In re Shelby R.

CourtSupreme Court of New Hampshire
Citation804 A.2d 435,148 N.H. 237
Decision Date20 August 2002
Docket NumberNo. 2000–425.,2000–425.
Parties In re SHELBY R.

148 N.H. 237
804 A.2d 435


No. 2000–425.

Supreme Court of New Hampshire.

Argued Feb. 7, 2002.
Opinion Issued Aug. 20, 2002.

804 A.2d 436
148 N.H. 238

Paula J. Werme, of Boscawen, by brief and orally, for Mark H.

Philip T. McLaughlin, attorney general (Laura E.B. Lombardi, attorney, on the brief and orally), for the State.


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 authorize 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, II(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 due process to clear his name and protect his family integrity."

148 N.H. 239

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. " Parent" is defined to include "mother, father, [and] adoptive parent." RSA 169–C:3, XXI.

804 A.2d 437

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."

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 that interest. Petition of Preisendorfer, 143 N.H. 50, 52, 719 A.2d 590 (1998). We first address this issue under the State Constitution. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347 (1983). The due process requirements of Part I, Article 15 of the New Hampshire Constitution are at least as protective of individual liberties as the Fourteenth Amendment of the United States Constitution, see, e.g., In re Tracy M., 137 N.H. 119, 122, 624 A.2d 963 (1993), and therefore we need not conduct a separate due process analysis under the Federal Constitution. Ball, 124 N.H. at 237, 471 A.2d 347.

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, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). Of course, a natural parent's role in the family life is a fundamental liberty interest under Part I, Article 2 of the State Constitution. See Stanley D. v. Deborah D., 124 N.H. 138, 142, 467 A.2d 249 (1983).

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, II(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

148 N.H. 240

the family life and protecting the sanctity of the familial relationships born within the household.

A person accused of abusing or neglecting a child has another legally protected interest. 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, 128 N.H. 275, 285, 513 A.2d 331 (1986). Although we recognize that the entry of Mark H.'s name in the central registry triggered a liberty interest, we proceed with our analysis based only upon his interest in protecting his familial role and relationships "because it is significant and his other interest is no greater." Petition of Preisendorfer, 143 N.H. at 53, 719 A.2d 590.

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;

804 A.2d 438

and (3) the State's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. In re Richard A., 146 N.H. 295, 298, 771 A.2d 572 (2001).

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 deprivation 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

148 N.H. 241

evidence, but rather, "may admit any evidence which it considers relevant and material." Cf . In re Brittany S., 147 N.H. 489, 493, 792 A.2d 384 (2002). On the other hand, the risk of error is made more appreciable by the relatively low "preponderance of the evidence" standard mandated by RSA 169–C:13. In addition, as in the termination of parental rights proceedings at issue in Lassiter v. Department of Social Services, 452 U.S. 18, 30, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), "[e]xpert medical and psychiatric testimony, which few parents [or stepparents] are equipped to understand and fewer still to confute, is sometimes presented" in abuse and neglect proceedings. Cf . In re Gina D., 138 N.H. 697, 704–05, 645 A.2d 61 (1994). Finally, we note that while parents are protected from having their testimony in abuse and neglect proceedings used against them in a criminal trial, stepparents are not. See RSA 169–C:12–a. The advice of an attorney may therefore prove invaluable to a stepparent whose uncounselled testimony may tend to incriminate him. Cf . Lassiter, 452 U.S. at 27, n. 3, 101 S.Ct. 2153. We conclude that...

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11 cases
  • In re R.A., 2004–721.
    • United States
    • Supreme Court of New Hampshire
    • December 30, 2005
    ...the intimacy of daily association,’ 891 A.2d 580 and from the manner in which such relationships promote family life." In re Shelby R., 148 N.H. 237, 239, 804 A.2d 435 (2002) (quoting Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) ).The United States Supreme Cou......
  • In re R.A., 2004-721.
    • United States
    • Supreme Court of New Hampshire
    • December 30, 2005
    ...from the intimacy of daily association,' Page 580 and from the manner in which such relationships promote family life." In re Shelby R., 148 N.H. 237, 239, 804 A.2d 435 (2002) (quoting Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 The United States Supreme Court has a......
  • In re C.M., 2011–647.
    • United States
    • Supreme Court of New Hampshire
    • June 29, 2012
    ...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 ......
  • In re Nelson, 2002–433.
    • United States
    • Supreme Court of New Hampshire
    • June 6, 2003
    ...(1981), overruled on other grounds by In re 149 N.H. 549 Craig T., 147 N.H. 739, 744–45, 800 A.2d 819 (2002) ; see also In re Shelby R., 148 N.H. 237, 242, 804 A.2d 435 (2002) (stepparents who demonstrate a full commitment to raising and caring for their stepchildren are generally charged w......
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