Paula Werme, Attorney at Law

Practice Emphasis on
Defense of Child Abuse/Neglect

Paula Werme Spurred on by ever-increasing budgets, Child Protective Agencies across the United States are ever on the lookout for new cases, despite indications that real cases of child abuse are falling. For example, in New Hampshire, the year following a Supreme Court Ruling that parents must have due process hearings to challenge findings of child abuse and neglect, there was a substantial drop in "founded" cases within the Division.

In New Hampshire, Child Protective Services are provided by the Division of Children, Youth, and Families which is part of Health and Human Services. The Division's budget has risen well over $100 million in less than ten years. It is a substantial part of the Health and Human Services budget. Despite this increasing percentage of abuse reports being closed as unfounded, sometimes the process of getting there involves everything from inquiries into personal lives and placement of children in foster homes.

Few lawyers can afford to conduct a real defense of an innocent parent with the funds statutorily allowed for child abuse defense. The result is that parents who truthfully deny abusing their children often find themselves in the worst positions, with court appointed attorneys advising them to "admit" allegations that aren't true. Even when the lawyer manages to change the wording of an "Admission" to reflect no finding against an individual parent, the parents are often hounded for months or years afterward to confess, at the risk of losing visitation, reunification, or parental rights if they do not. The situation for parents who deny abuse and refuse to sign can be even worse, if the lawyer isn't prepared to challenge the constitutional issues involved. 

Many lawyers are reluctant to challenge DCYF's medical testimony, yet that is often the key to proving innocence. Parents need to know that at the present time, there is no physician in the state that can claim to be an expert on child abuse! Some genetic diseases such as Osteogenesis Imperfecta (brittle bone disease) are often mistaken for child abuse. Clients often help out by looking for other family members who might have signs of genetic disease or help analyze medical reports looking for inconsistencies and diagnoses that strengthen their case.

Non-Offending parents have special handicaps if the court doesn't grant them custody. They are not parties to the case, yet are denied their children, cannot get a court appointed attorney, and often are ordered to undergo psychological counseling. A 2000 NH Supreme Court decision states that a non-offending parent cannot be denied custody of his child unless the court decides, after a full hearing, that the parent is unfit.  More recent NH Supreme Court rulings seem to shed some light on what the NH Supreme Court would consider in the context of a "fit parent."  

In the case of "In the Matter of R.A. and J.M.", the NH Supreme Court stated that they

 "recognize that fit parents are presumed to act in the best interest of their children. Nelson, 149 N.H at 547; Troxel, 530 U.S. at 68. "The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition." Parham, 442 U.S. at 603."  

        This implies that to be considered "unfit" that a parent has to actually have abused or neglected a child. The NH Supreme Court also stated,

"Accordingly, the degree to which an opposing parent may have failed in his or her parental responsibilities need not necessarily rise to the extreme level of unfitness for a determination that custodial rights should be granted jointly to the parent and a grandparent."  

        This implies that "unfitness" is a standard that is EXTREME.  It does not include a mere judge's decision that a parent could have made better decisions concerning a child.

        In the cases of In the Matter of Jeffrey G. and Janette P., the NH Supreme Court also stated,

 "Therefore, even though their parenting skills are less than ideal, biological and adoptive parents are presumed to be fit parents, see Troxel, 530 U.S. at 58, until they are found to be unfit under either RSA chapter 169-C (abuse and neglect proceedings) or RSA chapter 170-C (termination of parental rights)."  

        This implies that absent a finding of abuse or neglect that a parent is fit. It is fully consistent with the Court's prior statement that the "unfitness" is an extreme standard.
That would presumably require a notice of exactly why the state believes the parent is UNFIT. That is generally done by way of an abuse or neglect petition. No matter, the state is still ignoring the law. One court relieved a fit parent of his legal custody without any hearing on his fitness, on the same day it gave him physical custody of his children. This is ridiculous.

My practice emphasis has been the defense of parents accused of child abuse and neglect and representing fit parents in these petitions to reassert their rights.  Clients can expect:

    A constitutional defense

      The U.S. Constitution is the supreme law of the land, and its Bill of Rights set a standard rarely matched in the rest of the world. The New Hampshire Constitution reaffirms most of these rights.  It is my goal to use both the NH and the federal Constitution, provisions of federal law, and state and federal case law to give the client the best possible chance of a good outcome.

Contact Paula Werme