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.

Four new superior court judges nominated

Governor Lynch has nominated four new superior court judges, including Hillsborough County Attorney Marguerite Wageling, Richard McNamara, a civil litigator from Wiggin & Nourie, PA,  David Garfunkel of Gallagher, Callahan & Gartrell, PC,  and Jacalyn Colburn of the New Hampshire Public Defender. Each nominee must be confirmed by the Judicial Counsel.

Source: Union Leader Hillsborough County Attorney prosecutor among four new judges.

 

Same-sex marriage and the future of fault grounds in New Hampshire

With the same-sex marriage bill about to come to Governor Lynch’s desk, it is an appropriate time to examine the future of fault grounds in New Hampshire. Currently, New Hampshire has both fault and no-fault grounds for divorce. Only about 1% of divorces in New Hampshire are granted on the basis of fault. Of the nine fault grounds, adultery is the most common.

Adultery in New Hampshire has a very narrow definition. For the purposes of the fault ground statute, under the Blanchflower decision,

“the term “adultery” excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that person of the same gender cannot, by definition, engage in the one act that constitutes adultery under the state.”

Furthermore, the court rejected the notion that it should expand the definition of adultery to include sexual acts other than intercourse between a man and a woman because doing so would revise the established definition of adultery beyond recognition, and “it is not the function of the judiciary to provide for present needs by an extension of past legislation.”

I was before a marital master on a temporary hearing the other day, and when the issue of fault grounds came up, he pointed out that if same-sex marriage becomes law, there will be married same-sex couples who, by virtue of their sexuality, cannot commit adultery according to the law (unless they were to cheat with an opposite-sex partner). It is an interesting predicament, and something that the legislature will need to address. The legislature will need to either revise the definition of adultery to include an expanded array of sexual acts between same-sex or opposite-sex couples, or abolish fault grounds all together. Many family law attorneys would argue for the later, pointing out that fault ground divorces cost more, take longer and interfere with parents moving forward with a good co-parenting relationship. Either way, it is time for the legislature to take action on the issue.

New Hampshire senate passes gay marriage bill

Yesterday the New Hampshire Senate passed a revised HB 436 that would allow same-sex couples to marry in New Hampshire. The bill differs from the bill the House passed, in that it makes a distinction between civil and religious marriage, and states that any couple is allowed to obtain a civil marriage. The bill is expected to be on the desk of Governor John Lynch later today or tomorrow. Governor Lynch has previously stated that he believes traditional marriage is best, although it remains to been seen whether he will veto it.

New Hampshire House votes to recognize gay marriage

Today the New Hampshire House voted to approve HB 0436, which would legalize gay marriage in New Hampshire, by a vote of 186 to 179. The bill also includes provisions allowing clergy the freedom to determine whether or not to marry a gay couple. The bill will now move to the Senate for debate and vote.

Governor Lynch is opposed to gay marriage, and it is expected that he will veto the legislation. The Union Leader reports that his press secretary Colin Manning said:

The civil unions bill he signed into law prevents discrimination and provides the same legal protections to all New Hampshire families to the extent that is possible under federal law.

Source: Union Leader "NH House endorses gay marriage"

 

New Hampshire House to vote on gay marriage bill

This week the New Hampshire House will vote on HB 436, a bill that would legalize same sex marriage in New Hampshire and allow any civil unioned couples to obtain the legal status of marriage. Currently, Massachusetts and Connecticut are the only states that allow same sex marriage. Several states, including New Hampshire, allow same sex couples to enter into civil unions. According to a recent article in the Union Leader, Govenor Lynch, who supported civil unions, opposes gay marriage.