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Re: Proposed Rule Change deeming parent's legal counsel withdrawn after neglect or abuse dispositional hearing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