MOTION FOR FIT PARENT
HEARING
STATE OF NEW
HAMPSHIRE
______________________,
SS
_________________ COURT
DOCKET
#
IN RE: _________________________________
(child's name)
MOTION FOR FIT
PARENT HEARING UNDER RSA 169:C-19-e AND OTHER RELIEF
NOW COMES __________________________________, father of the above named
juvenile, and hereby moves this honorable Court to immediately schedule
a “fit parent” hearing as soon as possible, and for other
relief. In support of said Petition, the father states the
following:
1. I have the present ability to
care for the child in that I have the basic necessities of a home, or
other shelter, a means of supporting the child, whether through
employment or other income, (including eligibility for state or federal
funds or housing under the Social Security Act to provide for
necessities of medical care, food., child care, etc.)
Furthermore, I pose no danger of harm to the child.
2. NH law requires a
“fit parent hearing” as the ONLY means this honorable Court
should use to determine father’s eligibility to care for the
child. RSA 169-C:19-e.
3. “Fit parent” has not
been defined under NH law, however the NH Supreme Court opined in the
case of In the Matter of
R.A. and J.M., ___ N.H. ____, December 30, 2005, that:
"I can foresee situations in which
doing so would not be unconstitutional, even if the opposing parent has
not so neglected or abandoned the child as to have his or her rights
terminated — i.e., to be declared unfit."
4. DCYF has in the past required
criminal record checks of fathers seeking custody of their children, as
well as “home studies” similar to the home studies required
for foster parents or adoptive parents. The case of In Re: Bill F., 145 N.H.
267 (2000) held that this practice was an undue burden on parents, and
replaced the process with the “fit parent hearing” now
being requested. However, the case did not define
“fit parent.” Never-the-less, some District and
Family Courts have continued to require the parent to submit to these
criminal record checks and home studies prior to scheduling a
“fit parent hearing.” Such studies effectively vacate
the intent of the “Bill F.” hearing in that they place the
burden on the parent to prove “fitness” rather than on the
Division for Children, Youth, and Families, to show that the parent is
unfit.
5. Under NH law, custody is an
incidental right of guardianship, and the parent is, by operation of
law, the guardian of the child. Ellsworth v. Heath,
140 N.H. 833 (1996). The Division
for Children, Youth, and Famlies, is not the natural guardian of the
child, so any statutes that authorize a change of custody to the
Division for Children, Youth, and Families without notice and
opportunity to be heard, and without a burden of proof showing that
both parents are unfit for custody, should be declared
unconstitutional. e.g. RSA 169-C:19, III (a).
WHEREFORE, Petitioner respectfully requests the following relief:
A. That any prior ORDERS transferring
legal custody to the Division for Children, Youth, and Families be
vacated, and legal custody of the child be returned to the father.
B. That the Court use as an absolute
minimum, and consistent with the fundamental nature of parental rights,
the legal standard in RSA 463:8, III (B) in order to deny custody
to the fit parent, i.e. that the court must find by clear and
convincing evidence that the parent is unfit, and that his right to
custody can only be terminated upon a finding of becoming unfit. RSA
463:8, III (b)
C. That DCYF be immediately
enjoined from requesting any criminal record checks or seeking any
other information concerning the father’s personal or financial
circumstances from any agency that normally requires consent for
release of records. This would include being prohibited from
requesting any information from other state agencies on any financial
matters whatsoever, such as checking the Office of Child Support
Enforcement for due child support records, Medicaid records, etc.
Requiring this information from the parent has the effect of changing
the burden of proof to the parent to prove he is fit, not to mention
that is seriously violates his rights.
D. Order DCYF to disclose to the parent
prior to the hearing if they intend to present evidence of unfitness,
i.e. evidence that undersigned parent has abused or neglected the child
so that his rights have been terminated, or that he presents a a
serious risk of harm to the child.
E. ORDER DCYF to produce discovery
within 5 business days on any evidence of parental unfitness they
intent to present at the fit parent hearing, and to disclose each and
every witness they intend to call in support of any allegation of
unfitness.
F. That this court refuse to admit
any evidence obtained by DCYF in violation of parental rights of
privacy, such as Criminal Record checks obtained without consent, etc.
G. That this Court schedule the
matter for hearing within 15 days.
H. That this Court, on the basis
of fundamental due process rights, refuse to hear evidence except as
specifically disclosed to the parent as per D and E above and refuse to
hear from witnesses undisclosed to the parent prior to the hearing on
evidence of parental unfitness.
I. For other and such relief as
may be just.
Respectfully submitted,
____________________________________
Parent Signature
Name: ______________________________
Address: ____________________________
____________________________________
Telephone: __________________________
CERTIFICATE OF SERVICE
I hereby certify that the above-entitle MOTION has
been forwarded this date to:
1. DCYF attorney, at the Office of HHS,
_____________________ District Office.
2. CASA
Guardian ad Litem, or other Guardian ad Litem.
3. Attorney for the petitioned
parent:_________________________________________
4. School District, if a party to the case:
______________________________________
(Obtain address from the Court)
5. County
Office of HHS:__________________________________________
(Obtain address from the Court or link to County
here)