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Bar Journal - September 1, 2003

What Gives You the Right? : Recent Decisions on the Right to Counsel in Custody Cases


"The hand that rocks the cradle, is the hand that rules the world."
- William Ross Wallace1


Two recent decisions by the New Hampshire Supreme Court have given some guidance on the issue of who has the right to court-appointed counsel in custody cases. In the first case, In re Guardianship of Brittany S., the Court held that there is no right to counsel where the natural parent seeks to have a guardianship terminated.2 In the second case, In re Shelby R.,3 the Court held that stepparents who are accused of abuse and neglect are entitled to counsel. Taken separately, the opinions are disparate, but together they represent consistent examples of the Court's constitutional analysis in the area of parental rights.

The court rested its holding in Brittany S. on the fact that the mother/appellant sought to terminate a guardianship that "constrained" her parental rights, but did not seek to prevent termination of her parental rights.4 It reached this conclusion by applying a three-pronged test that weighed, "(1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, considering the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail."5 With regard to the first prong, the Court found that, "[t]he private interest associated with the possible return of the parental rights is not a mirror image of the interest involved with the initial loss of those rights."6 The Court next considered the risk of erroneous deprivation and held, "[t]he risk that Tammy G. may not prevail in the proceedings is tempered by the fact that, in any hearing regarding the guardianship of minors, the probate court is not bound by the technical rules of evidence and may admit evidence which it considers relevant and material," and that such guardianships are subject to continuing supervision and review.7 When considering the third prong of the government's interest the Court stated, "we are mindful that the volume of demand for representation by indigent parents, and the costs associated with that representation could be significant."8 For those reasons the court held that the New Hampshire Constitution did not require that counsel be appointed to represent Tammy G.9

The court applied the same three-pronged test in Shelby to the issue of whether or not indigent stepparents have the right to counsel in abuse and neglect cases. Examining the private interest at stake there, the Court found that, "[b]ecause abuse and neglect proceedings can harm, and in some cases irreparably damage, family and marital relationships, stepparents accused of abuse and neglect have a legally protected liberty interest in preserving the family life and protecting the sanctity of the familial relationships born within the household."10 The Court found that while the risk of erroneous deprivation is mitigated by the fact that anything relevant and material may be admitted, there is still considerable risk due to the "relatively low" preponderance of the evidence standard and the fact that technical medical testimony may come in at the hearing.11 The Court held that while the State has significant interests in protecting children and fiscal responsibility, those interests did not outweigh the State's interest in protecting the rights of all the parties involved in an abuse and neglect hearing.12 Thus, stepparents have the right to counsel in abuse and neglect cases.


Brittany and Shelby involve two important constitutional categories: familial rights (usually described as liberty interests) and procedural due process in civil proceedings brought by the government. The modern line of familial rights cases stems from the United State Supreme Court's decision in Moore v. City of East Cleveland, Ohio.13 In Moore, the Court held unconstitutional an ordinance that made it a crime for a homeowner to allow her son and two grandsons to reside with her, as the ordinance violated due process. The Court placed a great deal of weight on the importance of the family and stated that, "when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation."14 A more recent example of the United States Supreme Court's emphasis on parental rights is its decision in Toxel v. Granville.15

There, a Washington statute allowed Washington courts to grant visitation rights to any person who petitioned for them. The Court found a violation of the parent's substantive due process rights because the Washington courts were not required to consider the parents' wishes when granting visitation rights for their children. The Court stated that, "the visitation order in this case was an unconstitutional infringement on Granville's fundamental right to make decisions concerning the care, custody, and control of her two daughters."16

The seminal United States Supreme Court case regarding procedural due process in civil matters is Mathews v. Eldridge.17 In rejecting a claim for a hearing prior to termination of Social Security benefits, the U. S. Supreme Court set out a three-part balancing test to determine what process is due in civil matters when governmental decisions impinge on liberty or property interests. This is the same test that the New Hampshire Supreme Court regularly uses when interpreting the constitution's due process protections and that it employed in both Brittany and Shelby.

While characterizing parental rights as fundamental, the United States Supreme Court has not found that due process necessarily requires appointed counsel to defend the parental rights of indigent parents. The Court rejected a per se right to counsel in custody cases in Lassiter v. Department of Social Services of Durham County, North Carolina,18 using the three-part Mathews test. In Lassiter, the Court applied the three factors and found that, "the parent's interest is an extremely important one (and may be supplemented by the dangers of criminal liability inherent in some termination proceedings); the State shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest, and in some but not all cases, has a possibly stronger interest in informal procedures; and the complexity of the proceeding and the incapacity of the uncounseled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent's rights insupportably high."19 Given the importance of weighing these factors the Court opted to, "leave the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings to be answered in the first instance by the trial court, subject, of course, to appellate review."20 The next year, in Lehr v. Robertson, the Court declined to find that a putative father who had never developed a relationship with his daughter had a right to due process when his daughter was adopted.21

There are several pre-Brittany and Shelby New Hampshire Supreme Court decisions regarding right to appointed counsel in custody cases. In Duval v. Duval, the Court declined to hold that a father had the right to counsel in a non-support contempt hearing. It remanded the case for a determination as to whether the facts were sufficiently complex and/or the defendant in dire enough need to justify the appointment of counsel.22

The unsuccessful petitioner in Sheedy vs. Merrimack County Superior Court argued that he was entitled to counsel after being found in contempt when he didn't pay the civil damages as the trial court had ordered.23 The court stated that, "The petitioner has failed to convince us that the issues in this contempt proceeding are sufficiently complex or that he is so incapable of speaking for himself that the trial court has abused its discretion in refusing to appoint counsel, or that the Federal Constitution requires that he be provided with appointed counsel on remand."24

