Note: All notes and annotation in italics are NOT part of the official "NOTICE TO NON-OFFENDING PARENTS." They represent the legal opinion of the author posting it to the world wide web. While the opinions are based on sound legal research, unfortunately, the author cannot guarantee success at presenting them to a judge. If enough attorneys in New Hampshire present the legal arguments to judges, perhaps the law will eventually change.
Paula J. Werme, Esq.
THE STATE OF NEW HAMPSHIRE
PLEASE READ CAREFULLY AND BRING TO THE COURT HEARINGS
[Annotated] NOTICE TO NON-ACCUSED, NON-HOUSEHOLD PARENT
A petition has been filed alleging that your child(ren) have been abused and/or neglected.
Abuse and neglect cases under State Law RSA 169-C are intended to protect the health, safety and well-being of children and are handled through a series of court hearings. You may want to have an attorney represent you.
As a result of the petition, the court has scheduled a hearing, the date and time of which are provided on the bottom of the petition. You should plan to attend this hearing and all future court hearings because orders issued by the court may directly affect you as well as your child(ren).
[Note: the court has no jurisdiction to make any orders affecting your rights, unless you have been made a party, and are entitled to counsel. See note below on appointment of counsel.]
All court hearings and records of abuse and neglect cases are confidential. The hearings are not open to the public and only people involved in the case will be admitted to the court hearings.
Parents and other individuals chargeable by law for their child's support and necessities may be liable for expenses incurred in this abuse and neglect proceeding, including the costs of certain evaluations and placements. RSA 186-C, regarding educationally handicapped children, grants children and their parents certain rights to services from school districts, at public expense, and to appeal school district decisions regarding services to be provided.
A parent who has not been charged with abuse or neglect of his/her child(ren) has a right to request custody of the child(ren) if an out-of-home placement for the child is anticipated or has occurred. If such a request is made by a parent and objected to by the Division for Children, Youth and Families (DCYF), the parent has aright to request a full court hearing where he/she will be provided the opportunity to present evidence pertaining to his/her ability to provide care for and to exercise custody of the child(ren).
[Note: the actual case law states that "at that hearing, a parent must be provided the opportunity to present evidence pertaining to his or her ability to provide care for the child and shall be awarded custody unless the State demonstrates, by a preponderance of the evidence, that he or she has abused or neglected the child or is otherwise unfit to perform his or her parental duties. The district court shall make findings of fact supporting its decision." If the burden is on the state to show by a preponderance of the evidence that the non-offending parent is unfit, he or she should not have to present evidence to obtain custody of the child. It should be the Division's burden to show that the parent is unfit.]
You may want to hire an attorney to represent you at any court hearing, including the upcoming hearing listed at the bottom of the petition. If you plan to hire an attorney, YOU SHOULD CONTACT YOUR ATTORNEY IMMEDIATELY to discuss the abuse and/or neglect petition that has been filed, the court hearing that has been scheduled and the additional hearings the court may schedule.
[Note: if the state is contemplating making any decisions adverse to a parent's rights, they should be entitled to an attorney free of charge from the state. Contrast with the statute wording: "In any case of neglect or abuse brought pursuant to this chapter, the court shall appoint an attorney to represent an indigent parent alleged to have neglected or abused his or her child. In addition, the court may appoint an attorney to represent an indigent parent not alleged to have neglected or abused his or her child if the parent is a household member and such independent legal representation is necessary to protect the parent's interests. The court shall not appoint an attorney to represent any other persons involved in a case brought under this chapter." Then the court should not have jurisdiction to adjudicate the rights of the non-offending parent. He should file a "special appearance," contest jurisdiction, and make the decision concerning his child's custody as he has the right to do under Troxel v. Granville, ___ U.S. ___ (2000). "First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham: . . The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. See Parham, supra, at 602. In that respect, the court's presumption failed to provide any protection for Granville's fundamental constitutional right to make decisions concerning the rearing of her own daughters. . .
The court will appoint a guardian ad litem (GAL) for your child(ren). The GAL will report to the court and will make a recommendation about what is in the best interest of your child(ren). You will have a chance throughout the case to talk to the GAL. Please note that you will not be asked to pay for any work done by the GAL.
[Note: if the fit parent presumptively makes decisions concerning the best interest of the children, the fit parent should be appointed as Guardian ad Litem in a case alleging abuse or neglect by the other parent.]
Outlined below is a brief overview of the court hearings that are held when an abuse and/or neglect petition is filed. Please read this information carefully and if you have hired an attorney, review it with him/her. An attorney will be able to provide you with more information about these hearings and the court process.
Please remember the seriousness of the petition that has been filed. If the judge determines that there is evidence that your child(ren) have been abused and/or neglected, the judge will issue orders that will affect you and your child(ren). This includes, but is not limited to, the possibility that the judge may award legal custody to a child placing agency or relative, which would give the agency or relative the right to temporarily remove your child(ren) from parental care and custody and determine where and with whom your child(ren) will live. This may include agency placement of your child(ren) in a foster home(s). The judge may also award legal supervision to a child placing agency, which would permit your child(ren) to remain in your home under the supervision of the agency subject to further court order.
[Note: Why would the judge order "legal supervision" for placement of a child in the home of a fit parent, who is not a party to the proceeding? He doesn't have jurisdiction to make orders respecting the non-offending parent! This makes no sense.]
If your child(ren) have already been removed from home, the first hearing the judge will conduct will be a 24-hour protective custody hearing. At this hearing, the judge will determine whether there is reasonable cause to believe that your child's circumstances or surroundings present an immediate danger to your child's health or life. If the judge makes such a determination, a preliminary hearing will be scheduled.
