2006-360, IN RE FATHER 2006-360

1992 and 1995 in the superior court.

resides in Pennsylvania. P.S. unsuccessfully sought custody of his daughter in

in 1990 and lived with her mother. E.S. has never lived with her father, who

his daughter. We affirm.

The following facts appear in the record. P.S.’ daughter, E.S., was born

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

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

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

to press. Errors may be reported by E-mail at the following address: Youth and Families. memorandum of law and orally), for the New Hampshire Division for Children, Kelly A. Ayotte, attorney general (Glenn A. Perlow, attorney, on the

editorial errors in order that corrections may be made before the opinion goes No. 2006-360 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as which was granted by the court.

p. 2 arguing,

any payments and in August 2005, the County filed a motion for contempt,

November 22, 2005, P.S. filed a petition for writ of certiorari in superior court order prohibiting unauthorized contact between P.S. and his daughter. On appointment of counsel for P.S. The district court also issued a protective

granted the County’s motion for parental reimbursement. P.S. failed to make filed an appearance and a motion to be appointed as counsel. 2 motion and P.S. submitted a financial affidavit. On June 14, 2005, the court RSA 169-C:27, V. On May 31, 2005, the district court granted the County’s

decision after determining that RSA 169-C:10, II(a) (2002) precluded

district court. On September 9, 2005, Attorney Paula Werme, on behalf of P.S.,

the person or persons chargeable by law for the care and necessities of a child. asked the superior court to appoint counsel, which request was denied.

inter alia, that he was entitled to court-appointed counsel. He also

“denied until further hearing” P.S.’ visitation with his daughter. motion for temporary custody on behalf of P.S. in the district court. At a “ the hearing by telephone, he did not attend. As part of the order, the court her mother and awarding DCYF legal custody. Although P.S. was informed of The district court initially granted the motion, but then reversed its

motion for reconsideration on September 1, 2005, which was denied by the “is unfit to perform his parental duties.” Through his attorney, P.S. filed a County with collecting reimbursement for services, on behalf of the State, from the court denied P.S.’ motion for custody of his daughter on the basis that he State pursuant to RSA 169-C:27 (2002). Section V of the statute charges the F.” review hearing held on July 14, 2005, see In re Bill F., 145 N.H. 267 (2000), purposes of determining the reimbursement he owed to the County and the Bill In April 2005, a local attorney filed an appearance in conjunction with a

and issued an order on February 17, 2005, finding that E.S. was neglected by April 2005, which P.S. attended arrangement was continued by the court at a dispositional hearing held in

motion requesting that the court order him to complete a financial affidavit for On May 19, 2005, Hillsborough County (County) sent P.S. a copy of its

named in the petition. The Milford District Court held a preliminary hearing pro se. abuse and neglect pursuant to RSA 169-C:3, XIX(b) (2002). P.S. was not Hampshire Division for Children, Youth and Families (DCYF) filed a petition for upon the discretion of DCYF in consultation with the guardian ad litem. This awarded legal custody to DCYF. P.S. was given visitation rights conditioned hearing pro se. The court again found that E.S. was a neglected child and An adjudicatory hearing was held on March 10, 2005. P.S. attended the

allegations that her mother was abusive and/or neglectful. The New In February 2005, the police placed E.S. in protective custody due to value, if any, of additional or substitute procedural safeguards; and (3) the

p. 3 parent’s interests.” legal representation is necessary to protect the

deprivation of such interest through the procedures used and the probable guidance only.

parent is a household member and such independent

private interest affected by the official action; (2) the risk of an erroneous address this issue under the State Constitution, and cite federal opinions for counsel to an indigent natural parent by balancing three factors: (1) the interest, we next determine whether due process requires appointment of indigent parent not accused of abuse or neglect “if the interest under Part I, Article 2 of the State Constitution.

State Constitution.”

Constitution and Part I, Article 2 of the New Hampshire Constitution. We first

N.H. at 239. Having determined that a natural parent has a legally protected superior courts denied his requests for court-appointed counsel. states that the court “may appoint” counsel for an In re Shelby R., 148 dispute that a natural parent’s role in family life is a fundamental liberty own child. RSA 169-C:10, II(a). The statute also

has been accused of abusing or neglecting his or her In re Brittany S., 147 N.H. 489, 491 (2002). There is no

“This court is the final arbiter of the due process requirements of the involved in a case brought under this chapter.” (2006). or neglect accusations in RSA chapter 169-C proceedings. In the Matter of Jeffrey G. & Janette P., 153 N.H. 200, 203

