantial harm due
to an inability to provide for his personal needs for clothing, shelter, health
care or safety or an inability to manage his or her property or financial affairs.”
RSA 464-A:2, XI; see also In re Guardianship of C.R., 174 N.H. 804, 807
(2022). Incapacity is measured by “functional limitations,” RSA 464-A:2, XI,
that “impair [a person’s] ability to participate in and perform minimal activities
of daily living that secure and maintain proper food, clothing, shelter, health
care or safety for himself,” RSA 464-A:2, VII; see also In re C.R., 174 N.H. at
807. “Isolated instances of simple negligence or improvidence, lack of
resources or any act, occurrence or statement if that act, occurrence or
statement is the product of an informed judgment shall not constitute evidence
of inability to provide for personal needs or to manage property.” RSA 464-A:2,
XI. Before imposing a guardianship, the trial court must find, beyond a
reasonable doubt, that the “guardianship is appropriate as the least restrictive
form of intervention consistent with the preservation of the civil rights and
liberties of the proposed ward.” RSA 464-A:9, III(d) (2018); see also In re C.R.,
174 N.H. at 809. “Least restrictive form of intervention” means that the
guardianship imposed “represents only those limitations necessary to provide
him or her with needed care and rehabilitative services, and that the ward shall

7
enjoy the greatest amount of personal freedom and civil liberties consistent
with his or her mental and physical limitations.” RSA 464-A:2, XIV.

The record supports the trial court’s findings that the respondent is
“incapacitated,” that guardianship “is necessary as a means of providing for
[the respondent’s] continuing care,” and that there “are no available alternative
resources[] which are suitable with respect to [the respondent’s] welfare, safety
or rehabilitation and for the prudent management of [his] property and
financial affairs.” The trial court received testimony from the psychiatrist who
treated the respondent, a psychiatrist appointed by the court to evaluate the
respondent, and the respondent’s brother, who testified extensively to the
respondent’s behavior in the months leading up to the involuntary emergency
admission. The respondent’s brother testified that the respondent was “so
afraid of people poisoning him, that . . . he was living in his car.” A treating
psychiatrist testified that the respondent “was not able to comprehend and
understand information” and that “his speech is not productive and is — we
call it hallucinative speech.” In addition, the psychiatrist appointed by the
court opined that the respondent’s “paranoia, and disorganization leads to his
inability to engage in self-care.” Based on the testimony provided, as well as
the medical records and other documentation in the record, the trial court
could have concluded beyond a reasonable doubt that the respondent had
“[f]unctional limitations” as a result of his mental illness and that these
limitations caused him to be unable to “perform minimal activities of daily
living that secure and maintain proper food, clothing, shelter, health care or
safety for himself.” RSA 464-A:2, VII. Further, given G.E.’s testimony that he
was unable to provide sufficient care and support to the respondent despite
having a power of attorney and health care proxy, and given the testimony that
without proper medical aid the respondent’s welfare and safety were
significantly at risk, we conclude that the trial court could have concluded
beyond a reasonable doubt that a guardianship is the “least restrictive form of
intervention.” RSA 464-A:2, XIV, :9, III(d).

Finally, the respondent argues that, if the trial court did not err in
appointing a guardian, then it “erred in appointing a guardian from [the
respondent’s] family when he expressed a clear wish that . . . it be an
independent, professional guardian.” (Bolding omitted.) He cites RSA 464-
A:10 (2018) and asserts that because he “has high-level intellectual
functioning, comprehension, and executive functioning,” the trial court should
have considered his preferences in appointing a guardian. When a finding of
incapacity has been made, it is within the trial court’s discretion to “appoint a
guardian of the person and estate, or the person or the estate, as requested in
the petition and confer specific powers of guardianship on the proposed
guardian.” RSA 464-A:9. Thus, we will review the trial court’s appointment of
G.E. as guardian under our unsustainable exercise of discretion standard.

