"The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court." - Troxel v. Granville, 530 U.S. 57 (2000)
I revised this page in its entirety
in March 2005 for a very good reason. I had substantially concluded
a case for a fit parent I won in record time. It was just about 60
days from the day I met dad to the court ORDER issued this week for gradual
"reunification" to take place over the next 30 days. Although even
gradual reunification is still contrary to the wording of the statute, we
agreed to it because it probably is easier for the child to have a gradual
transition. The child had been in foster care since birth. It was a
boatload of work, but DCYF completely caved for the first time in my legal
career. I cannot begin to express exactly how much fun it was to hear
the DCYF attorney say in court (paraphrased), "We ran this case by the NH
attorney general, and she basically advised us to give custody to the father
because the case law was clear we would likely lose."1
I'll detail exactly how I did this further down in the page, but if you're
a fit parent, this probably won't appreciate it unless you read the rest
One of DCYF's statutorily defined missions is family preservation. Unfortunately, DCYF does not embrace this mission, and has substituted their own statement of mission. Not only is this an internal goal, but federal money to support children in foster care is contingent on DCYF and the courts trying to place children with relatives first. New Hampshire treats the rules for "parental placement" the same as the rules for "relative placement,"in violation of the law. They're not the same animal. Non-parent relatives don't have fundamental rights to custody.,
In the year 2000, the NH Supreme Court's "Bill F." decision established
a procedure where a parent can demand a court hearing to decide his or her
fitness as a parent. Bill F.'s father's rights were trampled by putting
a lot of demands on him in order to assume custody of the child when DCYF
filed a petition for neglect against the mother. If you're here, his
case will probably look familiar to you. Take the time to read it.
A few months before "Bill
F." was decided, the United States Supreme Court ' Troxel v. Granville
decision made it clear that the state has no right to interfere with
a fit parent's decisions. See the quote at the top of the page,
and read the rest of the decision later.
In the years after the NH Supreme Court decided "In Re: Bill F."
I've seen evidence that it's been essentially completely ignored by the trial
courts. I handled a case of a fit parent a few years ago, but DCYF
dropped the petition against the mother rather than tangle with me in the
superior court. However, in 2002, I began to reduce my case load in
preparation for my bike
ride across the United States, so I didn't handle a lot of cases from
2002 - 2003. When I returned, I concentrated on my campaign to be elected
to the NH Legislature. I did that because I was frankly tired of trying
to educate legislators, only to see them change every two years just as they
were beginning to see the problem with the child protection statute.
So, I didn't take many cases last year. I lost. I ran as a Republican,
and we don't have to rehash the results of the election in New Hampshire
Then the fit father walked through my door in late February
2005. Sensing an opportunity to squash DCYF's and the Courts' refusal
to follow the statute, I took the case. I surprised even myself and
won in record time. However, that doesn't mean you will win that fast.
It's a complicated issue.
1. A petition for neglect or abuse was filed against your child's mother. In most cases, DCYF identifies and locates the father. Here's the kicker: they often don't SERVE the father with the legal papers, and by the time I get involved in a case, I generally find that the NH District and Family Courts aren't requiring DCYF to show proof of service. They may call you and tell you about the petition, but they're quite inconsistent about actually legally serving you. In addition, if your name isn't on the birth certificate or isn't known when the case starts, most other states complete legal service on unfound or unknown parents by publishing a notice in the newspaper of the proceedings. DCYF considers this to violate the "confidentiality" provisions of the statute, so they just don't do it.
Why is legal service important?The Child Protection Statute was written back in the 1970's when far more parents lived together. The statute is full of references to removing the child from the "parents'" home, making orders for the "parents," plural, to correct the problems leading to the neglect petition, but until the "Bill F." decision, the statute was silent on how a fit parent goes about asserting his rights to custody of the child. The NH Supreme Court holding of In Re: Bill F. was later made a part of the Child Protection Statute, under RSA 169-C:19-e. Here is the wording of RSA 169-C:19e:
169-C:19-e Custody Hearing for Parent not Charged With Abuse or Neglect. –
A parent who has not been charged with abuse or neglect shall be afforded, upon request, a full hearing in the district or family court regarding his or her ability to obtain custody. At the hearing, the parent shall 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. [Emphasis is mine.]
Source. 2001, 229:1, eff. Jan. 1, 2002.
Legal service is important for one reason. That's the ONLY place a fit parent is informed of his right to a "fit parent" hearing.
2. Even if you, the fit parent, were legally served with the Petition for Abuse or Neglect filed against the other parent, the statute doesn't permit a parent not living with the accused parent the right to an attorney. RSA 169-C:10, II.
