Proposed Changes to a Parent's Right to Counsel in Abuse/Neglect Cases

A few years ago, during the state's fiscal crisis, the legislature did away with the statute requiring that any parent accused of abusing or neglecting their child in a child protection case be appointed an attorney to represent them. I posted here about my view that all parents should be entitled to counsel in abuse neglect proceedings. The issue was argued before the New Hampshire Supreme Court in In Re C.M, where the Court held that parents do not have a constitutional per se right to counsel, though appointment of counsel should be considered on a case by case basis. In July 2013, the legislature reinstated the statutory authority under RSA 169-C:10, II (a) requiring court appointment counsel for indigent parents. 

Now, there are proposed changes to a parent's statutory right to counsel which would require the attorney to withdraw following the dispositional hearing unless there was a court order noting the specific duration and purpose of the continued representation.. The New Hampshire Supreme Court Advisory Committee on Rules has requested comment from the bench, bar, legislature, executive branch or public. The report on the rule changes can be found here

A colleague of mine, Lucinda Hopkins, who is an experienced abuse neglect attorney, wrote to the New Hampshire Supreme Court Advisory a wonderful letter expressing why this rule change is ill advised. She has given me permission to share. I hope you will take a moment to read and perhaps reach out to the committee yourself to express your opinion. For more information on how to contact the committee for comment, see here


Date: 5 September 2014

To: New Hampshire Supreme Court Advisory
Committee on Rules
From: Lucinda Hopkins, Attorney at Law,
NH Bar ID # 1193
Re: Proposed Rule Change deeming parent's legal counsel withdrawn after neglect or abuse dispositional hearing

Dear Committee Members,

Let's start with the premise that a parent in a neglect or abuse matter should have legal representation. In a world where money is no object I doubt most people would object to legal representation for parents in a neglect or abuse proceeding. Thus, encroaching on legal representation for a parent in a neglect or abuse matter stems from financial considerations.

The second premise is the child is the paramount consideration in a neglect or abuse proceeding. I went to law school to advocate on behalf of children. After 30 plus years of practice I have a fair amount of experience which I hope will shed light on how legal counsel for parents not only serve to promote and protect the interests of the parents but also serve to safeguard the interests of the children.

The state's role is driven by policies that may coincide with the a child's interest but may also diverge. Otherwise, we would not need judicial oversight: the child protection system could act administratively. Removing children from their homes and severing family ties, however, carries significant societal implications. The court system serves as the proper forum when the state takes such actions.

Federal laws impose on the state agency the ideal of "permanency" and enforce this ideal by monetary incentives. This agency perspective may override what the child needs. Further, neglect and abuse law--as with all aspects of law--fluctuates. What is laudable today may--often through the efforts of legal advocates--come to be recognized as unacceptable.

A Guardian ad Litem, a party along with the state and parent, is not a legal advocate, most often not trained as a lawyer, and does not have the expertise or the role to legally advocate for a child. Neither the state nor the Guardian ad Litem possess the intimate knowledge and bond with the child that a parent does.

Since neglect or abuse proceedings are confidential, how children fare in the child welfare system remains a mystery. I know from my own experience that "permanency" has not always lived up to its ideal. I have heard from foster parents who adopted children, now adults, who I represented that when the children reached the age of majority sought out their birth parents and went to live with them. I have stayed in touch with children, now adults, who I represented who sought out and maintain contact with their birth parents. I have represented a parent in a neglect matter who lost her child to an adoptive family, where the child was abused and ended back in the system traumatized and psychologically damaged. I have been involved in a matter where the state confidently assured the court that a child was adoptable, a termination of parental rights was granted, and the child remained (at least during the time I was aware) unadopted and without any family whatsoever. I recall another case where the child eloquently expressed wanting both the parent and the foster parent to be part of the child's life.

I present these anecdotes to emphasize that the state and the Guardian ad Litem are not necessarily the ones speaking for what the children want. To the contrary, as they so often state, they are driven by the goals of permanency. I ask the committee to seriously consider how crucial legal representation is for questioning public policy and decisions permanently affecting and altering individual lives.

I would be astounded if the vast majority of neglect or abuse court cases did not involve individuals with minimal financial resources, disabilities, childhood trauma, dysfunctional family backgrounds, and scant education. Post-dispositional hearing is where legal advocacy most helps a parent. Some--but not all--of the critical issues that arise where a parent needs legal expertise and result in reunification or termination of parental rights include:

 

