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.

Guardian ad Litem fund nears extinction

The Guardian ad Litem fund took a step closer to extinction when the House Finance Committee voted last night to ok HB1 and HB2 and send it to the House for a full vote. The House budget cuts $742 million in spending from the current two-year budget. Among those cuts is the Guardian ad Litem fund, through which GALs are paid on family cases where parents cannot afford to pay upfront for GAL services and so they pay through the fund.

HB2 makes the following changes regarding the GAL Fund:

65. Guardian ad Litem Fees. Amend RSA 461-A:16, IV to read as follows:

IV. The fees for services for the guardian ad litem and others utilized by the guardian and approved by the court shall be a charge against the parties in a proportional amount as the court may determine. [ Where the parties are indigent, compensation for guardians ad litem and others utilized by the guardian and approved by the court shall be based upon the applicable fee schedule established by the supreme court for indigent defense counsel. ]

66. Liability for Expenses. RSA 461-A:17 is repealed and reenacted to read as follows:

Amendment to HB 2-FN-A-LOCAL

461-A:17 Guardians ad Litem and Mediators; Liability for Expenses. The 1 judicial council shall have no responsibility for the payment of the costs of a mediator or guardian ad litem for any party under this chapter.

67. Reference Deleted. Amend RSA 21-I:7-b to read as follows:

21-I:7-b Unit of Cost Containment. There is established within the office of the commissioner of administrative services a unit of cost containment. The unit of cost containment shall be responsible for all functions and duties authorized under RSA 604-A, regarding payment, recoupment and monitoring of indigent defense funds. [It shall also be responsible for all functions authorized under RSA 461-A:18 relative to recouping guardian ad litem funds.] The commissioner is authorized to employ personnel as necessary to accomplish the duties and functions of the unit of cost containment.

69. Repayment of Mediator and Guardian Ad Litem Fees. Amend RSA 461-A:18, I to read as follows:

I. In any case where a mediator has been appointed pursuant to RSA 461-A:7 or a guardian ad litem has been appointed pursuant to RSA 461-A:16 and the responsible party’s proportional share of the expense is ordered to be paid by the judicial council from the special fund established pursuant to RSA [461-A:17] through the unit of cost containment, office of administrative services, the fees and expenses paid on the party’s behalf as the court may order consistent with the party’s ability to pay, such ability to be determined by the unit of cost containment.

73. Child Protection Act; Guardians ad Litem. Amend RSA 169-C:10, I to read as follows:

I. In cases brought pursuant to this chapter involving a neglected or abused child, the court shall appoint a [guardian ad litem or] Court Appointed Special Advocate (CASA) or other approved program guardian ad litem for the child. If a CASA or other approved program guardian ad litem is unavailable for appointment, the court may then appoint an attorney or other guardian ad litem as the guardian ad litem for the child. The court shall not appoint an attorney for any guardian ad litem appointed for the child [, but may appoint an attorney or any other qualified individual as the guardian ad litem for the child]. The CASA or other approved program guardian ad litem shall have the same authority and access to information as any other guardian ad litem. For purposes of this paragraph, “unavailable for appointment” means that there is no CASA or other approved program guardian ad litem available for appointment by the court following a finding of reasonable cause at the preliminary hearing held under RSA 169-C:15 so that the child’s interests may effectively be represented in preparation for and at an adjudicatory hearing.

 How will the elimination of the GAL fund affect the judicial branch and families?

• When the court has safety concerns about a child and cannot appoint a GAL using the fund, the court will turn to DCYF to investigate the concerns. This will increase the work required of DCYF and expend state resources.

• Trials and hearings will take longer and require more courts resources. Currently, GALs speak to witnesses, review records and report the information to the court in a clear, concise manner. Without a GAL, litigants will bring into court teachers, therapists, family and friends to give testimony. Litigants will submit volumes of emails, medical records, school transcripts and more for the court to sift through. This will increase the time required of the court to hear the case.

• Fewer cases will settle, necessitating more hearings and trials. Currently, once a GAL issues a report or recommendation, litigants are often able to enter into settlement discussions using the opinion of the GAL as a case evaluation. Without that process, litigants will settle less often and in turn take up court resources with more motions and hearings.

• Because trials will take longer and occur more often, the court system will suffer longer delays. Currently, the wait for a two day divorce trial in the Brentwood Family Division is over one year from the time that it is scheduled. Without the GAL fund, parties will have to wait even longer for a resolution to their case.

• Indigent litigants will be denied access to justice that litigants who can afford to pay up front for a GAL will have. The court system has never discriminated on the basis of income, and it should not start now.

There are alternatives to the elimination of the GAL fund. One alternative is the state doing a better job of collecting the funds that parents owe for GAL services. My understanding is that the fund requires about 1.8 million to run each year. The judicial branch collects $240,000 in filing fees for the GAL fund. In addition, the office of cost containment collects about $350,000 from parents who use services. This leaves a shortfall of roughly 1.2 million. This gap could be closed more effectively recouping the funds from litigants.
 

If the elimination of the GAL fund concerns you, contact your House representative and ask that the GAL fund be preserved or at the very least the effects of defunding it should be studied in committee before acting.