The purpose of this page is to make it available to the public. Several of the things sent to the committee are other WWW pages. Links to those pages will be here. Keep in mind that the pages may have been updated since submission to the committee.
Some of these items are ill-formatted and suffer a bit in the translation from Email to WWW page, others will be "promoted" to their own WWW page. Content over style!
Date: Sat, 06 Jan 2001 18:37:12 -0500 Subject: [Fwd: Change of focus in my practice]This has been incorporated into my home page.
Since, as many of you may know, no judge will appoint me to represent parents in abuse or neglect matters, and Judge Kelly refuses to answer my Right to Know letter about how to be appointed in abuse and neglect proceedings, (see:
http://dcyf.home.attbi.com/court_appointed.html )
My practice has not been making much money, despite the fact that I find myself in demand as an attorney.
I will be attempting this year to change my focus to informing the legislature about the unconstitutional aspects of the Child Protection Act, and how the statute is being abused in the courts. One way in which I've found the courts have made a travesty of the law is the judge's willingness to sign "Federal form for financial participation" absent an inquiry into the facts. In these forms, the judges must affirm that the Division of Children, Youth, and Families made reasonable efforts to prevent the removal of children before actually removing them.
My experience has been that the judges have outright lied on these forms. They sign that the Division made reasonable efforts without making any inquiry with respect to efforts, or they sign that the efforts could not be made without placing the children in extreme danger from the possibility of abuse. Other times it is clear from the petition and supporting affidavit itself that children were removed for mild neglect or abuse without ever attempting to correct the situation. Sometimes that "extreme danger" is the danger not of serious bodily harm, but danger of spanking.
I will be reviewing my files and filing in the upcoming months numerous judicial conduct complaints based on the signing of these forms absent the required inquiry. I don't believe it is in the interests of justice to have judges lying about this federal requirement for financial participation. I will also be carbon copying all complaints to the appropriate federal agency.
I will also be making a web page for people who want to file their own judicial complaint, so they can review the federal form, and decide if the judge in their case actually made an inquiry into the facts. My guess, based on my own experience, is that if people find out about the web page, that you can expect numerous judicial complaints about many district and family court judges.
Date: Fri, 05 Jan 2001 15:23:07 -0500 Subject: Brief on Termination of Parental Rights
This brief will hopefully be understandable for most of you. It would be improper for me to comment on the brief or the merits of the case at this point, so If anyone has any questions on the law or the facts, I'll try to answer them. I defended my client, so you can assume that I'm on that side! The brief dscribes a very small part of the problems of non-offending parents in this state.
STATE OF NEW HAMPSHIRE HILLSBOROUGH, SS COURT OF PROBATE In Re: C. W. In Re: Termination of Parental Rights of Peter L. over A. W. Docket # 2000-0019 2000-C-078 MEMORANDUM ON WHETHER STANDARD FOR TERMINATION OF PARENTAL RIGHTS HAVE BEEN MET BY DCYF
(a) RSA 170-C:5, III, alleging that "subsequent to a finding of neglect under RSA 169-C:3 XIX (b) and (c) has failed to correct the conditions leading to such a finding within 12 months of the finding despite reasonable efforts under the direction of the Manchester District Court and the New Hampshire Division for Children, Youth, and Families to rectify the conditions? or
(b) Pursuant to RSA 170-C:II in that Peter L. has failed to provide for the child to ensure her mental, emotional health, despite direction from the Manchester District Court, the New Hampshire Division for Children, Youth, and Families, Casey Family Services, the child's therapists, and the child's psychological evaluators?
2. Should Peter L. be granted guardianship over C. W. as the psychological parent and half brother of his natural daughter A. W.?
On April 21, 1993, a Petition for Neglect was filed against Lesley W. with respect to A. and C. W. neglect due to mental health concerns, public intoxication, and self-abusive behaviors. There was a finding, and Lesley W. was subsequently committed to the NH State Hospital. A different father was on the birth certificate, but no father was served in the petition at all, either by sheriff or publication. The Adjudicatory Order, which was based on the recommendations to the Court by DCYF, included an order that DCYF complete a "social study pursuant to RSA 169-C:18 V, ‘an investigation and a social study consisting of, but not limited to the home conditions, family background, and financial assessment, school record, mental, physical, and social history of the family, and submit it in writing to the Court prior to the final disposition of the case," Adjudicatory Order, ¶ 4, 8/3/93.. Exhibit # 6. This order for a social study was not completed, according to the Division, because Lesley W. never cooperated with the social study; but undersigned attorney never found evidence that they attempted to complete it, and they submitted no evidence to this court that they attempted to complete it. The social study would likely have revealed that Peter L. was the biological father of A., and the psychological father of C. W.. Despite the fact that the Division failed to attempt to fulfill the Court order and their statutory duty to locate available family, the Court ignored the situation. There is no evidence that the Court ever addressed the need to locate or serve any father involved in the case. Exhibits # 1 - 14.
Evidence introduced at trial indicated that CASA Guardian ad Litem Fred Hurwitz knew of Peter L.'s name in late December of 1993, and his alleged relationship to A. W., and that the Division social worker knew of Peter L.'s existence and alleged paternity slightly earlier. The Order of February 1, 1994 ordered Lesley W. to provide information needed to complete the social study. Exhibit # 10. It did not order DCYF to locate and serve any fathers of children, or attempt to obtain information from alternate known sources, such as Mr. L.. DCYF did report to the Court in their "Judicial IV-E Review/Case Plan Presented to: Manchester District Court, 2/1/94 that "Peter L. ." was A.'s father but was not able to be located in Brockton, MA. It further stated that if he was located, that he would have to become a "licensed foster home" in order to take care of C. since he was not his natural father.
Very shortly after the February 1, 1994 Court report, Mr. L. did contact DCYF and request as to what he should do. DCYF replied that he would have to prove paternity of A. in order to be considered for placement. Paternity testing was not arranged by the Division until April of 1995. DCYF could offer no reasonable explanation as to the reason for the long period of time to arrange testing, but Mr. L. could not afford to pay the cost himself, and had to wait for the Office of Child Support Enforcement, which is the state agency that conducts paternity testing. Curiously, Mr. L. was told by various social workers that he would have to pay child support if he passed the paternity testing, not that he could have custody of his daughter once his paternity was proved. There was clearly raises an implication that there never was an intention of giving him his child and psychological step-child and closing the case. During the time Mr. L. was waiting for paternity to be established, he moved to New Hampshire, and maintained his relationship with the children by sharing Lesley W.'s visitations. Few problems were encountered regarding visitation, although Lesley did not consistently make the visits. The evidence at trial showed that when visitations took place during this period of time, the parental interactions of both parents were appropriate, loving, and showed no lack of parenting skills.
Mr. L. finally proved paternity and "permitted" to "join" the case in May of 1995, apparently in violation of RSA 169-C:10, II (a). There is no evidence he was ever served with any papers regarding abuse or neglect by either himself or the children's mother, Lesley W., or information concerning potential financial liability.
Following his proving paternity, Mr. L. started his own visitations with the children. By the time he proved paternity, however, the Division plan was already to terminate the parental rights of Lesley W.. The usual case plan when parental termination is anticipated is the reduction of visitation so that the children break their bond with the parent, and are ready for adoption. It was unnecessary for the children to break their bond with Lesley if custody of the children with Peter L. was contemplated once he proved paternity, but the Division, apparently having forgotten why they originally decided to reduce visitation with Lesley, continued to pursue this goal, and ordered Mr. L. to keep her away from the children. To the extent that they may claim that it was to "protect" the children from the disappointment of having to deal with a mother's drinking behaviors, they have no right to substitute their own judgment for that of Peter L. on the matter. It was his prerogative to weigh the benefits of continued contact with the mother upon obtaining custody, so it was unreasonable to demand that he accede to the Division's policies on the matter before placing the children with him.
The Division did not answer an interrogatory in the context of this litigation stating what conditions leading to abuse or neglect were the result of a conditions that were Mr. L.'s fault, but instead stated that "This question is taking the position that there has to be proven fault, which contradicts NH Law with regards to 169-C cases." Exhibit 1. Their legal position is apparently that there need not be prove fault in the underlying proceeding, or that the means with which to correct conditions leading to abuse or neglect need be within the reasonable ability and means of the Respondent to correct (e.g. "fixing" the alcoholism and mental health problems of the Respondent).
It is Mr. L.'s position that no person on earth has the capability of fixing the alcoholism problems of another person, and it is an unreasonable and unconstitutional interpretation of the Parental Termination Statute to require it of him. See, e.g. Stanley v. Illinois, 405 U.S. 645. "A state cannot presume the unfitness of an unmarried father simply because it is more convenient to presume than to prove." Id. at 657. "It is cardinal with us that the custody, care, nurture of the child reside first in the parents, whose primary function and freedom include the preparation for obligations the state can neither supply nor hinder." Pierce v. Society of Sisters, 268 U.S. 210. Emphasis added.
