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Bar Journal - September 1, 2001

The New Hampshire Supreme Court Strikes a Balance Between Parental Rights and the Best Interest of the Child Analysis of the In re Bill F. Decision

By:

INTRODUCTION

The New Hampshire Supreme Court made a strong statement for parental rights in its recent decision In re Bill F.1 The court ruled that the procedure employed in this case substantially prejudiced Bill F.ís fatherís efforts to obtain custody of his son.2† The statutory procedure employed was determined to be fundamentally unfair and amounted to a denial of due process.3

Historically, the Child Protection Act, RSA 169-C, provided that the childís best interest is of paramount importance. The courtís recent decision in Bill F. reinforces RSA 169-C:2, relative to the protection of the life, health and welfare of a child, but also extends protection to "establish a judicial framework to protect the rights of all the parties involved in the adjudication of child abuse and neglect cases."4 The decision in Bill F. provides that parents who have not been charged with child abuse or neglect will be afforded a full hearing at which they may present evidence of their ability to properly care for the child. The parent then "shall be awarded custody unless the State demonstrates, by a preponderance of the evidence, that he or she has abused or neglected the child or is otherwise unfit to perform his or her parental duties."5

This article will discuss prior case law interpreting the statutory authority of the Division for Children, Youth and Family (DCYF) in the context of the rights of a non-custodial parent in reunification efforts at the time Bill F. was decided. We will examine the Bill F. courtís application of State v. Robert H.6, in its assertion that the decision "properly balances the Stateís interest in protecting the welfare of children and parentsí interest in raising their children without State intervention."7 Finally, this article will analyze the impact of the Bill F. ruling in its practical application today and will discuss the legislation currently pending in New Hampshire that would amend the existing statutory law to be consistent with the decision in Bill F.

I. PROCEDURAL HISTORY

The facts of this case demonstrate the complexity of the legal process in child abuse and neglect cases because, as in this case, court documents are often sealed. For the privacy of Bill and his family, this article works with the facts as they were presented in the courtís decision.

A. District Court

In September of 1996, Bill F. was seven years old and was living with his mother in Whitefield, New Hampshire, while his father lived in Manchester.8 On September twenty-fifth of that same year, DCYF filed a petition alleging Billís mother had "failed on numerous occasions to properly supervise him for extended periods of time."9 Billís father was not alleged to have abused or neglected Bill in the DCYF petition.10 Prior to the adjudicatory hearing scheduled in district court, Billís mother, DCYF and the guardian ad litem entered into a consent decree stipulating to the motherís abuse and DCYF was awarded legal and physical custody of Bill.11 The district court permitted supervised visits with both parents but ordered Bill and his mother to participate in mental health counseling.12 Billís father was not named in the DCYF petition; nor was he a party to the consent decree.13 At the time of the adjudicatory hearing, Billís father could not afford counsel, and refused to sign the decree.14 His request for time to obtain counsel to seek custody of Bill was then granted by the district court.15†

On April 2, 1997, the district court held a hearing where Billís father appeared with counsel and requested that DCYF conduct a home study to determine whether he could properly care for his son in order to obtain custody.16 The district court granted the motion and continued the hearing until completion of the home study.17† DCYF investigated and concluded, "despite the interest that [the petitioner] has expressed in having Bill reside with him, there remains concern on whether this is in Billís best interests."18† DCYF made the recommendations that Billís father "continue with mental health counseling and participate in a parenting program to improve his parenting skills, particularly proper discipline."19 The district court received DCYFís study and dispositional review report and subsequently held a hearing in which the district court ordered that Bill remain with DCYF.20 Five hearings followed in which parental visitation rights for Billís father were suspended and reinstated.21 On February 2, 1999, the district court ordered that DCYF "was no longer required to work towards reunification of Bill and his parents."22

B. Superior Court

Billís father sought a de novo appeal in New Hampshire Superior Court claiming the district court erred by: allowing DCYF to discontinue reunification without first having a specific plan in place; abrogating his parental rights without an administrative or judicial finding that he abused or neglected his son; and failing to properly inform him of the consequences of the consent order.23

