In re Shelby R.
Lead Opinion
Mark H., Shelby R.’s stepfather, appeals from a proceeding under the Child Protection Act. See RSA ch. 169-C (2002). He argues that by prohibiting the court from appointing counsel for indigent stepparents in abuse or neglect proceedings, RSA 169-C:10, II(a) violates the Due Process Clauses of both the State and Federal Constitutions. We agree on State constitutional grounds.
In February 1999, the division for children, youth and families (DCYF) filed a petition in Jaffrey-Peterborough District Court alleging that Mark H. had abused Shelby R. After a preliminary hearing, the court ordered Mark H. not to reside in the house or have any contact “whatsoever” with Shelby R. Following an adjudicatory hearing in August 1999, the district court found that “Shelby was abused by Mark H. by means of hitting her and having her commit oral sex on him.” The district court again ordered Mark H. to have “no contact whatsoever with Shelby.”
Mark H. then exercised his statutory right to a de novo review in superior court. See RSA 169-C:28. In superior court, he filed a “Motion For Appointment of Paula Werme As Counsel.” Attorney Werme had, in fact, represented Mark H. at the district court proceedings. The motion was accompanied by a financial affidavit. The Superior Court (Dalianis, J.) denied the motion, holding that RSA 169-C:10 does not аuthorize appointment of counsel for Mark H. The superior court then held an adjudicatory hearing. At the hearing, Mark H. was represented by Attorney Werme. Following the hearing, the superior court found that Mark H. had sexually abused Shelby R.
In his notice of appeal, Mark H. raises four issues. We bifurcated the issues and ordered the parties to proceed on only one - whether RSA 169-C:10, 11(a) is unconstitutional because it “prohibits the appointment of an attorney to a step-parent accused of abusing a child, by denying him equal access to duе process to clear his name and protect his family integrity.”
Analysis of the due process claim requires us to first determine whether a stepparent has a legally protected interest and, if so, to then decide whether the Due Process Clause may require the appointment of counsel as an appropriate procedural safeguard to protect thаt interest. Petition of Preisendorfer,
We agree with Mark H. that accused stepparents have a legally protected interest at stake in abuse and neglect hearings. We believe that familial relationships, aside from biological bonds, stem “from the emotional attachments that derive from the intimacy of daily association,” and from the manner in which such relationships promote family life. Lehr v. Robertson,
Determining that a stepparent has abused or neglected a stepchild can affect the stepparent’s marriage, family relationships and family life as a whole. For instance, the court, as a result of a finding of abuse and neglect, may order a household member to stay away from the family home, where, as here, his natural child may also reside. See RSA 169-C:19, 11(a). Because abuse and neglect proceedings can harm, and in some cases irreparably damage, family and marital relationships, stepparents accused of abuse and neglect have a legally protected liberty interest in preserving
A person accused of abusing or neglecting a child has another legally protected intеrest. If a person is found to have abused a child, his or her name will be entered as part of a “founded report” in a central registry maintained by DCYF. See RSA 169-C:35. We have previously held that the entry of such a finding in the central registry implicates a liberty interest within the meaning of Part I, Article 15 of the New Hampshire Constitution. Petition of Bagley,
Whether the Due Process Clause requires court-appointed counsel for an indigent stepparent to protect his or her liberty interests is determined by balancing three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the State’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedurаl requirement would entail. In re Richard A.,
The private interests which may be affected in abuse and neglect proceedings are substantial. They include the stepparent-stepchild relationship, the marital relationship, the natural parent-child relationship, and the overall relationship and role that the stepparent plays in the family. As mentioned above, the court can order a stepparent to leave the family home and have no contact with the abused child and any other child in the house, including a natural child. RSA 169-C.19, II(a). Such an order, in and of itself, can have dramatic consequences upon the stepparent’s marriage and relations with other family members. In reality, an abuse and neglect proceeding, by its very nature, often tears a family apart and may seriously undermine any chance at rebuilding a healthy family environment.
We next examine the risk that a stepparent will be erroneously deprived of liberty interests through the procedures used, and the value of court-appointed counsel as an additional safeguard. The risk of erroneous deprivatiоn is lessened by RSA 169-C:12, which provides that in hearings under RSA chapter 169, the court is not constrained by technical rules of
Finally, we examine the government’s interest, including the function involved and the fiscal and administrative burdens that the provision of court-appointed counsel would entail. The purpose of the Child Protection Act is “to provide protection to children whose life, health or welfare is endangered and to establish a judicial framework to protect the rights of all parties involved in the adjudication of child abuse or neglect cases.” RSA 169-C:2,1. We identify two important State interests advanced by the Act: (1) protecting children; and (2) protecting the rights of all parties involved in abuse or neglect proceedings.