8
 “Any person who agrees to so serve may be appointed guardian of the
person and estate.” RSA 464-A:10, I. A competent person may nominate or
exclude a person to be guardian over his person or estate by a written
instrument. RSA 464-A:10, IV(a). “A qualified person nominated as guardian
who is willing to serve shall be appointed unless the court finds that such
person would not be able to carry out the reasonably foreseeable duties of a
guardian in the particular circumstances.” RSA 464-A:10, IV(c). The court
may appoint a family, volunteer, professional or public guardian. RSA 464-
A:10, I. Here, NHH proposed G.E. as a family member guardian. The
respondent did not nominate or exclude any person by written instrument and
did not propose any other potential guardian, whether volunteer or
professional. Thus, even if required to consider the ward’s preferences, the
trial court did not unsustainably exercise its discretion in appointing G.E.
based on the conclusion that he was both qualified and willing to serve and on
the absence of any proposed alternative. Leone v. Leone, 161 N.H. 566, 568
(2011) (explaining that under an unsustainable exercise of discretion standard,
“we review only whether the record establishes an objective basis sufficient to
sustain the discretionary judgment made”). Accordingly, we find no error.

Affirmed in part; vacated in part;
and remanded.

MACDONALD, C.J., and HICKS and DONOVAN, JJ., concurred;
BASSETT, J., concurred in part and dissented in part.

BASSETT, J., concurring in part and dissenting in part. The respondent,
D.E., appeals two orders of the Circuit Court (Maloney, J.). The first order
granted New Hampshire Hospital’s (NHH) petition for guardianship. The
majority affirms this order, a decision with which I concur. The second order
granted NHH’s petition for nonemergency involuntary admission. The majority
vacates this order, a decision from which I respectfully dissent.

A petition and certificate for the involuntary emergency admission of the
respondent was completed on June 13, 2021, and the respondent was
admitted to NHH on June 15. See RSA 135-C:27 (2021). After a hearing on
June 18, 2021, the circuit court found probable cause for the involuntary
emergency admission, finding that the respondent’s “behavior demonstrates
that he . . . so lacks the capacity to care for his . . . own welfare that there is a
likelihood of death, serious bodily injury, or serious debilitation if admission is
not ordered.” See RSA 135-C:27, I(c), :31 (2021). On June 29, 2021, NHH filed
a petition for nonemergency involuntary admission that alleged that the
respondent “is presently detained on I Unit at New Hampshire Hospital . . . in
the County of Merrimack.” This petition was accompanied by a certificate of
the examining physician, which states, inter alia, that the respondent was

9
admitted to NHH “due to his dangerous behaviors, which are likely to cause
serious injury to himself and others.” See RSA 135-C:36, I(c) (2021) (providing
that a petition for nonemergency involuntary admission shall include a
certificate from a physician who has examined the person sought to be
admitted within five days of the date the petition is filed and who agrees that
the person satisfies the standard for admission set forth in RSA 135-C:34
(2021)). The petition for nonemergency involuntary admission was filed within
ten days (excluding Saturdays and Sundays) after the issuance of the order
finding probable cause, but more than ten days (excluding Saturdays and
Sundays) after the effective date of the involuntary emergency admission.

The circuit court scheduled a hearing on NHH’s nonemergency
involuntary admission petition for July 15, 2021. On June 30, 2021, NHH filed
a petition for guardianship and requested that it be heard simultaneously with
the nonemergency involuntary admission petition. The court held a hearing on
both petitions over two days on July 15, 2021 and August 5, 2021, after which
it concluded that the respondent “is in such mental condition as a result of
mental illness as to create a potentially serious likelihood of danger to himself”
and ordered him admitted to NHH on an involuntary basis for a period of two
years. The trial court also appointed G.E. as the respondent’s guardian. This
appeal followed.

I begin by considering the issue of whether the trial court had subject
matter jurisdiction over the petition for nonemergency involuntary admission.
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. In re D.O., 173 N.H. 48, 51 (2020). 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. In addition, the court may raise the issue of
subject matter jurisdiction sua sponte. State v. Demesmin, 159 N.H. 595, 597
(2010).