DCYF moved to dismiss the appeal arguing that the appeal was "untimely and barred by the doctrine of laches."24 The superior court ordered an evidentiary hearing to determine whether DCYF had made reasonable efforts to reunify prior to requesting it be permitted to cease such efforts.25

The superior court ruled that Billís father waived de novo review of his second and third claims by failing to make timely appeal of the consent decree.26† The evidentiary hearing found that no written plan existed, but found that DCYF had developed and had attempted to implement a reunification plan.27† Billís father appealed his case to the New Hampshire Supreme Court.28

II. THE DECISION

The New Hampshire Supreme Court separated their discussion in Bill F. to address two issues, the timing and the merits of the case.

A. Timing

The New Hampshire Supreme Court addressed the timeliness of Billís fatherís appeal first. RSA 169-C:28 provides that an appeal may be taken to the superior court within thirty days of the final dispositional order, and the superior court shall hear the matter de novo.29 "For purposes of this chapter, a "final dispositional order" includes a dismissal of a petition for abuse and neglect by the district court."30

The State argued that Billís father had no statutory right of appeal because the district court did not issue a final dispositional order, but rather issued a consent decree and that the court should review his claim as a writ of certiorari.31

In its decision, the supreme court first analyzed whether Billís father had a right of appeal under RSA 169-C:28.32† Billís father was neither a party to, nor did he sign, the consent decree.33† Since the district court never issued a dispositional order in this case, the supreme court determined that Billís father "had no right to a de novo appeal in superior court under RSA 169-C:28."34 Though Billís father lacked a statutory right of appeal, the New Hampshire Supreme Court had the authority to grant a writ of certiorari and review the district court action through concurrent jurisdiction with the superior court.35† Therefore, Billís father should have proceeded to appeal through writ of certiorari and sought relief directly.36†

The court was clear to caution that certiorari may not be granted to review all orders following a consent decree in abuse and neglect cases.37 The court will exercise the "grant of writ sparingly and only where to do otherwise would result in substantial injustice."38† The circumstances in Bill F. that the court believed warranted review were the following: Billís father was not named on the DCYF petition of abuse and neglect; he was not a party to the consent decree; and the lower court never found abuse or neglect of Bill on his part.39

B. Merits

Prior to the Bill F. decision, the court determined custody orders in abuse and neglect cases based solely on the "the best interest of the child."40A parent seeking custody, who had not been found to have abused or neglected his or her child, had the burden of proving that placing the child in their custody served the childís best interest.41†The Bill F. decision shifts the burden of proof from the non-custodial parent to the State. The court held that a parent, "shall be awarded custody unless the State demonstrates, after a full hearing, by a preponderance of the evidence, that she or he has abused or neglected the child or is otherwise unfit to perform his or her parental duties."42As previously stated, the court expressed that this decision, in the interest of fundamental fairness, now properly balances the Stateís interest in protecting the welfare of children against the parentís interest in raising their children without state intervention.43 Basing its analysis in part on the state constitution the court noted, "[w]e have long recognized the right to raise and care for oneís children as a fundamental liberty interest protected by Part I, Article 2 of the New Hampshire Constitution."44

The petitioner, Bill F.ís father, argued that he "should have been granted custody of his son, unless following a full hearing, the district court determined that he had abused or neglected him or was otherwise unfit to provide proper parental care."45† This argument is premised on the assertion that Bill F.ís father had a constitutionally protected interest in the care and custody of his child.46 In failing to provide such a hearing, and without an affirmative finding of abuse or neglect, the district court denied Billís father due process of law by depriving him of legal and physical custody of his son.47

The State put forth several arguments in opposition. The first argument asserted that the welfare of abused or neglected children would be jeopardized if the parents not named in the proceedings under RSA chapter 169-C are afforded a hearing to ascertain whether they have committed abuse or neglect.48† The second argument asserted that DCYF is only required to determine who is apparently responsible for the abuse or neglect of a child prior to transferring custody of that child under RSA 169-C:34.49 The third argument asserted that the supreme court should apply RSA 169-C:23, which states that once a parent is deemed neglectful or abusive, the parent must demonstrate to the court certain criteria before the child is returned to their custody.50 Finally, the State analogized In re Bill F. to In re Tricia H.,51 where the New Hampshire Supreme Court held "that a fatherís parental rights could be terminated under RSA chapter 170-C, despite the fact that he was not named in a prior abuse and neglect proceeding under RSA chapter 169-C."52