Since the state wrongfully interfered with fundamental parental rights, and interfered with Mr. L.'s rightful physical and legal custody of his child since 1993, he was wrongfully denied opportunity to exercise those rights, and therefore absolved of the obligation to provide for A.'s mental, emotional, or physical health during the time in which the state was wrongfully interfering with his ability to do so.
Nevertheless, Respondent contends that to the extent he was not prohibited from performing parental duties by the Division or the Manchester District Court, that he attempted to provide as best he could for his daughter's mental, emotional, and physical health. He denies that he had an obligation to correct condition leading to neglect that were within the sole ability of the Respondent to correct. All other issues presented to the Court regarding his living quarters and visitation disagreements constituted unconstitutional barriers to his obtaining rightful custody of his daughter absent a showing of parental unfitness. In particular, Troxel v. Granville , ___ U.S. ___, June 5, 2000, states that even the Court may not substitute its own judgment for that of a fit parent on matters of visitation. The Division, by demanding that Peter L. accede to their wishes on matters of when Lesley W. should be permitted to visit her children, and by assuming that Mr. L. was incapable of using his own judgment to protect the children or handle a situation should Ms. W. show up at a visitation under the influence of alcohol, did precisely what the U.S. Supreme Court indicated was an unconstitutional infringement on the rights of Mr. L. to make the decisions regarding the welfare of his child. DCYF and the Manchester District Court furthermore unconstitutionally infringed his right to custody for years, and used their own judgment to deny Mr. L. custody of his child, and the rights to make decisions concerning visitation.
The primary evidence for this was that there was never an appeal taken to the NH Supreme Court following the 1996 hearings on whether or not Mr. L. constituted an appropriate placement for the children. Significantly, although the District Court ruled on Findings of Fact and Rulings of Law requested by both the Division and the Children's attorney, Sandra Kuhn, neither Attorney Kuhn nor the Division asked the Court to hold that Mr. L. was an unfit parent, and the Court did not specifically so hold. Order, 9/17/96. Exhibit 19. The Court did apparently grand Sandra Kuhn's request for a finding that Mr. L. is unable to care for the children and it is unknown when and if he will ever be able to care for the children, (Paragraph # 39, Exhibit 40), but no reasons are given for that requested finding. Presumably this is because of their unconstitutional, and extra-statutory demands for foster home licensing requirements for C.. Those requirements did not impact Mr. L.'s ability to care for A., and the evidence showed that the reason he could not obtain adequate housing for C. was that the division social worker refused to cooperate with Manchester Housing Authority by giving them a date certain when Mr. L. would have custody of the children.
Another example of ineffective assistance of counsel is that the Manchester District Court approved Findings of Fact and Rulings of Law submitted to the Court by the Division in which the Division incorrectly described Mr. L. as the "Respondent" in Paragraph #s 8, 10, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 29, and 31. Exhibit 40. They were approved by Judge Taube on September 10, 1996, and no appeal was ever taken to the NH Supreme Court. In addition, the Court held in Paragraph # 51 that "Pursuant to In Re: Tricia and Trixie H., 126 N.H. 418 (1985), Mr. L. need not be named in the original petition, to be subject to the jurisdiction of this Court or any permanency planning." The New Hampshire Supreme Court has now clarified that they never intended that decision to apply in child abuse and neglect proceedings, so it is clearly an erroneous finding of law. In Re: Bill F. ___ N.H. ___ September 28, 2000. While there are likely other issues in the Court's findings and ruling that should have been appealed to the NH Supreme Court, it is unnecessary to elaborate on them, because Mr. L. argues now that since the Court never had any jurisdiction over him, the erroneous findings and rulings have no ability to bind this Court. They are void ab initio.
RSA 169-C Cannot Be Constitutionally Interpreted to Confer Jurisdiction Over Persons on The Basis of Their DNA Profile. The State Must File a Petition For Abuse or Neglect to Obtain Jurisdiction.
Many provisions of RSA 169-C refer to "parents" but jurisdiction over a person in a civil suit is obtained by filing a complaint against that person. "When a New Hampshire Court has personal jurisdiction over a party, it may make orders, within the limit of its subject matter jurisdiction and its inherent and statutory powers, that are binding on the party both within and without the state." Weibusch, NH Practice, Vol 4, § 2.03, p. 21.
There was no reason to file a Child Neglect Petition against Mr. L.. As evidenced in the parental termination proceeding indicated, DCYF never inquired as to when Mr. L. had severed his relationship with his children prior to the filing of the petition. In fact, he had not at all. Mr. L. had seen the children within a week of the filing of their petition, they appeared to be happy, healthy, and well cared for, and he had no reason to suspect that Lesley W. was unable to care for them. In addition, Mr. L. did not suspect that she was mentally unstable. Ms. W. had a drinking problem that was known to him, but he had never known her to neglect her children on account of her problem. He returned to Massachusetts following a visit with the children. At the time of the filing of the petition against Lesley, had DCYF known of the facts with respect to Mr. L., they would have had no grounds to independently charge him with neglecting his children, or with failure to protect them from any potential harm, nor abandonment, or on the basis of any other statutory definition of abuse or neglect. The Court could have given him NOTICE of the proceeding pursuant to the statute, but in the absence of a petition filed against him it had no ability to make orders contrary to his rights.
It has been noted in the State's Brief in State v. Smart that the term "party" is a technical legal term that refers to "'those by or against whom a legal suit is brought,'" and that others affected may be "interested persons," but they are not "parties." United States v. Guerrerio, 675 F. Supp. 1430, 1438 (S.D.N.Y. 1987) citing Black's Law Dictionary 5th Ed. (1979)). As such, the District Court had no jurisdiction over Mr. L. at any time, prior findings of fact and law notwithstanding.
The various participants in the lower court proceeding appeared to have wanted Mr. L.'s participation in the case for purposes of making him subject to Court orders, but have consistently denied that he has rights in the matter, including statutory and constitutional rights to visitation and custody of his daughter. See RSA 169-C:3, XXVII. "Residual parental rights and responsibilities" means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship except guardianship pursuant to termination of parental rights, including, but not limited to, right of visitation, consent to adoption, right to determine religious affiliation and responsibilities for support. Mr. L.'s right of visitation was always "at the discretion" of the division, he has not seen his children in over a year.
"It is settled . . . that a void judgment [is] on entered by a Court which lacks personal jurisdiction over the defendant, is a nullity and may be attacked at any time." General Contracting & Trading v. Interpole, 899 F.2d 109 (1st Cir. 1990). "A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the Court rendering it. Defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or the relief granted. A judgment entered where such defect exists has neither life nor incipience, and a Court is impuissant to invest it with even a fleeting spark of vitality, but can only determine it to be what it is - a nothing, a nullity. Being naught, it may be attacked directly or collaterally at any time." McLeoid v. Provident Mutual, 186 Colo 234, 526 P.2d 1318 (Colo. 1974) citing Stubbs v. McGillis, 44 Colo. 138, 96 Pac. 1005. (Emphasis added.)
"Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business in this state, commits a tortuous act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above." RSA 510:4(I). In the absence of personal service within this state, Jurisdiction over a non-resident can only be obtained if the legislature has provided another method of service of process." Id. Mr. L. did not do any of the required things to The legislature did not provide another method of service of process in the case of Child Protection matters. The court had no personal jurisdiction over him.
RSA 169-C does not adequately deal with the definition of who is a "party" and who is a "party in interest." RSA 169-C:3, XXI-a. defines "Party having an interest" as "the child; the guardian ad litem of the child; the child's parent, guardian or custodian; the state; or any household member subject to Court order." Under the Black's Law Dictionary definition of "party" it would still not be sufficient to confer jurisdiction over Mr. L. The state conceded at trial that they never served him with any legal papers at all.
RSA 169-C:10, II indirectly acknowledges that the Court cannot make orders contrary to the rights of non-offending, non-party parents. It states "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. The Manchester District Court appointed an attorney to Represent Mr. L.'s interests contrary to the provisions of the statute and despite the fact that he was not a household member, but only after it failed to consider his rights for over two years.
The fundamental nature of parental rights require a very high degree of protection by the state. Since there is no provision to provide legal counsel for parents not alleged to have abused or neglected their children, and since Mr. L. is not a party, but a "party in interest", the District Court was powerless to make any orders that negatively impacted those rights. The original order vesting custody of the children in the state was only valid to the extent that Mr. L. was given notice of the proceedings, or at most until he appeared to take custody of his child. Since he was named as the father of A. by Lesley W., he should have had to do nothing more than show proper identification and sign an affidavit of paternity to take his child.
