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Bar Journal - September 1, 2000

IN RE BRITTANY L.: An Analysis of a New Hampshire Supreme Court Decision to Sustain Termination of a Prisoner’s Parental Rights



This article will analyze the New Hampshire Supreme Court’s decision, In re Brittany L.,1  and will attempt to shed light on why the court, rightly or wrongly, denied a father’s fundamental right as a parent, and possibly his fundamental right to due process of law.  The New Hampshire Supreme Court has established, through case law, that a parent’s rights and interests regarding the custody and rearing of one’s child are natural, essential, and inherent.2   Moreover, the court has found, under the New Hampshire Constitution, that parental rights are fundamental.3   Therefore, due process requires proof beyond a reasonable doubt before a court can terminate parental rights.4  In fact, the New Hampshire Supreme Court has employed a three-prong test to determine the process due in parental termination proceedings.5  Despite all of this, in this case, the New Hampshire Supreme Court sustained a probate court’s decision to terminate the parental rights of an incarcerated father through the use of telephonic procedures.  Consequently, the court allowed a sanction more severe than the father’s imprisonment.


The petitioner, Ernest L., had been incarcerated on a drug-related offense in various federal penitentiaries across the country since November 1990.  Brittany L. was nine months old when her father was first incarcerated and has been mostly under the care of her mother, Deborah C., since birth.  In May 1996, Deborah C. filed a petition to terminate Ernest L.’s parental rights, alleging that from the time Brittany L. was born, he had negligible contact with his daughter and showed no concern for her welfare.

In a series of motions to the superior and probate courts that were ultimately unsuccessful, Ernest L. sought to be transported from an out-of-state prison to attend the termination hearing.  Alternatively, he requested permission to participate in the hearing by telephone conference. Subsequently, the probate court decided to allow Ernest L. to testify by telephone.

The termination hearing was held in May 1997, with Ernest L. testifying first because of his prison’s schedule of telephone availability.  Limited by resources, the probate court conducted the telephone conference in three separate rooms on three telephones connected to one line.  The probate court and Deborah C.’s attorney each had use of a telephone.  Ernest L.’s attorney and the guardian ad litem (GAL) appointed to represent Brittany L. had to share a telephone in the third room.  Ernest L. testified on direct and cross-examination, as well as in response to questions from the court.  At the conclusion of his testimony, communication with Ernest L. was terminated, and the hearing proceeded with live witnesses.  Following the hearing, and submission of memoranda of law by the parties, the probate court terminated Ernest L.’s parental rights.


Ernest L. appealed the order of the probate court terminating his rights.  He contended that: 1) the proceeding violated his federal and state due process rights; 2) his absence from the hearing, either physically or by telephone, violated his federal and state constitutional right to confront witnesses; 3) there was insufficient evidence to support the probate court’s decision to terminate parental rights based on abandonment; and 4) the probate court erred in refusing to admit testimony of Deborah C.’s intent to lie during the hearing.6   The New Hampshire Supreme Court found that since Ernest L. failed to cite any due process cases to support his position, he waived his right to preserve the issue for appeal.  The court also found that the right to confront witnesses is a Sixth Amendment right afforded to criminal defendants, not civil litigants, and the court declined to decide if the New Hampshire Constitution’s confrontation clause was applicable.  Furthermore, the court refused to disturb the probate court’s ruling that the State proved beyond a reasonable doubt that Ernest L. abandoned his daughter and found there was sufficient evidence for the refusal to allow evidence showing Deborah C.’s intent to lie.7   After deciding all the issues, the Court affirmed the probate court’s decision to terminate Ernest L.’s parental rights.


A major issue that Ernest L. failed to preserve for appeal concerned the probate court’s use of telephonic procedures in relation to his right to procedural due process.  This article will examine the issue of whether or not the use of telephonic testimony complies with the right of procedural due process.  A number of jurisdictions have rules, regulations, constitutional provisions, or legislative enactments bearing upon this subject.8   To determine if the use of telephonic procedures meet the requirements of procedural due process, a court must consider the following three factors: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and 3) the government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.9   The following provides an analysis of how these factors may have applied in this case if Ernest L. had properly preserved and raised the issue on appeal.

A. Ernest L.’s Private Interest Affected by the Official Action

Before a court can impose a deprivation of life, liberty or property, our due process rights require that the court employ a certain level of procedural fairness.10  Parental rights are considered fundamental under the New Hampshire State Constitution.11  Moreover, the New Hampshire Supreme Court has stated that parental interests are “natural, essential, and inherent rights” and further that the “loss of one’s child is a more severe sanction than imprisonment.”12  Therefore, Ernest L.’s private interest at stake can be considered significant and thus should require an equivalent level of procedural due process.

B. The Risk of an Erroneous Deprivation of Ernest L.’s Parental Interest through the Procedures Used and Probable Value of Additional Safeguards

The harm at stake is an important issue in deciding whether a violation of due process has occurred.  One would think that, because New Hampshire considers parental rights fundamental, the level of procedure required to terminate those rights would be high.  Nevertheless, New Hampshire, by statute, allows the use of informal procedures at parental termination hearings.13 Additionally, the New Hampshire Supreme Court has stated that due process does not require an incarcerated parent’s physical presence at a parental rights termination hearing, provided that the parent is otherwise afforded procedural due process at the hearing.14  Thus, telephonic procedures can be used in parental termination hearings.

