August 01, 2012

Counsel for Indigent Parents Must be Determined Case-By-Case

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re C.M., 2012 WL 2479619 (N.H.).

After the legislature repealed a statute providing attorneys for indigent parents in child abuse and neglect cases, the New Hampshire Supreme Court found there was no per se constitutional right to appointed counsel, but that courts should determine on a case-by-case basis whether due process requires appointment.

Children came to the agency’s attention due to alleged domestic violence committed by the father. Through preliminary, adjudicatory and dispositional hearings, both parents were represented by appointed attorneys. After the dispositional order continued the children in out-of-home care, the parents appealed to the superior court.

While the appeal was pending, the state legislature abolished the statutory provision for attorneys for indigent parents. The parents then filed a motion requesting continued appointment of counsel, claiming a right under the state and federal constitutions. The superior court transferred the case without ruling to determine the constitutional questions.

The New Hampshire Supreme Court analyzed the question under the due process clause using the three prong test in Mattthews v. Eldridge, which balances the private interest at stake, the risk of erroneous deprivation absent other safeguards, and the government’s interest.
As to the private interest at stake, the court noted “the right to raise and care for one’s children is a fundamental liberty interest,” protected by the constitution and one of the longest recognized fundamental rights.

Regarding the risk of deprivation given the procedures in question, the court examined whether the absence of parental counsel impermissibly increases the risk of incorrect results. The court reviewed the state statutes and rules covering dependency proceedings. The state argued that because the law allows judges to consider all relevant evidence, parents proceeding pro se will not have to deal with complicated evidence rules. The parents countered that the relaxed evidentiary rules often result in inappropriate use of hearsay to support the agency’s allegations.

The court discussed how state law provided notices and other explanations to parents to help them understand the nature of the proceedings. The court concluded that the risk of erroneous deprivation was reduced in balance given the ability of the trial court to determine what evidence is material and relevant. The court stressed that the discussion was relevant to child abuse and neglect proceedings not termination cases.
Last, the court considered the government’s interest. The government’s interest in a particular case will usually coincide with the parents’ interest; the primary purpose of the child welfare statutes is to maintain children with their families if possible. The court acknowledged the state has financial interests that are contrary to indigent families.
On balance, the supreme court held “the fundamental nature of the parents’ interest favors the appointment of counsel,” but that due process does not require appointment in every child abuse and neglect case. There may be cases that involve complicated legal issues or require expert testimony and examination where the presence of appointed counsel would be required. Courts should determine from the facts of each case whether due process requires appointment.