In my opinion, and I've studied a LOT of case law on the matter, this statute is unconstitutional. I applied to both the District and Superior Court to be appointed to represent the fit dad in February, and I stated in the motion that the statute was unconstitutional. Both courts appointed me in the clear absence of any statutory authority to do so. There is a link to the basic motion below. It's revised for you to give the court. Parents that have money will hire an attorney to represent them, but DCYF files far more petitions against poor parents, so the vast majority of fathers coming into the court won't have an attorney at ALL.
Not having an attorney means that you:
don't know you have the right to the attorney;
you don't know you have the right to the fit parent hearing; trust me, you won't get one unless you use the magic words "fit parent hearing." If you simply ask the court for custody of your child, in my experience even the judge won't tell you you have that right.
you don't know how to exercise visitation rights in a way to protect your rights; (see RSA 169-C:3, XXVII.
you don't know what you should sign or should refuse to sign;
you don't know that, assuming you are a fit parent, your decisions about your child are presumed to be in his or her best interest, and that the court, when it follows the recommendations of DCYF or the Guardian ad Litem instead of making orders that you believe are in your child's best interest, is violating your rights every time;
don't understand that by being a passive observer in the court proceedings, your are closer to losing your rights to your child(ren) every day;
and the worst thing of all, the social worker will tell you to come and talk to her about getting custody of your child. This is the absolute dumbest thing you can do. She's not a lawyer, and she will tell you what DCYF told her to tell you. She may not know any better herself. Don't beat yourself up too badly, though. You probably graduated from high school in the public school system, and they're not very good these days in teaching you your constitutional rights. The worker is probably friendly when you hear from her, and you have every reason to believe when she calls you that she's on your side. She often thinks she is on your side. Yet, in every case I've been involved with, the social workers tell the fathers they have to do all sorts of things to get custody of his child(ren). This happens because once DCYF has custody of a child, they do take their responsibility seriously to make sure that when they give up that custody, the children are in a safe place. They have a fiduciary duty - a very high duty - to make sure children are safe when the children are in their custody. But they erroneously apply standards of foster parent licensing to fit parents. The standard is simply not that high.
Among the untrue things the social worker will tell you is that you have to:
(1) agree to a criminal records check - you don't. Foster parents do. Sometimes they run it or ask your local police department to run it without your signed permission, and that's against the law. If they happen to know of your criminal record (through the mother) and it involves violence in any way, their case for a finding of unfitness is much stronger. If you have an old record for possession of marijuana, and old DWI or DUI, you're in the danger zone. It's not a reason to find you unfit, but they'll insist on drug screens and possibly a substance abuse evaluation. Those are individual circumstances, and you really need to talk to an attorney. It might be in your best interest to just do it for sake of speed, but I'd look at all the facts first. Get a lawyer.
(2) Participate in a "home study." It's bunk. Foster parents have to participate in a home study before being licensed. The statute also calls for a home study after the adjudicatory of the abusing parent's home. I would suggest that you not tell them one thing about your life except your telephone number and address. That's it. You don't tell them your marital status, your employment status, your criminal history, not one thing. You ask them where the court is, and the date of the next court hearing. You tell them sweetly that you'll have to consult your attorney before going further. AFTER you secure a lawyer, your lawyer might well decide that there is nothing wrong with telling them your personal information, but don't make that decision on your own. Print out this entire page and show it to your lawer. Othewise, you'll just talk to DCYF and they're use the information against you, trust me.
(3) She may tell you that you must sign a release for your medical or psychological records. This is a horrible violation of your rights.
I'm not saying the social worker doesn't believe her own words. She probably does believe that this is the procedure. However, DCYF has been overruled by the NH Supreme Court and statutory law on this.
More than likely, if you found this page, you're not in this category. You've done the home study, you've given the social worker your life history, and now you have to fix whatever they don't like. You only have a one room apartment, you could be young, uneducated, without a job at the moment, living with your parents, or whatever. None of those reasons are good reasons to deny you your rights, but unless you know that, you won't get your child(ren).
What you SHOULD have to do is nothing more and nothing less than appear at the fit parent hearing. This is my fantasy fit parent hearing. The father says the following:
"Your Honor, I have a home with room to have my child(ren), I have a means to support them, and I can arrange child care as necessary. I can take care of my child(ren). Other than that, I have no witnesses. It is the burden of the Division to show I am not fit. I don't believe they can meet their burden."
Assuming you haven't spoken to them at length and submitted to their unauthorized and intrusive home study, and assuming they DON'T find evidence of violent criminal history, substance abuse or child abuse, in theory, you SHOULD win. You won't win if you don't have an attorney, though, so as they say, "Don't try this at home." One day, I may find a father who takes this advice and we have a hearing that goes like that. I can dream. Until then, my job is much harder. Unless you're making $50,000 per year, wear a suit to work, and have a college degree, which is unlikely since poor children are overwhelmingly taken, here's the rest of the "process."
