NH Laws on Parental Rights and Responsibilities

Defend The Children.Org
NH Laws on Parental Rights and Responsibilities

TITLE XII
PUBLIC SAFETY AND WELFARE

CHAPTER 169-C
CHILD PROTECTION ACT

Section 169-C:1

169-C:1 Short Title. – This chapter shall be known as the Child Protection Act.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:2

169-C:2 Purpose. –
I. It is the purpose of this chapter, through the mandatory reporting of suspected instances of child abuse or neglect, to provide protection to children whose life, health or welfare is endangered and to establish a judicial framework to protect the rights of all parties involved in the adjudication of child abuse or neglect cases. Each child coming within the provisions of this chapter shall receive, preferably in his own home, the care, emotional security, guidance and control that will promote the child's best interest; and, if the child should be removed from the control of his parents, guardian or custodian, adequate care shall be secured for the child. This chapter seeks to coordinate efforts by state and local authorities, in cooperation with private agencies and organizations, citizens' groups, and concerned individuals, to:
(a) Protect the safety of the child.
(b) Preserve the unity of the family whenever possible.
(c) Provide assistance to parents to deal with and correct problems in order to avoid removal of children from the family.
(d) Take such action as may be necessary to prevent abuse or neglect of children.
(e) Provide protection, treatment and rehabilitation, as needed, to children placed in alternative care.
II. This chapter shall be liberally construed to the end that its purpose may be carried out, to wit:
(a) To encourage the mental, emotional, and physical development of each child coming within the provisions of this chapter, by providing him with the protection, care, treatment, counselling, supervision, and rehabilitative resources which he needs and has a right to receive.
(b) To achieve the foregoing purposes and policies, whenever possible, by keeping a child in contact with his home community and in a family environment by preserving the unity of the family and separating the child from his parents only when the safety of the child is in danger or when it is clearly necessary for his welfare or the interests of the public safety and when it can be clearly shown that a change in custody and control will plainly better the child; and
(c) To provide effective judicial procedures through which the provisions of this chapter are executed and enforced and which recognize and enforce the constitutional and other rights of the parties and assures them a fair hearing.
Source. 1979, 361:2. 1983, 331:1, 2, eff. Aug. 17, 1983.

Section 169-C:3

169-C:3 Definitions. – When used in this chapter and unless the specific context indicates otherwise:
I. ""Abandoned'' means the child has been left by his parent, guardian or custodian, without provision for his care, supervision or financial support although financially able to provide such support.
II. ""Abused child'' means any child who has been:
(a) Sexually abused; or
(b) Intentionally physically injured; or
(c) Psychologically injured so that said child exhibits symptoms of emotional problems generally recognized to result from consistent mistreatment or neglect; or
(d) Physically injured by other than accidental means.
III. ""Adjudicatory hearing'' means a hearing to determine the truth of the allegations in the petition filed under this chapter.
IV. [Repealed].
V. ""Child'' means any person who has not reached his eighteenth birthday.
VI. ""Child care agency'' means a ""child day care agency'' as defined in RSA 170-E:2, IV or a ""child care agency'' as defined in RSA 170-E:25, II.
VII. ""Child placing agency'' means the department, Catholic charities of New Hampshire, or child and family services of New Hampshire, or any successor organization.
[Paragraph VII-a below effective January 1, 2008.]


VII-a. ""Concurrent plan'' means an alternate permanency plan in the event that a child cannot be safely reunified with his or her parents.
VIII. ""Consent order'' means a written agreement entered into among or between the parties regarding the facts and the disposition in a neglect or abuse case, and approved by the court.
IX. ""Court'' means the district court, unless otherwise indicated.
X. ""Custodian'' means an agency or person, other than a parent or guardian, licensed pursuant to RSA 170-E to whom legal custody of the child has been given by court order.
XI. ""Dispositional hearing'' means a hearing held after a finding of abuse or neglect to determine what dispositional order should be made on behalf of the child.
XII. ""Department'' means the department of health and human services.
XIII. ""Foster home'' means a residential care facility licensed pursuant to RSA 170-E for child care in which family care and training are provided on a regular basis for no more than 6 unrelated children, unless all the children are of common parentage.
XIII-a. ""Founded report'' means a report made pursuant to this chapter for which the department finds probable cause to believe that the child who is the subject of such report is abused or neglected.
XIV. ""Guardian'' means a parent or person appointed by a court having jurisdiction with the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child, and to be concerned about the general welfare of the child. Such duty and authority include but are not necessarily limited either in number or kind to:
(a) The authority to consent: (1) to marriage, (2) to enlistment in the armed forces of the United States, and (3) to major medical, psychiatric and surgical treatment, (4) to represent the child in legal actions; and (5) to make other decisions of substantial legal significance concerning the child;
(b) The authority and duty of reasonable visitation, except to the extent that such right of visitation has been limited by court order; and
(c) The rights and responsibilities of legal custody except where legal custody has been vested in another individual or in an authorized agency.
XIV-a. ""Household member'' means any person living with the parent, guardian, or custodian of the child from time to time or on a regular basis, who is involved occasionally or regularly with the care of the child.
XV. ""Imminent danger'' means circumstances or surroundings causing immediate peril or risk to a child's health or life.
XVI. ""Institutional child abuse or neglect'' means situations of known or suspected child abuse or neglect wherein the person responsible for the child's welfare is a foster parent or is an employee of a public or private residential home, institution or agency.
XVII. ""Legal custody'' means a status created by court order embodying the following rights and responsibilities unless otherwise modified by court order:
(a) The right to determine where and with whom the child shall live;
(b) The right to have the physical possession of the child;
(c) The right and the duty to protect and constructively discipline the child; and
(d) The responsibility to provide the child with food, clothing, shelter, education, emotional security and ordinary medical care provided that such rights and responsibilities shall be exercised subject to the power, rights, duties and responsibilities of the guardian of the child and subject to residual parental rights and responsibilities if these have not been terminated by judicial decree.
XVIII. ""Legal supervision'' means a legal status created by court order wherein the child is permitted to remain in his home under the supervision of a child placing agency subject to further court order.
XIX. ""Neglected child'' means a child:
(a) Who has been abandoned by his parents, guardian, or custodian; or
(b) Who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, when it is established that his health has suffered or is very likely to suffer serious impairment; and the deprivation is not due primarily to the lack of financial means of the parents, guardian or custodian; or
(c) Whose parents, guardian or custodian are unable to discharge their responsibilities to and for the child because of incarceration, hospitalization or other physical or mental incapacity;
Provided, that no child who is, in good faith, under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be a neglected child under this chapter.
XX. ""Notice'' means communication given in person or in writing to the parent, guardian, custodian or other interested party not having custody or control of the child, of the time and place fixed for hearing; and it shall be given in all cases, unless it appears to the court that such notice will be ineffectual.
[Paragraph XX-a below effective January 1, 2008.]


XX-a. ""Out-of-home placement'' means the placement of a child in substitute care with someone other than the child's biological parent or parents, adoptive parent or parents, or legal guardian.
XXI. ""Parent'' means mother, father, adoptive parent, but such term shall not include a parent as to whom the parent-child relationship has been terminated by judicial decree or voluntary relinquishment.
XXI-a. ""Party having an interest'' means the child; the guardian ad litem of the child; the child's parent, guardian or custodian; the state; or any household member subject to court order.
[Paragraph XXI-b below effective January 1, 2008.]


XXI-b. ""Permanency hearing'' means a court hearing for a child in an out-of-home placement to review, modify, and/or implement the permanency plan or to adopt the concurrent plan.
[Paragraph XXI-c below effective January 1, 2008.]


XXI-c. ""Permanency plan'' means a plan for a child in an out-of-home placement that is adopted by the court and provides for timely reunification, termination of parental rights or parental surrender when an adoption is contemplated, guardianship with a fit and willing relative or another appropriate party, or another planned permanent living arrangement.
XXII. ""A person responsible for a child's welfare'' includes the child's parent, guardian or custodian, as well as the person providing out-of-home care of the child, if that person is not the parent, guardian or custodian. For purposes of this definition, ""out-of-home care'' includes child day care, and any other settings in which children are given care outside of their homes.
XXIII. ""Probable cause'' means facts and circumstances based upon accurate and reliable information, including hearsay, that would justify a reasonable person to believe that a child subject to a report under this chapter is abused or neglected.
XXIV. ""Protective custody'' means the status of a child who has been taken into physical custody by a police officer or juvenile probation and parole officer because the child was in such circumstances or surroundings which presented an imminent danger to the child's health or life and where there was not sufficient time to obtain a court order.
XXV. ""Protective supervision'' means the status of a child who has been placed with a child placing agency pending the adjudicatory hearing.
XXVI. ""Relative'' means parent, grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, nieces, nephews or first and second cousins.
XXVII. ""Residual parental rights and responsibilities'' means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship except guardianship pursuant to termination of parental rights, including, but not limited to, right of visitation, consent to adoption, right to determine religious affiliation and responsibilities for support.
XXVII-a. ""Sexual abuse'' means the following activities under circumstances which indicate that the child's health or welfare is harmed or threatened with harm: the employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or having a child assist any other person to engage in, any sexually explicit conduct or any simulation of such conduct for the purpose of producing any visual depiction of such conduct; or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children. With respect to the definition of sexual abuse, the term ""child'' or ""children'' means any individual who is under the age of 18 years.
XXVIII. ""Unfounded report'' means a report made pursuant to this chapter for which the department finds that there is no probable cause to believe that the child is abused or neglected.
Source. 1979, 361:2. 1983, 291:1. 1986, 223:2, 3, 5, 6. 1987, 402:12. 1989, 146:1. 1990, 240:1; 257:5, 6. 1994, 212:2; 411:1, 2, 17, 19, I. 1995, 310:124, 175. 2000, 294:9, eff. July 1, 2000. 2007, 236:6-8, eff. Jan. 1, 2008.

Section 169-C:3-a

169-C:3-a Rulemaking. – The commissioner of the department of health and human services shall adopt rules under RSA 541-A relative to:
I. Information contained in the central registry under RSA 169-C:35.
II. Access to confidential records under RSA 169-C:36.
III. The authority to investigate reports of institutional abuse or neglect under RSA 169-C:37.
Source. 1983, 242:8; 291:1, II. 1986, 223:7. 1994, 212:2. 1995, 310:171, eff. Nov. 1, 1995.

Section 169-C:4

169-C:4 Jurisdiction, Continued Jurisdiction, Modification. –
I. The court shall have exclusive original jurisdiction over all proceedings alleging the abuse or neglect of a child.
II. The court may, with the consent of the child, retain jurisdiction over any child, who, prior to his eighteenth birthday, was found to be neglected or abused and who is attending school until such child completes high school or until his twenty-first birthday, whichever occurs first; and the court is authorized to and shall make such orders relative to the support and maintenance of said child during the period after the child's eighteenth birthday as justice may require.
III. When a custody award has been made pursuant to this chapter, 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.
Source. 1979, 361:2. 1990, 240:2, eff. June 26, 1990.

Section 169-C:5

169-C:5 Venue. –
I. Proceedings under this chapter may be originated in the judicial district in which the child is found or resides.
II. By the court, upon its own motion, or that of any party, proceedings under this chapter may, upon notice and acceptance, be transferred to another court as the interests of justice or convenience of the parties require.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:6

169-C:6 Protective Custody. –
I. A police or juvenile probation and parole officer may take a child into protective custody without the consent of the parents or other person legally responsible for the child's care if the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life unless immediate action is taken and there is not enough time to petition for a court order.
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 both parents or other 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.
VI. The court having jurisdiction over a child who appears to be abused or neglected, and in imminent danger may issue ex parte orders pursuant to RSA 169-C:6-a, permitting the child or the alleged perpetrator to be removed from the home at the request of the department or a law enforcement officer.
VII. No child taken into protective custody pursuant to this section shall be securely detained.
VIII. Unless otherwise ordered by the court, the refusal of a parent or other person having control of a child to administer or consent to the administration of any psychotropic drug to such child shall not, in and of itself, constitute grounds for the police or a juvenile probation and parole officer to take the child into custody, or for the court to order that such child be taken into custody. However, if the administration of a decreasing dose of the drug is required during withdrawal from the medication, the refusal may constitute grounds for taking the child into protective custody.
Source. 1979, 361:2. 1987, 402:12. 1988, 197:6. 1994, 411:3, 16, 17. 1995, 310:175. 2000, 294:9, eff. July 1, 2000. 2003, 199:1, eff. Aug. 29, 2003. 2004, 237:7, eff. June 15, 2004.

Section 169-C:6-a

169-C:6-a Emergency Interim Relief. –
I. The department or law enforcement officer requesting the court for an ex parte order shall, to the extent known, present the following evidence in writing with sworn signature or orally under oath:
(a) A statement of the specific danger requiring either immediate placement of the child or removal of the alleged perpetrator.
(b) The time, place, and manner in which the child was removed from danger, if relevant.
(c) If the child was removed prior to the court order, a brief statement why it was not possible to obtain the order prior to removal.
(d) Why there is not sufficient time to notify the parent, guardian, or custodian prior to the order.
(e) The names and addresses of custodial parents, non-custodial parents, legal custodians, other legal guardians of the child, and any other person responsible for the welfare of the child at the time of removal.
(f) When removal of the child is requested, those alternatives to foster care which were considered, such as removal of the alleged perpetrator, or placement of the child with relatives or others with whom the child is familiar.
II. Whenever a petition is filed for abuse or neglect with or prior to the request for ex parte relief, the request need not repeat information included in the petition.
III. If the court finds reasonable cause to believe that the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life, the court shall issue such ex parte orders as are necessary to protect the child and shall set the matter for hearing no later than 5 days from the date of the ex parte orders, excluding Saturdays, Sundays, and holidays.
IV. If the court issues ex parte orders, the department or law enforcement officer shall file a petition meeting the requirements of RSA 169-C:7 within 72 hours of the issuance of the orders, excluding Sundays and holidays.
Source. 1994, 411:4. 1995, 310:175, eff. Nov. 1, 1995. 2002, 180:1, eff. July 14, 2002.

Section 169-C:6-b


[RSA 169-C:6-b effective January 1, 2008.]
169-C:6-b Child's Welfare and Findings Regarding Removal. –
I. The court shall, in its first court ruling that sanctions, even temporarily, the removal of a child from the home, determine whether continuation in the home is contrary to the child's welfare.
II. The court shall within 60 days of a child's removal from the home, determine and issue written findings as to whether reasonable efforts were made or were not required to prevent the child's removal. In determining whether reasonable efforts were made to prevent the child's removal, the court shall consider whether services to the family have been accessible, available, and appropriate.
Source. 2007, 236:9, eff. Jan. 1, 2008.

Section 169-C:7

169-C:7 Petition. –
I. A proceeding under this chapter is originated by any person filing a petition, with a judge or clerk in the judicial district in which the child is found or resides, alleging neglect or abuse of a child.
II. The petition shall be entitled ""In the Matter of __________,'' and shall be verified under oath by the petitioner.
III. To be legally sufficient, the petition shall set forth the facts alleged to constitute abuse or neglect, and the statutory grounds upon which the petition is based.
IV. In addition, the petition shall also include, to the extent known:
(a) The name, birth date, and address of the child.
(b) The name and address of any custodial parent.
(c) The name and address of any other individual or agency having custody of the child.
(d) The name of any non-custodial parent.
(e) The name of any household member who is subject to the order.
Source. 1979, 361:2. 1990, 240:3. 1994, 411:5, 6, eff. Jan. 1, 1995.

Section 169-C:8

169-C:8 Issuance of Summons and Notice. –
[Paragraph I effective until January 1, 2008; see also paragraph I set out below.]


I. After a petition has been filed or an ex parte order issued, the court shall issue a summons to all persons named in the petition to be served by a law enforcement officer personally, or if personal service is not possible, at their usual place of abode. Such summons shall require the person or persons having custody or control of the child to appear personally and bring the child, unless otherwise ordered, before the court at a time and place set for a preliminary hearing, which shall not be less than 24 hours nor more than 7 days after return of service of the petition.
[Paragraph I effective January 1, 2008; see also paragraph I set out above.]


I. After a petition has been filed or an ex parte order issued, the court shall issue a summons to all persons named in the petition to be served by a law enforcement officer personally, or if personal service is not possible, at their usual place of abode. Such summons shall require the person or persons having custody or control of the child to appear personally, unless otherwise ordered, before the court at a time and place set for a preliminary hearing, which shall not be less than 24 hours nor more than 7 days after return of service of the petition.
II. A copy of the petition shall be attached to each summons or incorporated therein.
III. The summons shall contain a notice that the child shall have a guardian ad litem, appointed by the court. The summons shall also state as follows: ""Parents and other individuals chargeable by law for the child's support and necessities may be liable for expenses incurred in this proceeding including the costs of certain evaluations and placements. RSA 186-C regarding educationally disabled children grants children and their parents certain rights to services from school districts at public expense and to appeal school district decisions regarding services to be provided.''
IV. The summons shall also contain a description and explanation of the proceedings and a statement of the rights of the person or persons summoned, under this chapter, RSA 170-C, and under the rules of court.
Source. 1979, 361:2. 1983, 458:8. 1990, 140:2, X. 1991, 214:1. 1994, 411:7. 1995, 308:65, eff. July 1, 1995. 2007, 236:10, eff. Jan. 1, 2008.

Section 169-C:8-a

169-C:8-a Notice of Petition to Department of Health and Human Services. – The court shall serve the department of health and human services with a copy of any petition filed under RSA 169-C:7 and the department shall have legal standing at and receive notice of all proceedings under this chapter from the time of said service.
Source. 1995, 308:66; 310:175, 181, eff. Nov. 1, 1995.

Section 169-C:9

169-C:9 Failure to Appear; Warrant. –
I. Any person or persons summoned having custody or control of the child who, without reasonable cause, fails to appear, may be proceeded against for contempt of court.
II. In case the summons cannot be served, or the parties served fail to appear, or in the case when it appears to the court that service will be ineffectual, or that the best interest of the child requires that he be brought forthwith into the custody of the court, a warrant may be issued for the child's appearance against anyone having custody or control of the child.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:10

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 guardian ad litem or Court Appointed Special Advocate (CASA) guardian ad litem for the child. The court shall not appoint an attorney for any guardian ad litem appointed for the child, but may appoint an attorney or any other qualified individual as the guardian ad litem for the child. The CASA guardian ad litem shall have the same authority and access to information as any other guardian ad litem.
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. The court shall not appoint an attorney to represent any other persons involved in a case brought under this chapter.
(b) 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.
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.
Source. 1979, 361:2. 1995, 308:67. 1997, 292:2, eff. Jan. 1, 1998.

Section 169-C:10-a

169-C:10-a Appointment of Court Appointed Special Advocates and Guardians Ad Litem. – [Repealed 1996, 248:10, eff. Jan. 2, 1997.]
Section 169-C:11

169-C:11 Subpoena. – A subpoena may be issued pursuant to RSA 516, or upon application of a party to the proceedings, or upon the motion of the court. The court may issue subpoenas requiring the production of papers and the attendance of any person whose presence is required by the child, his parents or guardian or any other person whose presence, in the opinion of the court, is necessary.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:12

169-C:12 Evidence. – In any hearing under this chapter, the court shall not be bound by the technical rules of evidence and may admit evidence which it considers relevant and material.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:12-a

169-C:12-a Testimony During Abuse and Neglect Proceedings. – Testimony by parents who are the subject of an abuse and neglect petition and who are alleged to have abused or neglected a child, which is given during proceedings under this chapter or during a fair hearing conducted by the department, shall not be admissible in criminal proceedings relating to such abuse or neglect allegations.
Source. 1990, 240:4. 1995, 310:175, eff. Nov. 1, 1995.

Section 169-C:12-b

169-C:12-b Filing Reports, Evaluations, and Other Records. – All reports, evaluations, and other records from the department of health and human services, counselors, and guardians ad litem in proceedings under this chapter shall be filed with the court and all other parties at least 5 business days prior to any hearing. If a report, evaluation, or other record is not filed at least 5 business days prior to the hearing, a party may request, and the court shall grant, a continuance to a date certain which shall not be more than 10 days from the date of filing. Once filed with the court and given to all other parties, the report, evaluation, or other record need not be refiled during the proceeding. Failure to comply with the provisions of this section shall not be grounds for dismissal of the petition.
Source. 1991, 57:2. 1994, 212:2. 1995, 310:181, eff. Nov. 1, 1995. 2006, 276:2, eff. Jan. 1, 2007.