The NH Supreme Court appeared to have attempted to remedy the statutory lack of protection for the rights of non-party parents, but did not consider the jurisdictional issues in the case , nor guarantee a non-offending, non-party parent legal counsel, nor did they give the lower courts any guidance on what constitutes a "fit" parent. In Re: Bill F. ___ N.H. ___ , September 28, 2000. "The rights to conceive and raise one's children have been deemed ‘essential' Meyer v. Nebraska, 262 U.S. 390, 399 (1923) ‘basic civil rights of man,' Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and ‘[r]ights far more precious . . . than property rights.; May v. Anderson, 345 U.S. 528, 533 (1953). ‘It is cardinal with us that the custody, care and nurture of the child resides first in the parents, whose primary function and freedom include preparation for obligations the state can neither nor hinder.' Prince v. Massachusetts, 321 U.S. 158, 166 (1944. Stanley v. Illinois, 405 U.S. 645, 651. The remedy the New Hampshire Supreme Court is contrary to the presumption that parents are the proper persons to decide matters of custody, visitation, and child rearing and that even the courts may not substitute their judgment for that of a fit parent. Troxel v. Granville, ___ U.S. ___, June 5, 2000. It also is contrary to the presumption in favor of the constitutionally inherent rights of the parent as enunciated in Case v. Case, 121 N.H. 647, (1981).
"Decisions concerning child rearing, which Yoder, Meyer, Pierce and other cases have recognized as entitled to constitutional protection, long have been shared with grandparents or other relatives who occupy the same household. . . . The constitution prevents East Cleveland from standardizing its children - and its adults - by forcing all to live in certain narrowly defined family patterns. Moore v. City of E. Cleveland, 431 U.S. 494 (1977). Mr. L. was in just such a family pattern with Lesley W., C. W., and A. W.. He held out C. W. as his own son from birth, had a warm and loving relationship with him, and treated him absolutely no different than A. in his love and concern for him. He was more than a "live-in" boyfriend of Lesley W., having taken pains to continue his relationship with C. as well as A. after Lesley W. left him in Massachusetts to move to New Hampshire.
New Hampshire recognized that relationship with C. W., and afforded it great protection.
"168-B:3 Father-Child Relationship. – I. Notwithstanding any other provision of law, a man is presumed to be the father of a child if: . . .2(d) (d) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his child."
Mr. L. testified that he did that, and submitted numerous photographs to this court of family events, large and small, prior to the children being taken that supported his statements. There is ample evidence in the record to show that Mr. L. did all the things required of fathers, included child care, visitation when he and Lesley W. were not living together, support, giving children gifts, and taking his share of the responsibility for C.'s needs. His relationship with C. W. deserved the same degree of protection as his relationship with A. W. because he is the presumed father of C. under New Hampshire law.
There are many provisions of RSA 169-C that refer to "parents" in the plural sense. RSA 169-C27, Liability of Expenses and Hearing on Liability is no exception. It states that "The state shall have a right of action over for such expenses against the parents or the people chargeable by law for the child's support and necessities. . . ." Obviously, this provision cannot be constitutionally interpreted to mean non-party parents to the proceeding within the context of the 5th Amendment, denying persons right to property without due process of law. It is doubtful that the state disagrees with this statement, because there was never a demand for payment nor a hearing on liability under RSA 169-C:27. It is similarly contrary to the NH Constitution to presume that the District Court proceedings created any liability on the part of Mr. L. under Article 15, Part 1. He had no due process, there never was a hearing scheduled on the matter of financial liability, and the state had custody of his daughter in a proceeding which completely ignored his constitutional rights. They never had a right to demand support or expenses for liability from him, and never attempted to do so.
The doctrine of "clean hands" precludes the state from now claiming that his parental rights should be terminated because he failed to fulfill his duties. They purposely created the situation to make it unconscionable and unconstitutional for the state to demand monetary reimbursement. There was similarly no ability for the state to claim a right of support under RSA 458-B, because Mr. L. was not a party to the neglect proceeding. A demand for child support would have deprived Mr. L. of property without due process on his custodial rights that supposedly created his "obligation." It would be similar to stealing a person's car, then having the thief send demand letters for the car payment and insurance every month. There is no sympathy for one who kills his mother and father and then complains about being an orphan. Nor is there the right to demand child support from a parent from whom the state wrongfully denied custody for seven years.
Mr. L. was originally told that he would need to move to New Hampshire and obtain a foster care license to obtain custody of his children. At the time he was told that, he was never told that many more barriers would be placed in his way to obtain custody of his daughter and non-biological, presumed son. This was contrary to the requirements of RSA 169-C:19, III (a) states that "no child shall be placed with a relative until a written social study of the relative's home, conducted by the child placing agency, is submitted to the Court. Clearly, Mr. L. was a relative, and clearly, the Court required much more of him as a prerequisite to placement of his own child with him than a social study.
There is current evidence that Division does not follow the requirements of the statute when they do not wish to, because in September of 2000, they placed eight children in the home of an actively drinking alcoholic grandparent without a social study, on the date the Division removed the children from their Christian parents for allegations of spanking. WEVO Radio Show "The Exchange" Tuesday, Dec. 15, 2000. Compare this standard of relative placement in that case to the psychological evaluation and other requirements placed on Mr. L.. All that was required of the grandparents was political thinking in line with the Division, namely opposition to spanking. No social study was conducted for placement.
RSA 169-C does not address the high degree of protection required for parental rights of non-offending parents. It appear that the legislature either did not contemplate those rights, or assumed that non-offending parents would be the placement chosen by the Division or the Courts. The New Hampshire Supreme Court acknowledged that those rights were not protected in the case of In Re: Bill F., ___ N.H. ___, September 28, 2000. In Bill F., the Court first discussed the fairness of the proceedings with respect to the parent who was never alleged to have abused or neglected his child: The Court first found reasons to accept the case for a Writ of Certiorari:
We have determined that the following circumstances warrant our review in this case: the petitioner was not named in the petition alleging neglect, the petitioner was not a party to the consent decree, and the petitioner was never found to have abused or neglected his child.
These are very similar circumstances of Peter L. with respect to A. and C. W.. While there was no consent decree, Mr. L. was not a party to the case.
Next, the Court evaluated the fairness of the procedures used to deny Bill F.'s father custody: While the Court did not go on to evaluate the jurisdictional issues at length, even assuming that the Court had in personam jurisdiction over Bill F's father, they still found the parent in much the same position as Mr. L. was denied fundamental due process:
Even though the petitioner was not named in the petition alleging neglect, the district court, over a two and one-half year period, repeatedly placed limitations on the exercise of his parental rights and never provided him a full hearing. We have stated that [a] fundamentally unfair adjudicatory procedure is one . . . that gives a party a significant advantage or places a party in a position of prejudice or allows a party to reap the benefit of his own behavior in placing his opponent at an unmerited and misleading disadvantage. Id.
In Mr. L.'s case, the District Court placed limitations on the exercise of Peter L.'s parental rights over a much longer, seven and one half year period, without ever providing him a full hearing on the matter. They did not permit him legal counsel or even admittance into the Court room until he proved paternity after almost a year and a half of attempting to get the state to provide the test. The Division now claims that the permanency hearing in the summer of 1996 constituted such a hearing on fitness, but Mr. L. was not given reasons in support of the court's determination that it was not appropriate to seek permanent placement with him that were even sufficient to sustain a petition for abuse or neglect. In addition, the District Court clearly applied a much lower standard and found that he was "not an appropriate placement" instead of finding him unfit. This in effect gave him less rights and a far greater burden than Leslie W., against whom the petition was filed. It was fundamentally unfair and amounted to a denial of due process.
See Symonds, 131 N.H. at 534, 556 A.2d at 1177 (quotations omitted). We conclude that the procedure employed in this case placed the petitioner in an even more difficult position than a parent actually charged with abuse or neglect and substantially prejudiced him in his efforts to obtain custody of his son. This was fundamentally unfair and amounted to a denial of due process. Id.
The Court then went on to opine on the [third Supreme Court] "correct" procedure to challenge the determination by the District Court:
Given his lack of a statutory right of appeal, the petitioner should have proceeded by petitioning for a Writ of Certiorari in the Superior Court. See id. at 723, 495 A.2d at 1297. Even though the petitioner has mistaken his remedy, remand is not necessary because we are in a proper position to review the district court action. We have concurrent original jurisdiction with the superior court to grant Writs of Certiorari, see Bothwick v. State, 119 N.H. 583, 590, 406 A.2d 462, 467 (1979); thus, the petitioner could have sought relief directly from this court. We also note that we have before us the same documentary record that would be available to the superior court. Cf. Masse v. Commercial Union Ins. Co., 136 N.H. 628, 632, 620 A.2d 1041, 1044 (1993). Thus, the interests of judicial economy dictate that we retain jurisdiction and decide this matter. Id.
The Court is not incorrect in naming a method to challenge the wrongful determination of custody. The problem is that over the years, the NH Supreme Court has stated various methods as the "correct" method to challenge the right of the state to have custody of a child, and have never overruled any of those cases. Moreover, none of the decisions have been incorporated into the statute, so that it is difficult for even a very experienced attorney to advise a non-offending parent client on the "proper" way to proceed.