(3) Once you show up in court, DCYF will get an order from the Court stating that you can have visitation "at the discretion of the Division, in consultation with the Guardian ad Litem." It's a box they check on the standard court order. DCYF almost never permits unsupervised visitation with anyone they don't know very well. If they do, that person already has a good lawyer. Until you actually HAVE their fit parent hearing, they will require that the visitation be "supervised."
Sadly I recommend, as much as you might want to see your child, to hold your child, to comfort your child, or even see your child for the first time that you absolutely refuse supervised visitation. I've seen absolutely horrendous supervised visitation reports from activities as innocent as watching the Sunday football game at the grandparents, even if that's what the parent has done every Sunday for the last five years with the kids. Just tell the DCYF worker that you wish to consult an attorney before you do that. If you find this page BEFORE you've taken the social worker's advice, you're way ahead of the game.
(4) Chances are you've already submitted to supervised visitation, and are here partly because the visitation supervisor wrote something terribly nasty about you. You were completely negligent in not bringing your child a snack, toys, an activity. You spent more time talking to the visitation supervisor than interacting with your child. You spent more time interacting with your child than the visitation supervisor. She suggested something and you didn't follow her suggestion cheerfully, or heaven forbid, you outright disagreed with her. You were late. You had to leave early. Your cell phone rang. You brought someone else to the visit - like grandma. If they know and like grandma, that's fine. If grandma is on your side, they probably don't like her. You're being difficult by insisting on this other person coming. If you let your significant other (not the child's mother) change the child's diaper, you're clearly inexperienced. You yelled at your children. You didn't yell at your children when they were unruly. You didn't watch while they climbed over the broken glass in the visitation room to get to the second floor window. One mother was repeatedly written up for bringing her child a lobster dinner at the visitation center and leaving the lobster remains there. I told her to keep taking it. It was one of the few ways she had to express her love. You get the idea here. No matter what happens in visitation, you're under a microscope.
Special situaton: If you complain about evidence of abuse in foster care, hang it up. They'll fight you to the end. Talk to your lawyer about this - not the child or the visitation supervisor.
I am dead serious. I represented a father before In Re: Bill F. was decided. When he got suspicous about abuse in foster care, DCYF got ugly. When he pressed, they started moving toward terminating his rights. We eventually sued for this abuse in foster care in federal court. His rights were terminated while the case was pending and the federal court dismissed the case because he no longer had standing to sue on behalf of his children. We did get the discovery from DCYF proving beyond a doubt that he was right about the children being abused in foster care before the case was dismissed, though. It was the worst day of my legal career when his rights were terminated.
DCYF does NOT want to give you your child so (s)he can tell you it happened. You will not be permitted to ask the child about the injuries. The visitation supervisor will end the visit if you do.
If visitation goes well at first, DCYF may lengthen the visits but keep the supervision. It won't change to unsupervised unless you get an attorney and a court order. Eventually, it gets on the parent's nerves or they read a negative comment made about them by the visitation supervisor and the long spiral downward starts. Almost very single client I've ever had has been horrified when I actually shared the visitation reports with them. Once the parent doesn't trust the visitation supervisor, he has "anger management" problems, which brings me to the next violation of your rights.
(4) Requirement for parenting classes. The fit parent I just represented was required to take them solely on the basis of "inexperience." While the judge and every other parent in the court room most certainly started out his parenting life in exactly the same place, for you, this is a problem. We all start out parenthood "inexperienced." It shouldn't factor into court decisions about your fitness. Period. Go back to the top of the page and read the Supreme Court quote. Parenting is a "fundamental" right. That means the government needs an extremely good reason to deny you the right to parent your child. Inexperience isn't it, even if you first exercise your parental rights when the child is a bit older.
(5) At some point, because of the parenting class requirement, getting tired of supervised visitation, or not being sure exactly what is required of you to "get" custody of your child, your increasing frustration with the social worker, your attorney, and the court, you're bound to get irritable and maybe even nasty. At this point, you're referred for "anger management" counseling, because you're a threat to your child now. You don't get it right away, because the social worker has to write her own report to the court and get the judge to order it, so there's another three month delay at minimum. Even if you complete anger management class successfully, if you're still unhappy about all this "help" you're getting in order to "obtain custody" of your child, you're ready for the next step. # 6 and #7 can be in either order.
(6) Therapy. We need to get to the root of your anger. Actually, it's only the social worker who doesn't understand your anger. As far as she's concerned, you should be grateful for all of her help in assisting you to "fight for your child." You know exactly where it's coming from. But you get the therapy so she can find out. Please remember to sign the release to your therapist can tell all to DCYF. They'll pick the therapist. If the therapist writes a nice report, and the social worker still doesn't want you to get your children, then comes the next step.