Section 169-C:12-c

169-C:12-c Medical Examinations of Child. – A parent who is the subject of an abuse or neglect petition not involving sexual abuse shall be entitled to request a medical examination of each child involved by a licensed physician of the parent's choice at the parent's expense within 72 hours of the first official notice of the complaint received by the parent. Where the department has assumed protective supervision or legal custody of the child and an examination of the child is necessary to verify or refute an allegation of injury, the department shall cooperate with the request and shall transport the child to the physician's office for examination provided that the physician's office is within a reasonable distance of the district office that is conducting the abuse or neglect investigation. The transportation of a child to a physician's office that is located within the state of New Hampshire shall be presumed to be reasonable under this section.
Source. 2006, 276:3, eff. Jan. 1, 2007.

Section 169-C:13

169-C:13 Burden of Proof. – The petitioner has the burden to prove the allegations in support of the petition by a preponderance of the evidence.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:14

169-C:14 Hearings Not Open to the Public. – The general public shall be excluded from any hearing under this chapter and such hearing shall, whenever possible, be held in rooms not used for criminal trials. Only such persons as the parties, their witnesses, counsel and representatives of the agencies present to perform their official duties shall be admitted, except that other persons invited by a party may attend, with the court's prior approval. The court may provide docket information to invited persons.
Source. 1979, 361:2. 1990, 53:1, eff. April 6, 1990. 2006, 228:1, eff. July 31, 2006.

Section 169-C:14-a

169-C:14-a Records of Hearings. – The court shall notify parties of their right to request in advance of any hearing under this chapter that a record of such hearing shall be preserved and made available to the parties.
Source. 1996, 248:2, eff. Jan. 2, 1997.

Section 169-C:15

169-C:15 Preliminary Hearing. –
I. After an ex parte order is issued or petition filed, a preliminary hearing shall be conducted by the court to determine if reasonable cause exists to believe that the child is abused or neglected.
II. If the court does not find reasonable cause to believe that the child is abused or neglected, it shall dismiss the petition.
III. Upon a finding of reasonable cause that the child is abused or neglected, the court shall:
(a) Appoint an attorney to represent the child pursuant to RSA 169-C:10.
(b) Determine whether any ex parte orders issued should be continued or modified.
(c) Issue orders pursuant to RSA 169-C:16, which shall be immediate and in writing if the court finds that the child's circumstances or surroundings present an imminent danger to the child's health or life.
[Paragraph III(d) effective until January 1, 2008; see also paragraph III(d) set out below.]


(d) Set a date for an adjudicatory hearing to be held within 30 days of the filing of the petition.
[Paragraph III(d) effective January 1, 2008; see also paragraph III(d) set out above.]


(d) Set a date for an adjudicatory hearing to be held and completed within 30 calendar days of the filing of the petition. Upon a written finding of extraordinary circumstances, the court may continue the adjudicatory hearing to a date certain for the hearing to be held and completed and written findings issued that shall in no event exceed 60 calendar days from the filing of the petition.
IV. The court shall determine whether each parent summoned, having custody or control of the child, understands the possible consequences to parental rights should the court find that the child is abused or neglected. Each person shall sign a statement stating that such person understands the consequences to parental rights. Such statement shall be in a form to be determined by the court.
V. Any person who is subject to an ex parte order may challenge the order at the preliminary hearing.
Source. 1979, 361:2. 1991, 214:2. 1994, 411:8, eff. Jan. 1, 1995. 2007, 236:11, eff. Jan. 1, 2008.

Section 169-C:16

169-C:16 Preliminary Disposition. –
I. If the court finds sufficient facts to sustain the petition, at a preliminary disposition, the court may:
(a) Permit the child to remain with the parent, relative, guardian, or other custodian, subject to such conditions and limitations as the court may prescribe.
(b) Transfer legal supervision to a child placing agency.
(c) Transfer protective supervision to a child placing agency.
(d) Issue an order of protection setting forth conditions of behavior by a parent, relative, guardian, custodian, or a household member. Such order may require any such person to:
(1) Stay away from the premises, another party, or the child.
(2) Permit a parent or other named person to visit the child at stated periods and under such conditions as the court may order.
(3) Abstain from harmful conduct with respect to the child or any person to whom custody of the child is awarded.
(4) Correct specified deficiencies in the home that make the home a harmful environment for the child.
(5) Refrain from specified acts of commission or omission that make the home a harmful environment for the child.
I-a. Notwithstanding RSA 169-C:25, a copy of each protective order issued pursuant to RSA 169-C:16, I(d)(1) shall be transmitted to the administrative office of the courts electronically or by facsimile. The administrative office of the courts shall enter information regarding the protective order into the state database, which shall be made available to the police and sheriffs' departments statewide. It shall also update the database upon expiration or termination of the order.
II. A neglected or abused child shall not be placed in an institution established for the care and rehabilitation of delinquent children, the youth development center or any institution where an adult is confined.
III. The court may at any time order the child, parents, guardian, custodian, or household member subject to the petition or ex parte order, to submit to a mental health evaluation, or undergo a physical examination or treatment, with a written assessment being provided to the court. The court may order that the child, who is the subject of the petition or the family or both be evaluated by a mental health center or any other psychiatrist, psychologist or psychiatric social worker or family therapist or undergo physical examination or treatment with a written assessment provided to the court. Evaluations performed at the Philbrook center may occur only upon receiving prior approval for such evaluation from the commissioner of the department of health and human services, or designee.
IV. If the child, the parent, guardian or custodian objects to the mental health evaluation, he shall object in writing to the court having jurisdiction within 5 days after notification of the time and place of said evaluation. The court shall hold a hearing to consider the objection prior to ordering said evaluation. Upon good cause shown, the court may excuse the child, the parent, guardian or custodian from the provisions of this section.
V. If an order is made on a person not before the court under subparagraph I(d)(1), it shall be served on such person by a law enforcement officer. A hearing to challenge an order may be requested in writing. The hearing shall be held within 5 days of the request. A request for a hearing shall not stay the effect of the order.
VI. When the party subject to the order has an obligation to support the child in question, the court may order such party to remain out of the residence of the child. When the party subject to the order has no duty to support the child and solely owns or leases the residence of the child, the court may order such party to remain out of the residence of the child for a period of no more than 30 days.
Source. 1979, 361:2. 1985, 195:5. 1990, 3:47. 1994, 411:9-12. 1995, 310:182, eff. Nov. 1, 1995. 2005, 244:3, eff. Jan. 1, 2006.

Section 169-C:17


[RSA 169-C:17 effective until January 1, 2008; see also RSA 169-C:17 set out below.]
169-C:17 Consent Order. –
I. At any time after the filing of the petition and prior to an order of adjudication pursuant to section RSA 169-C:18, the court may suspend the proceedings upon its own motion or upon the motion of any party, and continue the case under terms and conditions established by the parties and approved by the court.
II. A consent order shall not be approved unless the department consents and the child and parents, guardian, or custodian are informed of the consequences of the order by the court and the court determines that the child and parents voluntarily and intelligently consent to the terms and conditions of the order. A consent order under this section may include a finding of abuse or neglect; however, a finding of abuse or neglect shall not be required except where the consent order provides for out-of-home placement of the child.
Source. 1979, 361:2. 1995, 308:68; 310:175, eff. Nov. 1, 1995. 2002, 152:1, eff. Jan. 1, 2003.

Section 169-C:17


[RSA 169-C:17 effective January 1, 2008; see also RSA 169-C:17 set out above.]
169-C:17 Consent Order. –
I. At any time after the filing of the petition and prior to an order of adjudication pursuant to RSA 169-C:18, the court may approve a written agreement entered into among or between the parties.
II. A consent order shall not be approved unless the department consents and the child and parents, guardian, or custodian are informed of the consequences of the order by the court and the court determines that the child and parents voluntarily and intelligently consent to the terms and conditions of the order. A consent order under this section may include a finding of abuse or neglect; however, a finding of abuse or neglect shall not be required except where the consent order provides for out-of-home placement of the child.
III. Where a consent order includes a finding and provides for the out-of-home placement of a child, the order shall set a date for a permanency hearing that is within 12 months of the date of the court's approval of the consent order.
Source. 1979, 361:2. 1995, 308:68; 310:175, eff. Nov. 1, 1995. 2002, 152:1, eff. Jan. 1, 2003. 2007, 236:12, eff. Jan. 1, 2008.

Section 169-C:18

169-C:18 Adjudicatory Hearing. –
I. An adjudicatory hearing under this chapter shall be conducted by the court separate from the trial of criminal cases.
II. A record of the adjudicatory hearing shall be preserved unless expressly waived in writing by the parties, and the parties shall be notified in writing of their right to appeal.
III. The petitioner shall present witnesses to testify in support of the petition and any other evidence necessary to support the petition. The petitionees shall have the right to present evidence and witnesses on their own behalf and to cross-examine adverse witnesses. The admissibility of all evidence in this hearing shall be determined by RSA 169-C:12. The provisions of RSA 613:3, I, relative to the summoning of out-of-state witnesses, shall apply to the proceedings.
IV. If the court does not find sufficient evidence of neglect or abuse, it shall dismiss the petition.
[Paragraph V effective until January 1, 2008; see also paragraph V set out below.]


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.
[Paragraph V effective January 1, 2008; see also paragraph V set out above.]


V. If the court makes a finding 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 . Preliminary orders, continued pursuant to RSA 169-C:16, may be entered or modified as appropriate until the dispositional hearing.
[Paragraph V-a effective until January 1, 2008; see also paragraph V-a set out below.]


V-a. The department's dispositional report shall include:
(a) A description of efforts made by the department to avoid the need for placement and an explanation of why these efforts were unsuccessful.
(b) An explanation why the child cannot be protected from the identified problems in the home even if services are provided to the child and family.
[Paragraph V-a effective January 1, 2008; see also paragraph V-a set out above.]


V-a. Where an adjudicatory order includes a finding and provides for the out-of-home placement of a child, the order shall set a date for a permanency hearing that is within 12 months of the date of the adjudicatory finding.
[Paragraph V-b below effective January 1, 2008.]


V-b. The department's dispositional report shall include:
(a) A description of efforts made by the department to avoid the need for placement and an explanation of why these efforts were unsuccessful.
(b) An explanation why the child cannot be protected from the identified problems in the home even if services are provided to the child and family.
VI. The social study will be used only after a finding of neglect or abuse and only as a guide for the court in determining an appropriate disposition for a child. The court shall share the report with the parties. Any psychiatric report shall be used by the court only after a finding of neglect or abuse unless such report is submitted for determination of competency.
VII. The court shall hold a hearing on final disposition within 30 days after a finding of neglect or abuse.
VIII. Whenever a court contemplates a placement which will require educational services outside the child's home school district, the court shall notify the school district and give the district the opportunity to send a representative to the hearing at which such placement is contemplated. In cases where immediate court action is required to protect the health or safety of the child or of the community, the court may act without providing for an appearance by the school district, but shall make reasonable efforts to solicit and consider input from the school district before making a placement decision.
Source. 1979, 361:2. 1994, 411:13. 1996, 248:3. 1998, 203:1, eff. June 18, 1998. 2002, 179:1, eff. July 14, 2002. 2004, 41:2, eff. May 3, 2004. 2007, 236:13, eff. Jan. 1., 2008; 295:3, eff. Sept. 11, 2007.

Section 169-C:19

169-C:19 Dispositional Hearing. – The department of health and human services shall provide the court with the costs of the recommended services, placements and programs. If the court finds that a child is abused or neglected or if the court issues a consent order pursuant to RSA 169-C:17, II, the court may order the following disposition:
I. The child may be permitted to remain with the parents, guardian, relative, or other custodian, subject to any or all of the following conditions:
(a) That the parents, guardian, relative, or custodian accept legal supervision by a child placing agency.
(b) That the parents, guardian, relative, or custodian, or the child, or both, accept individual or family therapy, or medical treatment.
(c) That the child attend a day care center.
(d) That a homemaker or parent aide be allowed to visit the home and assist the family.
II. (a) An order of protection may be issued setting forth conditions of behavior by a parent, relative, sibling, guardian, custodian or a household member. Such order may require any such person to:
(1) Stay away from the premises, another party, or the child.
(2) Permit a parent or other named person to visit supervised or otherwise, or have contact with the child at stated periods and under such conditions as the court may order.
(3) Abstain from harmful conduct with respect to the child or any person to whom custody of the child is awarded.
(4) Correct specified deficiencies in the home that make the home a harmful environment for the child.
(5) Refrain from specified acts of commission or omission that make the home or contact with the child a harmful environment for the child.
(b) If an order is made affecting a person not before the court under subparagraph (a), it shall be served on such person by a law enforcement officer. A hearing to challenge an order may be requested in writing. The hearing shall be held within 5 days of the request. A request for a hearing shall not stay the effect of the order.
(c) When the party subject to the order of protection has an obligation to support the child in question, the court may order such party to remain out of the residence of the child. When the party subject to the order has no duty to support the child and solely owns or leases the residence of the child, the court may order such party to remain out of the residence of the child for a period of no more than 30 days.
II-a. Notwithstanding RSA 169-C:25, a copy of each protective order issued pursuant to RSA 169-C:19, II(a)(1) shall be transmitted to the administrative office of the courts electronically or by facsimile. The administrative office of the courts shall enter information regarding the protective order into the state database, which shall be made available to the police and sheriffs' departments statewide. It shall also update the database upon expiration or termination of the order.
[Paragraph III(a) effective until January 1, 2008; see also paragraph III(a) set out below.]


III. (a) Legal custody may be transferred to a child placing agency or relative provided, however, that no child shall be placed with a relative until a written social study of the relative's home, conducted by a child placing agency, is submitted to the court.
[Paragraph III(a) effective January 1, 2008; see also paragraph III(a) set out above.]


III. (a) Legal custody may be transferred to a child placing agency or relative provided, however, that no child shall be placed with a relative until a written social study of the relative's home, conducted by a child placing agency, is submitted to the court. Where a child is in an out-of-home placement, the court shall include in its order the concurrent plan for the child.
(b) If the child is placed out of state, the provisions of RSA 170-A shall be followed.
IV. The court may order any parent, guardian, relative, custodian, household member, or child to undergo individual or family therapy, or medical treatment.
V. If the judge orders services, placements, or programs different from the recommendations of the department, the judge shall include a statement of the costs of the services, placements and programs so ordered.
VI. Prior to any placement which will require educational services outside the child's home school district, the court shall notify the school district and give the district the opportunity to send a representative to the hearing at which such placement is contemplated. At such hearing the court shall consider the recommendations of the school district and if such an out-of-district placement is ordered the court shall make written findings that describe the reasons for the placement.
Source. 1979, 361:2. 1994, 411:14. 1995, 308:69, 70; 310:175, 181. 1998, 203:3, eff. June 18, 1998. 2002, 152:2, eff. Jan. 1, 2003. 2005, 244:4, eff. Jan. 1, 2006. 2007, 236:14, eff. Jan., 1, 2008; 295:4, eff. Sept. 11, 2007.

Section 169-C:19-a

169-C:19-a Out-of-District Placement. – In the case of an out-of-district placement, the appropriate court shall notify the department of education on the date that the court order is signed, stating the initial length of time for which such placement is made. This section shall apply to the original order and all subsequent modifications of that order.
Source. 1991, 342:2, eff. Aug. 27, 1991.

Section 169-C:19-b

169-C:19-b Presumption in Favor of In-State Placements. – There shall be a presumption that an in-state placement is the least restrictive and most appropriate placement. The court may order an out-of-state placement only upon an express written finding that there is no appropriate in-state placement available.
Source. 1995, 308:71, eff. July 1, 1995.

Section 169-C:19-c

169-C:19-c Court Order for Services, Placements, and Programs Required for Minors From Certain Providers Qualified for Third-Party Payment. – The court, wherever and to the extent possible, shall order services, placements, and programs by providers certified pursuant to RSA 170-G:4, XVIII who qualify for third-party payment under any insurance covering the minor.
Source. 1996, 286:11, eff. June 10, 1996.

Section 169-C:19-d

169-C:19-d Visitation With Siblings. – The court shall, whenever reasonable and practical, and based on a determination of the best interests of the child, ensure that children who have an existing relationship with a sibling and who are separated from their siblings as a result of a court decree, court order, consent order, or court-recommended placement, including but not limited to, placement in foster homes, or in the homes of parents or extended family members, have access to and visitation rights with such siblings throughout the duration of such placement, and subsequent to such placement if the children or their siblings are separated by long-term or short-term foster care placement.
Source. 1998, 203:2, eff. June 18, 1998.

Section 169-C:19-e


[RSA 169-C:19-e effective until January 1, 2008; see also RSA 169-C:19-e set out below.]
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.
Source. 2001, 229:1, eff. Jan. 1, 2002.

Section 169-C:19-e


[RSA 169-C:19-e effective January 1, 2008; see also RSA 169-C:19-e set out above.]
169-C:19-e Custody Hearing for Parent not Charged With Abuse or Neglect. –
I. 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. The court shall make written findings of fact supporting its decision.
II. The department shall notify a parent who has not been charged with abuse or neglect of his or her right to request a hearing under this section at the earliest available opportunity.
Source. 2001, 229:1, eff. Jan. 1, 2002. 2007, 173:1, eff. Jan. 1, 2008.

Section 169-C:20

169-C:20 Disposition of Educationally Disabled Child. – At any point during the proceedings, the court may, either on its own motion or that of any other person, and if the court contemplates a residential placement, the court shall immediately, join the legally liable school district for the limited purposes of directing the school district to determine whether the child is educationally disabled as defined in RSA 186-C or of directing the school district to review the services offered or provided under RSA 186-C if the child had already been determined to be educationally disabled. Once joined as a party, the legally liable school district shall have full access to all records maintained by the district court under this chapter and shall make a recommendation to the court as to where the child's educational needs can best be met. In cases where the court does not follow the school district's recommendation, the court shall issue written findings explaining why the recommendation was not followed. If the school district finds or has found that the child is educationally disabled, or if it is found that the child is educationally disabled on appeal from the school district's decision in accordance with the due process procedures of RSA 186-C, the school district shall offer an appropriate educational program and placement in accordance with RSA 186-C. Financial liability for such education program shall be as determined in RSA 186-C:19-b.
Source. 1979, 361:2. 1983, 458:2. 1986, 223:13. 1987, 402:22. 1990, 140:2, X, eff. June 18, 1990.

Section 169-C:21

169-C:21 Final Order. –
I. If facts sufficient to sustain the petition are established under RSA 169-C:18, the court shall enter a final order in writing finding that the child has been abused or neglected.
II. The order of the court shall include conditions the parents shall meet before the child is returned home. The order shall also include a specific plan which shall include, but not be limited to, the services the child placing agency will provide to the child and family. Prior to the issuance of a final order, the child placing agency shall submit its recommendation for the plan, which the court may use in whole or in part.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:21-a

169-C:21-a Violation of Protective Order; Penalty. –
I. (a) When a person subject to a protective order under RSA 169-C:16, I(d)(1) or RSA 169-C:19, II(a)(1) violates either a temporary or permanent protective order issued or enforced under this chapter, peace officers shall arrest the defendant and ensure that the defendant is detained until arraignment. Such arrests may be made within 6 hours without a warrant upon probable cause, whether or not the violation is committed in the presence of a peace officer.
(b) Subsequent to an arrest, the peace officer shall seize any firearms and ammunition in the control, ownership, or possession of the defendant and any deadly weapons which may have been used, or were threatened to be used, during the violation of the protective order. The law enforcement agency shall maintain possession of the firearms, ammunition, or deadly weapons until the court issues an order directing that the firearms, ammunition, or deadly weapons be relinquished and specifying the person to whom the firearms and ammunition or deadly weapons will be relinquished.
II. The prosecution and sentencing for criminal contempt for a violation of a protective order shall not preclude the prosecution of or sentencing for other criminal charges underlying the contempt.
III. A person shall be guilty of a class A misdemeanor if such person knowingly violates a protective order issued under this chapter. Charges made under this chapter shall not be reduced to a lesser charge, as permitted in other instances under RSA 625:9.
IV. Any person convicted under paragraph III, or who has been convicted in another jurisdiction of violating a protective order enforceable under the laws of this state, who, within 6 years of such conviction or the completion of the sentence imposed for such conviction, whichever is later, subsequently commits and is convicted of one or more offenses under this chapter may be charged with an enhanced penalty for each subsequent offense as follows:
(a) There shall be no enhanced charge under this section if the subsequent offense is a class A felony or an unclassified felony;
(b) If the subsequent offense would otherwise constitute a class B felony, it may be charged as a class A felony;
(c) If the subsequent offense would otherwise constitute a class A misdemeanor, it may be charged as a class B felony;
(d) If the subsequent offense would otherwise constitute a class B misdemeanor, it may be charged as a class A misdemeanor;
(e) If the subsequent offense would otherwise constitute a violation, it may be charged as a class B misdemeanor.
Source. 2000, 189:1, eff. Jan. 1, 2001.

