What is the Role of CASA in Abuse or Neglect Proceedings?

CASA stands for "Court Appointed Special Advocate." NH CASA is part of a national organization. They are statutorily permitted, as volunteers, to act as guardians ad litem in abuse and neglect cases brought under RSA 169-C:10. Guardians ad Litem don't advocate as a lawyer for children, but advocate for their "best interests", which may or may not be what the children want. They are full parties in abuse and neglect proceedings, and their communications with various people is discoverable, unlike the communications of attorneys. If attorneys act as Guardian ad Litems, they are not acting as an attorney. Interestingly enough, CASA is incorporated in NH. Their training and recruitment is funded by the NH Judicial Counsel, but apparently it's without oversight. It's the lack of training in the legal meaning of "best interests" that make CASAs so dangerous in the closed courts of abuse and neglect proceedings. Their training manual (in Microsoft Word format) is at CASAnet, their site for program staff.

The organization itself doesn't teach any of the volunteers any law about the fundamental nature of parental rights. This is important in every step of the process, and DCYF uses that ignorance to their best advantage. Ergo, a parent can literally be found to have neglected a child without any showing that the parent brought harm to the kid, nor did the parent fail to care for, educate, or ignore or fail to recognize any known or foreseeable harm coming to the child. A typical CASA guardian ad litem doesn't care. Since they can't figure out how the kid came to harm, they use the concept of "Res Ipsa Loquitur." Roughly translated, it means that it is something that would not have occurred but for the negligence of whoever was in charge. It's normally a concept used in tort law. For further information, see

E.g. if the grain elevator collapsed, it must have been a maintenance or design problem. Translated to parenting law doesn't work, because it translates in NH courts to roughly, "you're the parent, it must be your fault." It doesn't always translate so neatly, especially if the perpetrator was Uncle Harry, but DCYF can get away with it in secret courts.

CASAs can also deny a non-offending parent his or her rights by the CASA's lack of understanding of the fundamental nature of those rights. For example, a parent can come into a proceeding after not being found for some length of time after adjudication. Most CASAs certainly don't afford non-offending parents any consideration for their non-offending status. That is the fault of the parent organization's training. I've heard of a CASA telling an offending parent that he wouldn't give any consideration to placing a child with a non-offending parent because, "after all, I haven't even met the person." What difference does it make? If it's the parent, he should be making arrangement to meet and talk about a plan to place the kids, not passing judgment on him or her.

How can the CASA deny a non-offending parent the right to custody of their child? Isn't it the judge's job to make a finding? Yes, but the CASA makes recommendations on whether, in their lay opinion, the parent has adequately addressed the problems leading to abuse or neglect. I've yet to see a CASA guardian ad litem recommend that a non-offending parent has nothing to address, even if the recommendation is to comply with the Court order by having a criminal record check, psychological examination, and DNA testing. Once that is completed, there is always some recommendation (usually for counseling) from the psychologist to follow through with, so the parent doesn't get the kid back at that point, either. One non-offending parent took the foster parenting course to show how much he was willing to do. He never got his kid, and DCYF eventually filed to terminate his rights. The grounds? Failure to correct conditions leading to abuse or neglect, of course. Following the principles of tort law again, it's obvious that there is no duty to correct that which is not your fault anyway. For more information on duty, see www.ga-law.com/Torts.html. The distinction that the non-offending parent may not have the ability to fix the problems of the offending parent, while still having a duty of care toward their own child, doesn't seem to occur to CASAs. The non-offending parent is blamed in part for the harm to the child, even if that parent has previously left a violent relationship or started to address a drug or alcohol problem on their own before a petition was filed against the other parent. It's a simple case of bad logic. No one can control the behavior of another. Most of us come to that conclusion sometime in early adulthood, and get on with life.

NH CASA's find their experience in Court a wonderful opportunity to have an enormous amount of power over other people's lives, and their lay opinions are "valued" by the judge. That can be heady experience for one who hasn't taken the time to hit the books in law school. The CASA's power base is lost if they give in early to a non-offending parent who hasn't "complied" with the "case plan" even if that person isn't technically a part of the case. Footnote: a parent who isn't named as a perpetrator of abuse or neglect in a Petition is entitled to notice. Nowhere in the statute does it say that they are a party. RSA 169-C:8.

The power of DCYF and NH CASA over so many parents lies in the many portions of RSA 169-C that state that certain things can only happen if the parents (plural) do something. E.g. RSA 169-C:23:

169-C:23. Standard for Return of Child in Placement.

Before a child in foster care is returned to the custody of its parents, the parents shall demonstrate to the Court that:

DCYF, CASA, and the Courts all interpret this as though they have the ability or power to keep a child from a non-offending parent they don't happen to like. If the non-offending parent happens to complain about their unconstitutional attitude, the social worker and CASA, (or, God forbid, the court) take personal offense, and see the parent as having an "anger management problem," and therefore incapable of taking care of their child. They repeatedly expect BOTH parents to comply with the Court's orders even if only one parent has been charged with abuse or neglect. Suppose the non-offending parent doesn't comply because they state that they didn't offend and that court has no right to impose the order. That may make the judge mad about his court orders being ignored, even if the parent isn't subject to the Court's jurisdiction. If so, then the Court may refuse to consider giving custody of the child to the non-offending parent until the offending parent complies. Once the offending parent complies, there is no longer a reason to consider placement with the non-offending parent.