(7) The "parenting capacity evaluation." It's a psychological test, by a different therapist of their choice to determine your ability to parent. Since it's a psychological test, and psychology isn't exactly known for it's high level of scientific predictability like the hard sciences, it's of limited benefit. Therapist makes some recommendations based on getting a parent to optimal parenting if they have any deficits. This test can probably predict who's clearly unfit, but for the most part, it will be a lot worse at distinguishing minor areas of parental weakness. The psychologist will amost certianly make SOME recommendation, however, because s/he wants to keep doing business with DCYF. Everyone can fix something to make himself or herself a better parent. The therapist maybe doesn't even realize that DCYF will take this recommendation that may well help your parenting and make it a condition of you getting your child(ren).
If you pass the parenting capacity evaluation without any recommendations for "corrective" measures, and the social worker still don't want to give your child(ren) to you, she'll have thought of something else that happened in the supervised visitation or the parenting classes that you have to correct. If the therapist finds an area where you may not know everything, he or she may make some actually useful suggestions. Like I said, these suggestions will be instantly transformed into conditions of getting your child(ren). You will have to be ordered by the court before DCYF will arrange for the therapist's recommendations - which takes more time - and you have to finish the recommendations before getting your child(ren).At this point, the child(ren) has/have probably been in out of home placement long enough to terminate mom's rights, and you failed to correct the conditions leading to abuse or neglect that was the other parent's fault, so they'll just terminate your parental rights too. In re Tricia and Trixie H., 126 N.H. 418, 493 A.2d 1146 (1985) Long story about why I think that2 NH Supreme Court decision is wrong, but I haven't had the chance to challenge it yet. I'm working on it.
(8) I almost forgot this one! Then, they'll send you a bill that includes all the services provided to the offending parent to correct the conditions leading to the petition in the first place! It's not a small bill. Can you say $20,000 - $50,000 and up? DCYF has one of the largest budgets of any state agency. In the odd event that you win the lottery, they WILL collect.
If ANY part of this describes what has happened to you, please contact me. I'll talk to you, and perhaps I'll take your case. (if you live in or have a case in NH). If you don't want me as your attorney, I'm not the least bit insulted. I have a life too. Keep reading, because there is still real help further down.
The part I find amazing about everything I've just written is that:
every single judge in this state knows the meaning of the word "shall" in a statute means that they do NOT have the discretion to deny a fit parent custody of his child under RSA 169-C:19-e. It's done often, none the less. I took a case of a fit parent a few years back where the judge gave him physical custody of his children on the same day she gave legal custody to the Division. (I wasn't the attorney at that point). The parent became the "placement" and was still required to participate the unfit mother's "case plan" to get legal custody back. It's nuts. We did successfully challenge the order for him to pay for the mother's services in that case. For a variety of reasons in that case, we held off on the fit parent hearing, and he eventually got legal custody. There were other complicating issues, not relevant here.
Why You Need an Attorney Anyway(1) There is no definition of fit parent. In my opinion, the statute is unconstitutionally vague because there is no definition of fit parent. You don't know what you have to prove to win the "fit parent" hearing.
(2) There is no definition of fit parent. In my opinion, the statute is unconstitutionally vague because there is no definition of fit parent. You don't know what you have to prove to win the "fit parent" hearing.
(3) There is no definition of fit parent. In my opinion, the statute is unconstitutionally vague because there is no definition of fit parent. You don't know what you have to prove to win the "fit parent" hearing.
If you have the idea that I'm concerned about the fact that there is no definition of fit parent and no parent can argue a fit parent hearing because he has absolutely no idea just what it is he has to prove to the court to get custody of your child(ren), making this hearing a legal minefield, you have the right idea. This is difficult for attorneys. Many attorneys don't recognize that the statute is unconstitutionally vague. DCYF fought like dogs to keep a definition out of the statute. I was there.
(4) RSA 169-C:19-e regarding the fit parent hearing is not the only way to obtain custody of your children. You might be able to get custody of your child(ren) by going to the superior or family court and filing for custody against the other parent. It's complicated, however. RSA 169-C (the Child Protection Act) doesn't authorize a change of legal custody before the dispositional hearing. RSA 169-C:19, III. DCYF asks for, and frequently gets custody of children at the first hearing, despite the wording of the statute. The statute only authorizes "protective custody," if the child is removed in an emergency situation, which is defined differently. RSA 169-C:3, XXIV. Because DCYF and the Courts violate the accused parent's rights by giving DCYF custody before the dispositional phase of the trial, your rights as a fit parent to file in the Superior Court for custody just between you and the accused parent are affected as well. See the Court form for the Preliminary Orders. There is a box to check for change of custody. I've contacted the Administrative Office of the Courts and told them that the form is wrong. They say they're working on it, but it's been quite some time now.
