PJC In The News

NH court considers requiring court-appointed counsel for parents in abuse, neglect

In The Republic: www.therepublic.com

By Holly Ramer, Associated Press

March 13, 2012: CONCORD, N.H. — The state Supreme Court will decide whether New Hampshire should remain one of two states that require indigent parents to represent themselves in civil abuse and neglect proceedings.
For three decades, poor parents in New Hampshire were provided court-appointed lawyers if they could not afford them, but funding — about $1.2 million a year — was cut during the last legislative session. That made New Hampshire and Mississippi the only two states that don't provide such counselnp and prompted New Hampshire Legal Assistance to bring a lawsuit on behalf of parents.
Arguing before the high court Tuesday, attorney Michael Shklar said parents who represent themselves are at an enormous disadvantage compared to the state, which has lawyers and many resources on its side. Abuse and neglect cases are often complicated, he said, and the stakes are high — the potential of losing one's child.
But attorney Jeanne Herrick, representing the state, said the courts have adopted protocol to make sure parents understand the process. She argued that abuse and neglect proceedings are more informal — and thus easier to navigate — than criminal cases. And she disputed the characterization of the state bringing all its resources to bear against parents, saying only 15 percent of cases result in the state seeking to terminate parental rights.
After Herrick noted that the state doesn't require court-appointed counsel in divorce cases or complicated landlord-tenant disputes, Justice Robert Lynn questioned what would happen if the court created "a new entitlement" by ruling that indigent parents have a constitutional right to counsel. What about someone at risk of losing his driver's license — and thus his ability to provide for his family — or someone in state-subsidized housing in danger of losing her home?
Justice Carol Ann Conboy appeared more supportive of the parents.
"I understand the argument legally but I'm looking frankly at the impact on the child," she said.
But attorney Jeanne Herrick, representing the state, said the courts have adopted protocol to make sure parents 
understand the process and that they don't have a constitutional right to counsel.
Conboy also referred to her experience as a trial judge.
"It was a heck of a lot easier for me to deal with cases with counsel on both sides," she said.
The case has attracted attention from several national advocacy groups, including the National Coalition for a Civil Right to Counsel.
"There are tremendous fundamental interests at stake," said the group's attorney, John Pollock, who filed a brief in the case. "If a parent is guilty of abuse or neglect, they are separated from their children for some significant time. Often that's a predicate to future termination (or parental rights). It's often very hard to stop that train once it gets going."
University of Michigan Law School Professor Vivek Sankaran, who filed a brief on behalf of the National Association of Counsel for Children, said without counsel, rulings will be skewed to placing children in foster care. He said the case could have a huge impact on the national debate about right to counsel in civil cases.
"The New Hampshire Supreme Court could state unequivocally that this is not a right that can be taken away — that you need a lawyer before you can take kids away from their parents," Sankaran said.
Tuesday's session had been scheduled to be private, but the court opened it up to the public after a request from The Associated Press and other news outlets.
Associated Press Writer Lynne Tuohy contributed to this report.

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