In the matter of Case v. Case, 121 N.H. 647, (1981) the NH Supreme Court held that "the natural parent's attempted modification of a custody decree by which the child was placed in the custody of the state raises a presumption in favor of the constitutionally inherent rights of the parent. "We conclude, however, that unlike in parental rights termination or in neglect and abuse cases, the moving party, because she was a party to an unambiguous and conclusive stipulation entrusting custody to the State, but bear the burden of proof. . . the mother must prove that she is capable of caring for her child and that no harm will befall the child if it is in her custody." Id. In this case, Peter L. was NOT a party to the proceeding entrusting the custody of his child to the state, yet the Manchester District Court imposed a much higher burden on him that the standard of Case v. Case, and a much higher burden than the statutorily required social study to place a child with a non-parent relative. They incorrectly gave him the burden of showing that placement of the children with him was appropriate. Clearly, the NH Supreme Court intended for the burden to be on the state.
Judge Taube, who presided over the June, 1996 hearing on permanency in this matter, has stated with respect to non-offending parents under RSA 169-C that "what happens with the child depends on a whole variety of things, including the -the ability and appropriateness of the parent, either parent, to provide a - an appropriate home. Now, part of that process of assessment is - involves getting to know who the father is and what - now if your sense here is that, hey, - he's the father, he wants the child back, please deliver as soon as possible, that's not gonna happen, as - as a matter of right. . . I urge your [non-offending parent] client to participate in the way that dozens, dozens and dozens of others have in this type of case." Docket # 97-JV-****, June 15, 1998. Clearly, the standard in the Manchester District Court is much less than a constitutional presumption in favor of the rights of the parents, and Mr. L. has been the victim of that inappropriate legal standard, apparently along with dozens, dozens, and dozens of other parents. Mr. L. was in no different a position than the father of Bill F., he was in the same Court as the Bill F. case originated, and the case in which Judge Taube opined the above with respect to non-offending parents was also accepted in the New Hampshire Supreme Court for a Writ of Certiorari, which was withdrawn after the Bill F. decision was released.
In Petition of Kerry D., ___ N.H. ___ August 30, 1999, the NH Supreme Court held that "a Petition for a Writ of Habeas Corpus is appropriate to challenge the loss of legal and physical custody for a parent who was denied her due process without an allegation or finding that she abused, neglected, or otherwise harmed her child, and (2) without complying with the statutory and constitutional requirements regarding notice of the nature and consequences of the abuse and neglect proceeding."
This ruling clearly provided an alternative method for Mr. L. to seek custody of his child, one which he pursued once he hired undersigned attorney. He filed a Petition for Writ of Habeas Corpus in Merrimack Superior Court. The Petition was denied for lack of jurisdiction under 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." The case was sealed by the Merrimack Superior Court, and appealed to the NH Supreme Court as an "a Petition for Writ of Habeas Corpus, or in the alternative, an appeal from" the determination of the Merrimack Superior Court. The Supreme Court denied the case without hearing or briefing in late August of 2000. Two days after the NH Supreme Court decision was release in the matter of In Re: Bill F. (October 1, 2000), Mr. L. petitioned the Manchester District Court for a hearing pursuant to the ruling in the matter. The judge refused to schedule the hearing until the Termination of Parental Rights case was tried last month. This ruling once again placed a greater burden on him than on a parent who is actually charged with abuse or neglect, and who must have a hearing within 30 days of the filing of the petition. RSA 169-C:15(d).
RSA 169-C:22 provides for a modification of the dispositional order upon motion of the child, parent, custodian or guardian. Mr. L. made motions and arguments for modification of the disposition to place the children with him via motions for reconsideration, motions for modification. Attorney Rodier appealed to the Dispositional Review panel under RSA 169-G:1, and then withdrew that appeal to appeal to the Superior Court for a trial de novo. That court correctly denied jurisdiction, but then opined, in the absence of jurisdiction to make further rulings or findings, that "assuming arguendo that he may have had some right to set aside the earlier orders because he did not receive notice, he failed to take such action. In essence, the appellant's present position is no different than if he had been a party to the proceedings initially. He no objection to the adjudicatory and final dispositional orders and would not have exercised any right of appeal in regard to those orders in any event. In that sense, his present status is identical to any parent seeking appeal of an order creating a change in the original order. The appellant has no right of appeal to the superior court from the court's order of September 17, 1996, under RSA 169-C:28." If there was no right of appeal under RSA 169-C:28, no findings of fact or ruling of law are binding on this court, because the Superior Court lacked jurisdiction in the matter. The confusing and numerous methods of non-party parents to obtain custody of their children are little understood by most attorneys representing them in these matters. Mr. L. should not be faulted for failing to exercise rights when even his court appointed attorneys were unsure of how to proceed to do so.
Mr. L.'s original attorneys, of which there was more than one, did not appeal one of "many dozens" of unfair custody determinations to come out of the Manchester District Court because there was no clear guideline on how a parent not named in a Petition for Abuse or Neglect was to obtain custody. The Division, now that they have managed to keep custody of his children illegally for over seven years, now claim that "failure to correct" conditions leading to abuse or neglect and "failure to provide for the mental, physical, and psychological health" of the child when they illegally denied him the opportunity to do so have arrived in this Court with "dirty hands." Mr. L. is not at fault for any statutory reason mentioned that would otherwise permit termination of parental rights. Since his rights were so egregiously violated, the Petition for Termination of Parental Rights should be denied, and the Petition for Guardianship of C. W. should be granted so that his children may be place with him, together, where they belong. The Division has not come remotely close to proving parental unfitness beyond a reasonable doubt. While it is sad that the children may be settled in their current foster placements, and may have an expectation of adoption, those considerations are not before this court if the Division does not first prove its burden on grounds. "Equitable relief will be denied if one comes to the court with unclean hands." See Morrill v. Bank, 90 N.H. 358, 368, 9 A.2d 519, 527 (1939). Noddin v. Noddin, 123 N.H. 73 (1983). The state does not have "clean hands" coming into the litigation, having failed to even attempt to locate a father, having failed to serve him for two years after the filing of the petition, having failed to permit Mr. L. his statutory and constitutional right of visitation for over a year, and having failed to apply the correct constitutional, case law, or statutory standards for Mr. L. to obtain custody of his children for over five years. While the children's extended stay in foster care is regrettable, it is wholly the fault of the unconstitutional deprivations of the Manchester District Court and the Division for Children, Youth, and Families, not the fault of the children's father. This court should deny the Petition for Termination of Parental Rights, and the children should be given an opportunity to have their own identity back, their own father, and a relationship that will last, as it was intended to, until death.
Respectfully submitted by and through his attorney,
Peter L.
January 5, 2001 ___________________________________
Paula J. Werme
83 North Main Street
Boscawen, NH 03303
Date: Sat, 06 Jan 2001 18:33:17 -0500 Subject: [Fwd: Some incentive to tweak RSA 169-C!]
Date: Sat, 06 Jan 2001 18:33:33 -0500 Subject: [Fwd: One reason why CASAs should not be in courts]
Date: Sat, 06 Jan 2001 18:34:32 -0500 Subject: [Fwd: Merry Christmas]
I thought you would like to know now that it's past Friday's end of business, and the holiday weekend is upon us, that Salem Family Court has failed to issue a finding either way on an abuse petition regarding spanking since the last day or trial on November 1. The judge has not paid me for my court-appointed services, nor has he approved my motion for the services of my experts. I sat all day in my office wondering if the court would fax an order before Christmas. They did not. This is the life of child abuse defense attorney. The client has called at least six times in the last two days and faxed numerous things to me.
DCYF also attempted to get a search warrant for a family in Central NH yesterday from an anonymous report indicating that the person "heard" that the house was dirty. The judge asked me to write a brief on whether or not he should issue the warrant. I discovered that I wrote a Petition for a Writ of Mandamus to prohibit a home search involving the SAME DCYF workers in the summer of 1999. The social worker HAD to know that the petition was denied without prejudice, which meant that if they tried to execute the search then, my clients had a right to go back to the Supreme Court. Why then, two business days before Christmas, does DCYF attempt the same thing? Keep in mind that I was not appointed to represent these people, as there is no petition for neglect filed. Who pays for this? They are indigent.
Date: Sat, 06 Jan 2001 18:34:56 -0500 Subject: [Fwd: my e-mail]Dear MS Paula,My name is [ ] my children are in custody of the state of n.h concord.iam one of the suckers who recieved a court appointed lawyer.He told me plead guilty.you will have your children in 3 months.Well it will be 2 years jan 12.I wish i knew you were out there my husband and i work full time but we donot make enough money we have to keep an apartment for 6 and furnish for 6 court order after all the things we have done for 2 years makes no diffrents iam going to lose my dhildren at the end of this month
Date: Sat, 06 Jan 2001 18:35:35 -0500 Subject: [Fwd: I thought I would let you know the sort of things I do.]
I thought I would start out the 2001 session by putting together some of the sorts of things I do as a Child Abuse Defense Attorney. The list is not yet complete, I hope to have it completed later this year as part of a presentation to your committee. You can see the sorts of things I deal with on a day to day basis. Hopefully, from this abbreviated listing, you can see that I spend a lot of time trying to get the state to comply with the law. Many of the provisions of the Child Protection Act violate the U.S. and NH Constitutions. Secret courts don't help their compliance.
