In re C.M.

• Citation: 163 N.H. 768,48 A.3d 942
• Decision Date: 29 June 2012
• Docket Number: No. 2011–647.,2011–647.
• Parties: In re C.M. and another.
• Court: Supreme Court of New Hampshire

163 N.H. 768

48 A.3d 942

In re C.M. and another.

No. 2011–647.

Supreme Court of New Hampshire.

Argued: March 13, 2012.

Opinion Issued: June 29, 2012.

Elliott, Jasper, Auten, Shklar, & Wellman–Ally, of Newport (Michael Shklar on the brief and orally), and New Hampshire Legal Assistance, of Manchester (Elliott Berry on the brief), for Larry M. and Sonia M.

Michael A. Delaney, attorney general (Jeanne P. Herrick, attorney, on the brief and orally), for New Hampshire Division for Children, Youth and Families.

Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief), and Nutter McClennen & Fish LLP, of Boston, Massachusetts (Heather B. Repicky on the brief), and American Bar Association, of Chicago, Illinois (William T. Robinson III on the brief), for the American Bar Association, as amicus curiae.

Vivek S. Sankaran, of Ann Arbor, Michigan, and Tracy A. Bernson, of Dover, by brief, for the National Association of Counsel for Children, as amicus curiae.

Crusco Law Office PLLC, of Bedford (Kysa Crusco on the brief), and Public Justice Center, of Baltimore, Maryland (John Pollock on the brief), for the National Coalition for a Civil Right to Counsel, as amicus curiae.

Law Offices of Laura J. Brevitz, of Raymond (Laura J. Brevitz on the brief), as amicus curiae.

HICKS, J.

This case is before us on an interlocutory transfer without ruling from the Superior Court ( Tucker, J.). See Sup.Ct. R. 9. The trial court transferred the following question: “Does the Due Process Clause of the New Hampshire Constitution (Part I, Articles 2 and 15) or the Fourteenth Amendment of the Federal Constitution require the appointment of counsel for an indigent parent from whom the State seeks to take custody of a minor child based on allegations of neglect or abuse?” We conclude that while due process does not require the appointment of counsel in every such proceeding, the facts of a particular case may require the appointment of counsel.

We accept the facts as presented in the interlocutory transfer statement. See In re Kotey M., 158 N.H. 358, 359, 965 A.2d 1146 (2009). On April 14, 2011, Larry M. and Sonia M. (the parents) were served with petitions pursuant to RSA 169–C:7 (2002), by which the New Hampshire Division for Children, Youth and Families (DCYF) sought custody of their two minor children, C.M. and A.M. Two days earlier, the Newport Family Division, pursuant to an ex parte petition, had granted custody of the children to DCYF. SeeRSA 169–C:6 (2002 & Supp.2011). DCYF alleged that the parents were neglecting their children by failing to provide a safe and sanitary home and adequate supervision and by exposing them to domestic violence in the form of threatening and intimidating behaviors by the father.

On April 15, the parents appeared at a preliminary hearing at which the court found that “reasonable cause exist[ed] to believe,” RSA 169–C:15, I (2002), that the children were neglected and determined that the ex parte order granting custody of the children to DCYF should continue. The court appointed counsel to represent each of the parents. See RSA 169–C: 10, II(a) (2002) (amended 2011).

An adjudicatory hearing was held on May 12, at which the parents were represented by appointed counsel. SeeRSA 169–C:18 (2002 & Supp.2011). Following the hearing, the court found that both parents had neglected the children and continued the order granting legal custody to DCYF. On June 13, a dispositional hearing was held, at which both parents were represented by appointed counsel. SeeRSA 169–C:19 (2002 & Supp.2011). Subsequently, the court issued an order maintaining legal custody of the children with DCYF and directing the parents to undertake certain measures before the children might be safely returned to them. Each parent filed an appeal to superior court and a de novo hearing was scheduled for August. SeeRSA 169–C:28 (2002).

Effective July 1, 2011, the legislature amended RSA 169–C:10, II(a), abolishing the statutory right to counsel for an indigent parent alleged to have abused or neglected his or her child. See Laws 2011, 224:77. Subsequently, the parents each filed a motion to continue court-appointed counsel, asserting that appointment of counsel for indigent parents in child abuse or neglect proceedings is constitutionally mandated under Part I, Articles 2 and 15 of the New Hampshire Constitution and the Fourteenth Amendment to the Federal Constitution.