The court began its analysis under the state constitution stating that New Hampshire has long recognized the right of a parent to raise and care for his or her children as a protected fundamental liberty.53† Having determined that a constitutionally protected interest was at issue, the court noted that "the due process inquiry focuses upon fundamental fairness."54 The court stated that "[i]f a parent is found, either by adjudication or stipulation, to have abused or neglected a child, the district court has the power to award custody of the child to the other parent."55 In order to determine whether the district court proceedings were fundamentally fair, the court examined the procedures followed in the hearing.56

The court pointed out in its analysis that a parent charged with abuse or neglect is provided with a full hearing with an opportunity to call witnesses, present evidence, and cross-examine adverse witnesses.57† Billís father was not named in the petition alleging abuse or neglect; yet for over two and a half years the district court repeatedly placed limitations on the exercise of his parental rights.58 This was done without ever providing him with the equal opportunity for a full hearing.59† The district court reached both the adjudicatory and dispositional custody determinations without ever finding that Billís father was abusive, neglectful or otherwise unfit to care for his son.60†

The disparity in fairness, created by the imbalance of opportunities for custodial parents versus non-custodial parents, "gives a party a significant advantage or places a party in a position of prejudice or allows a party to reap the benefit of his own behavior in placing his opponent at an unmerited and misleading disadvantage."61† The court stated the procedure employed by the district court in Billís case placed his father in an even more difficult position than a parent actually charged with abuse or neglect and this substantially prejudiced his efforts to obtain custody of his son.62† In doing so, Billís father was subjected to a situation that was fundamentally unfair and was denied due process.

The court stated that, "the welfare of an allegedly abused or neglected child is of paramount importance under RSA 169-C."63 In its decision, however, the court also emphasized that the purpose of RSA 169-C is not limited to protecting endangered children. Instead, it also is intended to establish a "judicial framework to protect the rights of all parties involved in the adjudication of child abuse or neglect cases."64 The State can continue to protect children from abuse and neglect without violating a parentís right to due process by affording the parent who has not been charged with abuse or neglect, upon request, a full hearing in the district court regarding his or her ability to obtain custody.65† At that hearing, the parent will be provided an opportunity to present evidence pertaining to his or her ability to provide care for the child and shall be awarded custody unless the State demonstrates, by a preponderance of the evidence, that the parent has abused or neglected the child or is otherwise unfit to perform his or her parental duties.66

Dicta in the courtís opinion suggests that the district court should not focus exclusively on whether granting custody to that parent conforms to the former sole standard of being in the childís best interests, but instead should now also consider whether the parent seeking custody "has engaged in abusive or neglectful conduct or is otherwise unfit to care for his or her child."67 In explanation of the policy behind its position, the court quoted from the United States Supreme Court decision, Quillon v. Walcott:68

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder . . . . We have little doubt that the Due Process Clause would be offended if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the childrenís best interest.69

The court also quoted from a New Hampshire case that had previously addressed policy relating to the best interest of the child standard in State v. Robert H.:

[I]n an ideal world, children would not be brought up in inadequate homes. But this is not an ideal world, and to hold merely that inadequate parenting, absent specific harm to the children, is sufficient to terminate parental rights in the best interest of the child is too vague a concept and places undue emphasis on the parental conduct rather than on any harm to the child.70†

The court also quoted that "[a]bsent a showing of specific harm to the children, growing up in a so-called disadvantaged home is not a sufficient basis for coercive intervention."71†

The court disagreed with the Stateís argument that a child would be put in jeopardy if a non-custodial parent were afforded a full hearing to determine custody.72The courtís reasoning was based on the particular facts of this case, which show that the "DCYFís efforts to ensure Billís welfare were not thwarted."73† After the neglect petition was filed, Bill was removed from his motherís home and was placed in protective custody.74 Furthermore, the court asserted that after Billís mother consented to the finding of abuse and neglect on the petition, the district court ordered that Bill remain in protective custody pending the home study to be conducted on behalf of his father.75 Billís welfare was continuously protected as he remained in DCYF custody and he was therefore never in an at risk situation during the course of any court proceedings.