PARTIAL List of Motions, Objection to DCYF Motions, and Letters Filed:
October, 1998
From a Petition for Writ of Certiorari: (1) should the court
be required to follow the standard of Case v. Case, 121 N.H. 647 (1981), to
return a child to a non-abusing parent, whereby the state must overcome a
presumption in favor of the constitutionally inherent rights of the moving
parent, and the parent must only prove that he is capable of caring for
the child and that no harm will befall him if in his custody; or may the
court follow the standard of RSA 169-C:23, which requires "parents" to show
compliance with outstanding dispositional orders before a return to
custody is considered by the court? Status: dropped the appeal after In
Re: Bill F. decision released in September of 2000.
(2) Was the Appellant [the non-offending, reporting parent,] afforded adequate due process under part 1, article 2 of the New Hampshire constitution and the Fourteenth Amendment to the United States Constitution when the court ordered custody of the child to be vested in the Division [DCYF] pursuant to paragraph #2 of the consent decree of the mother dated November 21, 1997, without the consent of the father pursuant to RSA169-C:17, II?
(3) Did the court deny due process to the father on the Motion for Immediate Return of the Child by failing to consider the proper legal standard of Case v. Case or cite any legal authority by which he denied appellant custody of the child?
March, 1999
Motion to Dismiss [for DCYF failure to comply with law
requiring audio or video taping interview of child, when the allegation was
sexual abuse, the child was four years old, and there was no medical
evidence of abuse.] The motion was denied, no DCYF worker or police
officer was charged with misdemeanor of failing to tape the interview,
pursuant to RSA 169-C:38 and 39 and the court finding was "founded."
September, 1999
From a Motion to Appoint Paula Werme as Attorney for
Parents in a Termination of Parental Rights: "The fact that this Court has
failed to appoint counsel for parents, has instead appointed Guardians ad
Litem for them, including the appointment of Attorney [ x ], who was the
mother's attorney in the abuse and neglect case] to represent [mother],
(when his acceptance of said appointment would constitute a violation of
his prior duty toward his client), reinforces the need for appointment of
counsel to represent their interests." The motion was denied.
October, 1999
From a Petition for a Writ of Certiorari to the NH Supreme
Court: 1) Can the court in an abuse or neglect proceeding, require parents
of a child adjudicated abused or neglected, require the parents, on pain of
contempt, to undergo psychological examinations or psychological counseling
consistent with their fourth amendment right to privacy?
2) Can the court in an abuse or neglect proceeding limit the communications of parent and child to exclude conversations about the court proceedings and allegations consistent with the First Amendment and Article 22, Part I of the New Hampshire constitution? The Petition was denied, without prejudice, which means that if the Division attempted to enforce the order for a psychological evaluation, that the parents could re-petition the court for relief.
December, 1999
Right to Know Letter - Judge Kelly. "With respect to the
Concord District Court, I would also like a copy of any list kept by the
Court of attorneys the Court considers for appointment, along with a list
of how many cases each attorney on the list was appointed to for each of
the years 1998 and 1999, along with a total of RSA 169-C cases handled by
the Concord District Court, If it is possible, please indicate how often
each attorney was appointed to represent a parent, child, or as a Guardian
ad Litem. In the case of the Guardians ad Litem, a list of names will not
be necessary, as it is accessible on the World Wide Web. If there is no
list of attorneys considered for appointment, I would like to know how each
judge determines which attorneys to appoint in abuse and neglect cases.
Never answered.
February, 2000
From a Motion to Recuse the Judge: "Respondent's filed a
Motion to Appoint Paula Werme as Counsel for Parents on [date].. At the
time of the Motion, the parents had NO appointed counsel pursuant to RSA
170-C:10, but had appointed Guardians ad Litem pursuant to RSA 170-C:10. .
. At the hearing on the Motion, Judge [ ] represented that Attorney Werme
was not on the [Court's] list of attorneys to appoint, at which point
Attorney Werme asked the judge for both a copy of the list, and a copy of
any Court rules pertaining to ways to listed on the list of attorneys
considered for appointment. . . the judge indicated that the list could be
viewed downstairs after the hearing. " [There was no list, I was not
appointed, and the judge cited the fact that he had already appointed
attorneys for the parents. He later indicated that he did not know the
difference between Guardians ad Litem and attorneys.]
April, 2000
Motion For Immediate Resumption of Visitation And Discovery -
re: non-party parent of child, whose visitation was cut off after fit
parent gave child Christmas gifts labeled from the child's mother, contrary
to RSA 169-C:3, XXVII. This was determined by DCYF to be "traumatizing"
to the child. Status: lost motion, and withdrew the parent from
participation in the case. In October of 2000, following N.H. Supreme
Court's decision in In Re: Bill F., refiled an appearance and made a motion
for a hearing on the parental fitness. The judge decided to postpone the
hearing on whether or not to hold a Bill F. fitness hearing until AFTER the
Termination of Parental Rights trial in December of 2000. Meanwhile, the
parent was charged and convicted of criminal contempt for delivering the
1999 Christmas gifts to his children after no one at DCYF would speak to
him regarding visitation arrangements.
May, 2000
Motion to Dismiss and Return Child to Custody [of non-offending
parent - seven years after they adjudicated the mother neglectful, and put
numerous unconstitutional barriers and requirements in fit parent's path to
obtain custody of child]
August, 2000
Motion for Payment of Bill or Reasons Why Payment Is Denied -
After submitted a "Motion to Exceed" limits of Court Appointed Attorney
payment, ($1200), over two years prior, and after judge paid some of the
previous bills, including the Notice of Appeal to the NH Supreme Court, and
after submitted another bill in December of 1999, which was ignored, the
judge denied in December of 2000 over $10,000 worth of legal bills in a
very complex case. He approved the other attorney's request for excess
fees without comment. This has happened to me numerous times.
November, 2000
Letter to [Central NH] District Court re: DCYF will likely be
seeking a SEARCH WARRANT to Enter, contrary to the Fourth Amendment to the
U.S. Constitution. The letter included the following statement: "Probable
cause means a fair probability that evidence of a crime will be found.
United States v. Sololow, 490 U.S.1, 7 (1983) I recently had occasion to
speak with a social worker who had obtained a warrant in violation of this
standard, and she indicated to me that she had no idea what was required
for a warrant, she was just following the statute. This court should keep
in mind carefully that any application by for a "warrant to enter" by a
social worker has to conform to all requirements for search warrants under
the constitution. There is NO "social worker exception" to the warrant
requirement." Nor is there an exception for a civil matter. It MUST be
probable cause that a CRIME has been committed. Dirty houses don't qualify.
Status: DCYF filed for a Warrant on December 20, 2000, after assuring the
mother that they did not want to take her children "for Christmas." The
judge set the warrant request for a hearing on December 21. There was a
chambers conference in which he requested a brief on the constitutionality
of the statute as it applies to "Orders to Enter" under RSA 169-C:34 and
whether or not there is a "social worker exception" to the warrant
requirement.
December, 2000
Respondent's Motion for Return of Items in the Court Record
-District Court Rule 1.17, which states, "The clerk shall seasonably return
exhibits to the attorney by whom they have been produced upon final
disposition of the case, unless otherwise ordered by the court." This rule
was adopted in juvenile proceedings by the Family Division Pilot Program,
NH Court Rules, p. 1031. After numerous written requests for return of
items from Family Court, with response that she should make a "formal
request" for the return, in violation of this court rule, Respondent
finally made a MOTION for the return of the evidence. No response from
court to date.
December, 2000
Motion to force DCYF to comply with RSA 169-C:19, III(a),
which states: Legal custody may be transferred to a child placing agency or
relative provided, however, that no child shall be placed with a relative
until a written social study of the relative's home, conducted by a child
placing agency, is submitted to the court. DCYF had placed seven children
in home of alcoholic grandfather without doing a social study.
December, 2000
Motion to Reconsider finding of Criminal Contempt for
Non-offending parent in violation of court order to stay away from foster
home: "The elements of criminal contempt are threefold: (1) that a valid
court order covering the defendant exists; (2) that the defendant had
notice of that order; and (3) that the defendant intentionally committed
acts in violation of that order. State v. Linsky, 117 N.H. 866, 872, 379
A.2d 813, 817 (1977)." The non-offending parent can't be guilty of
criminal contempt if he's not a party to the Petition for Neglect.
Denied. Will be appealed to State Supreme Court.
Date: Sat, 06 Jan 2001 18:36:56 -0500 Subject: [Fwd: a notice to the court to be filed]NOTICE TO COURT REGARDING REPRESENTATION
Undesigned attorney has, with the approval of her clients, decided to represent them in her capacity as a private citizen, and not as a member of the NH Bar. The reasons for doing this are based on the following:
1. A Motion for Appointment of Paula Werme as counsel was denied.[more than a year ago]
2. It is a huge burden to represent clients on a complicated case involving mental incapacity, when such term is not defined anywhere in the statute. It basically involves a judge's sole determination on the definition of mental incapacity.
3. Undersigned counsel refuses to continue to expose herself to professional conduct matters as continually challenged by the parents' Guardians ad Litem, in particular by Attorney Tropiano. He has done nothing in the case to protect my client's best interests, yet feels free to continually challenge undersigned's representation.
