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Children's Rights Litigation

September 11, 2012

In re C.M. (N.H. 2012)


In In re C.M. [PDF] (N.H. 2012), Larry and Sonia M. are parents of two minor children, C.M. and A.M., who were subjects of petitions brought by the New Hampshire Division of Children, Youth, and Families seeking to remove the children from their parents and place them into state custody. Initially, both parents were assigned counsel. However, subsequent to a dispositional hearing, effective July 1, 2011, the New Hampshire legislature abolished the state statutory right to counsel for indigent parents facing allegations of abuse or neglect. The legislation was aimed at reducing the financial burden on the state posed by providing counsel to indigent parents at state expense.

Facing the loss of their attorneys, the parents each filed motions in the trial court seeking to continue their representation, claiming that the dismissal of their counsel would violate due-process rights guaranteed by both the Fourteenth Amendment to the Federal Constitution and the comparable provision of the New Hampshire state constitution. The claims were then presented to the New Hampshire Supreme Court through an interlocutory transfer without ruling.

On appeal, the New Hampshire Supreme Court followed the logic of the U.S. Supreme Court’s decision in Lassiter v. Durham Dep’s of Soc. Services, acknowledging the fundamental interests at stake but declining to recognize a categorical right to counsel for parents facing the loss of their parental rights. The court applied the three-prong inquiry articulated in Mathews v. Eldridge to both the state and federal claims, ultimately concluding that a case-by-case approach to determining when parents’ fundamental rights demand the appointment of counsel is sufficient to safeguard their rights to due process.

Keywords: litigation, children’s rights, due process, parental rights, right to counsel

Bruce A. Boyer, clinical professor, director, Civitas ChildLaw Clinic, Chicago, Illinois

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