The court then addressed the Stateís reliance on RSA 169-C:34, as it pertains to the report of abuse or neglect to DCYF.76 The court believed this reliance misplaced, because the facts of the case did not apply to that section of the statute.77 Billís father challenged the Stateís interference with his parental rights after Billís mother admitted to her neglect. Billís father was a non-custodial parent who had not been found to have abused or neglected his son.78 RSA 169-C:34 simply does not apply to this case.79†

The court found no merit to the Stateís next argument analogizing Bill F. to In re Tricia H.80† The supreme court distinguished the primary issue in Bill F. as one that pertained to the rights to be afforded a parent against whom there had been no allegation of abuse or neglect in a proceeding under RSA 169-C.81 In contrast, Tricia H. involved a proceeding to terminate parental rights where the parentís failure to correct conditions, which led to a finding of abuse or neglect was a specific statutory ground for the termination of the parent-child relationship.82 The courts believed these two cases were dissimilar because each focused on a different aspect of the child abuse and neglect proceeding and therefore were not legally analogous.83†

Affording due process rights to parents during custodial hearings in child abuse and neglect cases is not a unique concept. The court cited case law from other jurisdictions that similarly held that constitutional due process must be afforded to a parent at a state-initiated proceeding to terminate parental rights. The facts and legal issues surrounding each child abuse and neglect case may differ dramatically, but the theme of providing due process rights to parents is consistent throughout. In In re Chimere C.,84 the Supreme Court of New York stated that, "when the state moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures."85† In addition, the In re La Shonda B.86 court discussed the due process rights of a non-custodial father at the dispositional phase of a parental rights termination proceeding in a child abuse and neglect case.87 The La Shonda B. court determined that the fatherís due process rights were not violated because he was afforded an opportunity to be heard at the dispositional hearing.88 Similarly, in In re Amber G.,89 the Nebraska Supreme Court stated that a court may not deny a parent custody of a minor child unless it is affirmatively shown that the parent is unfit to perform the duties imposed by the relationship or has affirmatively forfeited that right.90 That decision emphasized that a court cannot deprive a parent of the custody of a child merely based on the belief that some other person would better provide for the child.91"Where the father received notice, an opportunity to be heard, and ample consideration at the hearings (all of which occurred in this case), the judgeís decision not to place the children with their father did not violate his constitutional rights."92

In Bill F., the court stated that nothing in its opinion "should be read to prevent the State from placing a child in protective custody under RSA 169-C:6, providing social services for the benefit of the child, or performing a home study or any other investigation as provided by RSA chapter 169-C."93The court simply held "that a natural or adoptive parent who has not been found to have abused or neglected his or her child may not be deprived of custody of the child unless after a full hearing the State has proved the parent unfit to exercise custody of the child."94

III. DISCUSSION:

A. State v. Robert H.

The New Hampshire Supreme Court in Bill F. ensures the rights of parents to raise their children without unnecessary state intervention. The court balanced those interests against the interest of the State in protecting the children of New Hampshire. In Robert H. the court cited the principle that "[i]t is cardinal . . . that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."95† To the extent Bill F. relies on Robert H., the court reaffirms the position of the supreme court that "[t]he role of parents in the life of a family has attained the status of a fundamental human right and liberty."96

Though Robert H. was decided in 1978, the courtís lengthy policy discussion regarding parental rights was rooted in the New Hampshire Constitution. The court in Robert H. stated that "[t]he family and the rights of parents over it are held to be natural, essential and inherent rights within the meaning of the New Hampshire Constitution, part I, article 2."97†