In New Hampshire, parental rights protections are grounded in the State constitution. "[T]he right to raise and care for one's children [is] a fundamental liberty interest protected by Part I, Article 2 of the New Hampshire Constitution," although the Court consistently applies the three-part, federal Mathews test.25 In In re Baby K, while the Court said that the New Hampshire Constitution was at least as protective of parental rights as the United States Constitution and that federal authority was therefore only persuasive, it still applied the three-part Mathews test.26


Brittany and Shelby are part of a long tradition of case-by-case analysis within the general guidelines of the Mathews test. In Brittany, the appellant was a troubled mother who fought hard to overcome a variety of disorders and regain custody of her daughter.27 Why did she fail? The Court stated that, "[t]he fundamental nature of a parent's liberty interest, which has been long recognized in termination of parental rights and abuse and neglect proceedings, is less substantial in a proceeding to terminate a guardianship."28 She lost because the court concluded that a "subsequent proceeding to terminate a previously ordered guardianship imposes no increased risk of further deprivation of parental rights."29 This finding placed Brittany's mother at a disadvantage even before the Court weighed the countervailing interests of the State. Coupled with the fact that the proceedings were informal and did not bar future scrutiny of the continuing propriety of the guardianship, the State had the advantage. Perhaps relaxation of the evidentiary rules persuaded the Court that the proceedings were less complex than in Lassiter.30

Further, in Brittany, the Court gave great weight to the fiscal interests of the State.31 It placed significant emphasis there despite the fact that the Lassiter court held that, "though the State's pecuniary interest is legitimate, it is hardly enough to overcome private interests as important as those here."32 Clearly, once a parent has had a child removed by the State, much of his or her right to counsel is lost.

Given the Court's rationale in Brittany, the Shelby decision is surprising. The two holdings seem disparate, particularly in light of the fact that the mother in Brittany was the child's biological parent and the father in Shelby was a stepparent. The reasons for the discrepancy become clearer when one considers the differing facts in each case. First, New Hampshire law awards stepparents similar rights as biological parents when they stand in loco parentis.33 Further, in Shelby, Shelby's stepfather was accused of abuse and the Court considered important the effect such an accusation might have on the family and the accused's reputation.34 Had the stepfather been a biological or adoptive parent, he would have had a clear statutory right to appointed counsel.35 In Brittany, however, the mother faced no new threat to her rights or reputation because her child had already been taken from her by the State.36 The Court placed low emphasis on the State's financial burden in Shelby after placing a comparatively high emphasis on it in Brittany because in Brittany the cost of subsequent, collateral proceedings was inherently open-ended, whereas in Shelby it was not.


Brittany restricted the right to counsel in custody cases, while Shelby expanded it. In Brittany, the Court made it clear that once parental rights have been lost or curtailed, a parent is unlikely to be awarded court-appointed counsel. Brittany will affect the many parents who seek to regain custody of their children and would like to have the assistance of an attorney. Unless they can afford an attorney (and many of them cannot) they will usually be forced to deal with complex custody laws on their own. Even the expert witnesses in Brittany did not make the proceedings complex enough to ensure that the mother had enough at stake to justify appointing counsel.37 The only hope for most of these indigent parts would be to seek representation through organizations that provide legal services to the indigent, such as the Legal Advice and Referral Center, the Disability Rights Center, and New Hampshire Legal Aid. As a practical matter, these organizations are the only alternative to appointed counsel.

Shelby extended the analysis in Lassiter to stepparents who are accused of abuse or neglect in pursuant to N.H.R.S.A. 169-C, the Child Protection Act. After Shelby, anyone in loco parentis to a child will have a right to appointed counsel in an initial proceeding to terminate or significantly curtail parental rights (at least when accused of abuse or neglect), but pursuant to Brittany, even a biological parent, absent new stigmatizing allegations, will have no such right in proceedings to recover a child.



Bartlett, John, comp, comp. Familiar Quotations, 10th ed., rev. and enl. by Nathan Haskell Dole. Boston: Little, Brown, 1919;, 2000. [June 24, 2003].


In re Guardianship of Brittany S., 147 N.H. 489 (2002).


In re Shelby R., 148 N.H. 237 (2002).


Brittany S., 147 N.H. at 491.


Id. at 492.


Id. at 493.








Shelby R., 148 N.H. at 239.


Id. at 241.




Moore v. City of E. Cleveland, Ohio, 431 U.S. 494 (1977).


Id. at 499.


Troxel v. Granville, 530 U.S. 57 (2000).


Id. at 72.


Matthews v. Eldridge, 424 U.S. 319, 335 (1976).


Lassiter v. Dept. of Soc. Serv. of Durham County. N.C., 452 U.S. 18, 31 (1981).




Id. at 32.


Lehr v. Robertson, 463 U.S. 248 (1982).


Duval v. Duval, 114 N.H. 422 (2002).


Sheedy v. Merrimack County Superior Ct., 128 N.H. 51 (1986).


Id. at 56.


Petition of Kerry D., 144 N.H. 146. (1999).


In re Baby K., 143 N.H. 201 (1998).


Brittany S., 147 N.H. at 490.


Id. at 491.




Lassiter, 452 U.S. at 31.


Brittany S., 147 N.H. at 493.


Lassiter, 452 U.S. at 28.


Bodwell v. Brooks, 141 N.H. 508, 513 (1996).


Shelby R., 148 N.H. at 240.


N.H. Rev. Stat. Ann. 169-C:10 (2002).


Brittany S., 147 N.H at 491.


Brittany S., 147 N.H. at 493

The Author

Karen Coombs, Class of 2004, Franklin Pierce Law Center, Concord, New Hampshire.

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