HB 0626

This bill establishes new requirements for notice to parents of child abuse and neglect proceedings and for determining custody during and after the disposition of such proceedings. The bill requires the court to appoint an attorney for any parent not served in person and any indigent parent appearing and requesting counsel.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Child Abuse and Neglect Adjudications; Changes in Custody. RSA 169-C:4, III is repealed and reenacted to read as follows:

III. When a finding of neglect or abuse is made against both biological or adoptive parents and both parents were given actual legal notice of the proceeding under RSA 169-C:8, and a custody award has been made pursuant to this chapter after the dispositional phase of the hearing and after the department has completed the social study required under RSA 169-C:18, V prior to the dispositional hearing, including the appropriateness of custody of both parents, said order shall not be modified or changed nor shall another order affecting the status of the child be issued by the superior court except on appeal under RSA 169-C:28. Otherwise, custody jurisdiction shall continue concurrently under RSA 458-A in the superior or family court for the parent not charged with abuse or neglect to petition for a permanent change of custody. A finding of abuse or neglect against one parent creates a presumption in favor of custody for the other parent under RSA 458:17, V(3) that the circumstances affecting the welfare of the child have been so greatly altered that there is a strong possibility that the child will be harmed if the child continues to live under the present arrangement.

2 Child Abuse and Neglect Proceedings; Protective Custody; Notification of Non-custodial Parent. Amend RSA 169-C:6, II-V to read as follows:

II. If a police or juvenile probation and parole officer removes a child under paragraph I above, the officer:

(a) Shall inform the court forthwith whereupon continued protective custody pending a hearing may be ordered by the court;

(b) May take the child to a child protection services worker of the department; or

(c) May place the child in a foster home; if a child is placed directly in a foster home, the department shall be notified of the incident and where the child is placed within 24 hours, unless there is a physician involved and treating the child and the child is or will be taken to and admitted to a hospital; and

(d) Shall, when the child is removed from an individual other than a parent or a person legally responsible for the child, make every reasonable effort to inform [~~the parent~~] both parents or other [~~person~~] persons legally responsible for the child's care where the child has been taken.

III. Any police or juvenile probation and parole officer or other individual acting in good faith pursuant to this section, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as a result of such removal or placement.

IV. The court shall hold a hearing on the matter within 24 hours of taking the child into protective custody, Sundays and holidays excluded. Notice shall be given to both parents and all parties designated by the petitioner or the court.

V. If a child is found by a child protection services worker of the department to be in imminent danger in such circumstances or surroundings and where immediate removal appears necessary to protect the child from such imminent danger, the department's child protection services worker shall contact a judge or clerk immediately for an order to remove the child. Prior to any order authorizing foster placement, the child protective service worker shall inform the judge of efforts to locate any non-custodial parent or other relatives for temporary placement. No non-custodial parent who has not been alleged to have abused or neglected his or her child shall be denied the right to have temporary custody until a hearing on the matter. If the non-custodial parent is not found prior to foster care placement, but is found afterward, the placement order shall specify that the parent has the right, and shall be immediately informed of his or her right by the department to immediate placement, and the right to petition for temporary or permanent custody of the child under RSA 458:17.

3 Child Abuse and Neglect Proceedings; Appointment of Attorneys for Certain Parents Required. Amend RSA 169-C:10, II(a) to read as follows:

II.(a) In cases involving a neglected or abused child under this chapter, where the child's expressed interests conflict with the recommendation for dispositional orders of the guardian ad litem, the court may appoint an attorney to represent the interests of the child. 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] shall appoint an attorney for any parent not served in person and any indigent parent appearing who requests counsel. The court shall not appoint an attorney to represent any other persons involved in a case brought under this chapter.

4 Child Abuse and Neglect Proceedings; Preliminary Disposition; Custody. RSA 169-C:16, I is repealed and reenacted to read as follows:

I.(a) If the court finds sufficient facts to sustain the petition, at a preliminary disposition, the court shall place the child with any parent not accused of abuse or neglect appearing and requesting temporary custody. If a parent not accused of abuse or neglect is not served at the time of the preliminary hearing, the court shall make an order that the parent may assume custody by contacting the department and showing proof of identity at any time prior to the adjudicatory hearing. The order shall also specify that the department shall arrange service of the petition on the non-offending parent, and advise him or her of his or her appointed attorney's address and telephone number.

(b) If any non-charged parent is legally served and does not appear, the court may:

(1) Permit the child to remain with the alleged abusive or neglectful parent, relative, guardian, or other custodian, subject to such conditions and limitations as the court may prescribe.

(4) Issue an order of protection setting forth conditions of behavior by a charged parent, relative, guardian, custodian, or a household member. Such order may require any such person to:

(B) Permit an alleged abusive or neglectful parent or other named person to visit the child at stated periods and under such conditions as the court may order. The court may not make an order denying an uncharged parent any current custodial or visitation rights.

(C) Order the alleged abusive or neglectful parent to abstain from harmful conduct with respect to the child or any person to whom custody of the child is awarded.

(D) Order the alleged abusive or neglectful parent to correct specified deficiencies in the home that make the home a harmful environment for the child.

