Bar News - June 21, 2017
Pro Bono Case Leads to Law Change
By: Kristen Senz
SB 166: Terminating parental rights is now easier in cases where the child was conceived through rape
Holly Barcroft and David Vicinanzo discuss Kellyís case at the NH Bar Center.
A convicted rapist, in a prison cell, decides he wants a parenting role in the life of the child born as a result of the rapistís assault on a young girl in his neighborhood. He writes letters to his victim and files a motion in court, attempting to assert parental rights.
That victim, Kelly, now 19 and mother to the 5-year-old boy she decided to keep and raise despite the urgings of others, receives a referral through the Pro Bono Referral System at the New Hampshire Bar Association, to lawyers at Nixon Peabody in Manchester. Unsure whether she wants to proceed with litigation, Kelly initially files and then withdraws a court petition. Months later, when she realizes her attacker is not going to stop trying to contact her, she gets back in touch with her lawyers.
That was 2015, and Nixon Peabody attorney David Vicinanzo and Holly Barcroft, at the time an associate at the firm, spent the next two years working on Kellyís case, with support from Pro Bono staff and the NH Coalition Against Domestic and Sexual Violence. Their work culminated earlier this month when the governor signed into law Senate Bill 166, which creates a rebuttable presumption that terminating the parental rights of the biological father is in the best interest of a child conceived through rape.
Kelly won her case, earned a GED, and became a licensed nursing assistant. Sheís now working to support herself and her child while taking college courses. With no support from her family, she turned a devastating situation into a positive for herself and her child.
Vicinanzo and Barcroft, who is now general counsel at Phillips Exeter Academy, recently spoke with Bar News about Kellyís case and why they believe discussions about parental rights should be prefaced with a question about what it means to be a parent. The conversation was edited slightly for readability and length.
Bar News: What was the law in this area prior to SB 166? What were you up against in this case?
Vicinanzo: There are a number of grounds for termination of parental rights that are enumerated in the statute. The particular provision that we proceeded under is only a couple of years old. Prior to 2015, there was no specific provision that said rights could be terminated in the event that the child was born as a result of a sexual assault. That was the Senate Bill introduced by Senator (Bette) Lasky in 2014, passed in 2015, so itís relatively new. It essentially says the petitioner has to prove the underlying event Ė the sexual assault resulting in a child Ė beyond a reasonable doubt. The second prong is that you have to prove that it is in the best interest of the child to terminate the assaulting parentís rights.
We didnít have any objection to proving the sexual assault. Of course, in our case it was very easy, because the local police department had already done it Ė he was convicted, and DNA had established the paternity. What we did object to was the idea that somehow the burden should be on the victim to prove that itís not in her childís best interest to continue to have the state force her to co-parent with her rapist. Thatís what we objected to, and we made motions saying that it shouldnít be the law, and thatís not the appropriate interpretation of the law, but the court interpreted it Ė and itís a fair interpretation Ė that she bore the burden of proof.
That also meant she had to bear the cost. In her case, she didnít bear any legal costs, because we did it for free, but it was a lot of time and effort, and not everybody gets a free lawyer. Plus, there was the emotional turmoil that she had to undergo, feeling like, why do I have to prove that somehow the coerced association with my rapist is not a good thing for me or my child? Itís just a grave emotional burden.
Barcroft: It took a terrible toll on her. She became so distraught in the first hearing. Just the idea of having to talk about him and what had happened to her, she fainted right at the table and had a stress-induced seizure. She had to come back for another hearingÖ Iíve never seen someone so scared in my entire life. It was just awful for her.
BN: How did the idea emerge to propose a change to the law?
Vicinanzo: Kelly intuitively knew there was something wrong with making the victim prove that somehow continued association with her rapist isnít a good thing. She kept saying, why do I have to prove this? Shouldnít he have to prove something? Should he even have any rights as all, once itís established that heís only a father because of a sexual assault?
We talked about it. We were not going to be able to change the first prong that I described, because the Supreme Court had already ruled on that as a matter of constitutional law. But we could play around with the second prong, which is who bears the burden of proof on the best interest of the child, which is what we ended up doing.
I called Rick Lehmann, general counsel for the state Senate, who I know from the legal community. He saw the issue immediately and appreciated it, and he said let me talk to some senators. He talked to Sen. Sharon Carson and Sen. Lasky, and within a couple of days, he got back to me and said, I think weíre going to be able to do this. So we scratched some language out. We decided to make it as simple as possible and style it as a rebuttable presumption, so that it is presumed that termination is in the best interest of the child in these circumstances.
BN: What about cases of statutory rape where the mother and father might have a consensual relationship, but the mother is too young to consent?
Vicinanzo: Because itís a rebuttable presumption, it does mean that in a rare circumstance, an offending father might be able to carry the burden. I can imagine, I suppose, a circumstance where two kids are teenagers and are close in age. This essentially gives the mother the power to say yes or no. And if, for some reason, there had been a much deeper bond between the child and the father, itís theoretically possible for the offending parent to prevail. Ultimately, it turns on the courtís determination of what is in the childís best interest.
