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Bar News - March 18, 2015

Court News: Supreme Court Hears Testimony at Rare Public Hearing


At a Supreme Court public hearing last month, several attorneys, including one who represents the NH Division of Children Youth and Families, opposed a controversial rule change proposed by the Circuit Court that would remove court-appointed counsel from civil child abuse and neglect cases after initial disposition.

Following testimony and a new proposal by NH Circuit Court Administrative Judge Edwin Kelly, who suggested automatically withdrawing counsel post-disposition only in those cases where the children have not been removed from the home, the Supreme Court took the issue under advisement.

Under the initial proposed change to rule 3.11, all court-appointed attorneys would have been required to file a motion with the court after disposition explaining why the respondent parent needed ongoing representation. Parents who face termination of their parental rights in such cases often require continued representation as they struggle to navigate the justice system. Social workers charged with assisting in family reunification can later become the chief witness for the state, if problems persist, so the lawyer is often the only person inside the system a parent facing such high stakes can trust.

Providing testimony at the hearing – the first of its kind in 20 years – were private attorneys Michael Shklar of Newport, who has handled many abuse and neglect cases, and Kysa Crusco, chair of the NH Bar Association Family Law Section. Also testifying was Elliott Berry of NH Legal Assistance, who also spoke on behalf of the NH chapter of the ACLU, and Jaye Rancourt, who spoke on behalf of the ABA.

Chris Keating, executive director of the NH Judicial Council, spoke on a separate proposed rule change that would increase pay for court-appointed attorneys in such cases. But the Judicial Council, which includes representatives from all three branches of state government, the private bar and the public, has not taken a position on the proposed change to Rule 3.11, Keating said.

The public hearing was held against the backdrop of shifting views on a complicated issue. The NH Legislature in 2010 removed funding for court-appointed counsel for indigent parents. The Supreme Court in 2012 issued its controversial ruling in In Re: CM, finding that an indigent parent’s right to counsel in these cases is statutory, not constitutional. Later that year, the Legislature reinstituted funding for court-appointed counsel.

“An awful lot of parents who are caught up in this system have educational, emotional or other disabilities that make it very difficult for them to adequately represent themselves,” said Berry, of NHLA. “To the extent that they do understand, if things go badly during the post-dispositional phase, the very person who was charged with working with the parent to achieve reunification, instantly becomes the prosecution’s chief witness… This conflict in duties of the social worker I think is at a very gut level understood by many, many parents.”

Peter Brunette is a staff attorney for DCYF but spoke on his own behalf at the hearing. He said the system is stacked against these parents, who are at risk of losing their children.

Asked by Supreme Court Associate Justice Carol Ann Conboy about the time period after the Legislature removed funding for counsel, Brunette said “It was horrible.” He added that the hearings often lasted significantly longer because the court needed to explain the parents’ rights, and that the court often adopted DCYF’s recommended dispositional orders verbatim.

Kysa Crusco said she thought the proposed rule change was seeking to fix a non-existent problem, as the lawyers being paid $60 per hour on these cases don’t stay in them unnecessarily.

“When you weigh what the state might save versus what harm might come to parents at a permanency hearing, it’s not worth it,” she said. “I do this work because I think it’s important and I think somebody needs to do it.”

The court could decide to adopt the proposed rule with amendments or send it back to the Advisory Committee on Rules.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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