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Bar News - August 17, 2012


Parents’ Rights to Counsel Issue Unresolved

The attorney who argued for indigent plaintiffs in re: C.M. & a, asserting a right to counsel for parents accused of abuse and neglect, says that the NH Supreme Court’s decision in the case produced an "unworkable" result.

In a 2-1 opinion, Justice Gary Hicks answered the question of whether the Due Process Clause of the NH Constitution (Part 2, Arts. 2, 15) requires the appointment of counsel for an indigent parent from whom the state seeks to take custody of a minor child based on abuse and neglect allegations. The opinion, issued June 29, said: "…while due process does not require the appointment of counsel in every such proceeding, the facts of a particular case may require the appointment of counsel."

Michael Shklar, the Newport attorney representing the parents, in consultation with co-counsel Elliott Berry of NH Legal Assistance, decided that the best course of action will be to see how the ruling plays out in practice in the state’s courts before taking up the issue again.

"The Court says the courts have discretion to appoint, but the ruling does not provide any clear standard as to when that should be done," Shklar said. He said that there appear to be some judges who are appointing counsel in certain cases. He is certain the issue will be presented to the Court again soon, and suggested that the legislature also may decide to address the problem.

The decision by the Court was unusual in several respects. Only three judges heard the case, and only two decided it; Chief Justice Dalianis recused herself from the decision, but no substitute judges were appointed. The result was not emphatic: Justice Hicks wrote the opinion, Justice Lynn wrote a concurring opinion that spelled out additional reasoning, while Justice Conboy wrote a strongly-worded dissent.

Initially, the Court acknowledged the significance of the case by specifically inviting amicus briefs on it. Amicus briefs were filed by the American Bar Association, the National Association of Counsel for Children, the Public Justice Center and National Coalition for a Civil Right to Counsel, and attorney Laura Brevitz.

The opinion was issued June 29, 2012 and can be found at www.courts.state.nh.us under "Slip Opinions" in the Supreme Court portion of the site.

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