Section 169-C:22

169-C:22 Modification of Dispositional Orders. – Upon the motion of a child, parent, custodian, guardian or of the child placing agency alleging a change of circumstances requiring a different disposition the court shall conduct a hearing and pursuant to RSA 169-C:19 may modify a dispositional order; provided that the court may dismiss the motion if the allegations are not substantiated in the hearing.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:23

169-C:23 Standard for Return of Child in Placement. – In the absence of a guardianship of the person of the minor, governed by the terms of RSA 463, before a child in out-of-home placement is returned to the custody of his or her parents, the parent or parents shall demonstrate to the court that:
I. They are in compliance with the outstanding dispositional court order;
II. The child will not be endangered in the manner adjudicated on the initial petition, if returned home;
III. Return of custody is in the best interests of the child. Upon showing the ability to provide proper parental care, it shall be presumed that a return of custody is in the child's best interests.
Source. 1979, 361:2. 1999, 149:1, eff. Jan. 1, 2000.

Section 169-C:24


[RSA 169-C:24 effective until January 1, 2008; see also RSA 169-C:24 set out below.]
169-C:24 Court Review of the Disposition. –
The status of all consent orders, of all children not under the custody of their parents, or children under legal supervision shall be reviewed by the court at least once every year following the initial approval of the order or initial dispositional hearing. The court may also review a case, upon the request of any party, at any time. At least 14 days prior to the annual review, the child placing agency social workers or child care agency in charge of providing services to the child and parents shall submit or cause to be submitted to the court a supplemental report indicating such services and shall make a dispositional recommendation. The social worker shall send copies of such report to all parties.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:24


[RSA 169-C:24 effective January 1, 2008; see also RSA 169-C:24 set out above.]
169-C:24 Periodic Review Hearings. –
I. The court shall conduct an initial review hearing within 3 months of the dispositional hearing to review the status of all dispositional orders issued under this chapter. The court may conduct additional review hearings upon its own motion or upon the request of any party at any time.
II. At a review hearing the court shall determine whether the department has made reasonable efforts to finalize the permanency plan that is in effect. Where reunification is the permanency plan that is in effect, the court shall consider whether services to the family have been accessible, available, and appropriate.
Source. 1979, 361:2, eff. Aug. 22, 1979. 2007, 236:15, eff. Jan. 1, 2008.

Section 169-C:24-a

169-C:24-a Petition for Termination of Parental Rights Required; Reasonable Efforts to Reunify. –
I. The state, through an authorized agency, or if required by a district court, shall file a petition for termination of parental rights or, if such a petition has been filed by another party, the state shall seek to be joined as a party to such petition, where any one or more of the following circumstances exist:
(a) Where a child has been in an out-of-home placement pursuant to a finding of child neglect or abuse, under the responsibility of the state, for 12 of the most recent 22 months;
(b) Where a court of competent jurisdiction has determined that a child has been abandoned as defined by RSA 170-C:5, I; or
(c) Where a court of competent jurisdiction has made any one or more of the following determinations:
(1) That the parent has been convicted of murder, pursuant to RSA 630:1-a or RSA 630:1-b, of another child of the parent, a sibling or step- sibling of the child, the child's other parent, or other persons related by consanguinity or affinity, including a minor child who resided with the defendant.
(2) That the parent has been convicted of manslaughter, pursuant to RSA 630:2, of another child of the parent.
(3) That the parent has been convicted of attempt, pursuant to RSA 629:1, solicitation, pursuant to RSA 629:2, or conspiracy, pursuant to RSA 629:3, to commit any of the offenses specified in subparagraphs I(c)(1) or I(c)(2).
(4) That the parent has been convicted of a felony assault under RSA 631:1, 631:2, 632-A:2, or 632-A:3 that resulted in injury to the child, a sibling or step-sibling of the child, the child's other parent, or other persons related by consanguinity or affinity, including a minor child who resided with the defendant.
II. Concurrent with the filing or joinder in a petition for termination of parental rights as defined in paragraph I of this section, the state shall seek to identify, recruit, and approve a qualified family for adoption in accordance with the provisions of RSA 170-B, and in accordance with the principle that the health and safety of the child shall be the paramount concern.
III. The state may not be required to file a petition for termination of parental rights, or seek to be joined as a party to such a petition, if one or more of the following conditions exist:
(a) The child is being appropriately cared for by a relative;
(b) A state agency has documented in the case file a compelling reason for determining that filing a petition for termination of parental rights would not be in the best interests of the child; or
(c) The state has not provided to the family of the child, consistent with RSA 170-C:5, III, such services and reasonable efforts as the state deems necessary for the safe return of the child to the child's home. In determining whether the state has made reasonable efforts to prevent placement and reunify the family, the district court shall consider whether services to the family have been accessible, available, and appropriate.
IV. The state shall submit a sworn statement prior to any district court hearing in which the court is to determine whether there have been reasonable efforts to prevent placement, reunify the family, or make and finalize a new permanent home for the child. Such statement shall be submitted to the court and to the parties at least 5 days prior to the hearing, and shall describe such reasonable efforts made by the state or the rationale for not making such efforts.
Source. 1999, 133:3, eff. June 18, 1999. 2005, 235:2, eff. July 11, 2005.

Section 169-C:24-b


[RSA 169-C:24-b effective January 1, 2008.]
169-C:24-b Permanency Hearings. –
I. For a child that has been in an out-of-home placement for 12 or more months, the court shall hold and complete a permanency hearing within 12 months of the finding. For a child that enters an out-of-home placement subsequent to a finding, the court shall hold and complete a permanency hearing within 12 months of the date the child enters the out-of-home placement.
II. At a permanency hearing, the court shall determine whether and, if applicable, when the child will be returned to the parent or parents, pursuant to RSA 169-C:23. If the standard for return pursuant to RSA 169-C:23 is not met, the court shall identify a permanency plan other than reunification for the child. Other options for a permanency plan include:
(a) Termination of parental rights or parental surrender when an adoption is contemplated;
(b) Guardianship with a fit and willing relative or another appropriate party; or
(c) Another planned permanent living arrangement.
III. At a permanency hearing the court shall determine whether the department has made reasonable efforts to finalize the permanency plan that is in effect. Where reunification is the permanency plan that is in effect, the court shall consider whether services to the family have been accessible, available, and appropriate.
Source. 2007, 236:16, eff. Jan. 1, 2008.

Section 169-C:24-c


[RSA 169-C:24-c effective January 1, 2008.]
169-C:24-c Post-Permanency Hearings. –
I. For a child who is in an out-of-home placement following the permanency hearing, the court shall hold and complete a post-permanency hearing within 12 months of the permanency hearing and every 12 months thereafter as long as the child remains in an out-of-home placement. The court may conduct periodic post-permanency hearings upon its motion or upon the request of any party at any time.
II. At a post-permanency hearing the court shall determine whether the department has made reasonable efforts to finalize the permanency plan that is in effect. Where reunification is the permanency plan that is in effect, the court shall consider whether the services to the family have been accessible, available, and appropriate.
Source. 2007, 236:16, eff. Jan. 1, 2008.

Section 169-C:25

169-C:25 Confidentiality. –
I. The court records of proceedings under this chapter shall be kept in books and files separate from all other court records. Such records shall be withheld from public inspection but shall be open to inspection by the parties, child, parent, guardian, custodian, attorney or other authorized representative of the child.
II. It shall be unlawful for any person present during a child abuse or neglect hearing to disclose any information concerning the hearing that may identify a child or parent who is involved in the hearing without the prior permission of the court. Any person who knowingly violates this provision shall be guilty of a misdemeanor.
III. All case records, as defined in RSA 170-G:8-a, relative to abuse and neglect, shall be confidential, and access shall be provided pursuant to RSA 170-G:8-a.
Source. 1979, 361:2. 1983, 331:3. 1990, 19:2. 1993, 266:3; 355:4, eff. Sept. 1, 1993. 2002, 243:1, eff. May 17, 2002.

Section 169-C:26


[RSA 169-C:26 effective until January 1, 2008; see also RSA 169-C:26 set out below.]
169-C:26 Continuances. –
Continuances in proceedings under this chapter may be granted by the court only for good cause shown.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:26


[RSA 169-C:26 effective January 1, 2008; see also RSA 169-C:26 set out above.]
169-C:26 Continuances. –
Except as otherwise provided, continuances in proceedings under this chapter may be granted by the court only for good cause shown. Whenever the court grants a continuance under this section, the court shall make written findings as to the circumstances that warranted the continuance.
Source. 1979, 361:2, eff. Aug. 22, 1979. 2007, 236:17, eff. Jan. 1, 2008.

Section 169-C:27


[RSA 169-C:27 effective until July 1, 2008; see also RSA 169-C:27 set out below.]
169-C:27 Liability of Expenses and Hearing on Liability. –
I. (a) Whenever an order creating liability for expenses is issued by the court under this chapter or whenever a voluntary service plan is developed and provided for a minor and the minor's family by the department, any expenses incurred for services, placements, and programs the providers of which are certified pursuant to RSA 170-G:4, XVIII, shall be payable by the department of health and human services.
(b) Subparagraph (a) shall not apply to expenses incurred for special education and educationally related services, or to expenses incurred for evaluation, care, and treatment of the child at the Philbrook center.
(c) The state shall have a right of action over for such expenses against the parents or the people chargeable by law for the child's support and necessities and the right to require parents or other people chargeable by law for the minor's support and necessities to assign to the state any insurance benefits that may be available to pay for all or a portion of the services provided. The department shall request reimbursement for such expenses from parents or people chargeable by law for the minor's support and necessities and shall request assignment to the state of any insurance benefits that may be available to pay for all or a portion of the services provided. The court shall require the individual chargeable by law for the child's support and necessities to submit a financial statement annually to the court upon which the court shall make an order as to reimbursement to the state as may be reasonable and just, based on the person's ability to pay. Such financial statement shall include, but not be limited to, any benefits received from the Social Security Administration or insurance benefits available to the individual. The court shall include disposition of these benefits in its order as to reimbursement. Such reimbursement shall be established on a per month or per week basis and shall continue from the time the services begin until 4 years beyond the time such services end, unless such reimbursement is fully paid prior to the end of the 4-year period. The court's jurisdiction to order reimbursement shall continue until the court-ordered obligation to reimburse has been fulfilled. If the court does not issue a reimbursement order, the court shall issue written findings explaining why such reimbursement is not ordered.
(d) Liability for placement expenses for any court ordered placement of any minor mother under this chapter shall include liability for placement expenses for the child or children of such minor mother if the minor mother and child or children are placed at the same facility.
(e) Payments due under this section for the care of children in foster homes shall commence within 60 days of the child's placement in the foster home and shall be made every 30 days thereafter.
II. Upon the issuance of the order in paragraph I, the court shall send notice to the state and relevant county. The state and relevant county may, within 30 days from receipt of notice, request a hearing on the issues of the cost or appropriateness of services, or recovery. At such hearing, the court shall provide all financial information, including names and addresses of persons chargeable by law for the child's support and necessities, to the state and relevant county.
III. The office of reimbursements acting on behalf of Laconia developmental services and the New Hampshire hospital is authorized to compromise or reduce any expense to be charged to the state.
IV. Notwithstanding paragraph I, the county in which the court is located which issued the order creating liability for expenses for the child shall be responsible for reimbursing the state for up to 25 percent of the costs incurred under this chapter. If the court's jurisdiction crosses county lines, then the county from which the child was referred to the court shall be responsible for such reimbursement. When determining the amount of reimbursement, all services for which the county would be liable if it were the legally liable unit shall be included, except services which are already the responsibility of the appropriate school district under RSA 186-C.
V. The county which is responsible for reimbursing the state under paragraph IV is authorized to collect, on behalf of the department, payments from persons or entities which are ordered to reimburse the department under paragraph I, or which are chargeable by law for the child's support and necessities. Any amounts collected by the county pursuant to this paragraph shall be forwarded to the department, which, in turn, shall apply 25 percent of the amounts collected to reduce the county's liability under paragraph IV. The county may deduct reasonable administrative expenses directly associated with collections under this paragraph, subject to the approval of the commissioner of the department of health and human services. The commissioner may adopt rules, pursuant to RSA 541-A, relative to this paragraph.
VI. Notwithstanding any subsequent acts committed by the child which bring him to the attention of a district court, the county having liability for the child pursuant to paragraph IV shall remain the county liable for the child until the person reaches 18 years of age or the court's jurisdiction is ended, whichever comes first, unless the court's jurisdiction has been extended pursuant to RSA 169-C:4, II.
VII. If the person responsible for paying reimbursements to the county under paragraph V is financially able to pay such reimbursements but fails to make such payments, the county may apply to the district court for a lien on such person's real or personal property for the amount of reimbursements due.
VIII. (a) For the adoptive parent or prospective adoptive parent of a child in the custody of the state whose birth parents have consented to the adoption, relinquished their parental rights to the department, or the parental rights of whose birth parents were terminated pursuant to a petition brought by the department, authorized agency, or foster parent, pursuant to RSA 170-C:4, the state shall have no right of action against such adoptive parent or prospective adoptive parent for the expenses of services, placements, and programs provided pursuant to RSA 169-B, 169-C, or 169-D after the adoption.
(b) If the department determines that the adoptive parent has been convicted of sexual or physical abuse of the adopted child pursuant to RSA 631 or 632-A, or the adoptive parent has misappropriated adoption subsidy moneys, the adoptive parent shall be responsible for payment for subsequent services, placements, and programs provided pursuant to RSA 169-B, 169-C, or 169-D after the adoption. A determination of misappropriation is subject to the provisions of RSA 126-A:5, VIII.
IX. Notwithstanding any provision of law to the contrary, no county government shall be charged per diem rates for its portion of costs of placement of juveniles at the youth development center, the youth detention services unit, and, when applicable, the Tobey School, which are based upon an annual average daily census at each unit which is less than 80 percent of the unit's capacity.
Source. 1979, 361:2; 434:81. 1981, 555:2. 1982, 25:3. 1983, 458:5. 1985, 96:6; 380:38. 1987, 402:31, 32. 1988, 107:5; 153:2, 5. 1989, 75:2; 229:2; 286:2. 1990, 3:48; 203:2. 1991, 265:3. 1993, 266:4. 1994, 212:2. 1995, 220:3; 308:72, 73; 310:171, 175, 181, 182. 1996, 286:14, 17. 1997, 305:2. 2001, 93:11, eff. Dec. 19, 2002.

Section 169-C:27


[RSA 169-C:27 effective July 1, 2008; see also RSA 169-C:27 set out above.]
169-C:27 Liability of Expenses and Hearing on Liability. –
I. (a) Whenever an order creating liability for expenses is issued by the court under this chapter or whenever a voluntary service plan is developed and provided for a minor and the minor's family by the department, any expenses incurred for services, placements, and programs the providers of which are certified pursuant to RSA 170-G:4, XVIII, shall be payable by the department of health and human services.
(b) Subparagraph (a) shall not apply to expenses incurred for special education and educationally related services, or to expenses incurred for evaluation, care, and treatment of the child at the Philbrook center.
(c) The state shall have a right of action over for such expenses against the parents or the people chargeable by law for the child's support and necessities and the right to require parents or other people chargeable by law for the minor's support and necessities to assign to the state any insurance benefits that may be available to pay for all or a portion of the services provided. The department shall request reimbursement for such expenses from parents or people chargeable by law for the minor's support and necessities and shall request assignment to the state of any insurance benefits that may be available to pay for all or a portion of the services provided. The court shall require the individual chargeable by law for the child's support and necessities to submit a financial statement annually to the court upon which the court shall make an order as to reimbursement to the state as may be reasonable and just, based on the person's ability to pay. Such financial statement shall include, but not be limited to, any benefits received from the Social Security Administration or insurance benefits available to the individual. The court shall include disposition of these benefits in its order as to reimbursement. Such reimbursement shall be established on a per month or per week basis and shall continue from the time the services begin until 4 years beyond the time such services end, unless such reimbursement is fully paid prior to the end of the 4-year period. The court's jurisdiction to order reimbursement shall continue until the court-ordered obligation to reimburse has been fulfilled. If the court does not issue a reimbursement order, the court shall issue written findings explaining why such reimbursement is not ordered.
(d) Liability for placement expenses for any court ordered placement of any minor mother under this chapter shall include liability for placement expenses for the child or children of such minor mother if the minor mother and child or children are placed at the same facility.
(e) Payments due under this section for the care of children in foster homes shall commence within 60 days of the child's placement in the foster home and shall be made every 30 days thereafter.
II. Upon the issuance of the order in paragraph I, the court shall send notice to the state. The state may, within 30 days from receipt of notice, request a hearing on the issues of the cost or appropriateness of services, or recovery. At such hearing, the court shall provide all financial information, including names and addresses of persons chargeable by law for the child's support and necessities, to the state.
III. The office of reimbursements acting on behalf of Laconia developmental services and the New Hampshire hospital is authorized to compromise or reduce any expense to be charged to the state.
IV. The department may enter into an agreement with a county to collect, on behalf of the department, payments from persons or entities which are ordered to reimburse the state under paragraph I, or which are chargeable by law for the minor's support and necessities. An agreement may authorize the county to deduct reasonable administrative costs from the amounts collected. The balance of any amounts collected by the county pursuant to this paragraph shall be forwarded to the department.
V. If the person responsible for paying reimbursements to the department under paragraph IV is financially able to pay such reimbursements but fails to make such payments, the department may apply to the district court for a lien on such person's real or personal property for the amount of reimbursements due.
VI. (a) For the adoptive parent or prospective adoptive parent of a child in the custody of the state whose birth parents have consented to the adoption, relinquished their parental rights to the department, or the parental rights of whose birth parents were terminated pursuant to a petition brought by the department, authorized agency, or foster parent, pursuant to RSA 170-C:4, the state shall have no right of action against such adoptive parent or prospective adoptive parent for the expenses of services, placements, and programs provided pursuant to RSA 169-B, 169-C, or 169-D after the adoption.
(b) If the department determines that the adoptive parent has been convicted of sexual or physical abuse of the adopted child pursuant to RSA 631 or 632-A, or the adoptive parent has misappropriated adoption subsidy moneys, the adoptive parent shall be responsible for payment for subsequent services, placements, and programs provided pursuant to RSA 169-B, 169-C, or 169-D after the adoption. A determination of misappropriation is subject to the provisions of RSA 126-A:5, VIII.
Source. 1979, 361:2; 434:81. 1981, 555:2. 1982, 25:3. 1983, 458:5. 1985, 96:6; 380:38. 1987, 402:31, 32. 1988, 107:5; 153:2, 5. 1989, 75:2; 229:2; 286:2. 1990, 3:48; 203:2. 1991, 265:3. 1993, 266:4. 1994, 212:2. 1995, 220:3; 308:72, 73; 310:171, 175, 181, 182. 1996, 286:14, 17. 1997, 305:2. 2001, 93:11, eff. Dec. 19, 2002. 2007, 263:21, eff. July 1, 2008.

Section 169-C:28

169-C:28 Appeals. –
I. An appeal under this chapter may be taken to the superior court by the child or the child's authorized representative or any party having an interest, including the state, or any person subject to any administrative decision pursuant to this chapter, within 30 days of the final dispositional order; but an appeal shall not suspend the order or decision of the court unless the court so orders. The superior court shall hear the matter de novo, and shall give an appeal under this chapter priority on the court calendar. For purposes of this chapter, a ""final dispositional order'' includes a dismissal of a petition for abuse and neglect by the district court. ""Final dispositional order'' shall also include any ruling or order arising from an administrative hearing held or initiated by any administrative agency, including the department, in which a finding of child abuse or neglect is made.
II. This section shall apply to all appeals under this chapter, including appeals in proceedings before the family division of the courts.
Source. 1979, 361:2. 1989, 40:1. 1998, 235:1. 2000, 254:3, eff. June 12, 2000.

Section 169-C:28-a

169-C:28-a Household Members. – [Repealed 1994, 411:19, II, eff. Jan. 1, 1995.]
Reporting Law

Section 169-C:29

169-C:29 Persons Required to Report. – Any physician, surgeon, county medical examiner, psychiatrist, resident, intern, dentist, osteopath, optometrist, chiropractor, psychologist, therapist, registered nurse, hospital personnel (engaged in admission, examination, care and treatment of persons), Christian Science practitioner, teacher, school official, school nurse, school counselor, social worker, day care worker, any other child or foster care worker, law enforcement official, priest, minister, or rabbi or any other person having reason to suspect that a child has been abused or neglected shall report the same in accordance with this chapter.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:30

169-C:30 Nature and Content of Report. – An oral report shall be made immediately by telephone or otherwise, and followed within 48 hours by a report in writing, if so requested, to the department. Such report shall, if known, contain the name and address of the child suspected of being neglected or abused and the person responsible for the child's welfare, the specific information indicating neglect or the nature and extent of the child's injuries (including any evidence of previous injuries), the identity of the person or persons suspected of being responsible for such neglect or abuse, and any other information that might be helpful in establishing neglect or abuse or that may be required by the department.
Source. 1979, 361:2. 1989, 146:2. 1994, 411:17. 1995, 310:175, eff. Nov. 1, 1995.