4. This court's policies on appointment of counsel are nothing less than asinine. Undersigned attorney cannot obtain a contract attorney position because she does not practice criminal law as a primary field of practice, yet it is the criminal contract attorney list from which this court picks assigned counsel. [in abuse and neglect, as well as parental termination cases, apparently].
5. The clients have agreed to this change of manner of representation.
Date: Thu, 25 Jan 2001 18:19:02 -0500 Subject: DCYF has a policy of making social worker JUSTIFY no petition being filed after four reports. This is mandated by the settlement in "Eric L."As my letter following indicates, sometimes poverty alone puts one in a position where there are reports. I don't believe this policy is sound, as the letter indicates. The reporter now has found the number of DCYF, and a report was made there this week.
Moore Center Services
132 Titus Ave.
Manchester, NH 03103Manchester Police Department
351 Chestnut Street
Manchester, NH 03101Re: [x]
Dear Sirs,
I represent [x], which is on [ ] Street south of city center. He occupies a first floor apartment there with his son. I unfortunately have only his PO Box in my computer, so I am unable to give you the exact address. [Note: the premises was adequately identified for the police to identify my client.]
There is apparently a new resident of his apartment building who is a client of the Moore Center. I do not know even the sex of the new resident, but I believe it is a male. I also do not know if this new resident has mental health problems, but it appears to be the case. He has been calling the Manchester police on a fairly regular basis, alleging that[ my client] has been abusing or neglecting his son. For each call, all answered by different police officers, the Manchester police have arrived at [client's] apartment, talked or forced their way into the apartment, and searched the premises looking for instruments of assault, I believe. On at least one occasion, they indicated that no search warrant was necessary for an allegation of child abuse, which my client knows is not true.
The first time this happened, apparently the report was that [my client] was "stabbing his son." A surprised client was interrupted in the bathroom giving his son a bath when the police entered to investigate the call. As the child was naked, it was fairly clear that he had not been stabbed, but apparently the police searched the apartment anyway, looking for heaven-knows-what. There have been approximately five further calls, all followed by police visits to the home. Although I am unsure, I believe some have included searches of the premises, and some have not.
My client certainly understands the need to protect children from abuse, but is quickly tiring of what is becoming a pattern of police visits based on allegations from someone he believes to be mentally unstable. Unfortunately, he does not have a telephone, so the police cannot call before arriving after reports are made. Perhaps something can be done in the dispatch area to arrange a quick visit by police, but not include the search of the apartment when this resident calls in reports. I'm sure that if his son is not sleeping, he would be glad to show him to police.
If nothing can be done internally, I have advised him to take legal action. He does not want to do this, and has stressed that the police have been professional at all times when visiting, although mistaken about the warrant requirements. I look forward to hearing from you on any suggestions or plans you might implement to solve this problem. Thank you.
Sincerely, Paula J. Werme, Esq.
Sat, 27 Jan 2001 11:33:06 -0500 Subject: Arresting runaways
My favorite dumb law outside of the DCYF context is the CHINS law, (RSA 169-D) authorizing the court to issue a "warrant for the arrest" of a run away juvenile if they don't show up in court.
If it's a "civil" proceeding, you can't issue a "warrant" because the juvenile hasn't been served, and by definition ("civil proceeding") it's not a crime. Even criminals don't have to appear in court before they're arrested and given notice!
You guessed it - I've litigated it.
Date: Fri, 02 Feb 2001 17:29:54 -0500 Subject: "Formal" v. "Informal" requests for discovery
My apologies.
When I asked DCYF Attorney Darin Hood-Tucker for "formal" discovery last week, I apparently did not trigger the 2 business day rule for producing it. In fact, it was a "stunt" letting the legislature know that she was not complying with my discovery requests.
In fact, the court held that she didn't have to produce it at all! Only "informal" discovery requests need to be honored within two business days. "Formal" discovery requests apparently take a motion for discovery, which has never been needed before in any of my other cases. Of course it's perfectly ok for the courts to not adhere to the thirty day time limit on trial, wait sixty days for an adjudicatory order, ignore the clear exception to the law in determining whether or not a child is neglected for faith based exception to medical treatment, go longer than thirty days after THAT for a dispositional hearing, and wait until the newly (day before the dispositional) hired attorney for the children has a chance to interview them to let the judge know if they WANT to go home, despite fact that we turned in audio tapes of kids begging to speak with their father. Oh yes, did I mention that video or audiotyping for parents to get evidence that the kids don't fear them and want to go home is strictly forbidden? Read Article 15 of NH Constitution - persons entitled to ALL PROOFS in their defense.
I had to go through a dispositional hearing today with out ANY of the discovery in time to subpoena my witnesses. God forbid I subpoena one of the kids. THOSE are quashed!
And my parents have to ACCEPT (according to DCYF) that legal spanking DAMAGED their children as a prerequisite to having them returned. Don't get to get a definition of What constitutes LEGAL spanking! The judge says it's not HIS job to determine WHAT is legal and what is not. I've just completed four months of litigation on spanking, and I have to go to the NH SUpreme Court to find out what is legal for parents to DO in this state! AND, apparently, staying within the confines of the law is NOT acceptable once you have committed the egregious SIN of overstepping the those non defined confines. ONCE YOUR KIDS ARE DAMAGED, YOU CAN'T spank any more!
What about DCYF accepting that BEATING AND BITING FOSTER KIDS IN JUDY DOANE'S Manchester foster home DAMAGED foster kids? What about Nancy Rollins knowingly letting her not only keep her foster license, but letting her adopt one or two of her foster children? Where is the acceptance of damage there? What does it take for DCYF to accept that foster parents beating kids who are already separated from their parents makes them feel pretty darned helpless?
And one witness, who I found out about earlier in the week, (but not in time to subpoena to the hearing) indicated that it was a SHAME that the parents were unwilling to give up their CHRISTIAN FAITH to get their children back. The parents must live with the knowledge that this woman is influencing their children every school day. No wonder home education is so popular!
February 3, 2001
Phyllis Mackey
CASA of New Hampshire
PO Box 1327
Manchester, NH 03105-1327
Re: The S. Children
Dear Ms. Mackey,
I wish to point out to you some basic information on the fundamental nature of parental rights. "Fundamental" is a term of art that indicates the particular right involved is entitled to a very high degree of protection by the court. I suggest that you get a hold of and read the following materials to inform yourself on the nature of those rights:
There are many other cases cited in Troxel v. Granville that would assist you in understanding the fundamental nature of parental rights.
One thing that I find particularly disturbing is your recommendation concerning these children that all of the children receive dental and medical evaluation and care. This is against the religious beliefs of the parents, and it is furthermore outside the scope of the petition filed regarding their spanking practices. Religious beliefs are protected in the same fundamental fashion as parental rights, and those religious beliefs extend to their right not to subject their children to medical care. See: CHURCH OF LUKUMI BABALU AYE,INC. v. HIALEAH, 508 U.S. 520 (1993). That will give you an very good idea of the extreme lengths the Supreme Court will go to protect religious practices and beliefs.
I agree that we have a legitimate disagreement on the issue of the [cosmetic] repair in the context of a court finding of neglect in violation of the statutory definition. However, if you do not retract your recommendations that the other children receive medical or dental care in violation of the scope of the proceedings, and the parent's religious beliefs, I'm afraid I will be forced to file a motion to remove you as the CASA Guardian ad Litem for incompetence in performing your duties. Please do so at your earliest opportunity. Thank you.
| Sincerely,
Paula J. Werme, Esq. |
Date: Thu, 08 Feb 2001 12:06:37 -0500 Subject: Another Jim Anderson GemThis has been appended to my WWW page on home visits along with a reminder that the Superior Court, not the Supreme Court, ruled that the NH's state-wide property tax is unconstitutional.
In today's mail, the DCYF attorney response to my Memorandum that a search warrant is required alleging violation of criminal law to enter a home in a DCYF investigation:
"The responsibility of the district courts, courts of limited jurisdiction, is to enforce the laws of the state of New Hampshire, as set forth by the Legislature. It is the responsibility of the NH Supreme Court to determine the constitutionality of the laws enacted by the Legislature. . .In accordance with the NH State Constitution (Part I, Article 19) and the United States Constitution (Amendment IV), persons have the right to be secure only from UNREASONABLE searches and seizures.
Because of the compelling state interest and duty to intervene to protect children and ensure their safety . .. and because there is not a constitutional reason to be free from child abuse investigations, Watterson v. Page, id, the viewing of the residence of a child to assess safety and health conditions does not constitute an unreasonable search, and is, therefore, is not subject to constitutional provisions of search and seizure."
Just for the record, ALL searches in NH not pursuant to a warrant or a well-recognized exception to the warrant requirement are PER SE unreasonable. Jim Duggan taught me well.
Whew! Let's vacate the entire constitution! NOW do you understand why this organization is darned dangerous?
Last I heard, judges and lawyers ALL took oaths to uphold the constitution. Limited jurisdiction of trial courts doesn't mean that they can't refuse to enforce unconstitutional laws!