Determining whether the circuit court had subject matter jurisdiction to
hear the petition requires us to engage in statutory interpretation. See In re
D.O., 173 N.H. at 51-52. The interpretation of a statute is a question of law,
which we review de novo. Avery v. Comm’r, N.H. Dep’t of Corr., 173 N.H. 726,
733 (2020). In matters of statutory interpretation, 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 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 do not consider words and
phrases in isolation, but rather within the context of the statute as a whole,
which enables us to better discern the legislature’s intent in light of the policy
or purpose sought to be advanced by the statutory scheme. Id. Absent an

10
ambiguity, we will not look beyond the language of the statute. Id. It has long
been settled here that we will not interpret a statute so as to produce an unjust
and seemingly illogical result. State v. Roger M., 121 N.H. 19, 21-22 (1981);
see State v. Carpentino, 166 N.H. 9, 20 (2014).

RSA 135-C:20, II (2021) states, in relevant part: “For proceedings under
RSA 135-C:34-54, jurisdiction is vested in the probate court in the county
where the person sought to be admitted resides or is detained.” As the
majority explains, references to “probate court” are now deemed to refer to the
“circuit court,” and each circuit court location has the authority to hear all
cases within the subject matter jurisdiction of the circuit court. See RSA 490-
F:2, :3, :18 (Supp. 2022). The majority construes section 20 as requiring that
in order for the circuit court to have jurisdiction over the subject matter — that
is, jurisdiction over the nature of the case and the relief sought — the person
sought to be admitted must either reside in New Hampshire or be detained in
New Hampshire at the time that the petition is filed. The majority then
concludes that, contrary to the allegation in the petition for nonemergency
involuntary admission, the respondent was not “detained” within the meaning
of the statute. The majority therefore vacates the trial court’s involuntary
admission order and remands for consideration of whether the respondent
“resided” in New Hampshire at the time that the nonemergency involuntary
admission petition was filed.

Assuming, without deciding, that the circuit court’s subject matter
jurisdiction over nonemergency involuntary admission petitions depends upon
whether the person sought to be admitted resides or is detained in New
Hampshire, I would hold that the respondent in this case was “detained” when
the nonemergency involuntary admission petition was filed on June 29, and,
therefore, that the circuit court had subject matter jurisdiction. Accordingly, I
would affirm the circuit court’s order admitting the respondent to NHH on an
involuntary basis.

When an involuntary emergency admission petition is filed under RSA
135-C:27, the subject of the petition must be examined by an “approved
physician, approved PA, or approved APRN, as defined in RSA 135-C:2, II-a.”
RSA 135-C:28, I (2021). If the approved medical provider finds “that the
person to be admitted meets the criteria of RSA 135-C:27,” then the person
may be admitted after the provider completes a certificate explaining the basis
for admission. Id. Once the certificate for an involuntary emergency admission
is completed, the person at issue is not free to leave, but, rather, is deemed to
be in the custody of the New Hampshire Department of Health and Human
Services. Doe v. Comm’r, N.H. Dep’t of Health & Human Servs., 174 N.H. 239,
252 (2021). Thus, once a certificate for involuntary emergency admission is
issued, the admitted person is not free to leave and is, therefore, “detained”
within the plain meaning of RSA 135-C:20, II. See Webster’s Third New

11
International Dictionary 616 (unabridged ed. 2002) (defining “detain” as “to
hold or keep in or as if in custody”).

RSA 135-C:32 provides that “[n]o person shall be admitted for an
involuntary emergency admission under RSA 135-C:27-33 for longer than a
10-day period, not including Saturdays and Sundays, unless a subsequent
petition for involuntary emergency admission . . . is ordered . . . or unless a
petition requesting a judicial hearing on the issue of involuntary admission
under RSA 135-C:34-54 has been filed with the appropriate probate court
within the involuntary admission period.” RSA 135-C:32 (2021).

Here, NHH concedes that the petition for nonemergency involuntary
admission was filed more than ten days, excluding Saturdays and Sundays,
after the effective date of the involuntary emergency admission, and therefore
after the involuntary emergency admission period had ended. See RSA 135-
C:32. However, the respondent still remained at NHH when the nonemergency
involuntary admission petition was filed with the circuit court; there is no
evidence or allegation that he had been discharged by NHH prior to that time.
See RSA 135-C:33 (2021). Indeed, the majority agrees that the respondent was
“still being held at NHH at the time,” but states that he was not “lawfully
detained” at NHH. Therefore, the majority concludes, the respondent was not
“detained” within the meaning of RSA 135-C:20, II, and the circuit court lacked
subject matter jurisdiction unless, on remand, it can be proved that the
respondent “resided” in New Hampshire when the nonemergency involuntary
admission petition was filed.