If You've Already been Found "Unfit."(1) There is no definition of fit parent. In my opinion, the statute is unconstitutionally vague because there is no definition of fit parent. There are circumstances where it's not worth the effort to appeal this decision, but since the the statute is unconstitutionally vague, you need the attorney.
(2) One of the consequences of being found to be an "unfit" parent is that the courts never consider you again for placement of the child. The abusive or neglecting charged parent is given every opportunity to redeem herself, but you basically get supervised visitation until the mother either gets the child(ren) back or her rights are terminated, along with yours, of course. Since there is no definition of "fit parent," your rights may wind up having your parental rights terminated by default for something that wouldn't even warrant a Petition for Neglect or Abuse against you. No matter what stage of the proceedings you are in, you really need legal counsel to correct this.
How to Get an AttorneyComplete the MOTION TO APPOINT ATTORNEY FOR FIT PARENT. Submit it to the court. If you are denied, contact me. You'll have to appeal it to the Supreme Court. I'll try to come up with the wording to fill out for the Supreme Court for the web page. It's called a Rule 11 Appeal, and it's trickier than a regular appeal.
How I Got an Order for Custody for the Fit Parent in 40 Days
First of all, I had a big advantage. The father already HAD his fit parent hearing a long time ago. In his ORDER on the fit parent hearing, the judge said that the Division had NOT met its burden of finding him unfit. The court did not make a specfic finding that the dad was fit, however, and didn't grant the dad custody as it was required to do according to the statute. If you're not a lawyer, you'll probably get a little bogged down understanding this. If you have a lawyer, take it to him or her to read. If you can read it and understand it it all, congratualtions, apply to law school!
This case was a little strange because the dad lived out of state.
1. Prior to the fit parent hearing, DCYF had the other state's Child Protective Services do the home study, citing a law known as the Interstate Compact on the Placement of Children. The judge had never ordered this study, DCYF just requested it from the other state, and then asked for a continuance because it wasn't done. Dad's attorney, instead of lookng up the law and objecting to the study, agreed to continue the hearing. I'm assuming he also told dad that he had to cooperate. If you read the Interstate Compact, though, it only applies to the placement of children in foster care or in pre-adoptive homes. (Article III). It has nothing to do with parents.
2. At any rate, it was the other state, who said they'd be happy to supervise the "placement" of the child with the dad under certain conditions because of his "inexperience." In my practice over the years, this is the third state outside of New Hampshire that has cooperated in a home study of a parent for "placement," so New Hampshire is not alone in demanding that out of state parents have a home study under the Interstate Compact prior to "placement."
3. Following the "fit parent" hearing order, dad had already complied with parenting classes, and was having extended visitation, with some of still supervised. After he read a nasty report from the parent aid, the supervised portion of his visitation had taken the predictable turn for the worse. He - hold your breath, fit parents - yelled at his child one day while he was also arguing with the parent aid. Undoubtedly, his irritation with the parent aid didn't help the situation. Coincidentially, while I was preparing this case, ABC's "Good Morning America" ran a story one morning about a study showing that over 90% of parents of young children yell at them. So, I think DCYF's requirement that dad refrain from yelling in all circumstances is a little unrealistic here. After all, something like less than 3% of parents abuse or neglect their kids. They're looking for the 90%+ behavior for you. In a court order following the bad DCYF report, the judge had chastised dad for being unwilling to follow the "process" by which the judge expected him to follow to get his child.
4. I argued that the home study, the parenting capacity evaluation, the supervised visitation and other court orders were all designed to change the burden of proof from the Division, who didn't meet its original burden to prove him unfit, to him. He had to prove he was fit - not just once, but over and over. When he got frustrated by the process because it was never-ending, he eventually found me through his internet search.
The Petition to the Superior Court for Relief
5. I filed what is known as a WRIT OF CERTIORARI in the Superior Court asking them to overturn the District Court's decision on the fit parent matter. Most people, if they know what a WRIT OF CERTIORARI is, think it's only for the Supreme Court, but that isn't true. It's a request asking a higher court to take jurisdiction because there is no direct avenue of appeal, and justice requires relief. In New Hampshire, the Superior Court can take jurisdiction over a lower court's decision.