Date: Wed, 09 May 2001 23:37:32 -0400 Subject: New DCYF policy on audio and videotaping interviews and PAY
DCYF released a new Policy directive I received today that concerns audiotaping and videotaping interviews. The policy itself violates the constitution, because it implies that a social worker can may REMOVE clothing of the child to document injuries without a search warrant. This is incorrect, and may subject the social workers to civil liability under 42 U.S.C. Sec. 1983.
It DOES state that it is "preferable" to have injuries documented by medical personnel, doctor or nurse, or school nurse, as well as by CPSW. There is NO indication that DCYF is aware of the line of cases from the 9th circuit stating that strip searching children constitutes a SEARCH, and requires a WARRANT. See: Callabretta v. Floyd, CALABRETTA v. FLOYD, 189 F.3d 808 (9th Cir. 1999), and Wallis v. Spencer, WALLIS v. SPENCER, 202 F.3d 1126 (9th Cir. 2000)
They also sent out a rate list for providers of services. Interpreters are paid up to $40 per hour, Clinical social workers paid up to $44.62 per hour, psychiatrists to $79.31 per hour and Psychologists up to $66.95 per hour. Is there any reason the rate for lawyers has not been raised from $60 per hour since I started law school in 1992?
Date: Wed, 20 Jun 2001 14:25:58 -0400 Subject: Some thoughts on the team approach to child abuse investigationsI recently had the opportunity to participate in a child interview at the child advocacy center in Rockingham county. This is the pilot program for the "team approach." I was offended by their information sheet, so I annotated it.
Date: Mon, 23 Jul 2001 12:51:28 -0400
Subject: Multi-disciplinary child protection teams
The state isn't giving parents much incentive to cooperate. When they don't have enough evidence to file on the perpetrator, they just file on the parents, if the parents disagree with DCYF! Ric - post on web.
July 23, 2001
Thomas Reid, Esq.
Rockingham County Atty Office
Box 1209
Kingston, NH 03838
Re: Open case on [x] year old girl
Dear Attorney Reid,
I just thought I would inform you that the mother in this matter. has been served with a child neglect petition alleging that she didn't take the child for a physical in a time frame suitable to suit that 23 year old social worker. If the petition succeeds, another fit parent will be in the central registry as a child neglector. If you want parents to cooperate with your "multi-disciplinary team investigations," then fit parents should not have to face the possibility of child neglect proceedings if they disagree with a young, inexperienced social worker. You can be sure that I do NOT support the multi-disciplinary approach to child abuse investigations, and will not advise clients to cooperate in the future.
Sincerely,
Paula J. Werme
Date: Sun, 29 Jul 2001 22:15:50 -0400 Subject: CASA now argues that court-ordered evals should be "privileged"
Following a finding that children were psychologically harmed in a petition that lacked much substance (and despite lack of a psychological expert witness or scientific evidence presented at trial that the parent's conduct constituted psychological harm), the parents whose kids were ordered to undergo court-ordered evals to determine IF they were "harmed" AFTER the adjudicatory in which no evidence was presented, yet psychological harm was found, are now fighting to get a hold of those evals prior to the new trial de novo, because the psyche reports came out well.
CASA, whose dismal court advocacy is generally unable to be addressed by critics such as myself (due to gag laws against reporting what happens in child neglect proceedings), has filed an objection to releasing the reports to the parents prior to the second trial claiming that the court ordered evaluation reports are "privileged." They submit case law in which a criminal defendant seeks the psyche records in a criminal trial to support their argument that the documents should be privileged within the context of the DCYF proceedings.
The counter argument to that ridiculous pleading is obvious:
Whether or not the reports are in the parents' favor, it is to EVERYONE's benefit to have a FAIR trial. These reports have to be paid for by the parents, and to deny them their use in the second trial is ridiculous.
NH has a strange idea of how these things should work, don't you think? But REMEMBER, according to Ed Kelly, and the rest of the pro-DCYF judicial folks, CASA is doing a WONDERFUL job. Their WONDERFUL job is regularly reported in the NH Bar news.
Date: Wed, 01 Aug 2001 23:49:29 -0400 Subject: Interesting NH Supreme Court Decision on Child Neglect Proceedings
The court indicated that OF COURSE parents have recourse if they don't like "ongoing" post-dispositional orders of courts. In RE: Diane R., the NH Supreme Court stated they can submit a Writ of Cert to the Superior Court or the Supreme Court challenging the order. It's interesting that this is approximately the fourth method the court has indicated for parents to challenge court orders of the District courts. In the past, the court has indicated that non-offending parents:
If the courts DID have jurisdiction over the non-offending parent, and provided they were properly apprised of their rights prior to waiving personal jurisdiction requirements (which is certainly unlikely, since they are not generally entitled to court-appointed attorneys, and if they are, the attorneys must file an appearance - which waives jurisdiction requirements automatically - before they get the file to read), it is unlikely that a district or family court could possibly get another long hearing in within 30 days of a child neglect petition, and certainly not prior to a preliminary hearing.
As a comment on the reliability of this method of requesting "fit parent hearings" to correct injustice, note that my client, Peter L., a non-offending parent had been screaming about his rights being violated for years, and who completed every thing the court wanted him to do for custody of his kid, and who was actually "promoted" to the "Respondent" in the case at the permanency hearing by Judge Taube, (who never bothered to question notice to the father before the adjudication of neglect, and who signed findings of facts and rulings of law referring to Peter as the "respondent" over 20 times, requested this hearing two days after the decision was published. The Manchester District Court (this time Judge Champagne, because of Judge Taube's continuing conflict with me) refused to hold the hearing until after the TPR trial.
Peter L., subsequently had his parental rights terminated by the Hillsborough Probate Court on the basis of not correcting conditions that led to neglect (which really amounted to disagreeing with the Division on visitation with the mother), and failure to provide for the mental and emotional support when he was physically prohibited from doing so by court orders that prohibited his contact with his children except "at the discretion" of DCYF - they believed since 1998 that three hours a month of supervised visitation for a fit parent not charged with abuse or neglect was "in the children's best interest" until in September of 1999, when they decided it had to be reduced to prepare them for adoption. DCYF then proceeded to trump up a bogus charge in December of emotionally devastating the children by having the gall to give them Christmas presents labeled "from Mom." For this extreme indiscretion, not to mention Peter's arrogant attitude that his parental choices were as valid as the idiotic decisions of social workers who had decided to give the kids to the foster parents, the probate court terminated his parental rights. Note: from a constitutional standpoint, fit parents decisions are REQUIRED TO BE GIVEN GREAT DEFERENCE BY THE COURT. Even the court is not supposed to overrule the decisions concerning visitation by a fit parent just because they believe they can make a better decision. Troxel v. Granville, ___ U.S. ___, June 5, 2000.
By the time we went back to court after the TPR, Writ of Habeas Corpus filed in the Merrimack Superior denied by the NH Supreme Court for lack of jurisdiction under RSA 169-C:28, I had decided that it was ridiculous to ask for a Bill F. hearing when he was challenging the jurisdiction of the court over him, so we just withdrew the request.
The NH Supreme Court in Bill F. didn't consider the matter of personal jurisdiction before fashioning a remedy for the non-offending parents, and they apparently didn't think about the statutory denial of court jurisdiction to change custody determination in Superior Court either, or their refusal to hear a Writ of Habeas corpus they themselves suggested as a remedy for constitutionally infirm proceedings. They also didn't bother to accept the appeal of Peter L. for his TPR, so off we go to the US Supreme Court. 15 days left to file. It will be in on time.
In addition, offending parents and non-offending parents supposedly have the following remedies:
This e-mail has certainly turned into more of a rant, but it is never-the-less an accurate summary of how the Child Protection Act and related case law weaves a web that makes it virtually impossible for a fit parent to fairly contest an illegal custody decision in a child neglect proceeding Bill F. solved nothing. RSA 169-C:4 and 28 take away the jurisdiction of the Superior Court to hear cases where there is a pending RSA 169-C case, and NO parent should ever consent to personal jurisdiction for ANY" judge who doesn't understand personal jurisdiction to adjudicate his or her fitness, (which is undefined in the statute), in the absence of a petition for abuse or neglect.
If *I* were representing a fit parent, I would file a "SPECIAL APPEARANCE" in the District Court to contest jurisdiction of the court on the basis of lack of notice or personal jurisdiction over a parent on whom they have not filed a petition. I would further tell the judge that if he does not have the statutory or constitutional right to determine custody on an initial hearing, and since custody cannot be changed, the fit parent has the right to file a custody proceeding in superior court prior to the adjudication.
Under RSA 169-C:16 The judge may:
If the judge does not turn over custody to the fit parent on the basis of lack of personal jurisdiction not to mention lack of any reason whatsovever to take custody from the fit parent, that the fit parent will need to proceed to federal court to file civil rights charges. If the custody has already been decided without notice to the fit parent, I would proceed to file civil rights charges without appearing in the District or Family court at all, and file in federal court to have a federal marshall enforce the custody rights of the fit parent taken in violation of 28 U.S.C. Sec. 1738A and the constitution.