Robert H. can be distinguished from Bill F. in that the former case involved a different procedure for the termination of parental rights under RSA 170-C. Robert H. involved termination for "failure to correct the conditions leading to a finding of neglect."98† RSA 170-C was enacted "to provide for the involuntary termination of the parent-child relationship by a judicial process, which will safeguard the rights and interests of all parties . . . ."99

The New Hampshire Supreme Court decided Robert H. over thirty years ago and the opinion has since been cited by a number of other state courts including Maine, Kansas, New Jersey, New Mexico, and Pennsylvania. Even the United States Supreme Court in their 1982 decision Santosky v. Kramer,100 cited to the policy discussion within Robert H. to support their reasoning for protecting the rights of parents.101

B. The Eric L. Class Action

Even before the decision in Bill F. afforded parents who are not charged with abuse or neglect the right to a full hearing, the settlement of a 1993 class action lawsuit, Eric L. v. Shumway,102ensured those parents were notified that abuse and neglect proceedings had begun. The agreement in Eric L. provided for a notification process by DCYF to facilitate the early identification and location of both parents of all children subject to a petition pursuant to RSA 169-C.103DCYF policy and procedure now requires that, prior to filing a petition, DCYF is to use reasonable efforts in locating both parents and name them on the petition. If either parent is not identifiable at the time of filing, DCYF is to notify the appropriate district court of its inability to do so. If the parentís identity and/or location is discovered after filing the petition, DCYF is responsible for immediately informing the appropriate district court of that information. The decision in Eric L. is another example of the trend towards protecting the rights of the parents in abuse and neglect cases. Through the decision in Eric L., Bill F.ís father was notified of the petition for abuse and neglect against Bill F.ís mother. Had this procedure not been in place, it is likely Bill F.ís father, living some distance away and having little contact with his son, may never have known about the proceedings.

C. In re Samantha L.

Another recent case, In re Samantha L.,104 limited the holding in Bill F. The district court concluded that Samantha L. had been abused, but found that her mother had not caused the injuries and that evidence was insufficient to find that she had failed to protect her daughter.105† The district court then ordered custody of Samantha to her mother, but granted legal supervision to DCYF.106Upon appeal, the superior court agreed with the district courtís findings as to abuse, but expressed concern about continued or future abuse because Samantha refused to disclose the nature of her injuries and because her mother refused to believe that any family members or friends caused the abuse.107The superior court placed custody of Samantha with DCYF due to the seriousness of her abuse, the motherís disbelief that the abuse happened and the motherís behavior flowing from that disbelief.108

In the subsequent appeal to the New Hampshire Supreme Court, Samanthaís mother argued, among other things, that the court could not remove the child from her custody without first finding that she bore some culpability for her childís abused condition.109† At first glance this appears to be similar to the assertion in Bill F. However, the decision in Samantha L. can be distinguished from that in Bill F. The Samantha L. court held the superior courtís failure to find the parent responsible for the physical abuse not "tantamount to a failure to find a causal link between harm or threatened harm" to the child and the parentís continued custody.110 The court held that when it is found that a parent refuses to acknowledge the abuse of a child, and demonstrates an unwillingness to protect the child from threat of future abuse, the transfer of custody to DCYF is justified.111† This is distinctly different from the case of Bill F.ís father, for whom there was never any finding that he was unwilling to protect the health, safety or welfare of his son.112

Samanthaís mother also asserted that due process requires that she be given a hearing to demonstrate that her "failure to believe" and "failure to explain" her childís abuse do not render her unfit to continue the custody of her child.113 The court emphasized once again that RSA 169-C provides the "judicial framework to protect the rights of all parties involved in the adjudication of child abuse or neglect cases."114 After referring to the holding in Bill F., the court asserted that Samanthaís mother had received the full measure of judicial process that the Child Protection Act provides because she was afforded two fact-finding hearings after which the courts determined that her continued custody posed a threat to the welfare of her daughter.115† This is an entirely different case from that of a parent for whom there was simply no right to a judicial proceeding.