Section 169-C:31

169-C:31 Immunity From Liability. – Anyone participating in good faith in the making of a report pursuant to this chapter is immune from any liability, civil or criminal, that might otherwise be incurred or imposed. Any such participant has the same immunity with respect to participation in any investigation by the department or judicial proceeding resulting from such report.
Source. 1979, 361:2. 1994, 411:17. 1995, 310:175, eff. Nov. 1, 1995.

Section 169-C:32

169-C:32 Abrogation of Privileged Communication. – The privileged quality of communication between husband and wife and any professional person and his patient or client, except that between attorney and client, shall not apply to proceedings instituted pursuant to this chapter and shall not constitute grounds for failure to report as required by this chapter.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Section 169-C:33

169-C:33 Photographs and X-Rays. –
I. Any medical person or the department preparing or investigating a report under this chapter, may take, or cause to be taken, photographs of the areas of trauma visible on a child who is the subject of a report and, if medically indicated, cause to be performed a radiological examination of the child without the consent of the child's parents or guardians. All photographs and X-rays taken, or copies of them, shall be sent to the appropriate offices of the department as soon as possible.
II. The reasonable cost of photographs or X-rays taken under this section shall be reimbursed by the department.
Source. 1979, 361:2. 1994, 411:17. 1995, 310:175, eff. Nov. 1, 1995.

Section 169-C:34

169-C:34 Duties of the Department of Health and Human Services. –
I. If it appears that the immediate safety or well-being of a child is endangered, the family may flee or the child disappear, or the facts otherwise so warrant, the department shall commence an investigation immediately after receipt of a report. In all other cases, a child protective investigation shall be commenced within 72 hours of receipt of the report.
II. For each report it receives, the department shall promptly perform a child protective investigation to: (i) determine the composition of the family or household, including the name, address, age, sex and race of each child named in the report, and any siblings or other children in the same household or in the care of the same adults, the parents or other persons responsible for their welfare, and any other adults in the same household; (ii) determine whether there is probable cause to believe that any child in the family or household is abused or neglected, including a determination of harm or threatened harm to each child, the nature and extent of present or prior injuries, abuse or neglect, and any evidence thereof, and a determination of the person or persons apparently responsible for the abuse or neglect; (iii) determine the immediate and long-term risk to each child if the child remains in the existing home environment; and (iv) determine the protective treatment, and ameliorative services that appear necessary to help prevent further child abuse or neglect and to improve the home environment and the parents' ability to adequately care for the children.
III. The department may request and shall receive from any agency of the state or any of its political subdivisions or any schools, such assistance and information as will enable it to fulfill its responsibilities under this section.
IV. Upon notification by the department that the immediate safety or well-being of a child may be endangered, the court may, in its discretion, order a police officer, juvenile probation and parole officer, or child protection service worker to enter the place where the child is located, in furtherance of such investigation.
V. Notwithstanding any other provision of law to the contrary, the department may, pursuant to a voluntary service plan that is developed and provided for a minor and the minor's family by the department, offer voluntary services to families without making a determination of the person or persons apparently responsible for the abuse or neglect. The department shall adopt rules, pursuant to RSA 541-A, relative to the provision of voluntary services under this paragraph.
VI. At the first contact in person, any person investigating a report of abuse or neglect on behalf of the department shall verbally inform the parents of a child suspected of being a victim of abuse or neglect of the specific nature of the charges and that they are under no obligation to allow a social worker or state employee on their premises or surrender their children to interviews unless that social worker or state employee is in possession of a court order to that effect. Upon receiving such information, the parent shall sign a written acknowledgement indicating that the information required under this paragraph was provided by the person conducting the investigation. The parent and department shall each retain a copy of the acknowledgment.
Source. 1979, 361:2. 1987, 402:12. 1994, 411:15-17. 1995, 310:175, 181. 2000, 294:9. 2001, 279:1, eff. Jan. 1, 2002. 2006, 276:1, eff. Jan. 1, 2007.

Section 169-C:34-a

169-C:34-a Multidisciplinary Child Protection Teams. –
I. The department of health and human services may enter into formal cooperative agreements with appropriate agencies and organizations to create multidisciplinary child protection teams to assist with the investigation and evaluation of reports of abuse and neglect under this chapter.
II. Multidisciplinary child protection team members may include licensed physical and mental health practitioners, educators, law enforcement officers, representatives from the local child advocacy center, social workers, and such other individuals as may be necessary to assist with the investigation and evaluation of reports of abuse or neglect.
III. The department may share information from its case records to the extent permitted by law with members of a multidisciplinary child protection team in order to assist the team with its investigation and evaluation of a report of abuse or neglect. Multidisciplinary child protection team members shall be required to execute a confidentiality agreement and shall be bound by the confidentiality provisions of RSA 169-C:25 and RSA 170-G:8-a.
IV. The department, in conjunction with the department of justice and the New Hampshire Network of Children's Advocacy Centers, shall develop a written protocol for multidisciplinary child protection team investigations. The purpose of the protocol shall be to ensure the coordination and cooperation of the agencies involved in multidisciplinary child protection team investigations, to increase the efficiency in the handling of these cases, and to minimize the impact on the child of the legal and investigatory process. The protocol developed shall be reviewed and, if necessary, revised not less than once every 3 years. The department shall forward a copy of the approved protocol to the speaker of the house of representatives, the senate president, and the governor by November 1 of the year in which they were approved and revised.
Source. 2006, 118:1, eff. July 10, 2006.

Section 169-C:35

169-C:35 Central Registry. –
I. There shall be established a state registry for the purpose of maintaining a record of founded reports of abuse and neglect. The registry shall be confidential and subject to rules on access established by the commissioner of the department under RSA 541-A.
II. Upon receipt by the department of a written request and verified proof of identity, an individual shall be informed by the department whether that individual's name is listed in the founded reports maintained in the central registry. It shall be unlawful for any employer other than those specified in RSA 170-E and RSA 170-G:8-c to require as a condition of employment that the employee submit his or her name for review against the central registry of founded reports of abuse and neglect. Any violation of this provision shall be punishable as a violation.
III. Founded reports of abuse and neglect shall be retained for a period of 7 years subject to an individual's right to petition for the earlier removal of his or her name from the central registry as provided in this section.
IV. Any individual whose name is listed in the founded reports maintained on the central registry may petition the district court to have his or her name expunged from the registry.
(a) A petition to expunge shall be filed in the district court where the abuse and neglect petition was heard. In cases where the department makes a finding but no petition is filed with the court, a petition to expunge shall be filed in the district court where the petition for the abuse and neglect could have been brought.
(b) A petition to expunge shall be filed on forms promulgated by the district courts and may include any information the petitioner deems relevant.
(c) When a petition to expunge is filed, the district court shall require the department to report to the court concerning any additional founded abuse and neglect reports on the petitioner and shall require that the department submit the petitioner's name, birth date, and address to the state police to obtain information about criminal convictions. The court may require the department to provide any additional information that the court believes may aid it in making a determination on the petition.
(d) Upon the receipt of the department's report, the court may act on the petition without further hearing or may schedule the matter for hearing at the request of either party. If the court determines that the petitioner does not pose a present threat to the safety of children, the court shall grant the petition and order the department to remove the individual's name from the central registry. Otherwise, the petition shall be dismissed.
V. When an individual's name is added to the central registry, the department shall notify individuals of their right to petition to have their name expunged from the central registry. No petition to expunge shall be brought within one year from the date that the petitioner's name was initially entered on the central registry. If the petition to expunge is denied, no further petition shall be brought more frequently than every 3 years thereafter.
VI. Upon receipt of a written request from another state's child welfare agency to check the central registry established under this section for information on a prospective foster or adoptive parent or any other adult living in the home of such a prospective foster or adoptive parent, the department shall conduct the requested check and shall provide the requesting state with the results of the check along with such additional information from the department's case records as the department deems necessary for the requesting state to be able to evaluate the results.
Source. 1979, 361:2. 1983, 331:5. 1985, 367:1. 1993, 355:5. 1995, 310:173, 175, eff. Nov. 1, 1995. 2002, 111:1, eff. Jan. 1, 2003. 2007, 325:1, eff. July 16, 2007.

Section 169-C:35-a

169-C:35-a Records Management of Abuse and Neglect Reports. –
I. The department shall retain a screened-out report for one year from the date that the report was screened-out, after which time, the department shall delete or destroy all electronic and paper records of the report. In this section, a ""screened-out report'' is one which the department has determined does not rise to the level of a credible report of abuse or neglect and is not referred for assessment.
II. The department shall retain an unfounded report for 3 years from the date that the department determined the case to be unfounded, after which time, the department shall delete or destroy all electronic and paper records of the report.
III. The department shall retain a founded report for 7 years from the date that the petitionee has exhausted or failed to exercise his or her due process right to appeal the department's determination to found the report, after which time, the department shall delete or destroy all electronic and paper records of the report.
IV. The provisions of paragraph III, which relate to the destruction of the records of founded reports, shall not apply to cases that remain open with the department in excess of 7 years or to adoption records. Upon the closure of a case which has remained open with the department in excess of 7 years, the department shall delete or destroy all electronic and paper records of the report.
V. Nothing in this section shall prevent the department from retaining generic, non-identifying information which is required for state and federal reporting and management purposes.
Source. 2002, 162:1, eff. Nov. 11, 2002.

Section 169-C:36

169-C:36 Confidentiality. – [Repealed 1983, 331:8, eff. Aug. 17, 1983.]
Section 169-C:37

169-C:37 Institutional Abuse and Neglect. – The department of justice shall be empowered to receive and investigate reports of institutional abuse or neglect at the youth development center, Laconia developmental services, and New Hampshire hospital; and the department shall be empowered to receive and investigate reports of all other suspected instances of institutional abuse or neglect. Either the department of justice or the commissioner of the department or both may adopt rules consistent with this authority to investigate such reports and take appropriate action for the protection of children.
Source. 1979, 361:2. 1983, 242:9. 1988, 107:5. 1994, 411:17. 1995, 310:173, 175, eff. Nov. 1, 1995.

Section 169-C:38

169-C:38 Report to Law Enforcement Authority. –
I. The department shall immediately by telephone or in person refer all cases in which there is reason to believe that any person under the age of 18 years has been: (a) sexually molested; (b) sexually exploited; (c) intentionally physically injured so as to cause serious bodily injury; (d) physically injured by other than accidental means so as to cause serious bodily injury; or (e) a victim of a crime, to the local law enforcement agency in the community in which the acts of abuse are believed to have occurred. The department shall also make a written report to the law enforcement agency within 48 hours, Saturdays, Sundays and holidays excluded. A copy of this report shall be sent to the office of the county attorney.
II. All law enforcement personnel and department employees shall cooperate in limiting the number of interviews of a child victim and, when appropriate, shall conduct joint interviews of the child. Employees of the department shall share with the investigating police officers all information in their possession which it is lawful for them to disclose to a law enforcement agency. Investigating police officers shall not use or reveal any confidential information shared with them by the department except to the extent necessary for the investigation and prosecution of the case.
III. No staff member of the department shall be held civilly or criminally liable for a telephone referral or a written report made under paragraph I.
IV. Law enforcement personnel or department employees who are trained caseworkers shall have the right to enter any public place, including but not limited to schools and child care agencies, for the purpose of conducting an interview with a child, with or without the consent or notification of the parent or parents of such child, if there is reason to believe that the child has been:
(a) Sexually molested.
(b) Sexually exploited.
(c) Intentionally physically injured so as to cause serious bodily injury.
(d) Physically injured by other than accidental means so as to cause serious bodily injury.
(e) A victim of a crime.
(f) Abandoned.
(g) Neglected.
V. For any interview conducted pursuant to paragraph IV, the interview with the child shall be videotaped if possible. If the interview is videotaped, it shall be videotaped in its entirety. If the interview cannot be videotaped in its entirety, an audio recording of the entire interview shall be made.
Source. 1979, 361:2. 1986, 225:1. 1988, 237:1. 1994, 411:17. 1995, 310:175. 1998, 185:1, 2, eff. Jan. 1, 1999.

Section 169-C:38-a

169-C:38-a Standardized Protocol for the Investigation and Assessment of Child Abuse and Neglect Cases. – The department of health and human services and the department of justice shall jointly develop a standardized protocol for the interviewing of victims and the investigation and assessment of cases of child abuse and neglect. The protocol shall seek to minimize the impact on the victim. The protocol shall also be designed to protect the rights of all parties affected The protocol shall specifically address the need to establish safe and appropriate places for interviewing children.
Source. 2002, 113:1, eff. July 2, 2002.

Section 169-C:39

169-C:39 Penalty for Violation. – Anyone who knowingly violates any provision of this subdivision shall be guilty of a misdemeanor.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Prevention Program

Section 169-C:39-a

169-C:39-a Purpose. –
I. The legislature recognizes that child abuse and neglect are serious societal problems, are threats to the family unit, and result in major expenses to society. The legislature further declares that there is a need to assist private and public agencies in initiating and enhancing community based educational and service programs for the prevention of these misfortunes. It is the intent of the legislature to support programs that will reduce conditions leading to child abuse and thus limit the need for future state intervention and expense. It is further intended that programs for preventing child abuse and neglect will be cooperative ventures of citizens, communities, and the state. The purpose of this subdivision is to create a new fund to be used exclusively for the prevention of child abuse and neglect, in order to augment funds currently available from federal, state, or local sources for this purpose.
II. The purpose of this subdivision is to provide a new source of funding, to be known as the New Hampshire children's trust fund, which shall increase the funds available for the prevention of child abuse and neglect. The legislature does not intend that these funds will be used as a substitute for any funds available from federal, state, or local sources for prevention programs; nor does the legislature intend that these funds will substitute for state appropriations to the budget of the department of health and human services or to any other state agency.
Source. 1986, 184:1. 1987, 372:1. 1994, 212:2. 1995, 310:181. 1997, 254:1, eff. Aug. 18, 1997.

Section 169-C:39-b

169-C:39-b Definitions. – In this subdivision:
I. ""Board'' means the board of trustees established by RSA 169-C:39-d.
II. ""Trust fund'' means the New Hampshire children's trust fund held and administered as a designated fund by the New Hampshire Charitable Foundation or its successor or replacement.
III. ""Grantee'' means any public or private nonprofit organization which receives funding under this subdivision.
IV. ""Prevention'' means strengthening family function and reducing or eliminating factors conducive to child abuse and neglect.
V. ""Prevention programs'' means programs designed to meet the goals in paragraph IV and may include, but are not limited to:
(a) Community-based educational programs on prenatal care, prenatal bonding, child development, basic child care, care of children with special needs, coping with family stress, child sexual assault prevention and awareness projects in schools; and
(b) Community-based programs relating to aid to parents, child abuse counselling, support groups for families at risk of child abuse and neglect, and early identification of families with potential for such problems.
VI. ""Interest'' means the income from whatever source earned by the fund (exclusive of capital gains which shall be added to principal), net of bank management fees and administrative expenses incurred by the New Hampshire Charitable Foundation in connection with the investment and administration of the fund.
Source. 1986, 184:1. 1987, 372:2, 3. 1992, 24:2, V. 1997, 254:2, eff. Aug. 18, 1997.

Section 169-C:39-c

169-C:39-c New Hampshire Children's Trust Fund. –
I. There is hereby established in the New Hampshire Charitable Foundation a special fund to be known as the New Hampshire children's trust fund. This fund is organized exclusively for religious, charitable, scientific, literary, or educational purposes, within the meaning of those terms as used in section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and no part of the net earnings shall inure to the benefit of any private shareholder or individual. In addition, but in no way limiting the enumerated purpose of this fund, it is established for the prevention of cruelty to children. Funding shall be made available to a wide range of state and community-based family resource programs to prevent child abuse. The fund shall make regular payments of interest as defined in RSA 169-C:39-b, VI to the New Hampshire children's trust fund board for programs as defined in RSA 169-C:39-b, V, and said moneys shall not be available for any other purpose. The trust fund established in this paragraph shall be held and administered as a component fund of the New Hampshire Charitable Foundation, subject to its articles of agreement and bylaws, except that no change in the purpose of the fund as stated in the preceding sentence shall be made without an amendment to this chapter. The New Hampshire Charitable Foundation shall provide an annual accounting of the trust fund to the board. The board shall have the responsibility of soliciting moneys from sources other than the general fund, including federal moneys. The board shall deposit any moneys received as a result of solicitation into the trust fund. The board may request that the New Hampshire Charitable Foundation assist them or their designee in connection with the solicitation of moneys from sources other than the general fund. The New Hampshire Charitable Foundation shall be entitled to make an administrative charge against the trust fund for investment services and administrative services in an amount comparable to that charged to other funds administered by the New Hampshire Charitable Foundation, subject to negotiation between the New Hampshire Charitable Foundation and the board. Such administrative charge shall be in addition to the administrative expenses payable under RSA 169-C:39-c, IV.
II. The state treasurer shall establish a separate account to be known as the ""trust fund reserve account'' into which shall be deposited all moneys appropriated to the trust fund reserve account. When moneys from a source other than the general fund and other than federal funds are deposited into the trust fund established under paragraph I, the state treasurer shall deposit into the trust fund, from the trust fund reserve account, additional moneys in the same amount on a one-to-one matching basis. Any interest earned on the trust fund reserve account shall revert to the general fund.
III. Until the total assets of the fund exceed $5,000,000 only the interest earned on the moneys in the trust fund established under paragraph I shall be available for disbursement each year, except for any moneys, the receipt of which is conditioned upon the moneys being expended. When the amount of the trust fund exceeds $5,000,000, any moneys in excess of this amount shall be disbursed for the purposes of this subdivision, except for any moneys, the receipt of which is conditioned upon the moneys remaining in the trust fund.
IV. Of the interest earned on the trust fund established under paragraph I, not more than 10 percent shall be designated for administrative expenses. All mileage payments for members of the board shall be paid out of these moneys.
Source. 1986, 184:1. 1987, 372:4. 1989, 132:2. 1992, 24:2, VI. 1997, 254:3, 4, eff. Aug. 18, 1997.

Section 169-C:39-d

169-C:39-d New Hampshire Children's Trust Fund Board. –
I. There is hereby established a board composed of the following members, all of whom shall have had experience and knowledge with regard to problems of child abuse and neglect, to administer the prevention program:
(a) Eight members to be appointed by the board, as follows:
(1) Three members who are knowledgeable about child development, child health, child psychology, education, juvenile delinquency, or related fields.
(2) Three members who are knowledgeable about the organization and administration of volunteer community services and grant administration.
(3) Two members who are knowledgeable about banking, finance, investments, tax law, business, or public relations.
(b) Two members of the senate to be appointed by the president of the senate.
(c) Two members of the house of representatives to be appointed by the speaker of the house.
(d) The attorney general or a designee.
(e) One representative of children, youth, and families appointed by the commissioner of the department of health and human services.
(f) One representative of public health appointed by the commissioner of the department of health and human services.
(g) One member, who shall be knowledgeable about one of the areas designated in subparagraph (a), appointed by the governor.
II. The board members, other than the legislative members who shall serve for a term concurrent with their legislative terms, and other than the attorney general and those members appointed by the commissioner of the department of health and human services, shall serve terms of 3 years.
III. The board shall choose a chairman from among its members and shall meet at least 4 times per year and more often at the call of the chair. Seven members shall constitute a quorum. The board shall be administratively attached to the department of justice. Members of the board shall receive mileage payments at the state employee rate.
IV. [Repealed.]
Source. 1986, 184:1. 1993, 165:1. 1994, 212:2. 1995, 310:171. 1997, 254:5, eff. Aug. 18, 1997.

Section 169-C:39-e

169-C:39-e Duties of the Board. – In addition to the duties outlined in RSA 169-C:39-c, the board shall have the following duties:
I. (a) Administer the grant program established by this subdivision.
(b) Apply for and receive funds from other sources including, but not limited to, federal and state grants.
II. Disburse funds to qualified grantees, subject to any applicable state law governing the distribution of state grants and state contracts.
III. Publicize the availability of the trust fund moneys.
IV. Renew and monitor the quality of the programs which have received moneys from the trust fund.
V. Report annually on the effectiveness of the grant program and provide an annual accounting of the fund to the speaker of the house, the senate president, and the governor.
Source. 1986, 184:1. 1987, 372:5, 10. 1993, 165:2, eff. July 23, 1993.

