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Sunday, July 1, 2012

New Hampshire ONLY STATE to Abolish a parent's right to an Attorney update on lapse of logic...

The NH Supreme Court held parent's right to attorney's only sometimes - which will mean never:

"Nothing turns out to be so oppressive and unjust as a feeble government." Edmund Burke 

In all of these cases the Law hinders these parent's because it was done in the middle or end of their cases; any case in progress prior to 7/1/11 should have remained with a court appointed attorney simply because the law was "Ex Post Facto" done after the fact and while afforded in criminal trials to protect constitutional rights, in this matter the constitutionally protected right to one’s children and family is the protection needed.  Anyone prior to 7/1/11 was denied due process because the US Constitution Article I, Section 10 does not make a distinction between civil and criminal proceedings it states "no State shall pass any ex post facto Law.'' ; and the NH Constitution Part I Article 23 specifically forbids ex post facto law in both civil and criminal matters.  Ex post facto means with retroactive effect or force.

The court used the Matthew's test " In determining whether the State Constitution requires the appointment of counsel in a given proceeding, we employ the three-prong test articulated by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In re Kotey M., 158 N.H. at 361; State v. Hall, 154 N.H. 180, 182 (2006). This test balances: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. In re Brittany S., 147 N.H. 489, 491 (2002); Mathews, 424 U.S. at 335." In the context of the issue before us, we examine whether the absence of counsel impermissibly increases the risk of an erroneous result in a child abuse or neglect proceeding under RSA chapter 169-C, thereby depriving the parents of the right to the care and custody of their children."

Here the court failed to recognize that these closed door proceedings have an inherent and fully documented risk of error; not to mention that the State Justice Department and Department of Children Youth and Families has failed every federal and state audit (contained here  in these cases for over 20 years; furthermore, the court failed to recognize and/or the attorney's failed to point out that the procedural safe guards are not adhered to in at least 66% or more of the cases in these matters; as such the supreme court misguidedly stated: "The State argues that because the rules of evidence do not apply, the parents are not burdened by difficult questions of evidentiary law, and because the proceedings are held in a closed courtroom without a jury, the parents can present their case “free from the distraction created by members of the public and the complications of a jury trial.” However, complaints to the redress of grievance committee in the house and disclosures on State Rep. Kevin Avards show "Speak Out" indicate that in reality parents are NOT FREE to present their case, they are denied entry of evidence in their favor, they are denied witnesses, they are denied access to records that a fact finder would rely on in determining the fate of their child even when a court orders access and they are denied the right to face their accusers; the only distractions being avoided are accountability on behalf of the department of children youth and families and the judicial systems involved.  When this law was made legislators much like our founding father's had no idea of the abuses that would occur behind closed doors.  Moreover, nothing in our federal Constitution supports that closed door hearings are what they had in mind in 1787 when our constitution was ratified. "The due process clause of the Constitution was partly based on common law and on Magna Carta (1215) which had become a foundation of English liberty against arbitrary power wielded by a tyrant." Here in this decision that tyrant is the NH Supreme Court as an extension of the Department of Children Youth and Families.
A Supreme Court Who stated:
"As set forth above, however, the procedural protections embodied in the statute prevent the risk that an uncounseled parent will be erroneously deprived of the care and custody of his or her child." In conjunction with the above abuses in this system, A reasonable person does not understand the procedural safeguards that are suppose to be followed behind closed doors, because no one tells them what those right are. Doors closed to oversight and failure ratings of an F across the board for all of its services including the judicial branches acts; procedural protections merely written are not being followed and the Supreme Court's decision shows that they in fact favor the errors of the lower courts and acts contrary to the law that their state employees are acting under!

Thank goodness for: CONBOY, J., dissenting. "After recognizing for over thirty years a statutory right to counsel for indigent parents in abuse or neglect proceedings, New Hampshire apparently has become the only state in the country to abolish this right. Because I conclude that the due process protections afforded under the New Hampshire Constitution require the appointment of counsel for indigent parents in State-initiated proceedings brought pursuant to RSA chapter 169-C, I respectfully dissent." Read more in the proceeding link provided above.

