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New Hampshire Supreme Court rules on In re C.M.

Monday, July 02, 2012   (0 Comments)
Posted by: Taylor Stockdell
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New Hampshire Supreme Court rules on In re C.M.

The New Hampshire Supreme Court has rejected the claim of indigent parents who were denied representation in a neglect case after the legislature there repealed the statutory right to counsel because of the fiscal crisis. The case is In re C.M., and can be found at:

The parents' raised a substantive due process claim under the state constitution. The majority's opinion essentially adopted the holding in Lassiter:there is no per se right to counsel, but the trial court can make a case-by-case determination of its need. Among other things, the court reasoned that the risk of erroneous decision making is not especially high in dependency cases, because the rules of evidence (in New Hampshire) are informal.

As Justice Blackmun did in Lassiter,Judge Conboy in dissent pointed to the facts of the particular case before the court -- a rather garden-variety one, it seems -- to show why parents in dependency matters really do need counsel:

As the record in the case before us establishes, Sonia M., the natural

mother, completed high school with special education accommodations and

later completed coursework to obtain a Licensed Practical Nurse certificate.

She is unemployed and suffers from severe depression. Larry M., the natural

father, completed the tenth grade of high school with special education

accommodations before discontinuing his education. He is at least partially

disabled, is blind in one eye, and receives Social Security Disability benefits.

Yet in order to present an effective defense to the allegations of abuse or

neglect, these parents are expected, on their own, to identify material issues,

cross-examine adverse witnesses, challenge irrelevant or immaterial testimony,

present evidence, and elicit relevant information from their own witnesses.

Without counsel, "[t]he parent who actually has achieved the improvement or

quality of parenting the State would require may be unable to establish this

fact. The parent who has failed in these regards may be unable to demonstrate

cause, absence of willfulness, or lack of agency diligence as justification."

This case is a terrible blow to the cause of right-to-counsel, not just for parents but also for children in dependency cases in those states where there is no statutory right. It is also a serious setback for the civil Gideonmovement more generally.

The NACC filed an amicus brief in this case, authored by Prof. Vivek Sankaran of the Univ. of Michigan and local attorney Tracy Bernson. Many thanks to them, to the NACC's amicus committee, and to the brain trust the authors assembled to advise them.

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