Section 169-C:39-f

169-C:39-f Criteria for Selection of Grantees. – The board shall use all of the following criteria for selecting grantees:
I. A grantee shall be a community-based public or private nonprofit organization or community prevention council that intends to use its grant for a community or state-wide prevention program.
II. A grantee shall stipulate that participation by targeted individuals in its prevention program be voluntary.
III. A grantee shall demonstrate the need for its proposed prevention program.
IV. A grantee shall establish its ability to secure community support and its efficiency of administration.
V. A grantee shall meet the criteria established for the fund for purposes of the evaluation and accountability of the funded project.
Source. 1986, 184:1. 1997, 254:6, 7, eff. Aug. 18, 1997.

Section 169-C:39-g

169-C:39-g Amount of Grant. – A grantee shall have a portion of its funding contributed from a source other than the children's trust fund, which source may include town, city, county, federal, or private sources. Contribution in kind, whether material, commodities, transportation, office space, or personal services, shall be evaluated by the board of trustees and counted as part of the required non-state funding; provided that such in kind contribution shall not be permitted to exceed 50 percent of the non-state contribution. A grantee shall be eligible to receive up to 50 percent of its yearly funding from the trust fund.
Source. 1986, 184:1, eff. July 1, 1986.

Section 169-C:39-h

169-C:39-h Rulemaking. – [Repealed 2006, 48:1, eff. June 17, 2006.]
Section 169-C:39-i

169-C:39-i Successor to or Replacement of New Hampshire Charitable Foundation. – References in this subdivision to the New Hampshire Charitable Foundation shall include any successor to such foundation. The New Hampshire Charitable Foundation may resign from the obligations imposed on it under this subdivision by paying over all funds held by it under this subdivision to the state treasurer, together with an accounting. Upon such payment, the New Hampshire Charitable Foundation shall be relieved of all further obligations with respect to the trust fund.
Source. 1987, 372:6. 1992, 24:1. 1997, 254:8, eff. Aug. 18, 1997.

Severability

Section 169-C:40

169-C:40 Severability. – If any provision of this chapter or the application thereof to any person or circumstances is held to be invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby.
Source. 1979, 361:2, eff. Aug. 22, 1979.

Enter content here

Enter content here

Enter content here


TITLE XLIII
DOMESTIC RELATIONS

CHAPTER 461-A
PARENTAL RIGHTS AND RESPONSIBILITIES

Section 461-A:1

461-A:1 Definitions. – In this chapter:
I. ""Decision-making responsibility'' means the responsibility to make decisions for the child. It may refer to decisions on all issues or on specified issues.
II. ""Mediation'' means a process in which a neutral third party facilitates settlement discussions between parties.
III. ""Mediator'' means a marital mediator, certified pursuant to RSA 328-C, who has contracted with the court to participate in court-referred mediation under this chapter.
IV. ""Parental rights and responsibilities'' means all rights and responsibilities parents have concerning their child.
V. ""Parenting plan'' means a written plan describing each parent's rights and responsibilities.
VI. ""Parenting schedule'' means the schedule of when the child is in the care of each parent.
VII. ""Residential responsibility'' means a parent's responsibility to provide a home for the child.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:2

461-A:2 Statement of Purpose. –
I. Because children do best when both parents have a stable and meaningful involvement in their lives, it is the policy of this state, unless it is clearly shown that in a particular case it is detrimental to a child, to:
(a) Support frequent and continuing contact between each child and both parents.
(b) Encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced.
(c) Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, unless there is evidence of domestic violence, child abuse, or neglect.
(d) Grant parents and courts the widest discretion in developing a parenting plan.
(e) Consider both the best interests of the child in light of the factors listed in RSA 461-A:6 and the safety of the parties in developing a parenting plan.
II. This chapter shall be construed so as to promote the policy stated in this section.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:3

461-A:3 Procedure and Jurisdiction. –
I. The procedure in cases concerning parental rights and responsibilities, including child support, shall be the same as the procedure for petitions for divorce and legal separation under RSA 458. Except as otherwise provided in this chapter, the court, upon proper application and notice to the adverse party, may revise and modify any order made by it, make such new orders as may be necessary, and may award costs as justice may require.
II. In cases where husband and wife or unwed parents are living apart, the court, upon petition of either party, may make such order as to parental rights and responsibilities and support of the children as justice may require. All applicable provisions of this chapter and of RSA 458-A, 458-B, 458-C, and 458-D shall apply to such proceedings.
III. The jurisdiction granted by this section shall be limited by the Uniform Child Custody Jurisdiction Act, if another state has jurisdiction as provided in that act. For the purposes of interpreting that act and any other provision of law which refers to a custodial parent, including but not limited to RSA 458-A, any parent with 50 percent or more of the residential responsibility shall be considered a custodial parent.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:4

461-A:4 Parenting Plans; Contents. –
I. In any proceeding to establish or modify a judgment providing for parenting time with a child, except for matters filed under RSA 173-B, the parents shall develop and file with the court a parenting plan to be included in the court's decree. If the parents are unable to develop a parenting plan, the court may develop it. In developing a parenting plan under this section, the court shall consider only the best interests of the child as provided under RSA 461-A:6 and the safety of the parties.
II. A parenting plan may include provisions relative to:
(a) Decision-making responsibility and residential responsibility.
(b) Information sharing and access, including telephone and electronic access.
(c) Legal residence of a child for school attendance.
(d) Parenting schedule, including:
(1) Holiday, birthday, and vacation planning.
(2) Weekends, including holidays, and school in-service days preceding or following weekends.
(e) Transportation and exchange of the child.
(f) Relocation of parents.
(g) Procedure for review and adjustment of the plan.
(h) Methods for resolving disputes.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:4-a

461-A:4-a Judicial Enforcement of Parenting Plan. – Any motion for contempt or enforcement of an order regarding an approved parenting plan under this chapter, if filed by a parent, shall be reviewed by the court within 30 days.
Source. 2006, 251:1, eff. Aug. 4, 2006.

Section 461-A:5

461-A:5 Decision-making Responsibility. – Except as provided in paragraph III, in the making of any order relative to decision-making responsibility, there shall be a presumption, affecting the burden of proof, that joint decision-making responsibility is in the best interest of minor children:
I. Where the parents have agreed to an award of joint decision-making responsibility or so agree in open court at a hearing for the purpose of determining parental rights and responsibilities for the minor children of the marriage. If the court declines to enter an order awarding joint decision-making responsibility, the court shall state in its decision the reasons for the denial.
II. Upon the application of either parent for joint decision-making responsibility, in which case it may be awarded at the discretion of the court. For the purpose of assisting the court in making a determination whether an award of joint decision-making responsibility is appropriate under this section, the court may appoint a guardian ad litem to represent the interests of the children according to the provisions of RSA 461-A:16. If the court declines to enter an order awarding joint decision-making responsibility, the court shall state in its decision the reasons for the denial.
III. Where the court finds that abuse as defined in RSA 173-B:1, I has occurred, the court shall consider such abuse as harmful to children and as evidence in determining whether joint decision-making responsibility is appropriate. In such cases, the court shall make orders for the allocation of parental rights and responsibilities that best protect the children or the abused spouse or both. If joint decision-making responsibility is granted despite evidence of abuse, the court shall provide written findings to support the order.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:6

461-A:6 Determination of Parental Rights and Responsibilities; Best Interest. –
I. In determining parental rights and responsibilities, the court shall be guided by the best interests of the child, and shall consider the following factors:
(a) The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.
(b) The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
(c) The child's developmental needs and the ability of each parent to meet them, both in the present and in the future.
(d) The quality of the child's adjustment to the child's school and community and the potential effect of any change.
(e) The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, except where contact will result in harm to the child or to a parent.
(f) The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact.
(g) The support of each parent for the child's relationship with the other parent.
(h) The relationship of the child with any other person who may significantly affect the child.
(i) The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children.
(j) Any evidence of abuse, as defined in RSA 173-B:1, I or RSA 169-C:3, II, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.
(k) If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration.
(l) Any other additional factors the court deems relevant.
II. If the court finds by clear and convincing evidence that a minor child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature minor child as to the determination of parental rights and responsibilities. Under these circumstances, the court shall also give due consideration to other factors which may have affected the minor child's preference, including whether the minor child's preference was based on undesirable or improper influences.
III. In determining parental rights and responsibilities under this section, including residential responsibility, the court shall not apply a preference for one parent over the other because of the sex of the child, the sex of a parent, or the financial resources of a parent.
IV. If the court finds that a parent has been convicted of sexual abuse or sexual assault against such parent's minor child or minor stepchild, the court may prohibit contact between such parent and the victim of the abuse and any sibling or step-sibling of the victim. The court shall make orders that best protect the victim of the abuse and the siblings and step-siblings of such victim. In this paragraph, ""sexual abuse'' shall mean sexual abuse as defined in RSA 169-C:3, XXVII-a, and ""sexual assault'' shall mean sexual assault as provided in RSA 632-A:2, RSA 632-A:3, and RSA 632-A:4.
V. If the court determines that it is in the best interest of the children, it shall in its decree grant reasonable visitation privileges to a party who is a stepparent of the children or to the grandparents of the children pursuant to RSA 461-A:13. Nothing in this paragraph shall be construed to prohibit or require an award of parental rights and responsibilities to a stepparent or grandparent if the court determines that such an award is in the best interest of the child.
VI. The court may appoint a guardian ad litem to represent the interests of the child according to RSA 461-A:16.
VII. At the request of an aggrieved party, the court shall set forth the reasons for its decision in a written order.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:7

461-A:7 Mediation of Cases Involving Children. –
I. The general purpose of this section is to:
(a) Manage conflict and decrease acrimony between parties in a dispute concerning parental rights and responsibilities for minor children.
(b) Promote the best interest of children.
(c) Improve the parties' satisfaction with the outcome of disputes concerning parental rights and responsibilities.
(d) Increase the parties' participation in making decisions for themselves and their children.
(e) Increase compliance with court orders.
(f) Reduce the number and frequency of cases returning to court.
(g) Improve court efficiency.
II. The mediator has no authority to make a decision or impose a settlement upon the parties. The mediator shall attempt to focus the attention of the parties upon their needs and interests rather than upon their positions. Any settlement is entirely voluntary. In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation.
III. In all cases involving disputed parental rights and responsibilities or grandparents' visitation rights, including requests for modification of prior orders, the court may order the parties to participate in mediation. If the parties are ordered to participate in mediation under this section, all issues relevant to their case, including but not limited to child support and issues relative to property settlement and alimony under RSA 458, shall also be mediated unless the court orders otherwise.
IV. Reasons the court may choose not to order mediation include, but are not limited to, the following:
(a) A showing of undue hardship to a party.
(b) An agreement between the parties for alternate dispute resolution procedures.
(c) An allegation of abuse or neglect of the minor child.
(d) A finding of alcoholism or drug abuse, unless all parties agree to mediation.
(e) An allegation of serious psychological or emotional abuse.
(f) Lack of an available, suitable mediator within a reasonable time period.
V. The court shall not order mediation if there is a finding of domestic violence as defined in RSA 173-B:1, unless all parties agree to mediation.
VI. Either party may move to have the mediator replaced for good cause.
VII. Mediation proceedings shall be held in private, and all communications, oral or written, made during the proceedings, which relate to the issues being mediated, whether made by the mediator, or a party, or any other person present, shall be privileged and confidential and shall not be disclosed and shall not be admissible in court, except as provided in RSA 328-C:9.
VIII. Any mediated agreement reached by the parties on all or some of the disputed issues shall be reduced to writing, signed by each party, and filed with the court as soon as practicable.
IX. The parties shall participate at mediation in good faith. If the mediator determines that mediation is not helpful in resolving the dispute, the mediator shall report that fact to the court and return the matter to the court for adjudication of the underlying issues.
X. In the event both parties are indigent, the mediator shall be paid a set fee for his or her services. The amount of the fee shall be set annually by supreme court rule. The court may order each party to pay a proportional amount of said fee. The fee shall be paid from the special fund established pursuant to RSA 461-A:17 and repaid by the parties in accordance with RSA 461-A:18.
XI. The supreme court shall establish rules and take such action as necessary to effectuate the purpose of this section.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:8

461-A:8 Temporary Orders. – After the filing of a petition concerning a minor child under this chapter, the court may issue orders with such conditions and limitations as the court deems just. The orders may be issued ex parte. The orders may include the following:
I. The temporary allocation of parental rights and responsibilities of any minor child as provided in RSA 461-A:6.
II. Payment of temporary support for the child, including the provision of health insurance.
III. If paternity is a contested and relevant issue, orders for paternity testing in accordance with RSA 522.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:9

461-A:9 Ex Parte Orders. –
I. After the filing of a petition concerning a minor child under this chapter, the court may issue ex parte temporary orders. Ex parte orders may be granted without written or oral notice to the adverse party only if the court finds from specific facts shown by affidavit or by the verified petition, that immediate and irreparable injury or loss will result to the applicant or the child before the adverse party or attorney can be heard in opposition.
II. No ex parte order shall be granted without:
(a) An affidavit from the moving party verifying the notice given to the other party or verifying the attempt to notify the other party.
(b) A determination by the court that such notice or attempt at notice was timely so as to afford the other party an opportunity to be present.
III. If temporary orders are made ex parte, the party against whom the orders are issued may file a written request with the clerk of the court and request a hearing thereon. Such a hearing shall be held no later than 5 days after the request is received by the clerk.
IV. Ex parte orders may include the following terms:
(a) Directing any party to refrain from abusing or interfering in any way with the person or liberty of the other party.
(b) Enjoining any party from entering the premises wherein the other party resides upon a showing that physical or emotional harm would otherwise result.
(c) Enjoining any party from contacting the other party at, or entering, the other party's place of employment or school.
(d) Enjoining any party from harassing, intimidating, or threatening the other party, the other party's relatives regardless of their place of residence, or the other party's household members in any way.
(e) The temporary allocation of parental rights and responsibilities of any minor children as provided in RSA 461-A:6.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:10

461-A:10 Restraining Orders. –
I. After the filing of a petition concerning a minor child under this chapter, the court may issue restraining orders with such conditions and limitations as the court deems just. At the discretion of the court, such orders may be made on a temporary or permanent basis. Temporary orders may be issued ex parte as provided in RSA 461-A:9. The orders may include the following:
(a) Directing any party to refrain from abusing or interfering in any way with the person or liberty of the other party.
(b) Enjoining any party from entering the premises wherein the other party resides upon a showing that physical or emotional harm would otherwise result.
(c) Enjoining any party from contacting the other party at, or entering, the other party's place of employment or school.
(d) Enjoining any party from harassing, intimidating or threatening the other party, other party's relatives regardless of their place of residence, or the other party's household members in any way.
II. When a party violates a restraining order issued under this section by committing assault, criminal trespass, criminal mischief, stalking, or another criminal act, that party shall be guilty of a misdemeanor, and peace officers shall arrest the party, detain the party pursuant to RSA 594:19-a and refer the party for prosecution. Such arrests may be made within 12 hours after a violation without a warrant upon probable cause whether or not the violation is committed in the presence of a peace officer.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:11

461-A:11 Modification of Parental Rights and Responsibilities. –
I. The court may issue an order modifying a permanent order concerning parental rights and responsibilities under any of the following circumstances:
(a) The parties agree to a modification.
(b) If the court finds repeated, intentional, and unwarranted interference by a parent with the residential responsibilities of the other parent, the court may order a change in the parental rights and responsibilities without the necessity of showing harm to the child, if the court determines that such change would be in accordance with the best interests of the child.
(c) If the court finds by clear and convincing evidence that the child's present environment is detrimental to the child's physical, mental, or emotional health, and the advantage to the child of modifying the order outweighs the harm likely to be caused by a change in environment.
(d) If the parties have substantially equal periods of residential responsibility for the child and either each asserts or the court finds that the original allocation of parental rights and responsibilities is not working, the court may order a change in allocation of parental rights and responsibilities based on a finding that the change is in the best interests of the child.
[Paragraph I(e) effective until January 1, 2008; see also paragraph I(e) set out below.]


(e) If the court finds by clear and convincing evidence 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.
[Paragraph I(e) effective January 1, 2008; see also paragraph I(e) set out above.]


(e) If the court finds by clear and convincing evidence that a minor child is of sufficient maturity to make a sound judgment, 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 whether the minor child's preference was based on undesirable or improper influences.
II. For the purposes of this section, the burden of proof shall be on the moving party.
Source. 2005, 273:1, eff. Oct. 1, 2005. 2006, 232:1, eff. June 1, 2006. 2007, 213:1, eff. Jan. 1, 2008.

Section 461-A:12

461-A:12 Relocation of a Residence of a Child. –
I. This section shall apply if the existing parenting plan, order on parental rights and responsibilities, or other enforceable agreement between the parties does not expressly govern the relocation issue. This section shall not apply if the relocation results in the residence being closer to the other parent or to any location within the child's current school district.
II. This section shall apply to the relocation of any residence in which the child resides at least 150 days a year.
III. Prior to relocating, the parent shall provide reasonable notice to the other parent. For purposes of this section, 60 days notice shall be presumed to be reasonable unless other factors are found to be present.
IV. At the request of either parent, the court shall hold a hearing on the relocation issue.
V. The parent seeking permission to relocate bears the initial burden of demonstrating, by a preponderance of the evidence, that:
(a) The relocation is for a legitimate purpose; and
(b) The proposed location is reasonable in light of that purpose.
VI. If the burden of proof established in paragraph V is met, the burden shifts to the other parent to prove, by a preponderance of the evidence, that the proposed relocation is not in the best interest of the child.
VII. If the court has issued a temporary order authorizing temporary relocation, the court shall not give undue weight to that temporary relocation as a factor in reaching its final decision.
VIII. The court, in reaching its final decision, shall not consider whether the parent seeking to relocate has declared that he or she will not relocate if relocation of the child is denied.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:13

461-A:13 Grandparents' Visitation Rights. –
I. Grandparents, whether adoptive or natural, may petition the court for reasonable rights of visitation with the minor child as provided in paragraph III. The provisions of this section shall not apply in cases where access by the grandparent or grandparents to the minor child has been restricted for any reason prior to or contemporaneous with the divorce, death, relinquishment or termination of parental rights, or other cause of the absence of a nuclear family.
II. The court shall consider the following criteria in making an order relative to a grandparent's visitation rights to the minor child:
(a) Whether such visitation would be in the best interest of the child.
(b) Whether such visitation would interfere with any parent-child relationship or with a parent's authority over the child.
(c) The nature of the relationship between the grandparent and the minor child, including but not limited to, the frequency of contact, and whether the child has lived with the grandparent and length of time of such residence, and when there is no reasonable cause to believe that the child's physical and emotional health would be endangered by such visitation or lack of it.
(d) The nature of the relationship between the grandparent and the parent of the minor child, including friction between the grandparent and the parent, and the effect such friction would have on the child.
(e) The circumstances which resulted in the absence of a nuclear family, whether divorce, death, relinquishment or termination of parental rights, or other cause.
(f) The recommendation regarding visitation made by any guardian ad litem appointed for the child pursuant to RSA 461-A:16.
(g) Any preference or wishes expressed by the child.
(h) Any such other factors as the court may find appropriate or relevant to the petition for visitation.
III. The petition for visitation shall be entered in the court which has jurisdiction over the divorce, legal separation, or a proceeding brought under this chapter. In the case of death of a parent, stepparent adoption, or unwed parents, subject to paragraph IV, the petition shall be entered in the court having jurisdiction to hear divorce cases from the town or city where the child resides.
IV. If the parent of the minor child is unwed, then any grandparent filing a petition under this section shall attach with the petition proof of legitimation by the parent pursuant to RSA 460:29 or establishment of paternity pursuant to RSA 168-A.
V. Upon the motion of any original party, the court may modify or terminate any order made pursuant to this section to reflect changed circumstances of the parties involved.
VI. Nothing contained in this section shall be construed to affect the rights of a child or natural parent or guardian under RSA 463 or adoptive parent under RSA 170-B:20.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:14