(E) Order the alleged abusive or neglectful parent to refrain from specified acts of commission or omission that make the home a harmful environment for the child.

5 Child Abuse and Neglect Proceedings; Adjudicatory Hearing; Custody. Amend RSA 169-C:18, V to read as follows:

V. If the court determines that a child has been abused or neglected, the court shall order a child placing agency to make an investigation and a social study consisting of, but not limited to, the home conditions, family background, and financial assessment, school record, mental, physical and social history of the family, including sibling relationships and residences for appropriateness of preserving relationships between siblings who are separated as a result of court ordered placement, and submit it in writing to the court prior to the final disposition of the case. No disposition order shall be made by a court without first reviewing the social study except pursuant to a voluntary consent order or when waived by all the parties. Preliminary orders, continued pursuant to RSA 169-C:16, may be entered or modified as appropriate until the dispositional hearing with the exception that legal custody of the child shall not be given to the department until the dispositional hearing and, until a full social study has been submitted to the court. In no case shall the court award legal custody of the child to the department unless proof of legal service for both parents is filed with the court, both parents have been informed of any right to assigned counsel, and the court has documented that any parent not the subject of the petition has been informed that they have the right to petition for permanent legal custody under RSA 458.

6 Uniform Child Custody Jurisdiction Act; Child Abuse and Neglect Proceedings Added to Definition of Custody Proceedings. Amend RSA 458:2-A, III to read as follows:

III. "Custody proceeding" includes proceedings in which a custody determination is at issue or is one of several issues, including any action or proceeding brought to annul a marriage or to declare the nullity of a void marriage, or for a separation, or for a divorce, or relative to the guardianship of a minor, or relative to child abuse and neglect under RSA 169-C, but not including proceedings for adoption[~~, child protective proceedings or proceedings for permanent termination of parental custody,~~] or proceedings involving the guardianship and custody of children found to be [~~neglected or~~] dependent pursuant to RSA 169-B[~~, 169-C,~~] or 169-D.

7 Uniform Child Custody Jurisdiction Act; Custody of Children in Abuse and Neglect Cases. Amend RSA 458:17, V(a)(3) and (4) to read as follows:

(3) The circumstances affecting the welfare of the child have been so greatly altered that there is a strong possibility that the child will be harmed if the child continues to live under the present arrangement; [or]

(4) If the court finds that a minor child is of sufficient maturity to make a sound judgment about his or her proper custody, the court may give substantial weight to the preference of the mature minor child as to the parent with whom he or she wants to live. Under these circumstances, the court shall also give due consideration to other factors which may have affected the minor child's preference, including, but not limited to, whether the minor child's preference was based on undesirable or improper influences[.]; or

(5) Following a petition for neglect or abuse being filed in the district or family court, any parent not named as a perpetrator of abuse or neglect may petition this court for a permanent change of custody at any stage of the proceedings. For purposes of a permanent change of custody, a finding of abuse or neglect against the other parent creates a presumption that circumstances have changed under RSA 458:17, V(a)(3) such that the circumstances affecting the welfare of the child have been so greatly altered that there is a strong possibility that the child will be harmed if the child continues to live under the present arrangement. In addition, when a petition for a change of custody if filed alleging a finding of abuse or neglect against a parent, there will also be a rebuttable presumption that the best interest of the child is served in the custody of the other biological parent.

8 Repeal. RSA 169-C:19-e, relative to custody hearing for parent not charged with abuse or neglect, is repealed.

The Department of Health and Human Services stated this bill expands the right to counsel to include parents not served in person and any indigent parent appearing whom requests counsel. The Department cannot estimate the number of additional parents entitled to counsel, but maintains data on absent parents in abuse and neglect cases, and assumed they would comprise a portion of the additional people eligible for assigned counsel. Based on calendar year 2001 data, 61 absent parents would be eligible for assigned counsel at an average cost of $725, or a total of $44,225. Federal, Title IV-E funds would reimburse the state for one-half of the costs and the state and counties share the remaining one-half at a rate of 75% state and 25% county.

The Judicial Branch indicated a potential fiscal impact will result since parents not charged with abuse or neglect will petition for a permanent change of custody. The Branch could not determine the number of additional abuse or neglect proceedings but stated they can be contested and last a full day or longer. The Branch stated the cost of a full day hearing is $950 in superior court and $552 in district court before a marital master. There would be additional costs incurred for the judge to write the decision and for court security. The court also processes requests for court-appointed counsel. The Branch stated a Court Assistant II processes a request in approximately 30 minutes and the judge reviews and acts upon the request in about 10 minutes. Based on the salary and benefits for both, each request costs approximately $18.96. The Branch estimated this bill will result in 528 new requests resulting in additional expenditures of approximately $10,011.

The Department of Justice stated this bill will have no fiscal impact on its operations. The Department stated it is seldom involved in these matters and the number of cases involving the Department would be negligible and would not increase costs.

The Judicial Council indicated appointments made under the Child Protection Statute are the responsibility of the Department of Health and Human Services and the counties. The Council stated most guardians appointed in these cases are CASA volunteers and any additional cases would be handled by a CASA volunteer, and therefor, there would be no fiscal impact on indigent defense funds.