Although we believe the Act’s primary interest is protecting children, which often trumps other competing goals of the Act, see In re Tracy M.,
We briefly consider the burdens that the additional or substitute procedural requirement would entail. Providing court-appointed counsel for stepparents would result in added fiscal as well as administrative burdens upon the State. Cf. In re Brittany S.,
In sum, although the State seeks primarily to protect the welfare of children and to handle abuse and neglect petitions efficiently and economically, it recognizes as well its purpose to “establish a judicial framework to protect the rights of all parties involved in the adjudication of child abuse or neglect cases.” RSA 169-C:2, I; see also RSA 169-C:2, 11(c). The legislature has determined that indigent natural and adoptive parents shall be provided counsel but has not provided that protection to stepparents. As stepparents have a significant private interest in preserving and protecting family life, we conclude they are entitled to protection under Part I, Article 15 of the State Constitution. Our view is consistent with the fact that stepparents are a commonplace presence in the nuclear family and that “[t]he New Hampshire Legislature and Judiciary have consistently expanded the rights and duties of stepparents.” Bodwell v. Brooks,
Finally, we do not believe that the Federal Supreme Court’s decision in Troxel v. Granville,
Our present holding is quite a different matter. In determining that stepparents are entitled to certain due process rights, we are not required to choose between the liberty interests of natural or adoptive parents and those of stepparents. Finding that due process under our State Constitution requires the appointment of counsel to stepparents accused of abuse or neglect neither erodes the fundamental rights of natural or adoptive parents, nor imbues stepparents with the same fundamental liberty interest in a child as natural or adoptive parents. Instead, we merely recognize that stepparents, like natural or adoptive parents, are susceptible to charges of abuse or neglect.
Reversed.
Concurrence Opinion
concurring in part and dissenting in part. The plurality opinion reaches two conclusions: First, RSA 169-C:10, II(a) (2002) violates due process by prohibiting under any circumstances court-appointed counsel for an indigent stepparent accused of abusing or neglecting his or her stepchild; and second, the Due Process Clause in Part I, Article 15 of the New Hampshire Constitution requires court-appointed. counsel in every case charging an indigent stepparent with abusing or neglecting his or her stepchild. I agree with the first conclusion but respectfully dissent from the second.
The second conclusion is unsupported by any state or federal cases, inconsistent with settled due procеss analysis and at odds with our recent decision in In re Brittany S.,
In Brittany S., we held that due process does not require court-appointed counsel for an indigent mother who seeks to regain custody of her own daughter by terminating a guardianship. Id. at 494. We held that even though the mother’s interest is fundamental, when that interest is balanced against the safeguards in the guardianship proceedings, the State’s interest in protecting children and the significant costs of indigent representation, due process does not require the appointment of counsel. Id. at 491-94. The factors invоlved in an abuse and neglect proceeding against a stepparent - the private interests, the nature of the proceedings and the State’s interest - are indistinguishable from those in Brittany S. The outcome of this case is thus dictated by Brittany S.
The Child Protection Act provides court-appointed counsel to an indigent parent who has been accused of abusing or neglecting his or her own child. RSA 169-C:10, 11(a). The statute also allows a court to appoint counsel for an indigent parent not accused of abuse or neglect “if the parent is a household member and such independent legаl representation is necessary to protect the parent’s interests.” Id. “Parent” is defined to include “mother, father, [and] adoptive parent.” RSA 169-C:3, XXI (2002). RSA 169-C:10,11(a), however, states that “[t]he court shall not appoint an
The threshold step in a due process anаlysis is to determine whether a stepfather has a legally protected interest. See Petition of Preisendorfer,
Mark H. has a legally protected interest in the abuse and neglect hearing. A finding that he has abused or neglected his stepchild can affect his marriage and his family. See RSA 169-C:19, 11(a)(1) (2002) (court may order a household member to stay away from the premises where the child lives). In this case, such an order affected Mark H.’s relationship with his wife and natural child as well as his relationship with his stepchild. A parent’s role in family life is a fundamental liberty interest under Part I, Article 2 of the State Constitution. See Stanley D. v. Deborah D.,
Mark H. has another legally protected interest. A finding that he has abused his stepchild will result in his name being entered as a “founded report” in a central registry mаintained by the division for children, youth and families (DCYF). See RSA 169-C:35 (2002). In Petition of Bagley,
To decide whether the Due Process Clause requires court-appointed counsel for every indigent stepparent who is accused of abusing or neglecting his or her stepchild, we balance three factors: (1) the private interest that will be affected; (2) the risk of an erroneous deprivation of such interest through the procedures used; and (3) the State’s interеst. In re Richard A.,
The private interests that may be affected are substantial. The most significant of these is that the court may order a stepparent to stay away from the home where his or her spouse and natural children reside. See Lassiter v. Department of Social Services,
Equating the interests of natural parents and stepparents raises serious constitutional concerns. In Troxel, the Supreme Court held unconstitutional a state statute that allowed “any person” to petition for visitation with a child. Troxel,
While I agree that the private interests at stake here weigh in favor of providing counsel, it is primarily because these proceedings cаn affect Mark H.’s interest in the care, custody and control of his natural children and his relationship with his wife.
