NH Supreme Court Promises Due Process
for Non-Offending Parents - Almost.

Paula Werme

September 30, 2000 - Concord, NH

The state Supreme Court this week gave non-offending parents back their rights to the care, custody, and control of their children. In the case of In Re: Bill F., ___ N.H. ___, September 28, 2000, the state Supreme Court held that a parent cannot be denied the care, custody and control of his or her child without Due Process. The Court stated that

"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. . . [T]he 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."

The Court also fashioned a remedy for non-offending parents, albeit, an insufficient one:

"Thus, we hold that parents who have not been charged with abuse or neglect be afforded, upon request, a full hearing in the district court regarding their ability to obtain custody. At that hearing, a parent must be provided the opportunity to present evidence pertaining to his or her ability to provide care for the child and shall be awarded custody unless the State demonstrates, by a preponderance of the evidence, that he or she has abused or neglected the child or is otherwise unfit to perform his or her parental duties. The district court shall make findings of fact supporting its decision. In reaching its determination, the district court should not focus exclusively on whether granting custody to that parent is in the child's best interests, but rather should also consider whether the parent has engaged in abusive or neglectful conduct or is otherwise unfit to care for his or her child."

The current statute does not provide for the assignment of lawyers for non-offending parents who were not members of the same household, and the Supreme Court neglected to provide for an automatic assignment of an attorney to represent the non-offending parent. Parents who do not have lawyers are unlikely to find out about the new rights, and may not know how to organize a fundamentally fair and full hearing on the matter, including obtaining all discovery from the Division, demanding a bill of particulars on why the Division believes they are unfit, or obtaining expert witnesses to counteract the Division's claims they are unfit.

On the other hand, non-offending parents are not parties to the Petition for Abuse or Neglect. A "party is a technical legal term meaning `those by or against whom a legal suit is brought' and that others affected may be `interested persons' but they are not `parties'." State's Brief in State v. Smart, citing United States v. Guerrerio, 675 F. Supp. 1430, 1438 (S.D.N.Y. 1987). Normally, judges are absolutely immune for their judicial decisions. That immunity is overcome, however, if the judges act "in the absence of all jurisdiction." Normally that phrase is interpreted to mean subject matter jurisdiction, but if the judge doesn't have any jurisdiction over the non-offending parent, and he knows it, and he continues to deny the parent the custody of the child, there is a strong possibility he will be now be liable for denying them their civil rights under 42 U.S.C. 1983. There is case law supporting the requirement of "personal jurisdiction" to confer "all jurisdiction." The case of Rankin v. Howard, 633 F.2d 844, (1980), clarifies the issue of jurisdiction necessary to confer judicial immunity:

"Although the Supreme Court acknowledged in Stump v. Sparkman that Judge Stump may have committed `grave procedural errors,' 435 U.S. at 359, it did not explicitly consider whether he acted in the clear absence of personal jurisdiction or whether such action would be protected by judicial immunity. . . . When the Supreme Court first formulated the `clear absence' standard, however, it stated that the principle of immunity applied when there was `jurisdiction of both subject and person.' Bradley v. Fisher, 80 U.S. (13 Wall) 335, 352 (1872) . . An absence of personal jurisdiction may be said to destroy `all jurisdiction' because the requirements of subject matter and personal jurisdiction are conjunctional. Both must be met before a court has authority to adjudicate the rights of parties to a dispute. If a court lacks jurisdiction over a party, then it lacks `all jurisdiction' to adjudicate the party's rights, whether or not the subject matter is properly before it. See, e.g. Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 1696 (1978) . . . (`[i]t has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant'). . . Because the limits of personal jurisdiction constrain judicial authority, acts taken in the absence of personal jurisdiction do not fall within the scope of legitimate decisionmaking that judicial immunity is designed to protect. . . If, as alleged, Judge knew the jurisdictional allegations to be fraudulent, or if valid Kansas statutes expressly foreclosed personal jurisdiction over a proposed ward in ex parte proceedings for temporary guardianship, then the judge acted in the clear and complete absence of personal jurisdiction. If his acts were part of a conspiracy, he is properly held responsible for the consequences."

This general rule that jurisdiction sufficient to confer immunity must have both components of subject matter and personal jurisdiction has been acknowledged in the First Circuit.

"[I]t is settled beyond peradventure that a void judgment, such as one 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) , See, e.g., Misco Leasing, Inc. v. Vaughn, 450 F.2d 257, 260 (10th Cir. 1971); Taft v. Donellan Jerome, Inc., 407 F.2d 807, 808 (7th Cir. 1969).
Even if there is jurisdiction, a judge could then be liable for denying a non-offending parent his civil rights under 42 U.S.C. 1983 if he fails to give a non-offending parent an attorney who can assist them in having a fundamentally fair hearing on the issue of parental fitness.

How do non-offending parents learn about their right to a hearing? I've asked Judge Edwin Kelly twice and don't have a useful reply yet:

May 3, 2001

The Honorable Edwin Kelly
Administrative Office of the District Courts
PO Box 389
Concord, NH 03302-0389

Re: Right to Know
Forms for non-offending parents

Dear Judge Kelly,

Last year, following the NH Supreme Court Decision in In Re: Bill F., I wrote to you asking how the District Courts planned to implement the decision with respect to notifying non-offending parents of their rights to a hearing on parental fitness under the decision. My recollection was that you wrote back and indicated that you were in the process of producing a form that would be given to all non-offending parents.

Would you please send me a copy of that form, and indicate the date the District Courts began using it to notify non-offending parents of their rights? Thank you.

Paula J. Werme

cc: File

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Last updated 2001 May 15.