  • Whether the state needs a psychological evaluation and if so how to ensure an evaluation is fair and thorough or lacks validity.
  • How to navigate housing requirements by the state that the parent have a certain amount of bedrooms for the children's return home when the parent does not have custody of the children.
  • Whether a bonding assessment is necessary and if so, how a fair evaluation can best be conducted.
  • Whether a parent aide is accommodating a parent's disability, and if not, what accommodations are needed
  • Whether the siblings' bonds are appropriately considered.
  • Consideration of how best to address siblings' differing wants and needs.
  • How to address domestic violence issues and their effect on permanently severing a parent's rights.
  • How to address substance abuse issues and their effect on permanently severing a parent's rights.
  • How to address medical issues and their effect on permanently severing a parent's rights.
  • Holding the state accountable for implementation of services that are reasonable and appropriate.
  • Countering the presentation of evidence as relevant or material and presenting relevant or material information that may not be disclosed.
  • Understanding how other laws, such as the American with Disabilities Act, guardianship statutes, and domestic relations and immigration laws relate to a neglect or abuse proceeding.
  • How incarceration relates to compliance with neglect or abuse dispositional orders.
  • Whether visitation provisions are unduly restrictive and if so, whether the court or the state has the discretion to decide visitation.
  • Whether a child should have legal counsel.
  • Whether the state has to comply with an order for mediating an alternative long-term living arrangement for the child or an open adoption.
  • Whether an interlocutory appeal or writ of certiorari should be filed to protect a parent's rights before a termination of parental rights is filed.
  • Ensuring that discovery is forthcoming in order to assess a parent's compliance with dispositional orders and to counter disputed representations.
  • Understanding and ensuring compliance with the state's policies for neglect and abuse matters.
  • Investigating and advocating in relation to relative placement particularly when such placement is disputed (either by the agency or the parent).
  • Understanding the inner workings of the Interstate Compact on Placement of Children Act: how to facilitate the administrative process in each state.
  • Understanding how the Indian Child Welfare Act may impact a neglect or abuse proceeding.
  • Analyzing jurisdictional issues relating to a neglect or abuse proceeding with another proceeding relating to jurisdiction of the child.
  • Understanding how the Uniform Child Custody and Jurisdiction Act relates to a neglect or abuse proceeding.
  • Understanding available resources, such as shelters, what shelters are appropriate, and alternatives when factors prevent access.
  • Understanding mental illness, treatment, and medication needs.
  • Understanding substance abuse, treatment, and compliance.
  • Understanding parole or probation conditions in conjunction with dispositional orders.
  • Knowledge and appreciation of a parent's constitutional rights and the ability to argue those rights.

Lest you think I went through some kind of checklist or reviewed laws relating to neglect or abuse proceedings, the following list was written off the top of my head from memory. I have encountered each of these issues. From conversations with fellow practitioners they have grappled with these along with other issues after a dispositional hearing. The list is nowhere complete.

I hope I have conveyed the ultimate difference legal representation can make in a neglect or abuse proceeding post-dispositional. I also hope I have caused you to consider that the state and the Guardian ad Litem are not necessarily always right when it comes to promoting a child's interest. If this were so, we could dispense with court proceedings.

I ask you to consider also that a parent, the one who has been most intimately connected to the child, trusts her or his lawyer. The parent will confide in the lawyer and divulge information to the lawyer that the parent may not convey to the state, the Guardian ad Litem, or the court. The parent often does not appreciate the need for advocacy. The lawyer also will help the parent when that parent is not up to the responsibility of adequately caring for a child by counseling the parent to engage in the process in a way that minimizes the suffering for everyone.

Most importantly, the child did not come into world alone. I have found it best to be humble in expecting prevailing laws to have all the answers. To remove a parent's lawyer from a neglect or abuse proceeding when the lawyer's services are most needed, removes the opportunity to question laws and decisions that need to be challenged. The court needs a full adversarial system to get the full picture. Neither the state nor the Guardian ad Litem compensates for the parent's voice. Parents need legal representation for their voices to be heard. Children, the paramount consideration, need--as much as the voices of the state and Guardian ad Litem--to have the voices of their parents heard.

Sincerely,

Lucinda Hopkins
603.361.8168
www.nhlawhelp.com

Representation of Accused Parents is Fundamental Right

Republished here, my opinion from the recent Bar News regarding the appointment of counsel for parents in abuse and neglect proceedings:

Few rights can be argued to be more fundamental then the right to raise and care for one’s children. In recognition of that right, New Hampshire has long appointed counsel to represent indigent parents in abuse and neglect proceedings who face the removal of their children from their care by the State. The NH Supreme Court recognized in Shelby R. that "abuse and neglect proceedings can harm, and in some cases irreparably damage, family and marital relationships."

Despite the constitutional protections afforded to parents, recent passage of HB2 [the budget "trailer bill"] and the issuance of Circuit Court Administrative Order 2011-01 deprives indigent parents accused of abuse and neglect of the statutory right to be represented by an attorney at all stages of the proceedings. The Administrative Order prohibits any new appointments of counsel after July 1, 2011, and orders the automatic withdrawal of counsel after the issuance of dispositional orders for attorneys appointed prior to July 1, 2011. However, legislative enactments cannot override a constitutional protection and the Courts have an affirmative duty to invalidate a statute that violates a person’s constitutional rights.