This means that as the judicial branch pointed out in their own reasoning, that because their order was not a unanimous decision it is not controlling and it can be overturned. Because there is not a unanimous decision "We are the final arbiter of our constitution’s due process requirements." they sited In re Father 2006-360, 155 N.H. 93, 95 (2007); this is also an interlocutory transfer without ruling
from the Superior Court (Tucker, J.). See Sup. Ct. R. 9. filed at approximately the same time. The trial court transferred the SAME question: “Does the Due Process Clause of the New Hampshire Constitution (Part I, Articles 2 and 15) or the Fourteenth Amendment of the Federal Constitution require the appointment of counsel for an indigent parent from whom the State seeks to take custody of a minor child based on allegations of neglect or abuse?" Obviously, not a ruling authority when it is in fact and not theory the exact same question of law being decided. Hopefully, the Attorney's who worked on this will push it to our more Liberal U.S. Supreme Court and/or at least the first district court for a more logical order. The Court's decision shows they have no understanding of the failures they contribute to and it was added to a bill because Supreme Court Justice Delanis had a money issue; one she claims to have saved over a million in 9 months with her changes, if so if they saved so much money why aren't all the courts in New Hampshire open a full 5 days a week yet?    

The word "may" is not included in the case that gives an indigent pro se step-parent a court appointed attorney, so does that mean the court changed its earlier opinion as it stated here: "As the United States Supreme Court has acknowledged, “[i]nformed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but in dependency and neglect proceedings as well.” Lassiter, 452 U.S. at 33-34. I note that this court has previously determined that, at the very least, appointment of counsel may be required to adequately protect a stepparent’s right to due process in an abuse or neglect proceeding. See In re Shelby R., 148 N.H. 237 (2002) (the plurality, however, called for a per se rule, entitling an indigent stepparent to appointment of counsel)."

Oddly, step parents in NH now have more rights than a natural parent.

A quicker way to fix this problem is for legislators to make it LAW that indigent parents are entitled to a court appointed attorney in all of these cases and/or more so that we come back from the old oppressive British ways that we fought so hard to get away from and make ALL the courts open and accessible to the communities they are suppose to serve.  We are not here to secure their lifetime appointments without equal access and equal opportunity to be heard in a meaningful manner!

"The Government of the absolute majority instead of the Government of the people is but the Government of the strongest interests; and when not efficiently checked, it is the most tyrannical and oppressive that can be devised."  John C. Calhoun

1 comment:

  1. The due process rights of parent's and families are violated daily by both DCYF and the Family Court's.Court appointed Attorney's for indigent parent's is a NECESSITY. The abolishment of court appointed Counsel MUST be overturned. Accused criminals are afforded court-appointed attorney's when they can't afford one. Why are parent's denied? By taking away the right to court-appointed attorney's for indigent parent's,just show's how unimportant families and their children are in NH. They can't be too important if accused criminals have more rights than they do. Losing a child to the State is worse than a death sentence, not only for the parent's and relatives, but for the children as well. The State just doesn't have a clue on how to parent the stolen children of NH. Too many lives are being ruined. Too many families torn apart, costing the State even more money than if services and court-appointed attorney's were afforded to the families. And NOT just any Attorney's. Child Custody Attorney's, who know how to fight for parent's. Not Real Estate Attorney's, who refuse to file motion's, petition's and appeals at every turn. Who refuse to subpoena witnesses to testify on the parent's behalf. Who admit they didn't fight because they have more important client's and the Court is their Boss. In cases such as these, any parent could do a better job, but the NH Family Court Judges refuse to let the parent's fire these court Puppet's. After all, they are working for the Court, not the parent.
    So yes, the abolishment of Court-appointed Attorney's for indigent parent's MUST be overturned, but with stipulation's. Only CHILD CUSTODY Attorney's WILL be appointed for indigent parent's.
    To the State of NH; Isn't it time to put families first for a change? Allowing them the same Due Process Right's you afford accused criminal's? How much do you really care about the families of NH?