Thus, the crux of the matter before us is whether, as the majority
contends, “detained” means only “lawfully detained.” The majority agrees that
the plain meaning of “detain” is “to hold or keep in or as if in custody.”
Webster’s Third New International Dictionary, supra. Nothing in this definition
suggests that “detain” is limited to being held or kept in custody pursuant to
any particular legal authority. Rather, just the opposite. Furthermore,
“detain” encompasses cases in which one is held or kept “as if” in custody.
Thus, while the involuntary emergency admission period may have expired
pursuant to RSA 135-C:32, it is undisputed that the respondent had not been
discharged and was still at NHH when the petition was filed with the circuit
court. Plainly then, the respondent was, at a minimum, being held or kept at
NHH “as if” in custody. Therefore, according to the common and approved
usage of the language, the respondent was “detained.” See RSA 21:6 (2020).

Although the majority acknowledges, as it must, that we first construe
statutory language according to its plain and ordinary meaning, and that we
“interpret 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,”
the majority then fails to construe the statutory language according to its plain
meaning, and instead adds language that the legislature did not see fit to

12
include, apparently concluding that the legislature meant to say “lawfully
detained” rather than “detained.”1 In doing so, I believe that the majority errs.

That the legislature meant what it said when it chose the word “detained”
is confirmed by an examination of the full statutory scheme. We have
explained that the process of an involuntary emergency admission is intended
to progress logically and seamlessly through a series of steps, beginning with
the completion of the involuntary emergency admission certificate, continuing
with the delivery to a receiving facility such as NHH, and concluding with a
probable cause hearing. Doe v. Comm’r, N.H. Dep’t of Health & Human Servs.,
174 N.H. at 254. The involuntary admission process then continues logically
and seamlessly through a further series of steps making up the nonemergency
involuntary admission process. Following the finding of probable cause, the
statutory scheme envisions that the admitted person shall be further evaluated
at the receiving facility within a ten-day period (not including Saturdays and
Sundays). If at any point during the period of involuntary emergency
admission it is determined that the admitted person no longer meets the
criteria for involuntary admission under RSA 135-C:27, then he or she is
discharged. RSA 135-C:33, I. On the other hand, if it is determined during the
ten-day period that the admitted person satisfies the standard for
nonemergency involuntary admission set forth in RSA 135-C:34, then a
petition for nonemergency admission on an involuntary basis is filed pursuant
to RSA 135-C:36 — that petition must include a certificate from the person
who examined the admitted person, made within five days of the date of filing
the petition, that the admitted person satisfies the standard for nonemergency
involuntary admission in RSA 135-C:34. See RSA 135-C:36, I(c). The filing of
the petition with the circuit court before the expiration of the involuntary
emergency admission period extends the period of involuntary emergency
admission under RSA 135-C:27-:33 until the issuance of the order on that
petition. RSA 135-C:32.

Viewing the statutory scheme as a whole, it is apparent that the
legislature intended one of two outcomes following an involuntary emergency
admission and a finding by the circuit court of probable cause. First, if at any
time during the period of involuntary emergency admission the admitted
person no longer is in such mental condition as a result of mental illness as to
pose a likelihood of danger to himself or others, then the admitted person
should be discharged from the receiving facility. See RSA 135-C:27, :33.
Second, if during the period of involuntary emergency admission the admitted

1 Had the legislature intended “detained” in RSA 135-C:20 (2021) to exclude so-called
“unlawful detentions” as the majority contends, it knew how to do so. RSA 627:5, I (2016)
provides that a law enforcement officer is justified in using non-deadly force to prevent the
escape of “an arrested or detained person, unless he knows that the arrest or detention is
illegal.” Had the legislature intended a similar restriction to apply in RSA 135-C:20, it could
have used similar language.

