Opinion: Now is the time: Our abused and neglected children need legal representation

By MARK PEARSON and PAT LONG

Published: 12-21-2023 6:00 AM

Rep. Mark Pearson, R-Hampstead is Chairman and Pat Long, D-Manchester is Vice Chairman of the Children and Family Law Committee of the New Hampshire House of Representatives.

New Hampshire’s Child Protection Act mandates a child’s best interest be the primary consideration of the court in abuse and neglect proceedings. So why is it that a child is the only party in those cases without legal representation?

Parents in abuse and neglect proceedings are entitled to legal representation. The Division for Children, Youth, and Families has legal representation. Even the Court Appointed Special Advocates (CASA) of New Hampshire has legal representation. But children in abuse and neglect cases who may be at risk of losing their home, parents, and community, are not entitled to legal representation.

Providing children with legal representation in abuse and neglect cases is not a new concept. It is recognized as best practice nationally. There are only six other states that do not guarantee the right to legal counsel for children under any circumstances in abuse and neglect cases. This failure to follow best practice is made all the more puzzling when considering the fact that the Child Protection Act provides children with numerous rights including the right to request funds for an expert or other service, the right to subpoena witnesses, the right to object to evaluations, the right to request additional hearings, the right to examine court records, and the right to appeal. Without an attorney, how is a child expected to exercise these rights in court?

There is a bill (Amendment 2356h to HB 535) appearing next week before the New Hampshire House that would bring New Hampshire a step closer to the national best practice by providing legal assistance to some of our most vulnerable children. This bill would amend the Child Protection Act to give family division judges the discretion to appoint counsel for children at any time in abuse and neglect cases. It would further add a new provision to the act requiring courts to appoint counsel for children who are placed in or are at high risk of placement in, any group home or other institutional residential placement away from their own homes.

Children endure the most extreme consequences in an abuse and neglect case. They may be separated from and lose all connections to their parents, siblings, home, school, friends, belongings and community. They lose their autonomy. They may be placed in institutional settings with strangers and attend institutional schools with limited resources. They face uncertain futures. This is traumatic and isolating. As recently exposed by the Office of the Child Advocate’s report on Bledsoe Academy in Tennessee where New Hampshire children were sent, they may suffer additional abuse and neglect in these institutional placements.

Having counsel to represent the child’s expressed interest will empower the child in a situation that feels out of his or her control. It may also expedite permanency for a child and reduce the number of children in such placements. Most importantly, children will have a voice, providing the court guidance on what works for them.

The attorney made available through HB 535 would not replace a child’s volunteer CASA or guardian ad litem. CASA volunteers develop a unique and important relationship with children; they get to know the child and other people in the child’s life and provide recommendations for the court based on the CASA volunteer’s view of the child’s best interests. An attorney serves a different role altogether. An attorney ensures children understand their rights and then advocates for the children’s own goals and wishes. In short, CASA volunteers represent what they believe are the child’s best interests while an attorney represents the child’s expressed interests.

Evidence from around the country indicates that children with legal representation obtain better results than those without such. This includes less time in foster care or group settings, shorter time to reunification with parents or guardians, and reduced school transitions. This sometimes further results in reduced public investment costs for the balance of their lives. Now’s the time for New Hampshire to help our state’s most vulnerable children by taking this next step.