P.S. relies upon the Fourteenth Amendment to the United States

abuse or neglect, and was never a member of the household, the district and In re Shelby R., 148 N.H. 237, 239 (2002). Because P.S. was not accused of appoint counsel to represent an indigent parent who

not appoint an attorney to represent any other persons however, specifically provides that “[t]he court shall

appointment of counsel for indigent parents who are not the subject of abuse Id. . . . RSA 169-C:10, II(a),

The Child Protection Act requires the court to

169-C proceedings. DCYF counters that due process does not require rights by prohibiting assignment of court-appointed counsel in RSA chapter On appeal, P.S. argues that RSA 169-C:10, II(a) violates his due process

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

p. 4 shall be provided the opportunity to present evidence

have.

ability to obtain custody. At the hearing, the parent in the district or family court regarding his or her 169-C:35 (Supp. 2006); neglect shall be afforded, upon request, a full hearing

relationship or a family dynamic that a parent living in the household would interest, he or she does not share the same interests of preserving a marital potential exposure to parental reimbursement expenses, a protected property multiple provisions of the Child Protection Act . . . after a Petition for attorney cannot be expected to navigate the complex legal consequences under We find this risk to be minimal. P.S. argues that “[a] parent without an

entered in DCYF’s central registry as an abusive or neglectful parent. RSA A parent who has not been charged with abuse or

RSA 169-C:19-e (2002) provides:

in part, on balance they are less compelling. Although such a parent does face

be erroneously deprived of his or her interests through the procedures used. Next, we examine the risk that an unaccused, non-custodial parent will

central registry. potential for a breakdown of the family relationship and having his or her name not faced with the potential of having his or her name entered in DCYF’s Cf. In re Shelby R., 148 N.H. at 240. Moreover, an unaccused parent is a constitutional right to court-appointed counsel.

Although an unaccused, non-custodial parent’s interests may be similar

concurring in part and dissenting in part).

accused of abuse or neglect is the parent-child relationship. 243. For both parent and step-parent, the interests affected include the

decision that accused step-parents in abuse and neglect proceedings also have would entail. parent accused of abuse or neglect. In Shelby R., we held in a plurality limited situations. RSA 169-C:10 specifically affords counsel for an indigent An indigent parent has the right to court-appointed counsel in certain

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

The primary private interest of a non-custodial parent who is not

Id. at 240.

administrative burdens that additional or substitute procedural requirements government’s interest, including the function involved and the fiscal and proceedings.

p. 5 rights of all parties involved in abuse or neglect

Act: (1) protecting children; and (2) protecting the

identify two important State interests advanced by the child abuse or neglect cases.” RSA 169-C:2, I. We p. 5 rights of all parties involved in the adjudication of

counsel to all unaccused, non-custodial parents in abuse and neglect

and to establish a judicial framework to protect the

custodial parents. In this case, we recognize that providing court-appointed

(2002);

children whose life, health or welfare is endangered 5 Child Protection Act is “to provide protection to appointed counsel would entail. The purpose of the

against the burden of requiring that counsel be appointed for unaccused, non-

Bill F. other rights of the parties and assures them a fair hearing.” RSA 169-C:2, II(c)

administrative burdens that the provision of court-

government’s interest in assuring the parties involved have a fair hearing In re Shelby R., 148 N.H. at 241. With this in mind, we weigh the

executed and enforced and which recognize and enforce the constitutional and judicial procedures through which the provisions of [RSA chapter 169-C] are RSA chapter 169-C is to be liberally construed “[t]o provide effective

In re Shelby R., 148 N.H. at 241.

including the function involved and the fiscal and

(2002) (required annual review and discretionary review upon party’s request).

not permanent and is subject to review.

before a judge without a jury, not bound by the technical rules of evidence and that the proceedings are held

Finally, we examine the government’s interest,

show that the parent seeking custody is unfit. required upon party’s motion for changed circumstances); RSA 169-C:24

In addition, in abuse and neglect proceedings, the dispositional order is otherwise unfit to perform his or her parental duties. of the interests discussed above. that he or she has abused or neglected the child or is reduces the risk that an unaccused parent will suffer an erroneous deprivation

carry the burden of proof. This, together with the facts that the district court is 76. The parent thus has the right to present evidence, but does not have to

protects the unaccused parent’s rights and places the burden upon the State to This provision, which provides for what is known as a “hearing,”

demonstrates, by a preponderance of the evidence, child and shall be awarded custody unless the state p. 6 6

proceedings. be appointed for an unaccused, non-custodial parent in RSA chapter 1 p. 6 69-C

concurred.

burdens on the State, we hold that due process does not require that counsel

Constitution.

BRODERICK, C.J.