N.H. scores a ‘D’ in legal rights of abused children

A new study reports that New Hampshire does a less than satisfactory job in protecting the rights of abused and neglected children.

The peer-reviewed study, “A Child’s Right to Counsel: A National Report Card on Legal Representation for Abused and Neglected Children,” was released by First Star, a nonprofit policy organization, and the Children’s Advocacy Institute at the University of San Diego School of Law, New Hampshire was given a “D” grade, primarily because attorneys are not mandatory in child abuse and neglect cases.

"The federal government reported that nearly 800,000 children were abused or neglected in 2007," said Amy Harfeld, executive director of First Star. "In the current economic recession, these children are suffering more than ever – reports of child abuse have skyrocketed while resources to help them have been placed in jeopardy. Most of these children will go through court proceedings that will determine their lives and futures. Yet while the state and the allegedly abusive or neglectful parent stand in court with attorneys by their sides, the children often stand alone and silent. They are herded through the system without a strong voice to advocate on their behalf. This is a troubling double-standard."

While current federal law requires a “guardian ad litem” be appointed for a child in abuse and neglect cases, that guardian is not required to be an attorney.

New Hampshire does have an advocacy program — Court Appointed Special Advocates, or CASA — through which volunteers advocate in New Hampshire’s courts and welfare systems for the interests of abused and neglected children.

In fact, the study commended CASA on its efforts, but according to the statutes cited in the report, use of a specific court-appointed attorney vs. a non-attorney guardian is not required in the Granite State.

“First Star and CAI strongly encourage New Hampshire to take steps to ensuring that every child is also represented by client-directed legal counsel,” said the researchers.

Marcia Sink, president of CASA NH and president of the national CASA organization, said she wasn’t “surprised” by the report, “but it really doesn’t reflect what’s going on in the state. It’s their interpretation of the law. I feel kids are really getting adequate representation.”

Sink said all children in New Hampshire involved in abuse and neglect cases are given a certified guardian at litem, which could be a CASA volunteer, a privately paid guardian (who could be a counselor, therapist or another certified individual) or an attorney.

“At the discretion of the court, an attorney may be appointed if there is a conflict between what the child wants vs. what the guardian feels is in the best interests of the child,” said Sink. “In most of our cases, the (guardian ad litem) is able to articulate the best interests of the child and the child’s wishes. Sometimes it’s not a good use of resources to use an attorney. The costs alone could be an issue.”

She said a CASA volunteer is in most courts with abuse and neglect cases, and is typically a judge’s “first choice.”

“Seventy-five to 80 percent of (guardian ad litem) appointments made by a judge are for CASA,” she added.

The report focuses on whether six specific laws or rules are present in a state, including mandatory attorney representation of a child, duration of appointment, advocacy specific to the child, specialized training/education for counsel, legal status of the child and application of the legal profession’s “Rules of Professional Conduct.” Caseload limits are also considered but not scored.

New Hampshire was among eight states given a grade of “D.” The others were Arizona, Georgia, Illinois, Kentucky, Missouri, South Dakota and Washington. Seven states — Delaware, Florida, Hawaii, Idaho, Indiana, Maine and North Dakota — were given a failing grade.

In all, 29 states received grades of “C” or lower.

Connecticut and Massachusetts ranked the best in the country for supporting children in the legal system; both received an “A+” from the researchers.

Elsewhere in New England, Vermont earned an “A” and Rhode Island a “B.”

The report also scored New Hampshire poorly on not expressly guaranteeing children “will be represented by an attorney during appeals,” nor are there laws requiring specific training for attorneys to practice as a child’s counsel even though New Hampshire is one of just 13 states where National Association of Council for Children — the only accredited certification for attorneys representing abused and neglected children — is available, according to the report.

The report pointed out that New Hampshire law also does not specify caseload standards for attorneys appointed to represent children in dependency proceedings.

On the other hand, New Hampshire was awarded the maximum number of points for requiring attorneys “to advocate for the expressed wishes of the child in a client-directed manner,” for granting the child “the legal status of a party” with all applicable rights, and having full “professional conduct” standards (e.g. client-attorney confidentiality) for the child, where the child is treated like any other client.

CASA’s Sink said she feels New Hampshire’s family court system has come a long way in recent years. If anything needs more work, she said, it is the availability of social services.

“Eighty percent of cases involve substance abuse and a huge percent involve mental illness,” said Sink. “Services are drying up, and it’s becoming more difficult to access them.”

A copy of the full report may be downloaded at firststar.org. — CINDY KIBBE/NEW HAMPSHIRE BUSINESS REVIEW