SB 463-FN - AS INTRODUCED
2024 SESSION
24-3021
09/08
SENATE BILL 463-FN
AN ACT expanding access to court-appointed counsel for children in dependency proceedings.
SPONSORS: Sen. Carson, Dist 14; Sen. Gannon, Dist 23; Sen. Whitley, Dist 15; Rep. Ball, Rock. 25; Rep. M. Pearson, Rock. 34
COMMITTEE: Judiciary
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ANALYSIS
This bill makes various changes regarding the appointment of counsel for children, including providing a right to an attorney in certain situations.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-3021
09/08
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT expanding access to court-appointed counsel for children in dependency proceedings.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Statement of Findings. The general court hereby finds that:
I. Children in child protection proceedings under RSA 169-C experience significant adversity, trauma, and loss. Some of these children are removed from their homes and placed in group homes or other child care institutions, separating them from their schools, communities, families, and friends. These children are some of New Hampshire’s most vulnerable.
II. Children have important legal rights at stake in RSA 169-C proceedings. In complex abuse and neglect cases, including those in which children are in, or at substantial risk of, institutional placement, legal representation of the child’s expressed interests is necessary to ensure the protection of those rights.
III. Court-appointed special advocates (CASA) and guardians ad litem (GAL) play important roles in supporting children throughout their involvement in the child protection system. The appointment of legal counsel for children in RSA 169-C proceedings shall not affect the appointment and role of CASAs or GALs pursuant to RSA 169-C:10, I. CASAs and GALs shall continue to play an important role in advocating for the best interests of the child.
IV. Providing counsel for children in child protection cases is a nationally recognized best practice. Children who have legal representation feel a sense of agency over the outcomes in their cases and often obtain better results than those without representation, including a reduction of time to permanency.
2 Child Protection Act; Attorneys and Guardians Ad Litem. Amend RSA 169-C:10 to read as follows:
169-C:10 Attorneys and Guardians Ad Litem.
I. In cases brought pursuant to this chapter involving a neglected or abused child, the court shall appoint a Court Appointed Special Advocate (CASA) or other approved program guardian ad litem for the child. If a CASA or other approved program guardian ad litem is unavailable for appointment, the court may then appoint an attorney or other guardian ad litem as the guardian ad litem for the child. The court shall not appoint an attorney for any guardian ad litem appointed for the child. The CASA or other approved program guardian ad litem shall have the same authority and access to information as any other guardian ad litem. For purposes of this paragraph, "unavailable for appointment" means that there is no CASA or other approved program guardian ad litem available for appointment by the court following a finding of reasonable cause at the preliminary hearing held under RSA 169-C:15 so that the child's interests may effectively be represented in preparation for and at an adjudicatory hearing.
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 expressed interests of the child. If a child’s request for appointment of counsel is denied, the court shall state the reason for denial in an order or on the record. The child shall be notified of the court’s decision. 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 interest. The court shall not appoint an attorney to represent any other persons involved in a case brought under this chapter.
(b) In cases under this chapter, the court shall appoint an attorney to represent the expressed interests of a child who is placed in any group home or child care institution as defined in RSA 170-E:25 or certified by the department for the care of children placed pursuant to RSA 169-C, or in any state operated residential treatment program. Except in the case of an emergency, if the department determines that the child's needs indicate such placement should be considered, the department shall notify the court within 2 business days of such determination, and the court shall appoint counsel to represent the expressed interests of the child. Such notification shall occur prior to referral for an independent assessment or submission of child-specific information to such placement. In the case of an emergency necessitating immediate placement of a child in a group home, child care institution, or any state operated residential treatment program, the department shall notify the court within 2 business days of such placement.
[(b)] (c) When an attorney is appointed as counsel for a child, representation may include counsel and investigative, expert and other services, including process to compel the attendance of witnesses, as may be necessary to protect the rights of the child.
(d) An attorney appointed as counsel for the child shall have the right to request to view and copy the child’s medical, dental, psychological, psychiatric, educational, and counseling records, including those maintained by any group home or child care institution as defined in RSA 170-E:25. Such request shall not be denied except for good cause shown. Records provided to counsel under this subparagraph shall only be used for proceedings under this chapter.
III. The New Hampshire supreme court shall adopt rules regarding the duties and responsibilities of the CASA guardian ad litem or other guardian ad litem appointed for the child.
3 New Paragraph; Foster Care Children's Bill of Rights; Right to Request an Attorney in a Child Protection Case. Amend RSA 170-G:21 by inserting after paragraph XIV the following new paragraph:
XIV-a. To be informed of the right to request an attorney under RSA 169-C:10, II(a) and of the guaranteed right to an attorney under RSA 169-C:10, II(b). The department shall provide the child with a written statement of these rights and the process by which to request an attorney.
4 Effective Date. This act shall take effect January 1, 2025.
24-3021
Revised 1/24/24
SB 463-FN- FISCAL NOTE
AS INTRODUCED
AN ACT expanding access to court-appointed counsel for children in dependency proceedings.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | $0 | $0 | $0 | ||
Revenue Fund(s) | None | |||||
Expenditures | $0 | $270,000+ general funds; $90,000 federal funds | $506,000+ general funds; $169,000federal funds | $521,000+ general funds; $174,000 federal funds | ||
Funding Source(s) | General funds, federal funds | |||||
Appropriations | $0 | $0 | $0 | $0 | ||
Funding Source(s) | None | |||||
• Does this bill provide sufficient funding to cover estimated expenditures? [X] No • Does this bill authorize new positions to implement this bill? [X] No | ||||||
METHODOLOGY:
This bill makes various changes regarding the appointment of counsel for children, such as providing a right to an attorney in certain situations by expanding access to court-appointed counsel for children in dependency proceedings. The Department of Health and Human Services states that the bill may result in new legal arguments and/or issues that attorneys employed by the Division for Children, Youth, and Families (DCYF) will need to address. The Department anticipates needing the following five additional staff attorneys: one each for the North Country (Berlin/Littleton/Conway), Seacoast region (Rochester/Portsmouth), and Western region (Keene/Claremont), and two for the Central region (Southern Laconia/Concord/Manchester). These positions will be eligible for 25 percent federal funding, resulting in the costs shown below. (Since the bill has an effective date of January 1, 2025, first year costs, including equipment and other startup expenses, reflect 50 percent of a full year's costs.)
| FY25 | FY26 | FY27 |
Attorney III (5 positions) |
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|
|
General Funds | $270,000 | $506,250 | $521,250 |
Federal Funds | $90,000 | $168,750 | $173,750 |
Total: | $360,000 | $675,000 | $695,000 |
The Judicial Council states that under current law, there have been few cases in which the Council has reimbursed counsel for cases arising under the Child Protection Act. From November 2022 through November 2023, the Council appointed attorneys to four children. The average cost to the state in those four cases was $1002, representing nine to eleven hours of work per case. The Council notes that this figure likely understates that cost that will be incurred as a result of this bill, since the bill may result in attorneys being appointed earlier in each case. It is unknown how much time appointed attorneys would need to spend on these cases, but the current fee cap under Supreme Court Rule 48 is $2,550. The maximum reimbursement for a juvenile review hearing is $450. Fee caps can be exceeded upon authorization from the court. The Council notes that the number of children requiring attorneys is unknown at this time.
AGENCIES CONTACTED:
Department of Health and Human Services and Judicial Council