motion_to_appoint

In any case of neglect or abuse brought pursuant to this chapter, the court shall appoint an attorney to represent an indigent parent alleged to have neglected or abused his or her child. In addition, the court may appoint an attorney to represent an indigent parent not alleged to have neglected or abused his or her child if the parent is a household member and such independent legal representation is necessary to protect the parent's interests. The court shall not appoint an attorney to represent any other persons involved in a case brought under this chapter.

2.   Proceedings under RSA 169-C affect critically important rights I have as a parent, and to the extent it denies me the opportunity to consult with an attorney to protect those rights, the statute may be unconstitutional.   See In Re: Shelby R., 148 N.H. 237 (2002).

3.    Among my rights affected by this proceeding are:

       A.      If this court awards custody of my child to DCYF as a result of the abuse or neglect of the custodial parent, my rights to petition in the Superior Court for custody of my child against the custodial parent are automatically vacated.   See RSA 169-C:4, III. In a proceeding under RSA 458:17, a change of custody is permitted upon a showing by clear and convincing evidence that "the child's present environment is detrimental to the child's physical, mental, or emotional health and that the advantage to the child of modifying a permanent custody order outweighs the harm likely to be caused by the change in environment". There is no requirement for a showing that I am fit. RSA 458:17, V(a)(3). Fitness under RSA 458:17 is presumed. Just the possibility that I will lose my right to petition against the mother for custody as a result of an allegation of abuse or neglect is sufficient to trigger my rights to counsel.

       B.      This Court has the broad discretion under the Child Protection Act to make ORDERS restricting visitation and/or custody, it can order EITHER parent to participate in a variety of programs or intrusive psychological testing, counseling, parenting classes, or supervised visitation.   RSA 169-C:16, RSA 169-C:18, RSA 169-C:19,. Any or all of those possible orders place restrictions or conditions on my fundamental rights to custody of my child(ren) without any showing that I am unfit. The United States Supreme Court, in the case of Troxel v. Granville, 530 U.S. 57 (2000) stated ""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." It is likely impossible for this Court to make ORDERS that do not restrict my rights. The mere possibility that this may happen is sufficient to trigger my constitutional right to counsel.

        C.     RSA 169-C:27 states that I can be held financially responsible for costs associated services provided to the offending parent to correct conditions leading to the abuse or neglect petition. It may be unconstitutional to hold me financially responsible to pay for services for services for the other parent to correct conditions leading to the neglect petition. I am requesting an attorney to protect my financial rights.

          D.   RSA 169-C:19-e states that I am given the opportunity to petition this court for a "fit parent" hearing to determine my rights to the custody of my child. There is no definition of "fit parent" in any part of New Hampshire law. I cannot possibly protect my rights under this statute in the absence of a definition of "fit parent" because there is no way I can know what it is that I must prove to prevail in that hearing. I need an attorney to assist me in protecting my rights.

           E.   As a result of a Petition for Neglect (or Abuse) being filed against the custodial parent, my parental rights are subject to termination. The mere possiblity of this drastic denial of my fundamental rights is sufficient to trigger my constitutional right to counsel.

4.   I am unable to afford an attorney without this court's assistance. I will complete the financial affidavit used for these types of cases once it is given to me by this Court.

WHEREFORE, Petitioner respectfully requests the following relief:

A.    That this Court appoint an attorney to represent me in this matter.

B.    For other and such relief as may be just.

Respectfully submitted,

Date:

_________________________________________________
Signature of Parent

Name: __________________________________________

Address: ________________________________________

Phone: _________________________________________