October 01, 2015

New Hampshire Supreme Court rejects change opposed by the ABA affecting legal representation of parents

The New Hampshire Supreme Court voted this month not to adopt a proposed change to Rule 3.11 of the Rules of the Circuit Court of the State of New Hampshire-Family Division that the ABA maintained would have diminished the availability of legal representation to parents in abuse and neglect cases beyond a certain stage of the proceedings.

In an Oct. 16 letter to Carolyn Koegler, secretary of the New Hampshire Supreme Court Advisory Committee on Rules, New Hampshire Supreme Court Clerk Eileen Fox said the court voted not to adopt the proposal after careful consideration of the written and oral comments it received.

The ABA submitted comments last fall opposing the proposal, which would have provided that the appearance of court-appointed counsel in abuse and neglect cases is deemed withdrawn 30 days after the dispositional hearing, unless the court otherwise ordered representation to continue and stated the specific duration and purpose of the continued representation. In the comments, ABA Governmental Affairs Director Thomas M. Susman explained that the ABA opposed the change because the association believes that “legal representation for parents after an initial disposition in abuse and neglect cases should be required as a matter of due process in view of the ongoing court intervention and monitoring of custody of children in these cases.” The comments urged that New Hampshire reject the proposed rule to ensure that parents are fully protected for the duration of critical legal proceedings.

Susman pointed out that as long ago as 1979 the ABA’s Juvenile Justice Standards called for parents to receive the effective support of legal counsel in all child protective court proceedings. The most significant standard, the Right to Counsel Standard, states that the “participation of counsel on behalf of all parties subject to juvenile and family court proceedings is essential to the administration of justice and to the fair and accurate resolution of all issues at all stages of those proceedings.”

Additional ABA policy adopted in 2006 urges governments to “provide legal counsel as a matter of right at public expense to low-income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving … child custody.” In addition, 22 states have adopted or developed standards similar to the ABA’s Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases. None of the ABA policies or standards limit the scope of representation. 

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