In re Father 2006–360

• Decision Date: 16 March 2007
• Docket Number: No. 2006–360.,2006–360.
• Court: New Hampshire Supreme Court
• Parties: In re FATHER 2006–360.

155 N.H. 93

921 A.2d 409

In re FATHER 2006–360.

No. 2006–360.

Supreme Court of New Hampshire.

March 16, 2007.

Kelly A. Ayotte, attorney general (Glenn A. Perlow, attorney, on the memorandum of law and orally), for the New Hampshire Division for Children, Youth and Families.

Paula J. Werme, of Boscawen, by brief and orally, for the father.

Carolyn M. Kirby, of Goffstown, by brief, for Hillsborough County.

HICKS, J.

The father, P.S., appeals decisions of the Superior Court (Brennan, J.) denying his requests for appointment of counsel in abuse and neglect proceedings under RSA chapter 169–C (2002 & Supp.2006) involving his daughter. We affirm.

The following facts appear in the record. P.S.' daughter, E.S., was born in 1990 and lived with her mother. E.S. has never lived with her father, who resides in Pennsylvania. P.S. unsuccessfully sought custody of his daughter in 1992 and 1995 in the superior court.

In February 2005, the police placed E.S. in protective custody due to allegations that her mother was abusive and/or neglectful. The New Hampshire Division for Children, Youth and Families (DCYF) filed a petition for abuse and neglect pursuant to RSA 169–C:3, XIX(b) (2002). P.S. was not named in the petition. The Milford District Court held a preliminary hearing and issued an order on February 17, 2005, finding that E.S. was neglected by her mother and awarding DCYF legal custody. Although P.S. was informed of the hearing by telephone, he did not attend. As part of the order, the court "denied until further hearing" P.S.' visitation with his daughter.

An adjudicatory hearing was held on March 10, 2005. P.S. attended the hearing pro se. The court again found that E.S. was a neglected child and awarded legal custody to DCYF. P.S. was given visitation rights conditioned upon the discretion of DCYF in consultation with the guardian ad litem. This arrangement was continued by the court at a dispositional hearing held in April 2005, which P.S. attended pro se.

On May 19, 2005, Hillsborough County (County) sent P.S. a copy of its motion requesting that the court order him to complete a financial affidavit for purposes of determining the reimbursement he owed to the County and the State pursuant to RSA 169–C:27 (2002). Section V of the statute charges the County with collecting reimbursement for services, on behalf of the State, from the person or persons chargeable by law for the care and necessities of a child. RSA 169–C:27, V. On May 31, 2005, the district court granted the County's motion and P.S. submitted a financial affidavit. On June 14, 2005, the court granted the County's motion for parental reimbursement. P.S. failed to make any payments and in August 2005, the County filed a motion for contempt, which was granted by the court.

In April 2005, a local attorney filed an appearance in conjunction with a motion for temporary custody on behalf of P.S. in the district court. At a "Bill F." review hearing held on July 14, 2005, see In re Bill F., 145 N.H. 267, 761 A.2d 470 (2000), the court denied P.S.' motion for custody of his daughter on the basis that he "is unfit to perform his parental duties." Through his attorney, P.S. filed a motion for reconsideration on September 1, 2005, which was denied by the district court. On September 9, 2005, Attorney Paula Werme, on behalf of P.S., filed an appearance and a motion to be appointed as counsel.

The district court initially granted the motion, but then reversed its decision after determining that RSA 169–C: 10, II(a) (2002) precluded appointment of counsel for P.S. The district court also issued a protective order prohibiting unauthorized contact between P.S. and his daughter. On November 22, 2005, P.S. filed a petition for writ of certiorari in superior court arguing, inter alia, that he was entitled to court-appointed counsel. He also asked the superior court to appoint counsel, which request was denied.

On February 24, 2006, the superior court granted DCYF's motion to dismiss P.S.' writ as untimely filed. P.S. appeals these decisions, raising numerous issues in his notice of appeal. We bifurcated the appeal and address here only the issues regarding appointment of counsel.

On appeal, P.S. argues that RSA 169–C: 10, II(a) violates his due process rights by prohibiting assignment of court-appointed counsel in RSA chapter 169–C proceedings. DCYF counters that due process does not require appointment of counsel for indigent parents who are not the subject of abuse or neglect accusations in RSA chapter 169–C proceedings.

The Child Protection Act requires the court to appoint counsel to represent an indigent parent who has been accused of abusing or neglecting his or her own child. RSA 169–C: 10, II(a). The statute also states that the court "may appoint" counsel for an indigent parent not accused of abuse or neglect "if the parent is a household member and such independent legal representation is necessary to protect the parent's interests." Id .... RSA 169–C:10, II(a), however, specifically provides that "[t]he court shall not appoint an attorney to represent any other persons involved in a case brought under this chapter."

In re Shelby R., 148 N.H. 237, 239, 804 A.2d 435 (2002). Because P.S. was not accused of abuse or neglect, and was never a member of the household, the district and superior courts denied his requests for court-appointed counsel.

P.S. relies upon the Fourteenth Amendment to the United States Constitution and Part I, Article 2 of the New Hampshire Constitution. We first address this issue under the State Constitution, and cite federal opinions for guidance only. In the Matter of Jeffrey G. & Janette P., 153 N.H. 200, 203, 892 A.2d 1234 (2006).

"This court is the final arbiter of the due process requirements of the State Constitution." In re Brittany S., 147 N.H. 489, 491, 792 A.2d 384 (2002). There is no dispute that a natural parent's role in family life is a fundamental liberty interest under Part I, Article 2 of the State Constitution. In re Shelby R., 148 N.H. at 239, 804 A.2d 435. Having determined that a natural parent has a legally protected interest, we next determine whether due process requires appointment of counsel to an indigent natural parent by balancing three factors: (1) the private interest 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 government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail. Id. at 240, 804 A.2d 435.

The primary private interest of a non-custodial parent who is not accused of abuse or neglect is the parent-child relationship.

Id. P.S. also argues that he has a significant financial interest given that Hillsborough County, on behalf of the State, can seek the recovery of incurred expenses in proceedings conducted pursuant to RSA chapter 169–C. RSA 169–C:27.

An indigent parent has the right to court-appointed counsel in certain limited situations. RSA 169–C: 10 specifically affords counsel for an indigent parent accused of abuse or neglect. In Shelby R., we held in a plurality decision that accused step-parents in abuse and neglect proceedings also have a constitutional right to court-appointed counsel. In re Shelby R., 148 N.H. at 243, 804 A.2d 435. For both parent and step-parent, the interests affected include the potential for a breakdown of the family relationship and having his or her name entered in DCYF's central registry as an abusive or neglectful parent. RSA 169–C:35 (Supp.2006) ; In re Shelby R., 148 N.H. at 244, 804 A.2d 435 (Duggan, J., concurring in part and dissenting in part).

Although an unaccused, non-custodial parent's interests may be similar in part, on balance they are less compelling. Although such a parent does face potential exposure to parental reimbursement expenses, a protected property interest, he or she does not share the same interests of preserving a marital relationship or a family dynamic that a parent living in the household would have. Cf. In re Shelby R., 148 N.H. at 240, 804 A.2d 435....