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April 4th, 2012 by Robert Franklin, Esq.
For the past nine months, New Hampshire has refused to appoint lawyers to represent indigent parents in child welfare cases.  The unsurprising result is that more and more parents lose their dependency cases in court meaning that their children lose their parents and become part of the foster care system.  Read about it here (NPR, 4/2/12).

So far, New Hampshire is only one of two states that refuse to appoint counsel for indigent parents whom the state accuses of child abuse or neglect.   Mississippi is the other one.  And there’s a case now pending before the New Hampshire Supreme Court testing the constitutionality of the state’s refusal to appoint counsel.  According to the linked-to article, that case is being closely watched in other states.  If the refusal to appoint counsel passes muster in the Granite State, don’t be surprised to see other cash-strapped states follow suit.

This of course comes against a backdrop of last year’s scandalous decision by the United States Supreme Court holding that indigent parents owing child support had no constitutional right to counsel.  Put simply, if that’s the way the Court decided the right to counsel in child support cases, why would it be any different in child welfare cases?  In the former, parents have a liberty interest in not being put in jail for debt; in the latter, they have a liberty interest in caring for their biological children.  

Of course the child support case construed federal constitutional law and the child welfare case probably includes issues of both the state and federal constitutions.  But from where I sit, the federal constitutional issue is close to already decided.  The child support case seems to answer the question as far as federal law goes and the answer is “no – no right to appointed counsel.”

Still, the New Hampshire Supreme Court may rule differently in the matter of state law than the U.S. Court ruled regarding federal law.  That’s a possibility, but there’s an even more intriguing one on which I’d like to see how they rule.  The line of cases culminating in Troxel v. Granville occasionally suggests that parental rights aren’t in fact constitutional ones at all, but “natural rights.”  That is, they arise, not from any words in the document called the United States Constitution, but from tradition and the fact of a parent’s relationship to his children.

If the state high court wanted to pick up on that concept, it wouldn’t be confined by the child support case decided by the U.S. Court last year.  That case explicitly construed the Fourteenth Amendment and so wouldn’t be authoritative on the subject of the “natural right” of parenthood.

Besides, it’s one thing for a court to enforce a child support order; it’s another for it to take away parental rights altogether.

And if the New Hampshire Court ruled that parental rights are natural rights, not subject to constitutional interpretation, it could be a huge step forward for parents in their ongoing fight against state intrusion into family life.  Likewise, the decades of judicial precedents culminating in Troxel clearly says that states may not interfere with parenting decisions absent a finding of unfitness on the part of the parent.  That states can make such a finding a virtual slam-dunk by depriving the indigent of counsel may be altogether too heady a drink for the state court.

All this is speculative at this point, but what’s all too real is the fact that New Hampshire is now very much in the business of depriving parents of children and children of parents.  And, should anyone have missed the point, it’s precisely the poor and uneducated who are targeted.

In most places in the U.S., if a parent is charged with abuse or neglect of a child and can’t afford a lawyer, he’s appointed one. That lawyer’s job is to defend the parent and reunite the family if possible.

But faced with a budget shortfall, New Hampshire has taken the unusual step of eliminating that funding.

The court and state officials charged with enforcing the new policy now worry that the lack of representation is hurting parents and their children — and children’s advocates are concerned that other states may eventually follow New Hampshire’s lead…

For the first time in 30 years, New Hampshire isn’t offering parents any legal representation in these types of cases. Funding was eliminated in the most recent round of budget cuts…

Vivek Sankaran, a professor of law at the University of Michigan, predicts New Hampshire may get exactly what it has historically tried to avoid — a generation of kids who grow up without their parents.

And make no mistake, the legal practice that’s grown up around allegations of child abuse or neglect, has grown much more complicated over the past couple of decades than it ever was before.  That means that now more than ever, all people caught up in the system need attorneys to see them through it.  But the poor tend to be less well-educated than those who are more affluent, so they’re less qualified than most to fight the power of the state that’s bent on taking their children from them.  It’s the ones who are least able to defend themselves who most need lawyers, but they’re the ones New Hampshire and Mississippi deprive of counsel.

That’s just what happened to the unnamed father featured in the NPR piece.  He’s dyslexic and has less than a high-school education.  He’s obviously concerned for his four-year-old daughter’s welfare, but the economic downturn has left him without a home for her to live in.  The reality is that New Hampshire is going to shanghai his daughter into foster care if it can, and, although an attorney would know what he needs to do to prevent it, the father does not.

After nine months and hundreds of these cases, New Hampshire state officials say the vast majority of parents don’t have lawyers — and many aren’t fit to defend themselves…

Parents who are unable to adequately defend themselves make state attorney Peter Brunette’s job — arguing against the parents — easier. But he doesn’t feel good about it.

“It’s like shooting fish in a barrel sometimes. And it’s not fun,” Brunette says. “Without a lawyer, there’s no way they can navigate this system in a way that ensures that their rights are being adequately protected. That’s the problem we are all struggling with right now.”

The war on families by states continues.  This is just one more example of it, albeit a particularly pernicious one.  At every turn, we see states reaching into homes to separate children from parents in a day and age in which we know more than ever before about the importance of biological parents to children.  It’s as if they can’t help themselves; once they start arrogating power to themselves, states can’t seem to stop.  It’s like an alcoholic or drug addict who knows the damage the addiction does, but continues using the stuff anyway.  It’s wrong.  It’s got to stop.

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