My pleading was not a short document. It took me 13 pages to outline the mistakes made by the Division and the District Court in the law - and did the entire laundry list I listed above. I decided if I was going, I was going to preserve every issue for the Supreme Court appeal should it get that far. It's not fair to my client to print all the facts, but they were essentially what I've described above. In the end, I asked the Superior Court to answer the following constitutional questions concerning fit parents:
(a) Is an [out of state] resident bound by a child custody decision in a New Hampshire Court without notice of the proceeding, where the [out of state law] includes child protection proceedings in its definition of “child custody proceeding” and the law specifies that out of state residents are only bound by out of state child custody proceedings conducted in accordance with their statute?
(b) Is RSA 169-C:19-e unconstitutionally vague under the 14th Amendment and Article 15 in that it does not define the term "fit parent" thereby not giving the father adequate notice of what DCYF must prove to deny him custody of his child?
(c) Did the requirement for any kind of home study prior to a Bill F. hearing impermissibly place the burden on the father to prove he was fit without definition, instead of placing the burden on DCYF to prove he was unfit in the first instance, as required by In Re: Bill F., 145 N.H. 267 (2000) and RSA 169-C:19-e?
(d) Doesn't DCYF have to make a preliminary showing of unfitness to conduct a hearing at all? If so, should this preliminary showing be related to statutory definitions of abuse and neglect?
(e) Can lack of time with one's firstborn alone logically constitute grounds for "unfitness" or even "concerns" requiring parenting classes and more supervised visitation prior to assuming custody when it is the state who is responsible for that lack of parental nurturing time alone? Wouldn't that definition eventually result in undermining the fundamental nature of parental rights by requiring parenting classes for all first time parents in order to assume custody of their firstborn children upon leaving the hospital?
(f) Is the father required under the 14th Amendment or Article 15 of the NH Constitution to prove his fitness in any way whatsoever, in the absence of a definition of "fit parent" including assenting to criminal record checks, completing "home studies", parenting classes, and [case specific material deleted]?
(g) Did the District Court err, after essentially holding that DCYF did not meet its burden under RSA 169-C:19-e, according to DCYF's subjective and nebulous standard despite no definition included in the statute in [date], 2004, and by failing to cite any facts that made the father unfit, in not awarding immediate custody of [the child] to the fit father pursuant to the constitutional requirements of In Re: Bill F. and statutory requirement of RSA 169-C:19-e?
(f) Can the court rely upon an [out of state] home study report recommending "services" for the father based on (A) his inexperience in parenting unsupervised, when that inexperience was based on the fact that DCYF's insistence that prior to a finding on the issue of parental fitness that visitation be supervised; and (B) based on the father's "inexperience" that it is "imperative" that a "gradual transition plan" be implemented for the father to assume custody to deny a father custody in violation of the clear statutory requirement of RSA 169-C:19-e, which states that if a parent is found to be fit the court "shall" award custody to the fit parent. [Case specific material deleted].
(g) Is the father obligated under the 14th Amendment and Article 15 of the NH Constitution to pay for services related to foster care, [out of state CPS] studies, other expenses of DCYF regarding court ORDERS for [case specific material deleted] and supervised visitation expenses with his [child]:
(i) before he was legally notified of the proceeding?
(ii) after the District Court conceded that DCYF did not meet its burden of proving him unfit, and should have been awarded custody of his [child], therefore negating the need for supervised visitation, foster care or any services to demonstrate or prove his fitness for immediate custody?
(iii) for foster care expenses for delays caused by DCYF's requested continuances of the fit parent hearing, including their insistence on requiring a home report under the Interstate Compact when the statute clearly states that it is only applicable for "placement" in foster care or pending adoption under RSA 170-A:1, Article III(a).
(iv) for any expenses related to rehabilitating the mother's inability to care for her child?
[Note: dad was billed BIG BUCKS for this. More than $30,000. The fact that I questioned his financial liability for the huge bulk of the bill meant DCYF would have had to eat a boatload of financial responsibility if I won. In addition, had I prevailed, the financial implications for DCYF having to eat the bill alone would have been huge. If anyone else found out about it, and DCYF had to start eating more fit father's bills for services, they would no longer be quite as popular over at the legislature when they insist they have to have more money for the "abused and neglected" children. The county settled for the cost of foster care for six weeks - the time between the day he asked for his fit parent hearing, and when it was first scheduled, plus a two week continuance as for by his attorney. -The county's settlement opened the way for DCYF to settle the case - it cut the figure from the $30,000+ bill to less than $1000.]
(h) Is the father entitled to immediate legal and physical custody of his daughter under RSA 169-C:19-e by virtue of the fact that he has not abused or neglected her, and the issue of his parental fitness is res judicata in his favor?
(i) Is an absent father entitled to court appointed counsel for purposes of protecting his rights from, and if so, is it necessary for the Court to appoint counsel even prior to the father's appearance for purposes [case specific material deleted - sorry - for purposes of making sure the dad got legal notice of the proceedings is part of it.]