461-A:14 Support. –
I. After the filing of a petition for divorce, annulment, separation, paternity, support, or allocation of parental rights and responsibilities, including petitions filed by the department of health and human services pursuant to RSA 161-B, 161-C, and 546-B, the court shall make such further decree in relation to the support and education of the children as shall be most conducive to their benefit and may order a reasonable provision for their support and education for the period of time specified in paragraphs IV, V, and XVI.
II. In any proceeding concerning the support of children:
(a) The parties shall certify in the initial pleading filed with the court whether or not public assistance is or was paid for the benefit of the children pursuant to RSA 167 and whether or not medical assistance is being provided for the benefit of the children pursuant to RSA 167. If public assistance is or was being provided or if medical assistance is being provided, the initiating party shall provide the department of health and human services, office of child support enforcement services, with copies of any and all pleadings related to medical and child support.
(b) If, during the pendency of the action, the children become the beneficiaries of public or medical assistance, both parties shall notify the court of the public or medical assistance status of the children and shall provide the department of health and human services with copies of all pleadings related to medical and child support.
(c) When notified that public or medical assistance is being provided for the benefit of the children, the court shall provide the office of child support with a copy of any hearing notice pertaining to any medical or child support proceeding.
(d) The department shall be granted leave to reopen any case to modify, clarify, or vacate any order that was entered against its interest when an assignment of rights pursuant to RSA 161 or RSA 167 is or was in effect and the department was not given notice of the proceeding.
(e) In any case to establish, modify, or enforce an order of support where the obligor is unable to meet child support obligations for any reason, except as provided in RSA 461-A:14, XIII(a) and (b), the court may order the obligor to apply for and, if qualified, participate in food stamp and Medicaid programs, federal disability programs, and all applicable department of employment security programs to enable or enhance the obligor's ability to meet his or her support obligations. When making such orders, the court shall include the requirement that the obligor report to the court his or her compliance with the order.
III. All support orders shall provide for the assignment of the wages of the responsible parent pursuant to RSA 458-B, subject to the exceptions listed in RSA 458-B:2.
IV. The amount of a child support obligation shall remain as stated in the order until all dependent children for whom support is ordered shall terminate their high school education or reach the age of 18 years, whichever is later, or become married, or become a member of the armed services, at which time the child support obligation, including all educational support obligations, terminates without further legal action. This amount shall remain as specified unless a legal order expressly allocates the payments on a per child basis. If the order involves a disabled child, the court shall specify the duration of the order, which may be beyond the time when the child reaches the age of 18.
V. No child support order shall require a parent to contribute to an adult child's college expenses or other educational expenses beyond the completion of high school.
VI. All support payments ordered or administered by the court under this chapter shall be deemed judgments when due and payable. Such judgments shall be given full faith and credit by all jurisdictions of this state.
VII. Liens shall arise by operation of law against real and personal property for child support arrearages owed by an obligor who resides or owns property in the state and shall incorporate any unpaid child support which may accrue in the future. Full faith and credit shall be given to such liens arising in another state when the state agency, a party, or other entity authorized to enforce an order of support and seeking to perfect the lien complies with the procedural rules relating to recording or serving liens. Notwithstanding any law to the contrary, such rules may not require judicial notice prior to perfecting the lien. Notices of such liens, and any discharges or releases thereof, shall be filed in the office of the secretary of state with respect to personal property and in the registry of deeds for the county in which any real property is located. No fees shall be charged for such filings and recordings.
VIII. No modification of a support order shall alter any arrearages due prior to the date of filing the motion for modification.
IX. (a) Each child support order shall include the court's determination and findings relative to health insurance and the payment of uninsured medical expenses for the children.
(b) If the court determines that private health insurance is accessible and available at a reasonable cost, the court shall order the parent, or parents, to provide such insurance for the children. Accessible health insurance means the primary care services are located within 50 miles or one hour from the child's primary residence. Health insurance shall be available at a reasonable cost if the cost of such insurance does not exceed 5 percent of the responsible parent's individual net income under RSA 458-C:2, VI-a.
(c) If the court determines that private health insurance is not accessible or available at a reasonable cost, the court shall establish a cash medical support obligation, calculated in accordance with RSA 458-C:3, V, and order that either or both parents shall obtain such private health insurance if it subsequently becomes accessible and available at a reasonable cost. When ordered in lieu of private health insurance, an obligation for cash medical support shall be suspended and shall not accrue during such time as the obligated parent is providing private health insurance in accordance with this paragraph.
(d) In all cases where support is payable through the department, or where the department is providing medical assistance for the child under RSA 167, the court shall include the medical support obligation in any order issued on or after the effective date of this paragraph.
(e) A court may order either or both parents to pay a medical support obligation, either to provide health insurance coverage or as cash medical support, in excess of reasonable cost, in such other circumstances, as the court deems appropriate.
X. If both parents have coverage which provides medical insurance benefits for the child, the insurance of the person who is obligated by court order to provide medical insurance shall be the primary coverage for the child. This paragraph shall not affect the obligation of the insurance carrier of the parent who is not obligated to provide medical insurance for the child to provide medical insurance benefits for any claim under a policy held by such parent.
XI. All support orders issued or modified in cases that are payable through the department shall contain a provision requiring the obligor to keep the department informed of the name and address of the obligor's employer and whether the obligor has access to health insurance, and, if so, the health insurance policy information as requested by the department.
XII. In any proceeding to enforce the payment of child support, the posting of bail shall be for the purpose of securing the appearance of the child support obligor and to guarantee the child support judgment owed by the child support obligor. If a child support obligor defaults for failure to appear or owes a child support arrearage, any bail money posted by the obligor, or any other surety, which is on deposit with the court shall be forfeited and paid to the obligee or the agency enforcing the order for child support in satisfaction of the child support judgment.
XIII. (a) An order of support, for which there is in effect an assignment to the department of health and human services pursuant to RSA 161-C:22, shall be suspended and shall not accrue, and no public assistance debt shall be incurred, during such time as the responsible parent receives benefits pursuant to Title XVI of the Social Security Act under the supplemental security income program or public assistance pursuant to RSA 167 under any of the following programs:
(1) Aid to the permanently and totally disabled.
(2) Aid to the needy blind.
(3) Aid to families with dependent children.
(4) Old age assistance.
(b) The department shall not enforce any order of support against the responsible parent while that parent receives public assistance through any of the programs listed in subparagraph (a), whether or not an assignment of support rights to the department exists.
XIV. When the court makes a temporary or final order for support through the department of health and human services, the order shall require the parties to furnish their social security numbers to the department.
XV. The court shall have jurisdiction to make such orders or temporary orders of support to the children of divorced parents as justice shall require in cases where the decree of divorce was not granted in this jurisdiction, even though the divorce decree makes provision for support, subject to the provisions of RSA 546-B.
XVI. The court may establish a separate fund or trust for the support, maintenance, education and general welfare of any minor or incompetent child of the parties, including an incompetent child who is 18 years of age or older.
XVII. The court may require security to be given for the payment of child support.
XVIII. Any motion for contempt of a court order regarding nonpayment of child support, if filed by a parent, shall be reviewed by the court within 30 days.
Source. 2005, 273:1, eff. Oct. 1, 2005. 2007, 121:2, eff. Aug. 10, 2007; 227:7, eff. June 25, 2007.

Section 461-A:15

461-A:15 Attorneys' Fees in Contempt Cases. – In any proceeding under this chapter in which a party alleges, and the court finds, that the other party has failed without just cause to obey a prior order, the court shall award reasonable costs and attorneys' fees to the prevailing party.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:16

461-A:16 Guardian ad Litem. –
I. In all proceedings for divorce, separation, annulment, paternity, or determination of parental rights and responsibilities, the court may appoint a guardian ad litem to represent the interests of the children of the parties, upon its own motion or motion of any party. The court may, in its order of appointment, after considering the nature of the issues raised in the case pending before it, specify the concerns to be addressed by the guardian ad litem, and otherwise limit the scope of the appointment. The guardian ad litem may be appointed to continue to serve after the final decree of divorce has been granted.
II. Persons accepting appointment as guardians ad litem agree to serve as officers of the court and have such standing in the proceedings as the court deems appropriate and may, upon approval of the court, utilize the service of others found necessary by the court to represent the child's best interest.
III. Guardians ad litem shall respect communications between themselves and the child and shall disclose such information only in accordance with applicable rules and, as required by the court, in rendering a report with the guardian ad litem's recommendations or in an ex parte proceeding to enable the court to make an informed decision. When the child's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or some other reason, the guardian ad litem shall be the holder of the privilege and shall have the authority to waive the privilege, but only if the guardian ad litem reasonably believes that the child cannot adequately act in the child's own interest.
IV. The fees for services for the guardian ad litem and others utilized by the guardian and approved by the court shall be a charge against the parties in a proportional amount as the court may determine. Where the parties are indigent, compensation for guardians ad litem and others utilized by the guardian and approved by the court shall be based upon the applicable fee schedule established by the supreme court for indigent defense counsel.
V. For good cause shown, the court may waive the requirements of paragraph I. Good cause shall not include the lack of ability to pay by either party.
VI. The supreme court shall provide the following relative to guardians ad litem appointed pursuant to this section:
(a) Standards and requirements for registration as a guardian ad litem.
(b) Standards for practice, including but not limited to ethical rules.
(c) Disciplinary procedures for violating ethical rules and requirements established under this paragraph.
(d) Penalties for violation of ethical rules and requirements, including, as the court may deem necessary, fines or disciplinary action, or both.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:17

461-A:17 Special Fund Established. – The supreme court shall establish a separate fund in which to deposit a percentage of the entry fee paid to each clerk of court with each petition in domestic relations cases for the compensation of mediators, appointed pursuant to RSA 461-A:7, and guardians ad litem, appointed pursuant to RSA 461-A:16, when the parents are indigent. The supreme court shall determine by rule the percentage amount of the entry fee for each petition to be deposited into the fund, but at no time shall the percentage amount exceed 50 percent of the entry fee for each petition. Payments for services provided shall be paid by the judicial council.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:18

461-A:18 Repayment. –
I. In any case where a mediator has been appointed pursuant to RSA 461-A:7 or a guardian ad litem has been appointed pursuant to RSA 461-A:16 and the responsible party's proportional share of the expense is ordered to be paid by the judicial council from the special fund established pursuant to RSA 461-A:17, the party shall be ordered by the court to repay the state through the unit of cost containment, office of administrative services, the fees and expenses paid on the party's behalf as the court may order consistent with the party's ability to pay, such ability to be determined by the unit of cost containment.
II. The court's order of appointment of a mediator or a guardian ad litem under the provisions of paragraph I shall indicate the initial proportional share or shares of fees and expenses and shall contain an order that the party or parties communicate with the unit of cost containment so that it may determine the obligor's ability to reimburse the state and establish the terms and conditions of reimbursement. A copy of each order shall be sent to the unit of cost containment, office of the commissioner of administrative services, at the time it is made.
III. Any party subject to an order under this section may petition the court having jurisdiction over the case for relief of the obligation imposed by this section, which shall be granted only upon a finding that the party is unable to comply with the terms of the court's order or any modification of the order by the court or the terms of reimbursement established by the unit of cost containment. In any such appeal the burden of persuasion shall be upon the party to show why the determinations of the unit of cost containment should not be enforced.
IV. Any party subject to orders for repayment shall be required to notify the clerk of the court and the unit of cost containment of each change of mailing address and actual street address. Whenever notice to the party is required, notice to the last known mailing address on file shall be deemed notice to and binding on the party.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:19

461-A:19 Authorization for Emergency Treatment When Custodial Parent Incapacitated. –
I. In cases where the parent having the care of the child, has sole or shared decision-making responsibility and has become incapacitated and is unable to make necessary decisions concerning the emergency medical treatment of the child, such parent's spouse shall be authorized to make such decisions subject to the following conditions:
(a) The child is in the care of a medical facility whose policy requires that all decisions regarding treatment of the type necessary under the circumstances be made by a parent having sole or shared decision-making responsibility; and
(b) Either the incapacitated parent has sole decision-making responsibility; or, if there is shared decision making responsibility, the other parent cannot be located, and in the opinion of the treating physician, circumstances make it necessary to make a decision regarding treatment immediately.
II. The right to authorize treatment granted under this section shall under no circumstances last longer than 30 days, and otherwise shall terminate upon the recovery of the parent to normal capacity, or upon the establishment of contact with the other parent, whichever occurs first.
Source. 2005, 273:1, eff. Oct. 1, 2005.

Section 461-A:20

461-A:20 References to Child Custody and Custodial Parent. – Any provision of law that refers to the ""custody'' of minor children shall mean the allocation of parental rights and responsibilities as provided in this chapter. Any provision of law which refers to a ""custodial parent'' shall mean a parent with 50 percent or more of the residential responsibility and any reference to a non-custodial parent shall mean a parent with less than 50 percent of the residential responsibility.
Source. 2005, 273:1, eff. Oct. 1, 2005.

information how laws are made in NH

NH Laws on Reporting Child Abuse

NH Family Division Rules

New Hampshire Protocals in Parental termination in Abuse and Neglect cases

New Hampshire This Child Exploitation Task Force


http://www.thepetitionsite.com/8/protect-children-from-abuse
Copywrite and Fair Use information

http://defend.dot5hosting.com/defendthechildrenorg2/id113.html

Falsely Accused-Dr. Lorandos introduces an Expert Witness demonstration on Suggestibility

http://www.youtube.com/user/AccusedFalsely

Baby LK Report For August 1st 2010

Baby LK Report for August 1st 2010

For these stories and all the latest dirt on the child protective industry visit Legally Kidnapped at http://www.LegallyKidnapped.blogspot.com

This week, Child Protective Services calls Mel Gibson an excellent father.

Jon and Kate reach a custody settlement.

A Nigerian foster mother sets her foster son on fire.

And much much more
Posted by LK at 6:45 PM

http://legallykidnapped.blogspot.com/2010/08/baby-lk-report-for-august-1st-2010.html

IMMUNITY BROKEN

IMMUNITY BROKEN
ABSTRACT

This article was written to address the immunity claims made by those hired, elected or appointed to serve children in our legal system when they are sued for outrageous acts. This article argues that since the passage of the Child Abuse Prevention and Treatment Act (“The Mondale Act”) false claims of child abuse have wrecked havoc on American families. In order to understand the claims for immunity made by doctors, social workers and attorneys who mis-serve children, this article provides a discussion of immunity and its operation in our law. Following a historical overview, this article describes the various claims to immunity from suit made by government officials, prosecutors, law enforcement personnel, guardians, appointed counsel, social workers and various private parties. For the purpose of illustrating how immunity claims may be addressed, this article presents an actual account of a Michigan case concerning issues of Guardian ad Litem immunity. It is the express position of this author that people who chose to aide or represent children must do so competently and professionally or not at all.

IMMUNITY BROKEN
Demosthenes Lorandos, Ph.D., J.D.
Since the passage of the Child Abuse Prevention and Treatment Act (“The Mondale Act”) false claims of child abuse have wrecked havoc on American families.

Certainly it is true that children are starved, beaten, raped and killed every day. They deserve protection. The purpose of this article is to address the immunity claims made by those hired, elected or appointed to serve children in our legal system. In order to understand the claims for immunity made by doctors, social workers and attorneys who mis-serve children, this article will begin with a brief discussion of immunity and its operation in our law.

The second part of this article will focus on the various claims to immunity from suit made by government officials, prosecutors, law enforcement personnel, guardians, appointed counsel, social workers and various private parties. The last portion of this work will present an actual account of a ground breaking case being fought through the courts of Michigan on the issue of Guardian ad Litem immunity from suit for negligence, incompetence and intentional torts. It is the express position of this author that people who chose to aide or represent children must do so competently and professionally or not at all.

A. JUDICIAL IMMUNITY
EARLY FORMULATIONS:

The concept of judicial immunity developed in our law from early Anglo-Saxon origins. As Professor Block informs:

"Under Anglo-Saxon law of the tenth and eleventh centuries, a judgment (doom) could be impeached by charging the official proposing the judgment (the doomsman) with falsehood. This proceeding, known as "forsaking the doom", developed into the complaint of "false judgment", whereby a dissatisfied litigant obtained a writ commanding the challenged court to cause a record of its proceedings to be made and brought before the court of the litigant's superior lord. The complainant could accept the court's record and thus confine the issues to errors of law. But this record could be challenged by anyone willing to engage in physical combat with the champions of the challenged court. If the challenge succeeded, the lower court's judgment was annulled and the court was amerced." Block, Stump v Sparkman and the History of Judicial Immunity, 4980 Duke L.J. 879, 881 (l980).

Displeased with trial by combat, law evolved in England, and in the early l7th century Sir Edward Coke in Floyd and Barker, 77 Eng. Rep. 1305 (Star Chamber l607), and The Case of the Marshalsea, 77 Eng. Rep. 1027 (Star Chamber l6l2), laid out the foundation for the doctrine of judicial immunity. In Barker, Coke established the immunity of a judge "for anything done by him as a judge" 77 Eng. Rep. at l307. It seems that Judge Barker convicted William Price of murder and sentenced him to death. After the sheriff executed Mr. Price, one Mr. Floyd brought charges against Judge Barker for conspiracy. Sir Edward Coke's decision gave immunity from suit to all of those involved in the prosecution of Price, made it quite clear that Judge Barker's immunity was absolute. In so doing, Coke identified four (4) grounds in public policy for judicial immunity. First, he indicated a necessity for a finality of judgment. Second, Coke offered that immunity is necessary to maintain judicial independence. Third, Coke held for the independence of thought and freedom from manipulation that immunity would provide, and lastly, Coke offered that in order to engender respect and confidence in the judiciary and the government, immunity for judicial acts was necessary.

Some five years after declaring immunity for judicial acts, Lord Coke modified his doctrine in The Case of the Marshalsea, 77 Eng. Rep. 1027 (Star Chambers l6l2). In Marshalsea, Coke set forth a jurisdictional limitation on the doctrine of judicial immunity. For immunity to apply said Coke, not only did the act have to be judicial in nature, but the judge must have had subject matter jurisdiction over the cause for which he acted. In Marshalsea, a judge presiding over a case in assumpsit found against the defendant. This defendant's surety was jailed until the judgment was paid. The surety brought an action against the judge for his imprisonment and the judge defended by claiming immunity. Rejecting the immunity claim, Coke held that the judge had no jurisdiction over actions in assumpsit and thus the proceedings were void. As Coke described it:

"[W]hen a Court has (a) jurisdiction of the cause, and proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has not jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process..." 77 Eng. Rep. at 1038-41.

Clearly, this laid the foundation for judicial immunity. Coke established requirements for its application, restricting immunity to judicial acts made within the judge's jurisdiction. In addition, he set forth a policy underlying the doctrine: (1) insuring the finality of judgment; (2) protecting judicial independence; (3) avoiding continuous attacks on sincere and conscientious judges; and (4) maintaining respect for the judiciary and the government.

The first significant American adaption of judicial immunity came in l8l0, when James Kent authored the New York decision of Yates v Lansing, 5 Jons. 282 (N.Y. Sup. Ct. l8l0) Aff'd 9 Jons. 395(N.Y. 1811). In this case, Chancellor John Lansing, Jr. had arrested John Yates for malpractice and contempt. Yates was subsequently set free on a Writ of Habeas Corpus when the New York Supreme Court found the arrest to have been illegal. Chancellor Lansing claimed that the discharge from jail was illegal and imprisoned Yates again. Yates then brought a civil action against Lansing for violation of the Habeas Corpus Act. Chief Justice Kent of the New York Supreme Court held for the Defendant Chancellor on the grounds of judicial immunity. In its decision, Kent first considered the history of judicial immunity and then applied the immunity test set forth by Lord Coke. Realizing that the new American courts did not have the superior and inferior dichotomy of the English courts, Justice Kent adopted the doctrine to fit the American court's system. The Yates decision had a tremendous impact on American jurisprudence and was considered the leading authority on judicial immunity until the Supreme Court addressed the issue in l868. See e.g. Feinman and Cowen, Suing Judge's: History and Theory, 3l S.C.L.Rev. 20l (l980). In Randall v Brigham, 74 U.S. (7 Wall) 523 (l869) and again in Bradley v Fisher, 80 U.S. (l3 Wall) 335 (l872), Mr. Justice Field incorporated the doctrine into American common law.