Fundamental fairness requires government conduct to conform to the community’s sense of justice, decency and fair play. Without the protections of counsel, a parent facing allegations under the Child Protection Act stands little chance of defending himself against the state. As the U.S. Supreme Court wrote in Gideon v. Wainwright, "even an intelligent and educated layman has small and sometimes no skill in the science of law." Oftentimes the parents involved in abuse and neglect cases are uneducated, unsophisticated, frightened and do not have the wherewithal to understand the process. They have no skills in asking questions, raising objections, or admitting evidence. They lack knowledge of the law and are at an extreme disadvantage when questions of law arise.

On the other hand, the State, in presenting its case, has the ability, funds and know-how to subpoena witnesses, hire expert witnesses, obtain medical or psychological evaluations of the children or the parents, and investigate the claims and allegations involved in a petition. The State employs attorneys to put on the State’s case and act on its behalf. The parent’s fundamental, natural and essential rights require that counsel be appointed to assist a parent in mounting their defense and protecting their rights.

Additionally, abuse and neglect proceedings can have the most serious of consequences to parental rights: the termination of parental rights. As the NH Supreme Court wrote in State v. Robert H., "the loss of one’s children can be viewed as a sanction more severe than imprisonment." The abuse and neglect proceedings become the grounds upon which the state relies on in a termination of parental rights proceeding. The finding of abuse or neglect, the parent’s progress throughout the case, the status of the parent’s compliance with the dispositional orders, and the alleged failure of a parent to correct the conditions that led to the finding of neglect are the framework of the state’s TPR case. Without counsel guiding and protecting the parent in the underlying abuse and neglect proceeding, appointing counsel in the TPR is too little too late to safeguard the parent’s constitutional rights.

In contrast to other state cuts that have drawn the attention of the media and the public, the prohibition on appointed abuse and neglect counsel for indigent parents has captured little notice. Few of us can imagine the state coming into our home and removing our children, and not having the financial ability to protect our rights and family and advocate for the return of our children. The elimination of parent attorneys is shameful act by a legislature willing to sacrifice justice for the bottom line. As this opinion goes to publication, abuse and neglect parent attorneys across the state are mounting a challenge, and the support of the Bar and the public is crucial to its success. In the meantime, parents will have to navigate the abuse and neglect system without advice of counsel and try their best to advocate for themselves and their children.

Coming Changes and Challenges to New Hampshire Parents' Right to Counsel in Abuse and Neglect Proceedings

New Hampshire has long recognized that a parent's right to raise and care for one's child is a fundamental constitutional right. In recognition of that right, there has been a statutory right to counsel for parent's facing termination of parental rights proceedings and in abuse and neglect cases. In addition to the statutory authority, the New Hampshire Supreme Court has held that stepparents who are accused of abuse or neglect, and are household members, have the right to counsel if they cannot afford one.

However, the state's budget, which has passed the house and the senate and Governor Lynch has announced his intention to allow it to become law without his signature, changes the statutory authority and the ability of the state to pay for appointed counsel for parents in abuse and neglect cases. HB2, Section 79 strikes the portion of RSA 169-C:10, II(a) mandating the court appointment of an attorney for accused, indigent parents in abuse and neglect proceedings. On June 23, 2011, Judge Kelly, the administrative judge for the Family Division, issued an administrative order that orders as follows:

  • Until June 30, 2011, attorneys shall continue to be appointed to represent an indigent parent only where mandated by RSA169-C:10, II(a), i.e. in cases where an indigent parent is alleged to have neglected or abused his or her child.
  • Effective July 1, 2011, counsel shall not be appointed for indigent parents in abuse and neglect cases under RSA chapter 169-C.
  • Effective July 1, 2011, all appointments of counsel, including existing appointments, to represent indigent parents in abuse and neglect cases shall terminate upon the issuance of the dispositional order pursuant to RSA 169-C:19.

Though the legislature may believe that they can simply defund and eliminate the statute requiring appointed counsel for indigent parents, I would argue that they are wrong. In addition to the statutory protections that have been afforded to indigent parents in abuse and neglect case, the New Hampshire Constitution protects parents. The Shelby Court held that "due process requires the appointment of counsel to a stepparent accused of abuse or neglect under RSA chapter 169-C." The Court recognized that "abuse and neglect proceedings can harm, and in some cases irreparably damage, family and marital relationships." While the Court has consistently held that a natural parent's role in family life is a fundamental liberty interest under the constitution, due to the statutory protections requiring the appointment of counsel for accused parents, the Court has not yet been called on to recognize the due process right of a parent to counsel in abuse and neglect proceedings. However, given the holding that accused stepparents are entitled counsel, it is difficult to imagine that a parent would not have the same due process right. 

What happens from here? I expect that a constitutional challenge will be brought, in one of a variety of methods, and the Supreme Court will be called upon to recognize a parent's constitutional right to counsel in abuse and neglect proceedings. Until then, parents will have to navigate the abuse and neglect system without advice or counsel and try their best to advocate for themselves and their children.