Part I, Article 2 provides in part: “All men have certain natural, essential, and inherent rights—among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness.” N.H. CONST. pt. I, art. 2. Parental rights are “natural, essential, and inherent” within the meaning of this article. In re Guardianship of Nicholas P., 162 N.H. 199, 203, 27 A.3d 653 (2011) (quotation omitted). “Similarly, the United States Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id. (quotation omitted).

Part I, Article 15 provides in part: “No subject shall be ... deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” N.H. CONST. pt. I, art. 15. The phrase “law of the land” means due process of law. State v. Veale, 158 N.H. 632, 636, 972 A.2d 1009 (2009).

We address this question first under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), and cite federal opinions for guidance only. Id. at 232–33, 471 A.2d 347. We are the final arbiter of our constitution's due process requirements. In re Father 2006–360, 155 N.H. 93, 95, 921 A.2d 409 (2007).

In determining whether the State Constitution requires the appointment of counsel in a given proceeding, we employ the three-prong test articulated by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In re Kotey M., 158 N.H. at 361, 965 A.2d 1146;State v. Hall, 154 N.H. 180, 182, 908 A.2d 766 (2006). This test balances: (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 the additional or substitute procedural requirements would entail. In re Brittany S., 147 N.H. 489, 491, 792 A.2d 384 (2002); Mathews, 424 U.S. at 335, 96 S.Ct. 893.

At the outset, the parents argue that based upon In re Shelby R., 148 N.H. 237, 804 A.2d 435 (2002), “this Court must rule that Part I, Article 2 of the New Hampshire Constitution requires the appointment of counsel for indigent parents when the State seeks to take custody of their children pursuant to RSA Chapter 169–C.” We decline, however, to apply that opinion as controlling precedent on the question before us. As pointed out in Shelby R. in the dissenting opinion of Justice Duggan, a decision by a plurality of an appellate court has no precedential value. Shelby R., 148 N.H. at 248, 804 A.2d 435 (Duggan, J., concurring in part and dissenting in part); see Foster v. Bd. of Sch. Com'rs of Mobile Cty., Ala., 872 F.2d 1563, 1569 n. 8 (11th Cir.1989) (noting that plurality opinion of United States Supreme Court is not binding); Williams v. W.C.A.B. (Green Const. Co.), 687 A.2d 428, 430 n. 2 (Pa.Cmwlth.1997) (recognizing that plurality opinion of state supreme court is not precedential). Accordingly, we address the transferred question as an issue of first impression and employ the three-prong balancing test set forth above.

As to the private interest of the parents, we have consistently recognized that the right to raise and care for one's children is a fundamental liberty interest protected by the State Constitution. See, e.g., In re Father 2006–360, 155 N.H. at 95, 921 A.2d 409;In the Matter of Jeffrey G. & Janette P., 153 N.H. 200, 203, 892 A.2d 1234 (2006); Brittany S., 147 N.H. at 491, 792 A.2d 384;Petition of Kerry D., 144 N.H. 146, 149, 737 A.2d 662 (1999); State v. Robert H., 118 N.H. 713, 716, 393 A.2d 1387 (1978), reversed on other grounds by In re Craig T., 147 N.H. 739, 744–45, 800 A.2d 819 (2002). “[P]arental rights are natural, essential, and inherent rights within the meaning of the State Constitution,” and “[t]he loss of one's children can be viewed as a sanction more severe than imprisonment.” In re Baby K., 143 N.H. 201, 205, 722 A.2d 470 (1998)(quotation omitted). Likewise, the United States Supreme Court has determined “that a parent's desire for and right to the companionship, care, custody, and management of his or her children is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection.” Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (quotation omitted). This interest “is perhaps the oldest of the fundamental liberty interests recognized” by the Court. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

As the State acknowledges in its brief, “[t]he primary private interest of a parent alleged to have abused or neglected his or her child is the parent-child relationship,” and,

[u]ndoubtedly, the provisions of RSA chapter 169–C have an [e]ffect on a parent's right to raise and care for his or her child. For example, where the court has made a finding of abuse or neglect, the court may issue orders that permit the child to remain with the parents subject to conditions including supervision of parents by DCYF, participation of parents in therapy or medical treatment, and assistance of...