This concept is logically and legally flawed. The fundamental nature of parental rights would indicate that the non-offending parent does not have to prove anything to rescue a child from the custody of the state if that parent had no knowledge that the other was harming the child. Constitutionally, the only thing the non-offending parent has to show to get custody of the child is from RSA 169-C:23, III, that they can provide proper care. The constitution and New Hampshire law [FN: Case v. Case, 121 N.H. 647 (1981)] both presume that the best interest of the child is in the custody of the parent, and the judge should promptly return the child. This is not happening currently in NH Courts.

In case after case, NH CASA feels free to recommend to the Court their own, lay, and frequently prejudiced, view of what is in the "best interest" of the child. The judges simply don't make rulings that correct for the CASA Guardians' ad Litem lack of constitutional knowledge, and frequently go with the recommendations, even if that recommendation is as extreme as keeping a child or children away from a non-offending parent for so many years that it virtually destroys the bond.

This is especially important, because the "best interests" of the child standard is borrowed from divorce law. When two people who have roughly equal claim to a child get divorced, the Court is absolutely free to choose between one or the other as being in the "best interests" of the child. As in the complicated case of Elian Gonzalez, there is a fundamental shift in the argument if one of the parties claiming rights is a non-parent. The "best interests" standard is commonly thought of as a simple balancing of what is best for the child. However, it doesn't really apply until you have shown that a parent is sufficiently unfit that parental rights should be terminated. That is why Elian's relatives in Miami have no legal claim to the child. Legally, his best interests really don't make a difference.

The best interests of the child cannot constitutionally be a simple balancing test. Therefore, the abuse and neglect statute creates a presumption that if the parent complies with the case plan, and the child will not be endangered, that if the parent can provide proper care the return shall be presumed to be in the best interest of the child. Since the reality is that no parent can ever guarantee that their child may not be endangered in the same manner as was adjudicated, even if the parent was not originally at fault in the petition, there is too much discretion for the courts to decide when return is appropriate. The sad result is that DCYF and CASA play God with the lives of the families. Many, many parents in NH find themselves facing the prospect of having children out of the home for years on end based on various reasons ranging from being unable to "correct" things that weren't their fault anyway, not getting along with the social worker or CASA, so either one would recommend to the Court that the parent can't keep the child safe, or because they challenge the constitutionality of a finding. I've seen:

In most cases, the harm to the child is far, far greater by virtue of the DCYF involvement, but they certainly don't admit that.

CASA is amply supported in its effort to keep control over the lives of people by the many psychologists DCYF recruits to manufacture evidence that the recommendations they, the CASAs make to keep parents who might have only mildly neglected their kids away from them for years on end. It truly becomes a power issue in the cases where the neglect is extremely mild or even questionable, or the parents don't "admit" their "contribution" to the "problem." The "best interests" standard as applied in child custody cases has no constitutional application to child abuse and neglect cases where the harm is not severe.

I have had multiple cases where non-offending fathers are not permitted one minute of visitation unless and until they go to the OCSE (Office of Child Support Enforcement) and volunteer for, and get the results back on DNA tests, have psyche evaluations, police record checks, and go through a period of "supervised" visitation by the division. CASA supports this in full, and if an individual CASA doesn't like a father, he can pretty much forget visitation. Criminal record? One false domestic violence petition? They simply don't make the cut. I have a case in which the judge has never made any visitation order with respect to the non-offending parent for a year and a half. His rights of visitation are totally at the whim of the Division and Guardian ad Litem. The Court simply refuses to acknowledge his rights at all.

All of this lay "advocacy" for children is heartily supported by NH Judge Edwin Kelly, Administrative judge of the District Courts. He praises the wonderful job they do, keeps the legislature in the dark about what is really happening in the courts (or doesn't know), and so the system goes on without change. There is a oversight committee, however, members include the heads of CASA and DCYF. These connections all but guarantee things will not change. Still, it's time to change the system and go back to trained attorney Guardians ad Litem. It's important in closed courtrooms to have people more knowledgeable about parental rights than CASAs. Better yet, open the Courtroom doors. "Secrecy, to some of us, means corruption," reported Rep. Tony Soltani, in a Judicial Committee hearing about Judge Thayer. Secrecy, combined with ignorant Court appointed Guardians ad Litem, means unfair results, and a great deal of needless pain for many New Hampshire families.

For more information about the fundamental nature of parental rights, see the following:

Griswold v. Connecticut, 381 U.S. 479 (1965) Right to Privacy
Meyer v. Nebraska, 262 U.S. 390 (1923)
Moore v. City of East Cleveland, 431 U.S. 494 (1979)
Prince v. Massachusetts, 321 U.S. 158 (1944)
Santosky v. Kramer, 455 U.S. 745 (1982)
Stanley v. Illinois, 405 U.S. 645 (1972)
Case v. Case, 121 N.H. 647 (1981)
In Re: Heather D., 121 N.H. 547 (1981)
In re Diana P. 120 N.H. 791 (1980)
Marquay v. Eno, 139 N.H. 708 (1995)
Preston v. Mercieri, 133 N.H. 36 (1990)
State v. Robert H., 118 N.H. 713 (1978)
Many famous Supreme Court Cases can be found at supct.law.cornell.edu/supct/cases/name.htm

Finally, one last word about why some of this information may not be coming out in the media. NH CASA published a 350 name list of volunteers and board members in April of 2000. Ovid LaMontagne was a board member, as was Karen Anderson. Karen Brown was listed as a NH CASA volunteer. While I haven't confirmed whether or not they are the same as the WMUR former news director and current reporter, WMUR is a huge supporter of NH CASA.

Contact Paula Werme, Esq. or return to Law Practice home page.

WWW page produced 2000 April 12, last updated 2000 November 29.