(j) Does the fundamental nature of the father's parental rights and the 14th Amendment and Article 15 of the NH Constitution mandate that this court appoint counsel in this proceeding to determine the important legal issues raised herein?
(k) Is it a violation of due process to use information in contained in a report concerning another child in the NH District Court if [dad] is not entitled to review a copy of that report, because it does not involve his child? (See & # 19 above and RSA 170-G:8-a).
[Note - this looks worse than it is. It was another report on mom - the DCYF report strongly suggested that dad might not be fit because he was living with mom at the time of the report (and his name came up on their computer system), but dad had reported mom just before he moved out, so we suspected it was his report.]
(l) Does DCYF have the statutory or inherent legal authority to run criminal record checks, or require [dad] to sign releases for criminal record checks prior to any hearing under RSA 169-C:19-e or prior to "placement" of [child] at his home when he is entitled to “custody?”
(m) Is the current Court ORDER for a "Parenting Capacity/Psychological Evaluation" and [case specific material deleted] an unconstitutional invasion of [dad's] privacy in the absence of any evidence he is in any way unfit or [case specific material deleted] and does the ORDER constitute an unconstitutional continuation of placing the burden on him to prove parental fitness by increasingly invasive means instead of placing the burden on DCYF to show parental unfitness in the first instance?
WHEREFORE, Petitioner respectfully requests the following relief:
A. That this court to issue an IMMEDIATE WRIT OF MANDAMUS and ORDER the District Court to award [dad] final legal and physical custody under RSA 169-C:19-e and because reunification is not contemplated by the Court with the mother, to ORDER the District Court to close the proceeding (1) because he should not be bound by the custody determination made without notice to him; and (2) because, even in the absence of a definition of “fit parent,” the district court never-the-less held that DCYF did not meet their burden that [the father] was an unfit parent, and the Court was mandated to transfer custody of [child] to [his/her] father.
Note: I had to ask for the Writ of Mandamus (an order from a higher court telling the lower court to follow the law and make the right order) because RSA 169-C:4 says that the Superior Court can't issue any order affecting the custody of the child unless the case is on appeal in the Superior Court. We weren't in the Superior Court on appeal, and it was the one issue I forgot to mentioin in the petition - whether or not that portion of the law was unconstitutional.
B. That this court issue the Writ of Certiorari for purposes of determining the balance of the legal issues presented.
C. That this court vacate the current ORDER for a "Parenting Capacity/Psychological Evaluation and to follow recommendations for treatment or services, to be arranged by DCYF" until it can determine if such an evaluation is an unconstitutional means of placing a continuing burden on the father to prove fitness and delay his immediate assumption custody of his daughter as required by RSA 169-C:19-e.
D. That if this Court is not willing to ORDER the District Court to transfer custody to the father, that or willing to vacate the ORDER as requested in Paragraph C above, that it delete the requirement that DCYF arrange the evaluation.
E. That this court determine the answers to the above posed legal questions, as they present important and as yet unanswered questions about due process involving fit parents in abuse and neglect proceedings. The constitutionality of RSA 169-27, to the extent that it creates liability bases on parentage rather than on the parent's responsibility for placement of a child, also needs to be determined, because it is a significant monetary liability for the father, statutorily mandated despite his lack of notice or fault in creating the liability.
F. That this court exercise its authority to fashion equitable remedies, and ORDER DCYF and CASA to destroy all reports on all media, including computer storage, obtained without statutory authorization or where consent was obtained for such reports based on misstatements of the law or erroneous court ORDERS, including, but not limited to: criminal record checks, report of [out of state child protective services] obtained erroneously under RSA 170-A, and all reports of parental aids in supervised visitation, and reports of all home visits by NH DCYF and/or the Guardian ad Litem, and that this court destroy all copies of said reports upon the close of this case. This would include destruction of all DCYF and CASA records involving the father after the finding of parental fitness on [date], 2004.
G. That this court exercise its broad discretion to fashion equitable remedies and ORDER DCYF reimburse the fit father for all legal and visitation expenses including mileage and tolls in picking up and returning his daughter or to attend DCYF meetings and court hearings when he should have had custody of his daughter under RSA 169-C:19-e, i.e. for all expenses during the period of time after [date], 2004, because DCYF was on clear notice that they had no right to deny a fit father custody of his child.