After more than a century of virtual silence, the doctrine of judicial immunity resurfaced in Stump v Sparkman, 435 U.S. 349 (l978). In this unfortunate case, a mother brought a petition to Judge Stump to have her fifteen year old daughter sterilized. The mother swore that her daughter was promiscuous and that sterilization would be in the best interest of the child. The judge approved the petition in an ExParte proceeding without giving the daughter notice or an opportunity for a hearing. The daughter was told that she was going to undergo an appendectomy and sterilized. Two years after the operation, when married, this woman discovered that she had been sterilized and brought an action against the judge for violating her constitutional rights. Applying the doctrine from Randall v Brigham and Bradley v Fisher, the Supreme Court held that Judge Stump was absolutely immune from a suit for damages. First, the court determined that Judge Stump had subject matter jurisdiction in acting upon the petition. Second, the court determined that Judge Stump's approval of the petition was a judicial act and, therefore, he was protected by the Doctrine of Judicial Immunity. In reaching its decision in Stump, the court articulated a test to determine what constitutes a judicial act. The court offered:

"The relevant cases demonstrate that the factors determining whether an act by a judge is a "judicial" one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." 435 U.S. 349, 362 (emphasis added)


"ABSOLUTE JUDICIAL IMMUNITY" DOES NOT EXIST IN AMERICAN LAW

In Pulliam v Allen, 456 U.S. 522 (l984), the court held that judicial immunity does not bar an award of attorney fees against a judge when a plaintiff wins a suit against that judge for injunctive or declaratory relief. In Pulliam, the Supreme Court ruled that a magistrate was liable for over $80,000.00 in legal fees and costs because her conduct caused private injury to Plaintiff Allen. The Court held in this fashion even though her actions were indisputably judicial acts within her subject matter jurisdiction. In this case, Magistrate Pulliam set bail for several defendants who were accused of non-jailable offenses. Pulliam, 466 U.S. at 525. When some of the accused individuals were unable to make bail, she ordered them incarcerated. Richmond Allen, one of the bail defendants, sued Magistrate Pulliam for violating his civil rights. Allen did not seek monetary damages; rather he sought injunctive relief to prevent Pulliam from continuing this kind of practice. The first court Allen approached found Pulliam's actions unconstitutional and enjoined her from engaging in such conduct in the future. Allen v Burt, 690 F2d 376, 377 (4th Cir. l982). Interestingly, this District Court awarded Allen attorney's fees of $7,000.00 under USC §l988. Judge Pulliam appealed the award claiming judicial immunity and the Supreme Court affirmed despite finding that Pulliam had acted in her judicial capacity and within her subject matter jurisdiction. The court held that the doctrine of judicial immunity does not preclude injunctive relief as opposed to money damages against a judicial officer acting in a judicial capacity and, judicial immunity does not preclude a statutory award of attorney's fees generated in obtaining that injunctive relief. After this "death blow" for absolute judicial immunity, numerous efforts have been attempted in the Federal Congress pushed primarily by the American Bar Association to re-institute absolute judicial immunity. All have failed.

Following on Pulliam in l984, the Court took up Forrester v White, 44 U.S. 2l9, l08 S.Ct. 538 (l988). In White a former probation officer filed an action against a state court judge alleging that she was demoted and discharged on account of her sex in violation of the Equal Protection clause of the Fourteenth Amendment. After a jury found in favor of the former probation officer, the District Court for the Southern District of Illinois entered summary judgment for the judge on the grounds of “absolute” judicial immunity. The Court of Appeals for the Seventh Circuit applied the two prong Stump test and logically concluded that the firing of the probation officer was a judicial act within the judge's jurisdiction. 792 F2d 647 (7th Cir. l986). Following a Writ of Certiorari, the United States Supreme Court unanimously reversed. Writing for the court, Justice O'Connor offered that the court "has generally been quite sparing in its recognition of claims to absolute official immunity" 44 U.S. at 224. Holding that the actions of Judge White in firing Ms. Forrester were not entitled to judicial immunity, the court refused to apply even quasi-judicial immunity. See also, Guercio v Brody, 814 F2d 1115 (1987). Reversing the District and 7th Circuit Court of Appeals, Forrester like Pulliam make it quite clear that absolute judicial immunity is dead in American jurisprudence.
In the Mireles v Waco, ___ U.S.___,112 S. Ct. 286 (1991) opinion, the Court issued a per curiam opinion and disavowed the functional approach articulated in Forrester and returned to the Stump v Sparkman two-pronged judicial act test. As the law stands, there is no "absolute judicial immunity" and our Supreme Court requires the two-prong tests:

1. Does the court have subject matter jurisdiction;
2. Is the act a judicial act.

Then and only then, according to Mireles (1991) does judicial immunity apply.

It was this very test and the extra-judicial acts of Judge G. Michael Hocking, of Michigan’s 56th Circuit Court that led the Federal Court for the western district of Michigan to enter a directed verdict against the judge. In McPherson v Kelsey, et al. U.S. District Court case number 5:93-cv-166, Judge Hocking ordered an attorney jailed for contempt when she argued against his unlawful conduct in a custody and visitation matter. The attorney was literally dragged from the courtroom where deputies beat her. She sustained brain damage from the assault. Her client, the father involved in the visitation dispute protested the action. At one point the Judge ran from the Courtroom, instructed his deputies to seize the father, search him at gunpoint and expel him from the courthouse. The father and attorney filed separate 42 USC § 1983 actions. On June 23rd, 1995 Judge Richard A. Enslen of the U S District Court for the Western District of Michigan entered a directed verdict against Judge Hocking on First, Fourth and Fourteenth Amendment claims and four days later, the jury found against Judge Hocking on these claims and awarded the father money damages.

B. EXTRA-JUDICIAL IMMUNITY CLAIMS
IMMUNITY CLAIMS CIRCUMSCRIBED BY THE COURT:

Our courts have extended partial immunity for “official and necessary acts” to sheriffs, Doe v McFaul, 599 F.Sup. l42l (N.D. Ohio l984); prosecutors Imbler v Pachtman, 424 U.S. 409 (l976); coroners, Lambert v Garlo, l9 Ohio App 3rd 295, 484 NE2d 260 (l985); court reporters, Brown v Charles, 309 F.Sup. 8l7 (E.D. Wis. l970); clerks of the court, Wiggins v New Mexico State Supreme Court Clerk, 664 F2d 8l2 (l0th Cir. l98l); jurors, White v Hegerhorst, 4l8 F2d 894 (9th Cir. l969); grand jurors, Turpen v Booth, 56 Cal. 65 (l880); witnesses, Briscoe v LaHue, 460 U.S. 325 (l983); bailiffs, Wolf v Flanagan, No. l4746 (Ohio Ct. App. Oct. 2, l980); and arbitrators, Hill v Aro Corp., 263 F.Sup. 324 (N.D. Ohio l967).

But the Court has, more often than not, been extremely circumscribed in granting judicial immunity. Indeed, Chief Justice Marshall in the famous Marbury v Madison, 1 Cranch 137 (1803) made it quite clear:

"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws when he receives an injury." 1 Cranch 137 at 163 (1803).

Indeed, not even the Sergeant-at-Arms of the United States Congress' House of Representatives has been granted immunity. In Kilbourn v Thompson, 103 US 168 (1881):

"the Sergeant-at-Arms of the House of Representatives arrested the plaintiff under a warrant issued by the House. Plaintiff refused to testify in a congressional investigation and the House issued a contempt citation against him. The court held that the House did not have jurisdiction to conduct the particular investigation. The Sergeant at Arms, therefore, was liable for false arrest and could not assert the issuance of the warrant as a defense. "

In Nixon v Herndon, 273 US 536 (1927) the Court held that state officials would be personally liable in damages for denying plaintiff his right to vote by enforcing a racially discriminatory election law. In Monroe v Pape, 365 US 167 (1961) the Supreme Court held that police officers may be held liable under section 1983 for infringing upon the constitutional rights of others even when their actions are not shown to be willful. In Bivens v Six Unknown Named Agents, 304 US 388 (1971) the Court held that in the absence of a federal statutory remedy for unconstitutional searches, the Constitution itself provides for a damage action against the offending federal officers.

Even the Superintendent of Public Documents and the Public Printer for Congress could not sustain an immunity claim when republishing a libel as the Court in Doe v McMillan, 412 U.S. 306 (1972) reasoned, republishing a libel is not an essential part of the legislative process.

Calling the partial immunity granted to many of these officials “qualified immunity”, the Court extended common law immunity for “reasonable” acts in “good faith”. When lower courts became confused as to whether qualified immunity involved a subjective or objective inquiry, the Court explained in Wood v Strickland , 420 U.S. 328, 95 S. Ct. 992 (1975) that the qualified immunity analysis necessarily contains both objective and subjective elements. The analysis is subjective, said the Court in that the defendant official, to receive protection, must have acted “with a belief that he [was] doing right.” Wood, 420 U.S. at 321. The analysis is objective, the Court reasoned, in that officials could not receive protection where they ignorantly believed their actions to be appropriate when in fact their actions violated “settled” and “indisputable” law.

As citizens and their counsel began to utilize 42 USC § 1983 actions to redress grievances, the Court began to articulate its sense of the statute:

“The purpose of the statute was to deter public officials from using the badge of their authority to violate persons’ constitutional rights and to provide compensation and other relief to victims of constitutional deprivations when that deterrence failed.” Carey v Piphus, 435 US 247, 253 (1978)

In Gomez v Toledo, 446 U.S. 635 (1979) the Court spoke to the concern among plaintiffs that they had an impossible burden to meet by showing in their pleadings that the acts of the defendants were both unreasonable and in bad faith. The Court offered that “Nothing in the language or legislative history of Sec. 1983, however, suggests that in an action brought against a public official..... a plaintiff must allege bad faith in order to state a claim for relief.” Gomez at 640. The Court went on to instruct: “Since qualified immunity is a defense, the burden of pleading it rests with the defendant. See Fed. Rule Civ. Proc. 8© (defendant must plead any “matter constituting an avoidance of affirmative defense”)” Id. The Court went on to quote from Wood v Strickland and instructed:

“The applicable test focuses not only on whether the official has an objectively reasonable basis for that belief, but also on whether “[t]he official himself [is] acting sincerely and with a belief that he is doing right”. Gomez, 641

The Court informed that:

“The existence of a subjective belief will frequently turn on factors which a plaintiff cannot reasonably be expected to know. For example, the official’s belief may be based on state or local law, advice of counsel, administrative practice, or some other factor of which the official alone is aware. To impose the pleading burden on the plaintiff would ignore this elementary fact and be contrary to the established practice in analogous areas of the law.” Gomez, 641

In City of Newport v Fact Concerts, Inc., 453 US 247.259 (1981) the Court characterized its process of determining the degree of immunity to which a particular official was entitled as a “careful inquiry into considerations of both history and policy.”

The same year City of Newport was decided, the Court faced some of the aftermath of the Nixon administration in Harlow et al v Fitzgerald, 457 U.S. 800. In that case, plaintiff Fitzgerald claimed Bryce Harlow and Alexander Butterfield, two Nixon administration aides, conspired to have him discharged from his position with the Air Force. H.R. Halderman, John Ehrlichman, Ronald Zeigler and Richard Nixon were all heard on the infamous Nixon tapes, discussing Fitzgerald’s demise. In their concurrence Mr. Justice Brennan wrote for himself and Justices Marshall and Blackmun and said:

“I agree with the substantive standard announced by the Court today, imposing liability when a public-official defendant “knew or should have known” of the constitutionally violative effect of his actions.... This standard would not allow the official who actually knows that he was violating the law to escape liability for his actions, even if he could not “reasonably have been expected” to know what he actually did know.......Thus the clever and unusually well-informed violator of constitutional rights will not evade just punishment for his crimes.” Harlow et al v Fitzgerald, 457 U.S. 800, 820-821 (1981) emphasis in original, citations omitted

The Harlow Court reasoned that qualified or “good faith” immunity is an affirmative defense that must be plead by a defendant official. Gomez v Toledo, 446 U.S. 635 (1980). The Court cited to Wood v Strickland, 420 U.S. 308, 322 (1975) and offered: “Decisions of this Court have established that the “good faith” defense has both an “objective” and a “subjective” aspect. The objective element involves a presumptive knowledge of and respect for “basic unquestioned constitutional rights.” Harlow et al v Fitzgerald, 457 U.S. 800 (1981)

Several years later, the Court took up the case of Billy Irl Glover. Mr. Glover, a pro se litigant, sued Bruce Tower the Douglas County, Oregon Public Defender and a number of others from his prison cell. Billy Irl alleged that Tower and other conspired to secure a conviction in violation of his constitutional rights. The Federal District Court threw his case out, but the Court of Appeals reversed and the Supreme Court granted certiorai. The Court reasoned:

“We do not have a license to establish immunities from Sec. 1983 actions in the interests of what we judge to be sound public policy. It is for Congress to determine whether Sec. 1983 litigation has become too burdensome to state or federal institutions and, if so, what remedial action is appropriate.” Tower v Glover, 104 S. Ct. 2820, 2826 (1984)

That being said, the Court reviewed its immunity decisions and the history of the Civil Rights Act of 1871 [also known as the Klu Klux Klan Act]. Quoting from Imbler v Pachtman, 424 US 409 at 421 (1976), the Court noted that § 1983 immunities are “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” If an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court offered that it next considers whether Civil Rights Act history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions. In Tower, the Court concluded: “Using this framework we conclude that public defenders have no immunity from § 1983 liability for intentional misconduct of the type alleged here.”Tower v Glover, 104 S. Ct. 2820, 2825 (1984).

The following year the Court took up more of the Nixon administration backwash in Mitchell v Forsyth, 472 U.S. 511(1985) and reasoned: “The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.” Mitchell at 523.

Two years later, the Federal Court of Appeals for the Ninth Circuit reviewed the Supreme Court’s partial immunity decisions and reasoned: “In spite of the benefits of immunity for certain decision makers, the balance might not be struck in favor of absolute immunity were it not for the presence of safeguards build into the judicial process that tend to reduce the need for private damage action.” Meyers v Contra Costa Cy. Dep’t of Social Servs., 812 F2d 1154, 1158 (9th Cir. 1987). The following year, the Eleventh Circuit took up Goddard v Urrea, 847 F2d 765 (11th Cir. 1988). In Goddard the plaintiff brought a civil suit claiming that the defendants, agents of the Bureau of Alcohol, Tobacco and Firearms, had conducted an unlawful search and seizure of her property. The defendants filed a motion for summary judgment, claiming qualified immunity. The district court denied the motion and the defendants appealed. The Eleventh Circuit held that the denial of summary judgment for qualified immunity was justified because genuine issues of fact remained, which would impact upon a finding of good faith or reasonableness. The same year, the Sixth Circuit rejected a plea to dismiss because of “qualified immunity” and declared it an “affirmative defense” which the defendant had to plead and prove. Duncan v Peck, 844 F2d 1261 (1988).

A year after Duncan, the Sixth Circuit took up the claims of James and Grace Achterhof. Their cause of action against social worker Anthony Selvaggio and his Department of Social Services had been dismissed when the District Court ruled that the defendants were entitled to “absolute immunity” for their actions in “opening a case” on the Achterhof’s children and placing Mr. Achterhof’s name on a central registry of child abusers even after their investigation found no credible evidence of abuse. The Sixth Circuit reversed reasoning that because of the sweep of absolute immunity, and reluctance of the Supreme Court to extend “absolute” prosecutorial or judicial immunity to anyone but prosecutors and judges, it was inappropriate to extent a prosecutor’s or judge’s immunity to investigative social workers. Achterhof v Selvaggio, 886 F2d 826, 829 (6th Cir. 1989).

The Court made explicit its wish to circumscribe immunity claims recently in Antoine v Beyers & Anderson, Inc. ___ U.S.___, ___ n4, 113 S. Ct. 2167, 2170 N4 (1993), saying that the courts have “been quite sparing in [their] recognition of absolute immunity and have refused to extend it any further than its justification would warrant”.

LEGISLATIVE & QUASI-GOVERNMENTAL OFFICIALS and IMMUNITY

Aside from the historical interest the Nixon tapes provide, Harlow et al v Fitzgerald, 457 U.S. 800 (1981) found the United States Supreme Court ruling that public policy does not require a blanket recognition of “absolute” immunity for Presidential aides. Examining the plea of Bryce Harlow and Alexander Butterfield for “absolute immunity” the Harlow Court reasoned:

“In order to establish entitlement to absolute immunity a Presidential aide first must show that the responsibilities of his office embraced a function so sensitive as to require a total shield from liability. He then must demonstrate that he was discharging the protected function when performing the act for which liability is asserted.” Harlow, 457 U.S. 800, 812-813 (1981)

The Court went on to suggest that the “special functions” rationale Harlow and Butterfield put forth did not warrant a blanket recognition of “absolute” immunity for all presidential aides in the performance of their duties. The Court reasoned that this conclusion follows from their decision in Butz, which established that an executive official’s claim to “absolute” immunity must be justified by reference to the public interest in what they termed “the special functions of his office, not the mere fact of high station.” Harlow et al v Fitzgerald, 457 U.S. 800, 812 (1981). The Court examined its “subjective” and “objective” proofs for immunity articulated in Wood v Strickland, 420 U.S. 308, 322 as a “subjective” aspect of qualified or “good faith” immunity--whereby such immunity is not available if the official asserting the defense “took the action with the malicious intention to cause a deprivation of constitutional rights or other injury,” and determined that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow et al v Fitzgerald, 457 U.S. 800, 818 (1981).

In Harlow, the Court made clear that “a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. 819. The Court instructed the judiciary that:

“On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. .....If the law was clearly established, the immunity defense ordinarily should fail.” Harlow et al v Fitzgerald, 457 U.S. 800, 818 (1981)

The Nixon administration also gave us Mitchell v Forsyth, 472 U.S. 511 (1985) In Mitchell, Attorney General John Mitchell ordered Haverford College physics professor William Davidon’s telephone illegally taped. When Keith Forsyth, a party to several “innocuous” telephone conversations on professor Davidon’s line discovered the tap, he filed suit. Mitchell, 472 U.S. 51, 513 Mitchell and a legion of Deputy Solicitor Generals and Acting Assistant Attorney Generals claimed “absolute” immunity. The Court noted the findings of the District Court that:

“Mitchell and the Justice Department, the court suggested, had chosen to “gamble” on the possibility that this Court would create an exception to the warrant requirement if presented with a case involving national security. Having lost the gamble, Mitchell was not entitled to complain of the consequences.”
Mitchell v Forsyth, 472 U.S. 511, 517 (1985)

In the Court’s analysis, Mr. Justice White informed that merely Mitchell’s status as a Cabinet officer “is not in itself sufficient to invest him with absolute immunity...” Mitchell 472 U.S. at 521. The Court went on to succinctly conclude:

“the Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.” Mitchell v Forsyth, 472 U.S. 511, 520 (1985)

The claims of Legislators to “absolute” immunity have not done better. In Gravel v United States, 408 U.S. 606 (1972) the Court held that neither absolute nor qualified immunity can be relied upon to protect interference with the criminal process or grand jury investigations. In Doe v McMillan, 412 U.S. 306 (1973) the Court held that:

“for purposes of the Judaically fashioned doctrine of immunity, the Public Printer and Superintendent of Documents are no more free from suit in [republishing a libel], than would be a legislative aide who made copies of material at issue and distributed them to the public at the direction of his superiors.”
Doe v McMillan, 412 U.S. 306, 324 (1973)

Considering the Speech and Debate Clause and its previous decisions with respect to legislators, the Court in Hutchinson v Proxmire, 443 U.S. 111 (1978) cited to United States v Johnson, 383 U.S. 169 (1969) and offered:

“...In its narrowest scope , the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander [by speech or debate] and even destroy others with impunity, but that was the conscious choice of the Framers.’ 408 U.S., at 516.....We are unable to discern any “conscious choice” to grant immunity for defamatory statements scattered far and wide by mail, press, and the electronic media.” Hutchinson v Proxmire, 443 U.S. 111, 131-132

In Chastain v Sundquist, 833 F2d 311 (D.C. Cir 1987) Tennessee Congressman Don Sundquist libeled attorney Wayne Chastain in a letter to Attorney General William French Smith. When Chastain filed suit, Sundquist claimed immunity. In a lengthily opinion, Judge Buckley of the D.C. Circuit Court cited to Barr v Matteo, 360 U.S. 564 (1959) for the proposition that our courts have recognized “an individual’s legitimate right to seek redress for damage caused by oppressive or malicious action on the part of officials of the Federal Government.” Sundquist, 833 F2d 311, 322. In November, 1987, the Chastain court held Sundquist accountable for his liable and the Supreme Court denied certiorari.

PROSECUTORS, LAW ENFORCEMENT and IMMUNITY CLAIMS:

Even though Imbler v Pachtman, 424 US 409 (1976) allowed some immunity for prosecutors, in Hampton v City of Chicago, 484 F2d 602 (7th Cir. 1973), cert. denied, 415 US 917 (1974) the federal court made it quite clear that prosecutors engaged in planning raids for the purposes of committing murder were not covered by immunity. In Robichaud v Ronan, 35l F2d 533 (9th Cir. 1965) and Lewis v Brautigam, 227 F2d 124 (5th Cir. 1955) the federal court held that prosecutors, sheriffs and police officers who coerce confessions from subjects, were not covered by immunity for their tortious conduct. Further, in Holton v Boman, 493 F2d 1176 (7th Cir. 1974) and Madison v Purdy, 410 F2d 99 (5th Cir. 1969) the federal courts held that when prosecutors entered into a conspiracy, they could be held liable in tort. Indeed, in Martin v Merola, 532 F2d 191 (2d Cir. 1976) the federal court insisted that when prosecutors defamed defendants in press conferences, immunity does not protect them from liability in tort.