IV. PRACTICAL APPLICATION OF BILL F.

The decision in Bill F. guides the lower court in its discretion in deciding abuse and neglect cases by requiring the courts to balance the interests of the parent against those of the State in protecting the child. The legal process benefits from the decision in Bill F. by establishment of the right to a full hearing for non-offending, non-custodial parents. The New Hampshire District Court recently amended their draft protocols relative to abuse and neglect cases to reflect the holding in Bill F. regarding the right to a full hearing. Now, when the non-offending, non-custodial parent is notified by the court of a pending abuse and neglect proceeding, that parent is provided information explaining their rights including the right to request a hearing.

Interviews with New Hampshire family law practitioners showed that the sentiment regarding the Bill F. decision was positive. The practitioners could uniformly recall anecdotes to cases before Bill F. where the non-offending, biological parent was either simply not sought or not given priority rights to custody over other relatives or stepparents. As the concept of family is being continuously redefined, the holding in Bill F. could spill over into other areas of unsettled law regarding grandparentís custodial rights and custodial and adoptive rights of non-biological gay parents.

Currently, the parent accused of abuse and/or neglect is afforded legal representation during their abuse and neglect hearing. This opens the door to future discussion on the need for providing legal representation to non-offending, non-custodial parents, during their custody hearing. Economic factors may have played a significant role in limiting the body of New Hampshire case law addressing the issue of a non-offending parentís rights. It is not infrequent that the non-offending, non-custodial parent petitioning for custody of their child, is appearing before the court pro se. If they are denied custody and want to appeal the decision to the superior court, many times they canít afford to do so. It is even more unlikely they will take their argument all the way to the New Hampshire Supreme Court.

An interview with a seasoned field worker for DCYF in Manchester, demonstrated the Divisionís concern about maintaining the protection of the rights of children whose interest may be affected by the recent Bill F. ruling. The DCYF field worker expressed concern about the consequences of placing the child with the non-offending, non-custodial parent without having adequate time to ensure an appropriate environment can be provided by that parent. The Bill F. adjudicatory hearing only provides the court with a "snapshot" of the non-offending, non-custodial parent at the time of the hearing. For example, the petitioning parent may have a job, a home, or other outward manifestations of stability at that time, but that situation is subject to change or could have been temporarily orchestrated to obtain custody of the child. It is arguable that the "snapshot" does not necessarily reveal that parentís full past history, nor does it give a clear picture whether the parent has the ability to address the holistic needs of an abused or neglected child.

Once the non-offending, non-custodial parent obtains legal and physical custody of the child, DCYF no longer has the necessary involvement to ensure the childís well being. The essence of Bill F. and its focus on the legal issues of custody appears to potentially chattelize the child and not address DCYFís goal to foster on-going education to effect emotionally whole families.

The DCYF worker also expressed concern about the parentís rights superceding that of the childís right to a healthy life. The Bill F. ruling, however, is strongly rooted in the constitutional right of a parent to raise their child without state intervention. The New Hampshire Constitution does not provide a child with the right to be raised whole, rather, the language quoted by the supreme court in Robert H. explains that inadequate parenting absent a specific finding of harm is not itself sufficient to terminate parental rights and places undue emphasis on the parental conduct rather than on any harm to the child.116†

V. PENDING LEGISLATION:

On February 15, 2001, in response to the Bill F. decision, two New Hampshire lawmakers introduced House Bill 699 (HB 699) relative to the rights of non-offending parents in the context of abuse and neglect cases. The House of Representatives passed HB 699 with amendment on April 18, 2001 and as of the final draft of this article HB 699 has yet to be scheduled for a hearing in the Senate. If enacted, HB 699 would amend RSA chapter 169-C by inserting after section 19-d, the following new section:

169-C:19-e Custody Hearing For Parent Not Charged With Abuse or Neglect. A parent who has not been charged with abuse or neglect shall be afforded, upon request, a full hearing in the district or family court regarding his or her ability to obtain custody. At the hearing, the parent shall be provided the opportunity to present evidence pertaining to his or her ability to provide care for the child and shall be awarded custody unless the state demonstrates, by a preponderance of the evidence, that he or she has abused or neglected the child or is otherwise unfit to perform his or her parental duties.