[Note: if there is only "protective custody" following the 24 hour protective custody hearing, the fit parent should RUN to file a Custody Petition in Family Court or Superior Court, depending on where they live. (Family Courts are only operational in Rockingham and Grafton County." The other court loses jurisdiction to adjudicate custody once the District Court or Family Court has made a preliminary custody determination at the preliminary hearing. See RSA 169-C:4, III: " When a custody award has been made pursuant to this chapter, said order shall not be modified or changed nor shall another order affecting the status of the child be issued by the superior court except on appeal under RSA 169-C:28."]
If your child(ren) have not been removed from home, the first hearing the judge will conduct will be the preliminary hearing. At this hearing, the judge will determine whether your child's circumstances or surroundings present an immediate danger to your child's health or life or whether there is reasonable cause to believe that your child has been abused and/or neglected. If such a determination is made, the judge will review with you the Acknowledgment. of Possible Consequences to Parental Rights in Abuse and Neglect Cases form {Court form AOC-304-048) and schedule an adjudicatory hearing. If not, the petition will be dismissed.
ADJUDICATORY HEARING
If the judge determines that your child(ren) have not been abused and/or neglected, the judge will dismiss the petition.
If the judge determines that your child(ren) have been abused or neglected, a finding of "TRUE" will be entered and a dispositional hearing will be scheduled. The judge will also order DCYF to compile a social study consisting of, but not limited to, the home conditions, family background, financial assessment, school record, mental and physical and social history of your family.
CONSENT ORDER
You will be asked to sign the consent decree. Before you do, you should review carefully the form entitled The Effect of a Consent Order on Your Constitutionally and Statutorily Protected Rights (Court Form AOC-302-048)
IN THE EVENT THERE IS A FINDING OF "TRUE," YOU WILL HAVE TWELVE (12) MONTHS FROM THE DATE OF THE FINDING TO FULFILL YOUR RESPONSIBILITIES IN THE CORRECTIVE ACTION PLAN.
[The NOTICE does not indicate how the COURT obtains jurisdiction over the Non-offending parent to give them any responsibilities in the "corrective action plan." Again, a responsible attorney will file a "special appearance," contesting jurisdiction of the court to make orders affecting the non-offending parent's rights.]
IT IS IMPORTANT THAT YOU UNDERSTAND THAT A FINDING OF "TRUE" MAY BE THE BASIS, AT A FUTURE TIME, FOR A PETITION TO TERMINATE YOUR PARENTAL RIGHTS. (SEE STATEMENT NUMBER 7 ON FOLLOWING PAGE.)
If there is a finding of "TRUE", the judge will hold a dispositional hearing within thirty (30) days of the finding of "TRUE." At this hearing, the judge will consider recommendations from the parties and will approve a case plan that will outline what you must do to correct the conditions that led to the finding of "TRUE" that your child(ren) have been abused and/or neglected.
If you want to appeal the court's decision, you must notify the superior court or the supreme court within thirty (30) days of the final dispositional order.
Please note that at any point during this 12-month period, the judge may order that your child(ren) be removed from parental care and custody on a temporary basis and placed in an out-of-home placement, including but not limited to a foster home. Additionally, if at the end of this 12-month period you have not corrected the conditions that led to the judge's finding of abuse or neglect, the Division for Children, Youth and Families (DCYF) may file a petition to terminate your parental rights, pursuant to RSA 170-C.
[Note that is totally illogical for the Non-offending parent to have their rights terminated for failing to correct the conditions leading to abuse or neglect. It never-the-less is the state of the law in New Hampshire right now. See: In re TRICIA AND TRIXIE H., 126 N.H. 418, 493 A.2d 1146 (1985)]
In the nine (9) months following the finding, the judge may hold periodic review hearings. At these hearings, the judge will review the status of the case and will examine the progress that you and other parties have made with the case plan since the last hearing.
[Note: There cannot be a requirement that the non-offending, non-party parent "make progress" in any case plan. This is contrary to the principles of due process and parental rights to make decisions concerning the child.]
If your child(ren) have been removed from the home and lived in an out-of-home placement for an extended period of time, the judge will hold a permanency hearing at the end of the 12-month period. At this hearing, the judge will make a final decision about whether and when your child(ren) will be returned home or, if this is not possible, will determine an alternative plan for your child's permanent living arrangement.
[Note: Consistent with the right of the fit parent to make decisions concerning the custody of the child, the judge cannot make any other orders except for custody to be as the fit parent chooses.]
In New Hampshire, a termination of parental rights petition is filed in either the probate court or the family division. There are several ways that a parent's rights can be terminated: one of them is a finding of abuse or neglect and a parent's failure to correct the conditions that led to the finding.
In the event a petition is filed to terminate your rights as a parent, you will be notified of any court hearings. You will have the right to an attorney. If you cannot afford one, the court will appoint one for you. A guardian ad litem (GAL) will be appointed for your child(ren).
At a hearing, both sides will present evidence to the court concerning the reasons why your rights should or should not be terminated. The court will make a decision based on the evidence it hears as well as any reports or examinations offered to the court.
If your parental rights are terminated, you will no longer have any legal rights, privileges, duties or obligations regarding the child(ren).
[It is contrary to the due process rights of parents to have their parental rights terminated when they were not a party to the original abuse or neglect proceeding, where the court had no jurisdiction to impose any obligations on them. It is contrary to expect a non-party to any civil litigation to have obligations with respect to the court case. The law in New Hampshire is contrary to the basic definition of "party," "necessary party," and contrary to the rights of fit parents.}
Contact Paula Werme, Esq. or return to Law Practice home page.
Last updated 2001 June 23.