The proposal involves a change to Rule 3.11 of the Circuit Court, requiring the attorney to withdraw from a case following an initial dispositional hearing, unless there was a court order noting the specific duration and purpose of the continued representation. The state’s Supreme Court’s Advisory Committee on Rules held a public hearing on the proposed change in June, then accepted written comments from members of the bench, bar, Legislature, Executive Council and the public during the fall.
Based on the sheer volume of comments received, the Supreme Court took the rare step of calling a public hearing on the matter. That hearing was held last Wednesday.
“This doesn’t happen every day,” said attorney Michael C. Shklar, who testified at the hearing against the proposed change. “The court hasn’t called a hearing on a rule change since 1995.”
“To remove a parent’s lawyer from a neglect or abuse proceeding when the lawyer’s services are most needed, removes the opportunity to question laws and decisions that need to be challenged,” said attorney Lucinda Hopkins, who has handled negligence cases for 30 years. “The court needs a full adversarial system to get the full picture.”
In 2011, passage of HB2 and the issuance of Circuit Court Administrative Order 2011-01 did away with the statute requiring that any parent accused of abusing or neglecting their child in a child protection case be appointed an attorney to represent them. The state Supreme Court heard arguments challenging the change in “In Re: C.M.,” where the justices ruled that parents do not have a constitutional right to counsel, but appointment of counsel should be considered on a case-by-case basis. In July 2013, the Legislature reinstated the statutory authority under RSA 169-C:10, 11 (a) requiring court appointment counsel for indigent parents.
According to NH RSA 169-C:10, “In any case of neglect or abuse brought pursuant to this chapter, the court shall appoint an attorney to represent an indigent parent alleged to have neglected or abused his or her child. In addition, the court may appoint an attorney to represent an indigent parent not alleged to have neglected or abused his or her child if the parent is a household member and such independent legal representation is necessary to protect the parent’s interest. The court shall not appoint an attorney to represent any other persons involved in a case brought under this chapter.”
Shklar, who argued the “In Re: C.M, case,” said the proposed change comes “dangerously close to crossing the line” regarding separation of power.
“While the court has the power to make rules, contravening the intent of the Legislature on non-constitutional ground could be seen as contrary to the separation of power,” Shklar said.
The proposed change has caught the attention of the American Bar Association (ABA).
In comments submitted to the clerk of the New Hampshire Supreme Court on Oct. 16, ABA Governmental Affairs Director Thomas M. Susman explained that the ABA opposes 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.”
Susman points out 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, and the ABA urged New Hampshire to reject the proposed rule.
During Wednesday’s hearing, an amendment to the rule change was offered by Circuit Court Administrative Judge Edwin Kelly, which would instead withdraw an attorney only from cases where a child has not been removed from a home.
“If a child is at home, I might agree that counsel might not be necessary after the dispositional hearing,” said family law attorney Kysa Crusco, who attended the hearing to voice her opposition to the change. “I might be inclined to support that.”
“I think it’s a horrible idea,” said Shklar. “There’s no way of predicting how circumstances can change in a case, even when a child is at home. The language should remain in place.”
The Supreme Court has no deadline or timetable to offer a decision, said Chris Keating, executive director for the New Hampshire Judicial Council.