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Bar News - June 8, 2007


Section Connection: Children’s Law Section Discusses System for Appointing Counsel for NH Children

By:

 
            Mike Skibbie
 

The Children’s Law Section discussed the system for providing appointed counsel to New Hampshire children during its April 2007 meeting. The Section has previously identified right-to-counsel issues as a priority and may use the results from the recent session to plan CLE program and to approach court leaders about needed improvements.

           

The attendees reviewed the conditions of practice for those accepting cases by appointment from the juvenile courts, and the adequacy of procedures for providing quality appointed counsel in juvenile cases. Before the session, members formulated discussion questions based on a review of national indigent defense standards for the representation of children.

           

Observations made during the session fell into four general categories:

 

  • Lack of counsel, either due to waiver or delays in the appointment of counsel;
  • The absence of a system for the selection, supervision, and training of appointed counsel to ensure quality representation;
  • Financial disincentives to quality representation by those accepting court appointments; and
  • The lack of a statutorily or constitutionally recognized right to counsel in some types of proceedings.

 

Waiver of Counsel

           

Participants reported that it appeared that large numbers of children involved in CHINS (Children in Need of Services) and delinquency cases waive their rights to counsel. Concern about the high rate of waiver of counsel has been part of the national discussion about protection of the rights and interests of children, and was identified as a problem in a recent report on the treatment of children with disabilities in the NH court system. Children who proceed without the assistance of counsel are generally considered to be more likely to be placed outside the home or detained at some point in their case than similarly situated children who seek the protection of counsel.

           

Although waiver of counsel may make sense in some cases for some children, the group expressed concern that waiver decisions are often made before the courts are adequately informed about the child who is asked to make the waiver decision. New Hampshire’s juvenile courts do not systematically screen juveniles at the beginning of their cases, so judges may not know about the existence of disabilities or other factors which might affect the wisdom or adequacy of a waiver.

           

Particularly at the beginning of a proceeding, children and their parents often do not appreciate the consequences of waiving counsel. Even parents who are not technically in an adversarial relationship with their children may encourage children to waive counsel and admit responsibility because such actions may be seen by parents as the proper consequence of misbehavior. Laws requiring reimbursement of counsel costs by parents in some cases may discourage the assertion of the right to counsel because a child who seeks counsel may be acting contrary to his or her parents’ financial interests.

           

Even in cases where counsel is eventually appointed, often the appointment comes after critical decisions have been made without the assistance of counsel. Participants noted that they have been appointed in delinquency cases after a child has pled true to a petition, and even in some cases after the child has been charged with a violation of conditional release (similar to probation in adult criminal sentences) and been allowed to plead true to the violation. Although New Hampshire law at one time prevented the detention or commitment of children who were adjudicated delinquent without the assistance of counsel, that provision was removed in 2001.

           

The delay in appointment concerned participants because effective representation requires prompt action to protect a juvenile client’s rights. This is particularly true with regard to placement of the child pending further court hearings but also with regard to investigation and implementing procedural tactics to protect clients’ interests. Early action may also be needed to preserve physical evidence and the testimony of witnesses.

 

Quality Representation

           

The appointed counsel system does not provide for either training or supervision as a condition of receiving appointments in juvenile cases. Opportunities for even voluntary CLE in the area of juvenile law have been rare in recent years, with the last bar association CLE covering juvenile law occurring in the fall of 2004.

           

Participants also noted that there is a perception of little support in the system for zealous representation, and that in fact some courts have let it be known that aggressive representation will not result in appointment to cases in the future. Some courts appear to repeatedly appoint lawyers who do not provide zealous representation. National standards for indigent defense systems recommend that such systems be independent of the judiciary, and that judges not be involved in the selection of lawyers to receive court appointments.

           

It was also noted by participants that there is a continuing problem of hostility in the system to counsel that represent the expressed objectives of the juvenile without regard to counsel’s opinion of the child’s culpability or need for treatment. Some members of the court system seem to believe that counsel should instead advocate for the best interests of juvenile clients. Some participants believed that the appointment of guardians ad litem was sometimes used by courts to undermine the role of those counsel that were not seen as working for the best interests of the juvenile. In general, the system lacked guidelines for when GAL appointment was appropriate and significant variability in practices from court to court seems to result.

 

Denial of counsel

           

The group also heard comment about the low incidence of counsel appointment for children in child protection cases under Chapter 169-C. In such cases, counsel is typically not appointed unless there is a conflict between the child’s wishes and the recommendations of the GAL. The system for identifying when such conflict exists is seen as unreliable, as it was believed that GALs don’t often volunteer the existence of a conflict as they should, and courts rarely affirmatively inquire about the child’s wishes. [See RSA 169-C:10 II (a).]

           

Participants also noted that there no longer appeared to be a system in place for the appointment of counsel in parole violations at the Youth Development Center under RSA Chapter 170-H.

           

Concern was also expressed about two types of proceedings where children do not have a recognized right to counsel: termination of parental rights and guardianship of minor children. To change practices in these particular areas would require statutory modifications.

 

Financial Disincentives

           

Generally, the group criticized the rate levels and per-case caps in compensation, which constitute significant financial disincentives to effective representation. New Hampshire’s $60 hourly rate is well below that charged by new associates in even small private firms and has not been changed in 15 years.

 

For information on future meetings, or to join the Children’s Law Section, please contact Sections Coordinator Patty Frechette at 603-224-6942 or pfrechette@nhbar.org.

 

Michael K. Skibbie is an attorney and policy specialist with the Disabilities Rights Center in Concord. He has been a member of the NH Bar since 1984.

 

 

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