Statutory codification of the existing law better serves the public interest by placing the language of Bill F. in a more readily accessed resource. If passed by the Senate, this bill is set to take effect on January 1, 2002.

VI. CONCLUSION:

The New Hampshire Supreme Court emphasized the importance of balancing the best interests of the child with the rights of the parents in its decision in Bill F. Citing the existing statutory language of the Child Protection Act, RSA chapter 169-C, the court determined that a parent not found to have abused or neglected his or her child shall be awarded custody of that child unless the State can demonstrate that the parent can not properly care for the child or would endanger the childís safety. The language of RSA chapter 169-C provides that a child will only be separated from his or her parents when, "the safety of the child is in danger or when it is clearly necessary for his welfare . . . and when it can be clearly shown that a change in custody and control will plainly better the child . . . ."117 The burden of proof has shifted to the State to demonstrate "clearly" that the child is in danger or that a change in custody and control "will plainly better the child."118

The court also held that denying a parent a full hearing to determine custody when they have not been found to have abused or neglected their child would subject that parent to an undue burden and violate their due process rights. Consistent with the Bill F. decision, the draft protocols for the district court reviewing these cases have been changed to provide the non-offending, non-custodial parent with information that explains their right to request a hearing to obtain custody of their child.

Bill F. ultimately serves as a declaration by the New Hampshire Supreme Court of the continued commitment to protecting the welfare of children and the parentís interest in raising their children without state intervention since first announced by this state in 1978 in the case Robert H. The adjudication of child abuse and neglect cases is painful for both the child and the parents. Bill F.ís reaffirmation to protect the rights of "all parties involved" will help to facilitate a more fair system.