In regards to telephonic procedures employed at these hearings, the court examined this procedural due process issue in the case In re Baby K.15  In that case, the probate court required an incarcerated parent to participate via a telephone connection with his attorney.  Therefore, in essence, the incarcerated parent could hear only what his attorney could relay to him as the proceeding occurred.  In its opinion, the court stated that the use of telephonic procedures in a parental termination hearing “increased the risk of an erroneous determination.”16 Moreover, the court stated that the use of telephonic procedures as employed “may prevent the party from hearing witnesses or the proceedings, and may place greater burdens on the party’s counsel, affecting counsel’s ability to represent the client’s interest.”17  Additionally, the court went on to remark that “[t]o satisfy due process, an incarcerated parent must have an opportunity for meaningful participation in the termination process.”18

In consideration of the above, it appears that the telephonic procedures used in In re Brittany L. did not provide Ernest L. with an opportunity for meaningful participation in the termination hearing or to respond personally and effectively to witnesses.  This is because, after Ernest L. testified, his connection to the probate court was terminated leaving him unable to hear the witnesses against him.  Furthermore, the procedures may have been inadequate and increased the risk of error.  This is due to the fact that Ernest L. was further excluded from meaningful participation in his own hearing by way of his attorney being required to share a telephone with Brittany L.’s guardian ad litem.  Consequently, it appears that the telephonic procedures as implemented in this hearing may have increased the risk of an erroneous deprivation and resulted in a procedural due process violation.

C. Financial Burden on the State

In striking the appropriate due process balance, the final factor to be assessed is the public interest, which includes the administrative burden and other societal costs that would be associated with requiring additional or substitute safeguards.19  Moreover, it is the government’s interest, and hence the interest of the public, in conserving scarce fiscal and administrative resources that must be weighed as a factor.20

Here, Ernest L.’s presence would impose a significant burden on the state, both financially and administratively, because he is a prisoner in an out-of-state location.  Further, the record showed that the telephone conference imposed a burden on the probate court due to the limited resources of the court.  Additionally, one can assume from the record, that Ernest L.’s presence at the hearing would have been much more costly than the telephonic procedure.  Therefore, the use of telephonic procedure appears to be warranted under the circumstances.

However, it seems possible that, if the court had applied the balancing test, it would have found the telephonic procedures as implemented violated Ernest L.’s procedural due process right.  This is because the probate court could have very easily scheduled a different time for the hearing.  If the probate court had done so, Ernest L. would have heard the witnesses against him and participated in a meaningful manner throughout the entire proceeding, rather than having his phone disconnected immediately following his testimony.  It does not seem too much to ask of the probate court considering the significance of the fundamental right at stake.


It is up to the party to set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable.21  Issues not raised are deemed waived.22  The court has set two pre-conditions that must be fulfilled before triggering a state constitutional analysis: first, the defendant must raise the state constitutional issue below; and second, the defendant’s brief must specifically invoke the a provision of the New Hampshire Constitution.23  Furthermore, there are specific guidelines that detail the procedures to follow for making an appeal and if these are not properly followed, the New Hampshire Supreme Court may disregard or strike that issue.24  Moreover, the court is the final arbiter in deciding State Constitution due process requirements.25

Since Ernest L. failed to cite any due process cases to support his due process argument, the court did not review the issue deeming it waived.  Thus, the court refused to disturb the probate court’s ruling in the case.


The Supreme Court of New Hampshire has held a parent’s right to raise his or her own child is fundamental and thus cannot be taken away without meeting the due process balancing test.  In this case, the court did not consider Ernest L.’s right of procedural due process because Ernest L. failed to preserve this issue for appeal.

If this issue had been analyzed by the court, it is possible the court would have found that Ernest L. did not have a chance to meaningfully participate in the termination hearing because: 1) the fundamental right of a parent was at stake; 2) the telephonic procedures used may have increased the risk for error; and 3) the burden on the state to add procedural safeguards seemed to be minimal.

Therefore, it appears that Ernest L.’s failure to preserve this issue for appeal significantly sealed his fate in this matter.  Our judicial system is supposed to provide a fair system for implementing justice and access.  It continues to serve these goals by implementing rules and procedures to follow.  Fortunately for some and unfortunately for others, the consequences of violating these rules and procedures may lead to a sanction more severe than imprisonment.


1. In re Brittany L., _ N.H. _, 737 A.2d 670 (1999).
2. See In re Baby K., 143 N.H. 201, 204 (1998).
3. Id.
4. Id.
5. Id.
6. In re Brittany L., 737 A.2d at 672, 673.
7. Id. at 673.
8. See Michael J. Webber, Permissibility of Testimony by Telephone in State Trial, 85 A.L.R.4th 476 (1991).
9. In re Baby K., 143 N.H. at 204.
10. See id.
11. In re Sheena B., 139 N.H. 179 (1994).
12. In re Baby K., 143 N.H. at 202.
13. See N.H. REV. STAT. ANN. § 170-C:10.
14. In re Baby K., 143 N.H. at 203.
15. Id.
16. Id. at 204.
17. Id.
18. Id. at 206.
19. See id. at 204.
20. See id.
21. See Appeal of Coffey, _ N.H. _, _, 744 A.2d 603, 605 (1999).
22. Id.
23. Id. at 606.
24. See SUP. CT. R. 16(3)(b) (2000).
25. See In re Baby K., 143 N.H. at 204.

The Author
Brenda Sanabria, Class of 2001,
Franklin Pierce Law Center,

Concord, New Hampshire.


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