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person is determined to be in such mental condition as a result of mental
illness as to create a potentially serious likelihood of danger to himself or to
others, see RSA 135-C:34, then a petition for nonemergency involuntary
admission should be filed with the circuit court and the admitted person’s
period of involuntary emergency admission should continue until the circuit
court has ruled on the petition. This furthers the legislature’s stated purposes,
which include enabling the Department of Health and Human Services to
maintain an effective and efficient system of services for persons with mental
illness, reducing the occurrence, severity, and duration of mental disabilities,
and preventing mentally ill persons from harming themselves or others. RSA
135-C:1, I (2021).

In addition, it is significant that the involuntary admission process can
begin with an examination of any person located in New Hampshire — the
process is not limited to persons who reside in New Hampshire. See RSA 135-
C:28 (2021). The process then seamlessly provides for review in the circuit
court to determine whether probable cause for the initial involuntary
emergency admission exists, followed by a petition to the circuit court to
determine whether continued nonemergency involuntary admission is
warranted. Thus, it is clear that the legislature intended that any person,
regardless of whether the person resides in New Hampshire, who is
involuntarily admitted pursuant to RSA 135-C:28 should be entitled to a
probable cause hearing followed by, when necessary, a hearing on a petition for
nonemergency involuntary admission to determine whether additional
treatment is necessary.

In the instant case, NHH attempted to comply with the statutory scheme.
After the circuit court found probable cause that there was “a likelihood of
death, serious bodily injury, or serious debilitation if admission is not ordered,”
the respondent’s condition did not improve such that he no longer posed a
likelihood of danger to himself or others. Therefore, NHH did not discharge
him. Rather, the respondent was examined and found to be in such a mental
condition as a result of mental illness as to create a potentially serious
likelihood of danger to himself or to others, and NHH accordingly filed a
petition with the circuit court seeking an order for nonemergency involuntary
admission. Unfortunately, for reasons not explained in the record, this petition
was filed shortly after the involuntary emergency admission period had expired.

The question thus presented is which construction of the statute best
furthers the legislative intent with respect to this short delay in filing. The
answer becomes apparent upon consideration of RSA 135-C:1 (2021), which
sets forth the purposes of RSA chapter 135-C. Construing “detained” in
accordance with its plain meaning furthers the chapter’s purposes of providing
services for persons with mental illness, reducing the severity and duration of
mental disabilities, and preventing mentally ill persons from harming
themselves or others. RSA 135-C:1, I. In this case, when the petition for

14
nonemergency involuntary admission was filed on June 29, the respondent had
been certified as being in such a mental condition as a result of mental illness
as to create a potentially serious likelihood of danger to himself or to others.
By construing “detained” contrary to its plain meaning and adding the notion
of “legal detention,” the majority concludes that the legislature intended that
the circuit court should be deprived of the jurisdiction necessary to order the
provision of continued treatment for the respondent so as to alleviate the
potentially serious likelihood of danger that the respondent posed to himself or
to others. This construction is inimical to the legislature’s expressed purposes
of providing services for persons with mental illness, reducing the severity and
duration of mental disabilities, and preventing mentally ill persons from
harming themselves or others. RSA 135-C:1, I.

In addition, the majority’s construction of “detained” leads to illogical and
unjust results. The majority speculates that the legislature would not want the
circuit court to have jurisdiction over the respondent because the respondent
was being “unlawfully detained.” The majority argues that the detention
violated the respondent’s “due process rights” and could “justify a writ of
habeas corpus.” In other words, the majority concludes that the legislature
would choose as part of the remedy for the alleged violation of the respondent’s
due process rights that the circuit court not have jurisdiction to order that the
respondent receive continued treatment pursuant to a nonemergency
involuntary admission. The majority acknowledges, however, that if the
respondent resided in New Hampshire at the time that the petition for
nonemergency involuntary admission was filed with the circuit court, then the
court would have continuing jurisdiction regardless of any violation of the
respondent’s due process rights. In essence, the majority concludes that the
legislature intended that only persons who do not reside in New Hampshire
should receive this “remedy” — a New Hampshire resident who is “unlawfully
detained” when the petition for nonemergency involuntary admission is filed is
not entitled to similar treatment.2 Such disparate treatment is both illogical
and unjust. See State v. Roger M., 121 N.H. at 21-22; Carpentino, 166 N.H. at
20. If the legislature truly intended to deprive the circuit court of subject
matter jurisdiction over nonemergency involuntary admission petitions when
the petition is filed after the expiration of the involuntary emergency admission