H. That if this WRIT is issued that a redacted copy of the ORDER be published on the Superior Court web site because (1) the confidential nature of these proceedings mean that DCYF and the lower courts may continue to unconstitutionally place the burden of proving parental fitness on parents in proceedings under RSA 169:C:19-e and (2) it is clear that the [ ] District Court believes it has the authority to do what it did, and the practice is likely to continue in closed proceedings if there is no publication. In addition, this is the fourth case since Bill F. was decided where undersigned counsel represented the interests of the fit parent where the court did not grant custody to the fit parent. For various reasons, none of those cases made it to the NH Supreme Court, although in at least one, DCYF dropped a petition prior to adjudication rather than submit to Superior Court jurisdiction on a WRIT. Undersigned attorney is also in possession of a videotaped comment by a judge in the CLE on defending parents in abuse and neglect matters that would seem to indicate that there was at least one case where he was overturned in his decision on the fit parent's custody. Given the constitutional underpinnings of the Bill F. decision, this practice should not be permitted to continue in direct violation of its holding. [I thought this was just plain fun to write!]
I. For other and such relief as may be just.
This was part of the document I filed in the court about which the DCYF attorney stated, on the record, in the District Court (paraphrased - I'm quoting from memory here):
So they agreed to close the petition and return the child home."We contacted the attorney general's office and they advised us that we would probably not prevail in the Superior Court."
If you're a fit parent and if any part of what I described in this page happened to you in a New Hampshire court, please contact Paula Werme.
For a form to ask the court to appoint you an attorney, click here.
Disclaimer: The information contained in this page is informational, and not be construed as legal advice. While I highly suggest that you take the page to your attorney, he or she may advise you differently. At that point, you have the option of taking his advice or looking for other counsel. The court will probably not keep appointing you attorneys until you find someone who reads this and agrees with the opinions expressed in here, so if you want someone to make the legal arguments I have expressed here, you may have to pay someone to do so. The information concerning the laws and case law referred to in this page is current only as of the date of the last update.
Last updated 2005 April 3.
1. For those who think I just broke the law again by revealing what was said in a Child Protection Hearing, better check the new wording of RSA 169-C:25, II. If you can find the name of the child anywhere on my web site, the address for the PCC is 4 Park St. 03301.
2. In re: Tricia H.126 N.H. 418 - The basic court holding says that a parent who hasn't been charged with abuse or neglect can still have his rights terminated for failing to correct conditions leading to abuse or neglect. While the facts of that case would lead me to the same result, it doesn't take into account the numerous non-custodial fit parents who do nothing more than sit passively in court proceedings against other parent without legal counsel because they have no idea that they have rights.
I also have a problem with the case of a fit parent I lost in the Termination of Parental Rights stage when they didn't serve him with neglect petition for two years, took another year to do DNA testing, supervised his visitaition for for several more years, and eventually terminated his rights because he had the unmitigated gall to give his children Christmas presents with the mother's name on them.
This was a substantial length of time after he had a psyche eval saying he was a fine parent, but the social worker told him she would never give children to a man. DCYF just bided their time while they collected a lot of picky visitation reports. DCYF eventually obtained another "bonding assessment" with another provider that said the children were more bonded to the abusive foster mother or some such nonsense. The neglectful mom also showed up at a couple of dad's supervised visitations, and frightened the children the last time by yelling at the parent aid. DCYF blamed dad because she knew where he lived and assumed he told her when the visitation was. (Dad had shared mom's visitation for a year or so before the DNA test results came back, because DCYF wouldn't give him visitation on his own. - why wouldn't he think it's OK for mom to show up to say "Hi?")
Following the incident where mom frightened the parent aid and the children DCYF and CASA, in its infinite wisdom, determined that the solution for that was to never permit the mother to see the children again. An opportunity to apologize to her children for the incident never occurred to them. According to DCYF, the children were later "traumatized" by the experience of Christmas gifts with her name on it, which was sufficient to immediately stop all contact forever and terminate dad's rights. He failed to agree with or abide by the court order that said the he wasn't to expose the children to their mother. Troxel v. Granville, decided by the U.S. Supreme Court while we were fighting over the issue of whether or not the father had the right to allow the mother to see her children specifically states that a fit parent's decisions on who visits his children is presumed to be in the best interest of the children. NH Court's don't recognize the rights of fit parents to speak for their children's best interests in abuse and neglect proceedings, and they certainly aren't going to listen to the U.S. Supreme Court on the issue of fit parent's rights when they know the parent's chances of a successful appeal there are so low.
Of course this was the case where DCYF denied for years the abuse by the foster mom, so perhaps the children had a good reason to be frightened when mom yelled at parent aid. Two tours of duty in Vietnam, and this is how his government treats a fit father. The case started before In Re: Bill F. was decided. I filed for a "Bill F." hearing the day after it was decided in this case, and the court refused to hold it. I guess we learn by our failures. This case was one reason I knew all the law and the reason why the fit parent in my 2005 case was being taken to the cleaners. I know it in my sleep - have nightmares about it actually.