A Basic Overview of Abuse and Neglect Law in NH
Abuse and Neglect law is a specialized area of law, meaning that not all family attorneys have adequate knowledge about this practice area to provide service. If possible, try to hire a lawyer who is certified as a Child Welfare Law Specialist, a NH Supreme Court recognized certification/specialization awarded by the National Association of Counsel for Children.
Abuse and Neglect law is the area of law that concerns the State of New Hampshire's right to protect children from maltreatment. It is codified our NH Revised Statute, 169-C.
Contrary to popular belief, the State of New Hamsphire can tell you what you can and cannot do in your home regarding your children when it comes to the child's well-being and safety. There are many situations where the State can become involved, the most common where there is physical abuse of the child, a failure to provide adequate nourishment, or the parent or parents engaging in abuse of alcohol or use of illicit drugs or abuse of prescription medication, so that it impacts their ability to parent. However, there are other examples, which are not uncommon, that most people do not think of, for example:
- When a child witnesses an alteracation between parents, and one parent refuses to leave the other, causing the child to witness repeated bouts of domestic abuse.
- When a child is not taken to the doctor for appropriate medical care, including preventative care.
- When a child repeatedly misses school, and the parent or parents cannot be engaged in the education process.
- When a child requires evaluation by the School District for edcuational services and the parent or parents refuse.
The majority of abuse and neglect circumstances are reported to the State by calling the DCYF Central Intake Unit. The Central Intake Operates asks a series of questions that requires the caller to provide detailed information about the situation. Then, the call is graded on a scale of risk, which determines how quickly the State has to make contact with the child. The call is referred to one of many local District Offices. If the call is not deemed credible or is not considered to fall within the definition of abuse or neglect, the call is screened out, but kept on file for three years.
When these situations arise, and the environment is not so detrimental to the child to cause an immediate risk of irreparable harm, the NH Agency, the Division for Child Youth and Families (DCYF) attempts to voluntarily work with the family to safety plan and address issues related to the situation reported. If that fails, the State can seek Court intervention by filing a Petition.
A Petition is not criminal. It is a Civil matter, which means that unless there are related criminal charges, the Petition will not place a person in jeopardy of going to jail. The parties to a 169-C case are: DCYF, the parent or parents, and a Guardian ad Litem who represents the child's best interests.
Effective in 2012, Parents accused of abusing or neglecting their children under 169-C are not guaranteed a lawyer. If a parent believes that they need an attorney, and that they both cannot afford one and their lack of a lawyer due to specific circumstances will impact their ability to participate in the case and understand what is going on, they should ask their Judge by filing a Motion for Counsel to be appointed. A Financial Affidavit may be required to prove inability to pay for a lawyer. In this Motion, the parent will need to set out specific reasons for why they need a lawyer, for example:
- Can s/he read or write? If yes, what are the limitations on his or her skills?
- Does s/he suffer from a mental health or developmental disability that affects an ability to process information?
- Does s/he take any medications which impact an ability to process information?
- Does s/he have a diagnosed and documented learning disability that impacts their ability to process information? What types of accomodations did s/he receive in school?
Most importantly, the parent needs to specifiy what these limitations do to their ability to understand the process, understand the judge, understand any orders that may be made, and to particpate in the proceedings, as they may be broadly defined.
The first hearing that a parent will participate in is a Preliminary Hearing.The Judge will decide whether there is enough evidence to warrant a trial, and therefore, a finding. If a preliminary finding is made, the Judge will set a date for the Adjudication, or trial, and will also put whatever orders are necessary, in order to protect the child.
Between the Preliminary Hearing and the Adjudication Hearing, the parent should receive documents from DCYF, called discovery. These documents should encompass all of the material DCYF has on the family, which may be produced as evidence at a trial, or Adjudication.
At an Adjudicatory Hearing, the rules of evidence do not apply. Therefore, the process is less formal, allowing unrepresented people the ability to participate more easily, at least in theory. DCYF will always be represented by an Attorney.
The Court will issue a decision in writing. If a finding is made the parent's name will be listed in a Central Registry for the State of New Hampshire for seven years, which may impact employment. It is not a public registry, but does impact those in child care, education, and medical fields.
Sometimes, cases are resolved without a trial. Instead, the parent chooses to enter into a Consent, or plea agreement, whereby they admit to the allegations in the Petition, to avoid a trial. Unless the Consent contains terms favorable to the parent, like the admit to some of the facts, but not all of them, or participating in a trial would be harmful to the parent's health or well being, the parent should not enter into a Consent, as the parent does not generally gain anything from entering into the agreement. Some DCYF offices are objecting to agreements where the parent does not agree to the facts. If this is the case, the parent should consult an attorney experienced in these matters to try to advocate for them in this process.
At this point, the parent will be contacted by DCYF and will be asked to do a Social Study, which is an investigation into the parent's life. It is in the parent's best interest to cooperate with DCYF at this point. This social study will be used, along with the finding by the Judge, to establish a case plan and dispositional orders which the parent must follow in order to resolve this matter and close their case.
The parent will also be contacted by a Guardian ad Litem (GAL), either paid by the State or a volunteer, who is trained in representing the best interest of the child or children in this case. Effective October 15, 2012, the GAL will meet with the child, present them with a letter from the Judge inviting them to attend court, and will either give them an opportunity to watch a video or direct them to the video "Court, I'm Going" which was produced by the NH Court System, to given children a better sense of what to expect. The GAL will make recommendations to the Court and will work with the parents and DCYF to inform the Court on what the GAL believes is best for the child or children in the case.
The next hearing will be a Dispositional Hearing. At a Dispositional Hearing, the Judge will hear arguments about what the case plan should be and what the Ordes should be to resolve or "cure" the behavior that led to the finding of neglect or abuse. For example, a parent might need to engage in AA or NA, undergo a LADC (Drug and Alcohol Evaluation) , attend counseling, and/or attend group therapies, like batterer's intervention or anger management. The focus for the parent should be making sure that the orders that are issued closely relate to the issues and Finding that was made by the Judge. If they do not, the parent should object to the specific things that do not address the Finding or issues. For example, if the Finding is based on abuse of prescription medication, the parent should not be ordered to maintain appropriate housing or employment, if these things are not an issue in the Court's Order. The Dispositional Order and attendant Case Plan will be the yard stick by which the parent is measured for the next 12 months. It is important to get it right the first time.
After the Dispositional Hearing, the case will be reviewed every three months (3 month, 6 month, 9 month, and 12 month, or what is known as permanency). At each of these hearings, the Court will decide whether the parent is full, substantial, partial, or no compliance at all with Court Orders. It is essential that parents be in compliance, which requires accomplishing the tasks and requirements part of their Dispositional Order and Case Plan. If not, the parent faces the possibility of having their parental rights terminated.
After the Dispositional Hearing once an Order has issued, a parent can file an Appeal. This Appeal is heard in the NH Superior Court, and takes the form of a new trial, with a different Judge. There is no fee for filing this Appeal.
The most important of these review hearings is the Permanency or 12 month Review Hearing. At this hearing the Court will decide whether the parent is compliance with the case plan and orders, and if not, may Order DCYF to Petition the Court to terminate the parent's rights, obtain guardianship themselves or with a fit and willing relative, or with older children, keep them in long term foster care or group home placement.
Because of the complexity of this law and process, this article cannot substitute for good legal counsel familiar with specific facts and circumstances. It is essential that a parent seek out knowledgeable counsel to place themselves in the best position possible to reunify with their children and extinguish DCYF's involvement in their lives.