The second factor is the risk that a stepparent’s liberty interests will be erroneously deprived through the procedures used and the value of court-appointed counsel as an additional safeguard. Mark H. argues that without an attorney, his inability to present a “technical and complicated defense raised a strong possibility of an erroneous deprivation [of his liberty interests].” Proceedings under the Child Protection Act primarily focus on determining the truth of factual allegations, and whether those allegations, if true, result in a finding that the child was abused or neglected. In resolving this fact-intensive inquiry, the court does not apply the rules of evidence, but may admit any evidence that it considers relevant and
The plurality points out that, unlike natural parents, stepparents are not statutorily protected from having their testimony in the abuse and neglect proсeeding used against them at a subsequent criminal trial and argues that having a lawyer at the abuse and neglect proceeding would provide this protection to stepparents. While true, this is irrelevant. The relevant inquiry here is not whether the presence of counsel will better protect a stepparent’s rights in subsequent criminal proceedings but whether the absence of counsel impermissibly increases the risk of an erroneous result in the abuse and neglect proceeding.
The third factor is the government’s interest. The purpose of thе Child Protection Act is “to provide protection to children whose life, health or welfare is endangered and to establish a judicial framework to protect the rights of all parties involved in the adjudication of child abuse or neglect cases.” RSA 169-C:2 (2002). Thus, the State has an interest in a proceeding that produces reliable results, while its duty as parens patriae requires that it represent the safety interest of the child. See In re Tracy M.,
The State has a further interest in adjudicating child abuse or neglect cases as economically as possible. A large number of abuse and neglect proceedings involve allegations that a stepparent has abused a stepchild. Providing court-appointed counsel for all stepparents would result in a significant additional fiscal as well as administrative burden upon the State. Cf. In re Brittany S.,
As the United States Supreme Court has recognized, due process does not require appointed counsel in every ease where a fundamental liberty interest is at stake. See Gagnon v. Scarpelli,
Neither Mark H. nor the plurality cite a single state or federal court decision that has held that due process requires the appointment of counsel for a stepparent accused of abuse or neglect of his or her stepchild. While many state courts have concluded that due process requires counsel for a natural parent who risks losing custody of his or her child, see, e.g., Danforth v. State Department of Health & Welfare,
Moreover, the implications of the plurality opinion may have a significant impact upon other cases. If due process requires court-appointed counsel whenever a stepparent is accused of abusing or neglecting his or her stepchild, then due process certainly requires court-appointed counsel whenever a natural parent may lose custody of a child. For example, when a court finds that a person has abused the parent of his or her minor children under RSA chapter 173-B (2002), it may award custody of the children to the other parent or the department of health and human services. See RSA 173-B:5, I(b)(5), (6). Such an order may remain in effect for up to one year. See RSA 173-B:5, VI. Hearings under RSA chapter 173-B, like hearings under RSA chapter 169-C, are informal. The rules of evidence are not applied, RSA 173-B :3, VIII, and the primary focus of the inquiry is determining the truth of factual allegations, see RSA 173-B:1, I. Further, conduct alleged under RSA 173-B:1, I, must involve the commission or attempted commission of one or more of thе enumerated criminal acts. Like an accused stepparent under RSA chapter 169-C, an accused parent’s testimony in proceedings under RSA chapter 173-B may be later used against him or her at a subsequent criminal proceeding. Given the similar interests and proceedings involved, it is difficult to see why, under the plurality’s reasoning, due process would not require court-appointed counsel whenever an indigent parent is accused of abuse under RSA chapter 173-B.
The real problem with RSA 169-C:10, 11(a) is that it prohibits a court from appointing counsеl for the accused stepparent, even if the facts and
Finally, the plurality’s ruling that due process requires the appointment of counsel for this stepparent does not decide the issue for all future cases because a decision by a plurality of an appellate court has no precedential value. United States v. Miller,