Barcroft: There are states that have harsher statutes. We have a rebuttable presumption but there are at least a handful of states where itís not a rebuttable presumption. Either the burden is completely on the rapist father in the first instance, so he must prove his case or suffer the consequences, or itís a presumption thatís not rebuttable, so this is actually, I think, a fair balance.
Vicinanzo: I have another, similar case in federal court that is sealed, so I canít talk too much about it, but a girl was impregnated by a much older man and now is seeking to terminate his parental rights. In that case, I have made a motion for the court to find that he has no rights at all on the basis of a pretty well established legal principle that a wrongdoer should never be allowed to profit from his wrongdoing. He should not be rewarded with what the law recognizes as a benefit, which is paternity Ė fatherhood.
This relies on constitutional and common law doctrine; it doesnít rely on the statute in this case. It will require the court to interpret the statute in a way that I donít know anybody has asked the court to interpret it. I donít ultimately think the decision will be made finally with the district court. It might end up being something for the state Supreme Court to decide. But thereís a lot of authority around the country that just because you happen to be a biological donor of genetic material, it doesnít make you a father in the legal sense. Weíll see. I donít know how thatís going to go.
Barcroft: I worry about the women that donít come forward, because for both of these young women it was incredibly difficult for them to take steps to come forward and to stick with it. I think about how many cases that are out there that arenít being pursued simply because itís really frightening and exhausting and difficult.
BN: How has this case affected you personally as the attorneys working on it?
Vicinanzo: I have gotten pretty close to Kelly. We know each other fairly well, to the point that myself and some of my kids have driven to bring her Christmas presents. She has such a compelling story. I wish my 19-year-old kids or even 23-year-old kids were as adept at managing their lives at such a young age, and here she is with a 5-year-old and almost no advantages in life, pulling it together. Sheís the kind of person that makes you want to help her.
BN: Are you satisfied that the new law goes far enough to protect rape victims in these circumstances?
Vicinanzo: I have found it hard to believe that the law seemed to be so behind in this area, and in my view it still hasnít completely caught upÖ I think in cases where (the rape is) proved, the starting point ought to be that there are no rights at all, nothing to terminateÖ (Recent law changes) suggest that thereís a recognition that in some cases the basic assumption that itís good for a child to have a relationship with both parents is not always true. I donít know if it suggests thatís a general trend, that weíre going to take a deeper look at that issue, but personally I think that it should be looked at more carefully and the issue of parental rights in general should be reviewed. It has been decades since these issues have been substantially analyzed. To some degree, I think some of the statutes today reflect values that perhaps reflect another era.
Barcroft: To my mind, I think thereís a predicate question to the question of whether itís best to have both parents involved, and that is, what makes a parent? The absolute easiest thing Iíve done, because Iíve been blessed with relatively easy pregnancies, is the physical part of carrying a child. Thereís nothing about the biological process of having a child that necessarily, in my view, made me a parent. Itís the long nights, the long days, the cuddles, the snuggles, the discipline. Itís caring for them every minute of every day more than you care for anyone on this planet. Biological parents do that, adoptive parents do that, foster parents do that, people who arenít officially parents serve as parents to kids every day. So to me, the questions of what makes a parent is more important. Who deserves to be a parent to that child?
Vicinanzo: My experience, and not just in this case, is that it often is too difficult to terminate parental rights in this state. What happens in many instances is that problems emerge early in the childís life, and the parents are not able to parent. But the legal system, partly because of the statutory presumptions about the rights of the parents, makes it very difficult for DCYF or the state to make rapid progress with those parents and make a decision early enough in the childís life that the child is not going to be harmedÖ The loser in those circumstances is often the child. Just because you become a parent doesnít mean that your rights are always going to be superior to the rights of the child. The child has the right to the best kind of parenting that he or she can get, and sometimes that does not include the biological parent.
BN: What would the representation for Kelly have cost had she been paying for it?
Vicinanzo: We put a lot of time and effort into representing Kelly. The value was in excess of $100,000. We put in more time than might have been strictly necessary, but we didnít want to leave anything to chance. It would be possible to expend less money and effort to get a TPR, and our firmís rates are at the high end of the market, but the value would generally still be well into the five-figures.
BN: What would you say to other attorneys about taking on pro bono cases?
Vicinanzo: More than almost any other institution, our legal system is the backbone of the United States, and it cannot be a good thing if we depend so much on our legal system but so many people are unable to access it adequately. Thatís a very troubling development, and I feel that as members of the legal profession, we should make every effort to make the legal system more accessible and affordable for people who are in desperate need of what it does. I can donate time Ė not everybody can Ė and I definitely believe that pro bono services should be encouraged and promoted, and lawyers should consider thinking of it as a form of quasi-public service. I feel that itís part of the privilege of being an attorney.
Barcroft: One thing I would highlight for attorneys who donít do a lot of pro bono work is that there have been few moments more rewarding in my career than pro bono cases, because youíve made a difference in someoneís life. That matters. A lot of the work we do, especially for corporate clients, is good and important and thereís money on the line, but changing someoneís life, in a way that might seem small but is huge to them Ė you go home and you feel like, I did something today. We donít always get a lot of that in the law.
To learn more about the Pro Bono Referral Program, please visit www.nhbar.org or email Margaret Gilsenberg.