ENDNOTES

1. In re Bill F., ___ N.H. ___, 761 A.2d 470 (2000).
2. Id. at 475.
3. Id.
4. Id. (quoting N.H. Rev. Stat. Ann. ß 169-C:2 (1994)).
5. In re Bill F. 761 A.2d at 475-476.
6. State v. Robert H., 118 N.H. 713 (1978).
7. Id. at 476.
8. Id. at 472.
9. Id.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id.
16. Id.
17. Id.
18. Id.
19. Id. (specifics regarding the nature of the petitionerís counseling and parenting skills are sealed as part of this case).
20. Id.
21. Id.
22. Id.
23. Id.
24. Id.
25. Id.
26. Id.
27. Id.
28. Id.
29. Id. at 473 (quoting N.H. Rev. Stat. Ann. ß 169-C:28 (1994)).
30. Id.
31. In re Bill F., 761 A.2d at 473 (citations omitted).
32. Id.
33. Id.
34. Id.
35. Id. (citing Bothwick v. State, 119 N.H. 583, 590 (1979)).
36. In re Bill F, 761 A.2d at 473.
37. Id.
38. Id. (quoting In re Ryan G., 142 N.H. 643, 645 (1998)).
39. In re Bill F., 761 A.2d at 473.
40. N.H. Rev. Stat. Ann. ß 169-C:23 (amended 1999).
41. In re Bill F., 761 A.2d at 475.
42. Id.
43. Id. at 476.
44. Id. at 474 (quoting In re Kerry D., 144 N.H. 146, 148 (1999)).
45. In re Bill F., 761 A.2d at 474 (specifics regarding the nature of the petitionerís counseling and parenting skills are sealed as a part of this case).
46. Id.
47. Id. at 475.
48. Id. at 474.
49. Id. at 474-475.
50. Id. at 475 (citing N.H. Rev. Stat. Ann. ß 169-C:23).
51. In re Tricia H., 126 N.H. 418 (1985).
52. In re Bill F., 761 A.2d at 475 (citing In re Tricia H., 126 N.H. at 424-425).
53. In re Bill F., 761 A.2d at 474 (quoting In re Kerry D., 144 N.H. at 148).
54. In re Bill F., 761 A.2d at 474 (quoting State v. Symonds, 131 N.H. 532, 534 (1989)).
55. Id. at 474.
56. Id.
57. Id. at 475 (citing N.H. Rev. Stat. Ann. ß 169-C:18, III (1979)).
58. In re Bill F., 761 A.2d at 475.
59. Id.
60. Id. at 474.
61. Id. at 475 (quoting State v. Symonds, 131 N.H. at 534).
62. In re Bill F., 761 A.2d at 475.
63. Id. (citing In re Preisendorfer, 143 N.H. 50, 54 (1998)).
64. Id. at 475 (quoting N.H. Rev. Stat. Ann ß 169-C:2).
65. Id. at 475.
66. Id. at 475-476.
67. Id at 476.
68. Quillon v. Walcott, 434 U.S. 246 (1978).
69. In re Bill F., 761 A.2d at 476 (quoting Quillon, 434 U.S. at 255).
70. In re Bill F., 761 A.2d at 476 (quoting Robert H., 118 N.H. at 718).
71. In re Bill F., 761 A.2d at 476 (quoting Robert H., 118 N.H. at 719).
72. Id. at 474.
73. Id.
74. Id.
75. Id.
76. Id. at 475.
77. Id.
78. Id.
79. Id.
80. Id.
81. Id.
82. Id. (citing In re Tricia H., 126 N.H. at 424-425).
83. In re Bill F., 761 A.2d at 475.
84. In re Chimere C., 686 N.Y.S.2d 775 (N.Y. App.Div. 1999).
85. Id. at 777 (quoting Santosky v. Kramer, 455 U.S. 745, 753-754 (1982)).
86. In re La Shonda B., 95 Cal. App. 3d 593 (Cal. Ct. App. 1979).
87. Id. at 596.
88. Id. at 600.
89. In re Amber G., 554 N.W.2d 142 (Neb. 1996).
90. Id. at 149.
91. Id.
92. In re Amber G., 554 N.W. 2d at 150 (citing In re L.J.T., 608 A.2d 1213 (D.C. App. 1992).
93. In re Bill F., 761 A.2d at 476.
94. Id.
95. State v. Robert H., 118 N.H. at 715 (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).
96. State v. Robert H., 118 N.H. at 715.
97. Id. at 716.
98. Id. at 714.
99. Id. at 715 (quoting N.H. Rev. Stat. Ann. ß 170-C:1(1973)).
100. Santosky v. Kramer, 455 U.S. 745 (1982).
101. Id. at 751.
102. Eric L. v. Shumway, Commír of the Depít of Health & Human Serv., Civ. Action No. 1:91-cv-376-M, US District Court (District of NH
103. Id. at
104. In re Samantha L., ___ N.H. ___, 761 A.2d 1093 (2000).
105. In re Samantha L., 761 A.2d at 1095.
106. Id.
107. Id.
108. Id. at 1095-1096.
109. Id. at 1096.
110. Id. at 1097.
111. Id.
112. In re Bill F., 761 A.2d at 471.
113. In re Samantha L., 761 A.2d at 1098.
114. Id. (quoting In re Tracy M., 137 N.H. 119, 123 (1993)).
115. In re Samantha L., 761 A.2d at 1098.
116. State. v. Robert H., 118 N.H. at 718 (citations omitted).
117. N.H. Rev. Stat. Ann. ß 169-C:2,II (b) (1994).
118. Id.

We would like to acknowledge and thank the following people:

Elliot Berry, New Hampshire Legal Assistance; Manchester NH
Ann F. Larney, Senior Assistant Attorney General, State of New Hampshire; Concord NH
Mary Pilkington-Casey, Franklin Pierce Law Center; Concord NH
Marilyn Mahoney, Mahoney & Harvey; Manchester, NH
Lisa Brochu, DCYF; Manchester NH
Lauren Thorn, NH District Court; Concord NH
Tricia Lucas, NH Dept. of Health & Human Services; Concord NH
Elisabeth Hodges, Legal Counsel for the NH Supreme Court; Concord NH

The Author
June Casey, Class of 2002,
Franklin Pierce Law Center,
Concord, New Hampshire.
The Author
Mindy Dupre, Class of 2002,
Franklin Pierce Law Center,
Concord, New Hampshire.

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