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Attorneys for needy parents cut



Last modified: Saturday, July 09, 2011
Parents who cannot afford an attorney to defend themselves against accusations of abusing or neglecting their children are no longer entitled to have one appointed.

The change in state law, which went into effect July 1, was prompted by budget cuts. It has child advocates as well as attorneys who represent parents in abuse and neglect cases worried that more children will be permanently removed from their homes.

'When the government starts treading on your rights, that's when you have the right to a lawyer,' said Tracy Bernson, a Dover family lawyer. 'That's what's so wrong about this.'

The change was proposed by the Judicial Council, which pays the state's public defenders, contract attorneys and guardians ad litem, and also funds New Hampshire Legal Assistance and the Indigent Defense Fund.

Like other state agencies, the council was asked by Gov. John Lynch to cut its $26 million budget by 5 percent this year, said Nina Gardner, its executive director.

That cut was actually deeper, Gardner said, because the council had gone over its budget by $2.5 million the year before. Faced with that situation, Gardner said the council was forced to preserve its constitutional responsibilities - criminal representation - and instead propose cuts to those it considered statutory, including the representation of parents in abuse and neglect cases.

'They weren't cold-blooded decisions,' Gardner said, noting that the council also proposed ending the practice of appointing guardians ad litem in marital cases. Providing representation to accused parents in abuse and neglect cases costs about $1.2 million a year, Gardner said. About 400 new cases are filed each year, with 1,000 cases open at any given time.

A complex process

Abuse and neglect cases begin with a report to the state Division for Children, Youth and Families. After investigating the claims, the department may bring a case against the parents in family court. Virtually all of the parents involved in abuse and neglect cases qualify for court-appointed attorneys, family lawyers said.

Parents go to court for a preliminary hearing, to be followed within 30 days by the family court equivalent of a trial. The state calls witnesses, whom the parents and their attorneys can cross-examine. They can also call their own witnesses to defend themselves against the allegations.

The judge will then decide what happens to the child - and what parents need to do to address the problems in their home. Review hearings are held regularly, giving attorneys a chance to show the judge that parents are complying with the court's conditions.

The process is complex and the stakes tremendous: After a series of review hearings, if the parents haven't complied, the state could move for a permanent termination of parental rights. And that begins another court case.

While the cases aren't criminal - sexual and serious physical abuse allegations are referred to the police - 'if you asked any of these parents . . . they'd take incarceration as long as they could keep their children,' said Nancy Popp, a family law attorney who practices in Strafford County. 'That's how important it is to them.'

Popp, who has been handling abuse and neglect cases for 22 years, said 80 percent of the parents she represents have trouble reading. Many have mental health and substance abuse issues, and 'they're probably the most disadvantaged group in terms of self representation that one could get or find,' she said.

Without a lawyer, parents accused of abuse likely won't know they can subpoena witnesses, or understand how to interpret the state statutes, Popp said. They may not think to call experts as witnesses - a doctor, for example, who could counter a state's witness in a case accusing a parent of breaking a child's bones.

'They'll be going in alone, with whatever their disabilities might be,' Popp said of accused parents. 'I just think it's outrageous.'

Constitutional debate

Gardner said the council reviewed case law and decided that representation in abuse and neglect cases wasn't a constitutional right. She noted that parents will still be entitled to attorneys in termination of parental rights cases that follow abuse and neglect proceedings.

While New Hampshire had been providing a right to counsel in abuse and neglect cases, 'that doesn't mean it's absolutely necessary, under federal or state precedent,' Gardner said.

But that position is disputed by family law attorneys, including Vivek Sankaran, a law professor at the University of Michigan Law School who specializes in issues involving parents.

Sankaran said he believes New Hampshire parents do have a constitutional right to be represented in abuse and neglect cases based on the state Supreme Court decision affirming an accused stepparent's right to counsel.

New Hampshire is now one of about half a dozen states that do not guarantee lawyers for indigent parents in abuse and neglect cases, although unlike New Hampshire, the other states give a judge discretion to appoint attorneys, Sankaran said.

No state, however, has limited the right to counsel recently, Sankaran said, noting that the American Bar Association has a project to strengthen parent representation.

In New Hampshire, lawyers said they hope to bring the issue before the state Supreme Court. Family law attorney Kysa Crusco, who represents parents in abuse and neglect cases, said she's filing motions asking judges for permission to keep representing her clients and be paid for her work.

If they deny her motions, Crusco said she will appeal to the Supreme Court.

'Most of these families, they're not going to be perfect,' Crusco said. 'The kids aren't going to have the very best life they could.

'But they're their parents,' she said. 'And they have a fundamental, constitutional right under their state constitution to parent their children.'

(Maddie Hanna can be reached at 369-3321 or mhanna@cmonitor.com.)