2 While the majority correctly notes that civil commitment for any purpose constitutes a

significant deprivation of liberty, the Supreme Court has noted that one who is suffering from a
debilitating mental illness and in need of treatment is not “wholly at liberty.” Addington v.
Texas, 441 U.S. 418, 429 (1979). “[I]n civil commitment cases the state reflects a parens
patriae concern for the treatment of the seriously disturbed citizen. Hospitalization of the
mentally ill is sought not as an end in itself, but only as a necessary means for giving medical
treatment and protection. As a result, the commitment process cannot be viewed as a strictly
adversarial one; in most cases, the ultimate interests of the state and the individual in the care
and treatment of the latter should be congruent.” Matter of Nelson, 408 A.2d 1233, 1237 (D.C.
1979).

15
period, surely it would have provided the same “remedy” to those who reside in
New Hampshire as to those who reside elsewhere.

Finally, I question the premise of the majority’s rationale regarding the
legislature’s intent. Without mentioning the purposes of RSA chapter 135-C
that the legislature expressly set forth in RSA 135-C:1, the majority assumes
that the legislature would not intend to grant jurisdiction to the circuit court to
hear a nonemergency involuntary admission petition when the respondent had
been detained under circumstances that the majority contends violated his due
process rights and could justify a writ of habeas corpus. But the majority fails
to explain why this is so. Assuming that the majority is correct that a writ of
habeas corpus would have been justified, the legislature has specifically
provided that that remedy be available. See RSA 135-C:54 (2021) (providing
that this chapter shall not be construed to deprive any person of the benefits of
the writ of habeas corpus). Nothing in the statute or in the constitution
suggests that the remedy for an alleged unlawful detention should be to deprive
the circuit court of jurisdiction over a petition for nonemergency involuntary
treatment.

In Frisbie v. Collins, 342 U.S. 519 (1952), the Supreme Court considered
a habeas corpus case in which the respondent alleged that while he was living
in Illinois, Michigan officers forcibly seized and handcuffed him and took him
to Michigan, where he was charged with and convicted of murder in state
court. The Supreme Court held that the power of the state court to try a
person for crime is not impaired by the fact that the person was brought within
the court’s jurisdiction by reason of a forcible abduction. Frisbie, 342 U.S. at
522.

[D]ue process of law is satisfied when one present in court is
convicted of crime after having been fairly apprized of the charges
against him and after a fair trial in accordance with constitutional
procedural safeguards. There is nothing in the Constitution that
requires a court to permit a guilty person rightfully convicted to
escape justice because he was brought to trial against his will.

Id.; see also United States v. Alvarez-Machain, 504 U.S. 655 (1992) (where
United States Drug Enforcement Administration officials were responsible for
forcible kidnapping of citizen of Mexico, who was flown to Texas and arrested
for murder, federal District Court had jurisdiction — the fact of defendant’s
forcible abduction does not prohibit his trial in a court in the United States for
violation of the criminal laws of the United States). Similarly, here, whatever
remedies the respondent may have had for his alleged “unlawful detention,” a
matter on which I express no opinion, the available remedies should not
include depriving the circuit court of subject matter jurisdiction. Cf. State v.
Riley, 980 N.E.2d 920, 922 n.1 (Ind. Ct. App. 2013) (in criminal case, remedies
for unlawful detention of defendant might include release from custody,

16
suppression of evidence, or damages, but not dismissal of the criminal
charges).

In summary, I concur with the majority’s affirmance of the trial court’s
order granting the petition for guardianship over the respondent. Because I
would also affirm the trial court’s order granting the petition for nonemergency
involuntary admission, I respectfully dissent from the majority’s decision to
vacate that order.

17