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N.H. Supreme Court hears opposition to rule change in neglect cases

Last modified: 2/20/2015 12:50:38 AM
A group of attorneys urged the state Supreme Court yesterday to reject a proposal that would limit free legal counsel for impoverished parents accused of child abuse or neglect.

The new rule would require a court-appointed attorney to withdraw 30 days after an initial disposition in the case, unless a judge decides otherwise. Supporters say it will help cut down on potentially wasteful spending, when a lawyer’s services are no longer needed.

“The statutory right to counsel was never meant to be a blank check – it is not a blank check,” Circuit Court Administrative Judge Edwin Kelly told the justices during a hearing on the change. “This rule, in my opinion, sets some very general, some very general standards for the expenditure of those funds.”

He added: “These cases, after disposition, by and large are not cases involving legal issues.”

But several attorneys, including Peter Brunette, who works for the state Division for Children, Youth and Families, which prosecutes custody cases, argued that parents should have access to counsel at all phases of a case.

“There is no un-crucial stage in these proceedings,” Brunette said, speaking on his own behalf.

Parents who lose custody typically have a year to regain it, often by correcting dangerous behaviors or home conditions. If they fail to meet the requirements, a judge then determines a child’s permanent relocation plan.

Navigating the family court system can be incredibly intimidating for a parent with no legal expertise or outside help, Brunette said.

“The parents that come before the court, they’re poor, they’re not well-educated, many of them are struggling with mental and physical problems, many of them are addicted,” he said. “They have very little ability to do the fundamental thing that they have to do.”

Indigent parents used to have unrestricted access to counsel, but lawmakers removed it in 2011. They restored the ability two years later, after a state Supreme Court ruling in which the justices found that parents have a constitutional right to counsel in some neglect and abuse cases. Proponents hope the new rule would establish a middle ground.

Brunette described the two years when parents had no counsel as “horrible,” explaining that hearings were often delayed and parents trying to defend themselves were at times visibly confused. Some of that, however, occurred during the dispositional phase, which would not be affected by the new rule.

Today the state appoints attorneys to several hundred parents each year, according to the New Hampshire Judicial Council, which administers the funds. Executive Director Chris Keating said the board is budgeted $600,000 annually for the expense. That’s less than half of what it was spending four or five years ago, he added, attributing the reduction largely to improved efficiency.

Keating and Kelly each predicted that, under the new rule, attorneys would almost always be able to remain on a case if they file a request with the court.

Yesterday’s hearing was convened after several groups, including New Hampshire Legal Assistance, the state branch of the American Civil Liberties Union and the American Bar Association objected to the proposal. It was the first time in two decades that the high court has heard public testimony on a rule change.

Jaye Rancourt, an attorney speaking on behalf of the Bar Association, said, “Very often an attorney is a counselor, is a social worker, is a trusted adviser for a client. And if you remove the attorney after the disposition, you’re removing the role of that trusted adviser.”

The court has given no date or deadline for issuing a ruling.

(Jeremy Blackman can be reached at 369-3319, jblackman@cmonitor.com or on Twitter @JBlackmanCM.)


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