Date: Sun, 05 Aug 2001 19:57:36 -0400 Subject: Uniform Child Custody Jurisdiction Act
Under NH law, 458-A:2, a "custody proceeding" does NOT include proceedings brought under RSA 169-B, C, or D.
Almost no states include juvenile delinquency and CHINS cases from the definition of "child custody proceeding," but only a handful exclude child abuse or neglect proceedings. e.g. NY (but it includes parental culpability for a finding of abuse or neglect), and one or two more.
Since a child protection proceeding that clearly decides custody is not included in the definition of "custody proceedings," it also does not come under the statutes of the states in which the UCCJA was enacted that require the states to ENFORCE another state's custody decree.
And 46+ states have adopted the Uniform Child Custody Jurisdiction Act, so that child custody matters arising OUTSIDE the context of the act are NOT required to be recognized outside of New Hampshire. Actually, under RSA 458-A:12, the non-served parties are not bound by the District Court's custody decision INSIDE the state.
That means for every Child Abuse petition adjudicated without notice or opportunity to be heard by the fit parent (which includes many of them, because it's not statutorily required), NO state is required to enforce a custody decree determined without notice to parents. Is this what the legislature intended?
For those of you who don't know, the NH Supreme Court doesn't require notice to both parents to recognize a custody award under this statute, nor does it require that a parent have been a party to abuse or neglect proceeding to be "bound" by custody decision and orders of court, nor does it require parental culpability to make a finding of abuse or neglect, nor does it afford legal counsel for fit parents.
Again, the Uniform Child Custody Jurisdiction Act states that the only parties that are BOUND by a child custody determination are those that are given NOTICE, and OPPORTUNITY TO APPEAR, are SERVED, or have SUBMITTED to the jurisdiction of the court. For those of you that are wondering, the parties have to submit to the jurisdiction of the court PRIOR to the custody determination to bind them. Which makes In RE: Tricia and Trixie H. as look not just like bad law, but irrelevant with respect to parents who were not served or had notice of a proceeding.
My research shows that NH is DEAD LAST among the 50 states in protecting fundamental parents rights under the child protection act. While a few states don't mandate appointment of attorneys for both parents, NO other state permits adjudication without permitting a prompt inquiry into jurisdiction by demanding proof of legal notice to all the parties. Parents are defined as parties in EVERY other state, and almost all other states require parental or caretaker culpability in abuse or neglect to make a finding. The overwhelming majority of states require appointment of counsel for the PARENTS and the ACCUSED abuser as well.
NH statutes don't even require that a petition be filed against an abuser, and if it's messy because the person is not close enough to the family, usually a neglect petition is filed against the parent. That leaves thousands of alleged perpetrators whose name never makes it to the child abuse registry, while parents who are blameless lose custody because there is no requirement of culpability in abuse or neglect to make a change of custody. The federal dollars are in change of custody to the state, remember.
I'm going to be immediately advising my clients whose rights were violated by lack of notice to remove their children from the state. I'll also be posting this on the world wide web.
We'll leave the issue of the constitutionality of removing kids from homes or filing petitions without even a HINT that the parents are culpable to another day. . . .
Do you want to know why DCYF's budget is so big? You can cut it by working toward:
Remember, judges have been hand-picking lawyers in child abuse cases for 20 years. I know of no one who has ever challenged the jurisdiction of the court to make a child custody determination under RSA 169-C until me. Do you suppose that the reason Judges will not approve my motions to exceed or motions for payment, because I analyze the law? Even when they do, I don't get paid.
If you follow the constitution, maybe you could put some money in the budget to pay the lawyers the judges don't like!
Date: Fri, 10 Aug 2001 17:25:18 -0400 Subject: Misc. Message about new Probate court rulesThis is a letter I wrote to Judge Maher (cc: Judge Kelly) this week on the issue of the non-party parents asserting their custodial rights against the state if he continues to illegally deny them notice of child neglect proceedings.
August 10, 2001
The Honorable John R. Maher
Administrative Justice
Probate Court
PO Box 789
Brentwood, NH 03838
Re: New Probate Rules
Dear Justice Maher,
I received notice of the new Probate Rules today. I could not help notice the Rule on Notice by Publication excluded Termination of Parental Rights. Although I am certain you are aware I rarely practice in probate, I am taking a case now to the US Supreme Court on the basis of lack of notice to the parent of the original adjudication of neglect. In researching this issue, I discovered that not giving notice to both parents is in violation of the Parental Kidnaping Protection Act, 28 U.S.C. § 1738A, in that it required notice to both parties to be enforceable in other states, rendering the adjudication void if the unknown parent is not served. Furthermore, RSA 458-A states that only parties given notice in a custody proceeding according to that statute are bound by the custody determination made in the absence of notice as described in the statute. You don't see me often, but I assure you that if the issue comes up in a case of mine, it will be raised, and I will file for relief to get federal marshals enforce my clients' custody rights, if need be.
I also discovered that of 50 states, NH is the only state that excludes Child Protection proceedings from the definition of "custody proceeding" under RSA 458-A, thereby bypassing the requirement of legal notice to both parents. I would highly suggest that to be certain that your Termination of Parental Rights adjudications are enforceable against parents, that both parents be given notice by publication. I would suggest that as well for Child Neglect Proceedings, as the parent not served is not bound by the custody decision under RSA 458-A.
| Sincerely,
Paula J. Werme, Esq. |
cc: Edwin Kelly, Administrative Judge, District Courts
Well, I got a reply! (I shouldn't be surprised, but given that NH judges don't reply to many of my Right to Know requests, I am surprised.) Judge Maher even seems to take my concerns seriously, a pleasant surprise.
August 24, 2001
Paula Werme
83 N. Main St
Boscawen, NH 03303
Dear Attorney Werme:
Thank you for your August 10th letter. I would rather deal with this issue up front, rather than at a potential future hearing. I have forwarded the letter to our staff attorney for further research and review of the Parental Kidnapping Protection Act, 28 U.S.C § 1738A, as noted in your letter. We will also review at an upcoming Probate Court Policy Committee meeting.
Please do not hesitate to write when other issues arise so that courts can be of better service to our constituents.
| Very truly yours,
John R Maher |
Date: Tue, 23 Apr 2002 20:47:45 -0400 Subject: DCYF - court jurisdiction issueI sent this letter to DCYF tonight. Judge Maher refused to serve a Petition for Abuse / Neglect filed by the mother on the Respondent and yet ordered DCYF to investigate the allegations of abuse. By failing to order service of the Petition, it doesn't appear to me that he had jurisdiction to make any orders.
The Child Protection statute requires service and a preliminary hearing within seven days of the petition - also not ordered by the court.
The social worker does not appear to be interested in investigating the alleged abuser, but it appears that the focus will be on the Petitioner, the mother.
So, who is the state protecting? It certainly appears to me to be the abuser here.
April 23, 2002
Alyssa Taylor, CPSW FAX ONLY: 890-3909
DCYF, Salem Office
154 Main Street, Suite #1
Salem, NH 03079-3191
Re: Randy D. and Ericka D.
Dear Ms. Taylor,
I spoke with my client, Cheryl S. today, Randy and Ericka's mother. Apparently she stated that you threatened her today - to file a PETITION FOR NEGLECT if she refuses to appear tomorrow in your office with the children.
I would remind you that it was not Ms. S.'s fault that your last Petition for Abuse against Kent D. failed. The fact that you are interjecting DCYF into her custody case, and threatening her because she is in contempt of a civil court order is absolutely not grounds for filing a petition. That is a matter for me, her attorney, to handle with the court.
I will also point out to you that once a PETITION FOR NEGLECT/ABUSE is filed, that the court is required to serve it on the Respondent, and hold a preliminary hearing within seven days. That requirement is not waived by statute if the petitioner is not DCYF. I have a MOTION into the court requesting service and a preliminary hearing right now. Unless that motion is granted, the authority of Judge Maher to make any orders that might be binding on my client is non-existent!
You have / had absolutely no right to threaten my client with a Petition for Neglect if she chooses not to appear with the children tomorrow, nor do you have any statutory authority to interfere with the custody proceeding in the Family Court by returning her children to the alleged abuser. There is absolutely no constitutional or statutory requirement for you to interview the children in an investigation, nor is there a corresponding duty on the part of my client to cooperate with an investigation in a matter where the judge won't follow the law that confers jurisdiction by serving a petition. I suggest that you take the serious allegations of abuse and neglect in the Affidavits submitted in support of the Petition, and investigate those allegations if you feel obligated to return a report to the court in a case where the judge refuses to schedule a statutorily mandated hearing. I'm sure the police can assist you in investigating allegations of drug use.
I will take any actions on your part to file a Petition against my client extremely seriously if you have no statutory basis for doing so. Contempt of a civil court ORDER in a custody case is totally insufficient.
| Sincerely,
Paula J. Werme |
cc: Nancy Rollins
Child and Family Law Committee
Salem Family Court, Docket # 2002-J-95, 96