In Robison v Via, 821 F2d 913 (2nd Cir. 1987) The Federal Court for the Second Circuit took up the immunity claims of Assistant State’s Attorney Susan Via and Vermont State Trooper Harold Harrison. It seems Via and Harrison forcibly took Connie Robison’s children from her and did so in a way that violated a number of Vermont’s statutes. When Connie Robison sued, Via and Harrison claimed immunity. The Second Circuit reasoned:

“We see no basis for accepting the contentions of Via and Harrison that in seizing the children they were performing a prosecutorial function. Via’s presence at the seizure of the children did not transform what was fundamentally a police function into one that was prosecutorial.”
Robison v Via, 821 F2d 913, 918 (2nd Cir. 1987)

At the same time Robison v Via was winding its way through the Second Circuit, Cathy Burns case against State Prosecutor Rick Reed was progressing through the Seventh Circuit. That court held that Prosecutor Reed was “absolutely immune” from suit over his advice to the police. 894 F2d 949. The Supreme Court granted certiorari and went on to reverse. Writing for the Court, Justice White noted the research of the Federal Court of Appeals with respect to prosecutor’s advice to police and reasoned:

“We do not believe, however, that advising the police in the investigative phase of a criminal case is so “intimately associated with the judicial phase of the criminal process,” Imbler, 424 U.S., at 430, 96 S.Ct., at 995, that it qualifies for absolute immunity. Absent a tradition of immunity comparable to the common- law immunity from malicious prosecution, which formed the basis for the decision in Imbler, we have not been inclined to extend absolute immunity from liability under Sec. 1983.” Burns v Reed, 111 S. Ct. 1934, 1943 (1991)

The Court went on to reason that “absolute” immunity was designed to free the judicial process from the harassment and intimidation associated with litigation. Forrester, 484 U.S., at 226, 108 S.Ct., at 543. The Court held that “absolute” prosecutorial immunity, obtains only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct.Reed, 111 S. Ct. 1934, 1943.

It is noteworthy that in researching the 1871 Klu Klux Klan Act and its progeny, Justice Scalia with whom Justice Blackmun joined, offered that: “Respondent has not cited, and I have not found, a single pre-1871 case in which a prosecutor was granted absolute immunity for any of the functions contested here.”
Reed, 111 S. Ct. 1934, 1946.

In Buckley v Fitzsimmons , 509 U.S. ___, 125 L Ed 209, 113 S Ct 2606 (1993) Stephen Buckley filed suit against DuPage County, Illinois Prosecutor Michael Fitzsimmons and others involved in the fabrication of evidence used to convict Buckley of murder. The District Court for the Northern District of Illinois, held that the prosecutors were entitled to “absolute” immunity with respect to the fabrication of evidence. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed, holding that the prosecutors had “absolute” immunity. The Appeals Court concluded that the fabricated evidence could only cause injury at the “judicial phase”, and therefore, the prosecutors were entitled to, “absolute” prosecutorial immunity. The Appeals Court reasoned that conversations between the prosecutors and an evidence expert could not be the foundation of liability because the out-of-court evaluation of evidence from an expert witness causes no injury. Thus, “[p]rosecutors whose out-of-court acts cause injury only to the extent a case proceeds will be brought to heel adequately by the court,” 919 F2d at 1243-44. The Appeals Court went on to reason that the defendant who has suffered the injury must rely on the court to protect his interests. Buckley appealed the decision to the United States Supreme Court and the Court granted his petition for certiorari, vacated the judgment, and remanded the case for further proceedings. Buckley, 113 S Ct at 2612

On remand, the Court of Appeals for the Seventh Circuit reaffirmed its decision. Buckley appealed again and argued that “absolute” prosecutorial immunity only applies to the act of prosecution and to acts that occur inside the courtroom during the presentation of the State’s case. The Supreme Court again granted certiorari and reversed the court of appeals decision, holding that the prosecutors were not entitled to “absolute” immunity. Buckley, 113 S Ct at 2612 Buckley’s suit for damages from the prosecutor for the falsification of evidence went forward.

Law Enforcement officials and their townships have had less luck with their claims of immunity than prosecutors. In Monroe v Pape, 365 U.S. 167, 81 S Ct 473 (1960) the Supreme Court took up the complaint of James Monroe and his family seeking damages from the Chicago Police and the City of Chicago for an early morning raid wherein the police:

“...broke into petitioners’ home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers....Mr. Monroe was then taken to the police station and detained on ‘open’ charges for 10 hours, while he was interrogated about a two-day-old murder.....” Monroe v Pape, 365 U.S. 167, 81 S Ct 473, 474 (1960)

In a fifty page opinion, the Court reviewed the history of the 1871 Klu Klux Klan Act and reasoned:

“It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies” Monroe v Pape, 365 U.S. 167, 81 S Ct 473, 480 (1960)

Although the Court held that the City of Chicago was not liable on a respondeat superior theory [later expressly overturned in Monell et al v Dept Soc Serv City of New York, 436 U.S. 658 (1977)], the Court specifically held that the police officers were not entitled to immunity and instructed that suits brought with these civil rights claims : “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Pape, 365 U.S. 167, 81 S Ct 473, 484.

This claim and the Monroe as well as the Monell decisions make the conduct of Los Angeles Police Detective Mark Furman eerily reminiscent of the early morning raid on the Monroe’s in Chicago. It seems that drug counselor Albert Morales and his brother Bennie reported to the Internal Affairs office of the Los Angeles Police that Mark Furman and his fellow officers carried on just as the Chicago Police had in Monroe, in the early morning hours of November 18, 1978. The Morales brothers were awakened in their Pico Gardens apartment by Furman and his cohorts, beaten, made to stand naked and literally thrown down metal staircases. The Morales’ and a public service agency attorney complained in 1978. Nothing was done. [Los Angeles Times, September 11th, 1995] Pursuant to Monroe and Monell, not only would Mark Furman be subject to liability, but as in the Rodney King debacle, so would the City of Los Angeles.

Prison Guards have little luck with immunity claims. In Procunier v Navarette, 434 U.S. 555, 98 S Ct 855 (1978) the Court turned aside prison official’s claims to “absolute” immunity. In Hughes v Savell, 902 F2d 376 (5th Cir 1990), the Federal Court of Appeals ruled that the state and its prison officials must protect prisoners from other prisoners. In Moye v Selsky, 826 F. Supp. 712 (1993) the Federal District Court in New York, invoked the Second Circuit’s decision in Weg v Macchiarola, 995 F2d 15 (2nd cir. 1993) as well as Cleavinger v Saxner, 474 U.S. 193, 106 S Ct 496 (1985) and held that a prison hearing officer and discipline director were not immune from 42 USC § 1983 actions to redress grievances. And in Farmer v Brennan, ___U.S. ___, 114 S Ct 1970 (1994) the Supreme Court held that prison officials were subject to liability in tort.

GUARDIANS - APPOINTED COUNSEL and IMMUNITY CLAIMS:

Courts confronting the dereliction of duty in guardians ad litem have said:

"Role of attorney appointed for child in custody dispute is to advocate child's best interest, not the child's wishes." In re Marriage of Rolfe, 699 P.2d 79, 216 Mont.39 (l985)

"It is guardian ad litem's duty to stand in shoes of child and weigh factors as child would if his judgment were mature and he was not of tender years." J.W.F. v. Schoolcraft, 763 P.2d 1217 (Utah, l987)

"Role of the guardian ad litem in custody disputes is to zealously represent the child ..." Carter v. Brodrick, 816 P.2d 202 (Sup. Ct. Alaska l991).

"In child custody matter, guardian ad litem does not represent child per se; rather, guardian ad litem's statutory duty is to represent concept of child's best interest." Wiederholt v. Fischer, 485 N.W.2d 442, 169 Wis.2d 524 (l992)

When guardians ad litem do not meet these minimal standards, they are subject to liability. In Collins v Tabet, 111 N.M. 391, 806 P 2d 40 (N.M. 1990), the New Mexico Supreme Court in cited to a previous case and offered:

"See also Bonds, 64 N.M. at 345, 328 P.2d at 599:

[A]ppointment as guardian ad litem of a minor is a position of the highest trust and no attorney should ever blindly enter an appearance as guardian ad litem and allow a matter to proceed without a full and complete investigation into the facts and law so that his clients will be fairly and competently represented and their rights fully and adequately protected and preserved........The proposition in Bonds that a guardian ad litem occupies a position of the highest trust suggests that he or she is a fiduciary. Judge Donnelly, in expressing his views on the question certified to us, analogized the position of the guardian ad litem to that of a general guardian or conservator...Fiduciaries, of course, are subject to liability to their wards for harm resulting from ordinary negligence in the discharge of their fiduciary duties; if anything, they are charged with a higher standard of care than are persons who do not owe fiduciary duties. See Pino v Budwine, 90 N.M. 750, 568 P.2d 586 (l977); Estate of Guerra v New Mexico Human Services Dep't, 96 N.M. 608, 633 P.2d 7l6 (Ct.App. l98l). (Emphasis added)

These principles are not new. In Downs v Sawtelle, 574 F 2d 1 (1st Cir. 1978) the Federal Court of Appeals ruled that immunity was inappropriate for guardians because private parties are not confronted with the pressures of office, the decision making or the threat of liability facing, governors and highest level public officials. Although policy considerations might support some form of immunity for private citizens, the Sawtelle court noted that factors of policy and fairness might suggest some immunity for private parties acting in concert with state officials. The Sawtelle court answered that these concerns were resolved by Congress in favor of citizens who claim a deprivation of constitutional rights. Downs, 574 F 2d 1, 5.

In Reese v Danforth, 486 Pa. 479, 406 A2d 735 (1979) the Pennsylvania Supreme Court took up the case of a Public Defendant claiming immunity and stated:

“. . . we hold that once the appointment of a public defender in a given case is made, his public or state function ceases and thereafter he functions purely as a private attorney concerned with servicing his client. His professional relationship with his client takes on all the obligations and protections attendant upon a private attorney-client relationship except one: the public pays his fee. In this respect, he is like the physician rendering professional services which are paid for out of public funds and, like that physician, he ought to be subject to liability for tortious conduct. E.g., Jackson v Kelly, 557 F2d 735 (10th Cir. 1977); U.S. ex rel. Fear v Rundle, 506 F2d 331 (3d Cir. 1974).” Reese v Danforth, 486 Pa. 479, 486, 406 A2d 735, 737 (1979)

In 1979, the Supreme Court took up the case of Ferri v Ackerman, 444 U.S. l93, l00 S.Ct. 402 (l979) wherein an appointed attorney claimed “judicial immunity” for his representation of a criminal defendant. The Court suggested that there is a marked difference between the nature of an appointed attorney’s work and those of other officers of the court. As public servants, the Court reasoned, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy. But, the Court made a strong distinction:

“In contrast, the primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation. The fear that an unsuccessful defense of a criminal charge will lead to a malpractice claim does not conflict with performance of that function. If anything, it provides the same incentive for appointed and retained counsel to perform that function competently. The primary rationale for granting immunity to judges, prosecutors, and other public officers does not apply to defense counsel sued for malpractice by his own client." Ferri v Ackerman, 444 U.S. l93, 204, l00 S.Ct. 402, 409 (l979). (Emphasis added).

The Michigan Court of Appeals took up a similar case in 1980. In Donigan v Finn, 95 Mich App 28, 290 NW2d 80, (1980) In Donigan an appointed counsel asked for immunity from suit for malpractice. The Michigan court recited:

“Our issue of first impression is whether appointed attorneys for indigent criminal defendants are immune from malpractice liability in a state action in connection with the defense of an accused indigent. We conclude that they are not immune.” Donigan v Finn, 95 Mich App 28, 290 NW2d 80, 81 (1980)

In 1984 the United States Supreme Court again took up the claims of an appointed attorney that he should be immune from suit for malpractice. In Tower v Glover, 467 U.S. 914, 104 S Ct 2820 (1984) the Court recognized the assertion of the public defender that he had responsibilities similar to those of the judge and prosecutor and should enjoy similar immunities in order, not to impair the State’s attempt to meet its constitutional obligation to furnish criminal defendants with effective counsel.

Glover, 104 S. Ct. 2820, 2822. Writing for the Court Madam Justice O’Connor reasoned:

“State public defenders are not immune from liability under Sec 1983 for intentional misconduct by virtue of alleged conspiratorial action with the state officials that deprives their clients of federal rights. For purposes of Sec. 1983, immunities are predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Glover, 104 S. Ct. 2820, 2821-22 (1984)

The Court went on to hold:

“We conclude that state public defenders are not immune from liability under Sec. 1983 for intentional misconduct, “under color of” state law, byvirtue off alleged conspiratorial action with state officials that deprives their clients of federal rights.” Tower v Glover, 104 S. Ct. 2820, 2826 (1984)

Following Ferri v Ackerman and Tower v Glover, state courts took up the claims of guardians and appointed counsel for “absolute immunity”, “judicial immunity” and “quasi-judicial immunity” and routinely held that granting these attorneys immunity would encourage slip-shod work. See: Eli Bon E.I. Bon Ghananee v Black, 504 A2d 281, 284 (1986); Williams v Office of the Public Defender County of Lehigh, 586 A2d 924, 927 (1990); and Dziubak v Mott, 486 Nw2d 837 (Minn App 1992): “Unlike judges or prosecutors, the duty of the public defender is not to the public at large but rather to the individual client.” 486 Nw2d 837, 840.

Curiously, the Court’s holding in Ferri v Ackerman, 444 U.S. l93, l00 S.Ct. 402, (l979) has been made part of federal legislative efforts. Ferri came up in the 96th Congress in Senate bill 2617 and died in committee. It came up again in the 97th Congress in House bill 3060 and died in committee. Again Ferri was the subject of legislative efforts in the 98th Congress in Senate bill 829, Senate bill 2420, House bill 4307 and House bill 3233. Each time it died in committee or was dropped from override legislation. No immunity legislation for court appointed counsel be they guardians, criminal/defense or appellate counsel has passed.

SOCIAL WORKERS and IMMUNITY CLAIMS:

Perhaps the most outrageous acts for which the actors claim immunity occurs in child abuse proceedings. After the passage of the Mondale Acts requiring mandatory reporting of suspected child abuse, the number of child seizures soared in America. While it is certainly the case that children must be protected from abuse and neglect, doing so at the expense of constitutional rights is most often an untenable argument. With the exception of a few aberrant decisions, most state and federal courts have allowed only partial or “good faith” immunity in child seizure cases. As the Supreme Court cautioned in Malley v Briggs, 475 U.S. 335, 341, 106 S Ct 1092 (1986):

“[a]s qualified immunity has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” 475 U.S. 335, 341.

A few plain incompetents and knowing violators will illustrate.

Social Workers Ronald Borel and Janenne Trahan allegedly filed a false verified statement with the court to facilitate their removal of Karen Austin’s two daughters. When the girls were returned, Ms. Austin filed a 42 USC § 1983 action. The Federal District Court dismissed Ms. Austin’s action on immunity grounds, but the U. S. Court of Appeals for the Fifth Circuit reasoned:

“We note that Louisiana law authorizes police officers, as well as child abuse workers, to file verified complaints. A police officer would clearly not be entitled to absolute immunity in filing such a complaint. The functional approach to immunity requires that officials performing identical functions be treated alike.” Austin v Borel, 830 F2d 1356, 1362-63 (1987)

The Court went on to hold that these caseworkers were not entitled to the “absolute” immunity they claimed after the filing of the false verified complaint. 830 F2d 1356, 1363.

The Tenth Circuit in Snell v Tunnell, 920 F 2d 673, 687 (1990) declined to confer immunity on two social workers who decided to continue an investigation of child abuse despite the fact that the district attorney and the police had investigated and refused to be involved any longer. The court held the social workers liable when despite the insistence of the police, the workers removed the plaintiff’s child from his home.

The Ninth Circuit applied the balancing test of Mathews v Eldridge, 424 U.S. 319, 96 S Ct 893 (1976) and the reasoning in Cleveland Board of Education v Loudermill, 470 U.S. 532, 105 S Ct 1487 (1985) in the 1990 case of Chalkboard Inc. In Chalkboard, Inc. v Brandt, 902 F2d 1375 (9th Cir. 1980) social workers from the Arizona Department of Health Services and the Department of Economic Security summarily pulled Chalkboard Inc’s. Day Care license when a parent complained of child abuse in the day care facility. Without giving Chalkboard notice, a hearing or an opportunity to be heard, the social workers essentially ruined the center on charges that were never substantiated. The Court opined:

“A balancing of these factors, as they were applied in Matthews and, subsequently, in Loudermill, leads us to conclude that the administrative procedures followed by defendants in this case could not reasonably have been believed to meet constitutional requirements.” Chalkboard, Inc., 902 F2d 1375, 1380-81

Writing for the court, Judge Canby reasoned that the state legislature made clear provisions for child abuse claims and licensees. He noted that: “In ignoring these procedures and summarily suspending Chalkboard’s licence without notice or an opportunity to respond, reasonable officials would have known that their actions were not lawful.” Chalkboard, Inc. 902 F2d 1375, 1382. Judge Canby and the court made clear that “the risk of error is considerable when such determinations are made after hearing only one side.” 902 F2d 1375, 1381. The court held that as the defendant social workers chose not to follow the state mandated procedures, no immunity pertained to their acts. 902 F2d 1375, 1382.

In Millspaugh v County Department of Public Welfare of Wabash County, 937 F2d 1172 (7th Cir. 1991) the Seventh Circuit Court of Appeals wrestled with the conduct of Indiana social worker Manetta Tucker. In this case, Ms. Tucker determined that Lois Millspaugh and Tina Dyson’s religious group, “Faith Ministries” and their practice of giving away all their possessions made the womens’ four daughters “children in need of services”. Tucker petitioned the court to remove the children while withholding from the court the report of a physician and a clinical psychologist who’d examined the girls and found them to be fine. Tucker also withheld that Lois Millspaugh’s daughter Jean was her high school valedictorian.

Writing for the court, Judge Easterbrook noted that bowing to the social workers’ claims on immunity “may embolden social workers to pursue their private agendas--as the mothers say Tucker did, using her position to throttle unorthodox religious practices.”Millspaugh, 937 F2d 1172, 1177 (7th Cir. 1991). The court held that:

“absolute immunity does not protect the gathering of evidence, even though the acts of presenting that evidence to (or withholding it from) the court receive greater protection. Social workers must settle for qualified immunity when taking initial custody of children.” Millspaugh, 937 F2d 1172, 1176 (7th Cir. 1991)

The merit less claims to immunity of state social workers stand out in bold relief in the tortured Babcock v State of Washington, 116 Wash 2d 596, 809 P 2d 143 (Wash. 1991). In this case, Rudolph Babcock and his wife Ann were married in 1970. Ann Babcock already had two daughters from a previous marriage. Rudolph and Ann had two daughters before Ann committed suicide shortly after the family moved to Louisiana in 1970. By 1981, Rudolph was unable to manage the four girls and the state of Louisiana determined that the children were in need of care. After a hearing, the Louisiana court placed the girls with Rudolph’s parents, Elizabeth and Willis Babcock of Richland, Washington. The supervision of the case was transferred to Washington on interstate compact. One Lee Michael, the husband of the deceased Ann Babcock’s sister (and thus the children’s maternal uncle by marriage) began a campaign to have the girls placed in his home.

Working with Washington State social workers on the one hand and undercutting the elderly Babcocks on the other, Michael persuaded the Washington Department of Health and Social Services to allow Aryn, Rudolph’s fourteen year old adopted daughter, to come and live in the Michael home. A DSHS attorney obtained the Louisiana court’s relinquishment of jurisdiction and DSHS social workers began to work with Michael to place all of Rudolph’s children in the Michael home. What the social workers left out of their “investigation” of Lee Michael, what they left out of their “home study” of Lee Michael was that Mr. Michael “had a criminal record dating back to 1967 which included charges of forcible rape, sexual assault, and attempted rape.” Babcock v State, 809 P 2d 143, 146.

As Michael’s undermining of the elderly Babcock’s became apparent, Rudolph fled the state with his two biological daughters. The social workers from the DSHS presumed upon the courts to issue an arrest warrant for Rudolph and forced the two remaining Babcock girls to return. Shortly thereafter, the DSHS workers and the court placed the remaining girls with Mr. Michael. Lee Michael assaulted and raped all four of the girls and was subsequently convicted and sentenced to fifty five years in prison. When Rudolph, the girls and the grandparents filed suit, the social workers and the DSHS claimed immunity.

In a tortured series of twists and turns through the legal system, the Washington Supreme Court threw the case out but then agreed to re-hear it as the DSHS and social workers caused the Court to rely on false information. In a lengthy opinion, the Court en banc noted that the DSHS social workers never investigated Lee Michael; placed the children without court orders and then got them later; placed the children without giving their father notice or an opportunity to be heard, and then did it again, and again. The social workers sought “absolute prosecutorial immunity” but the court reasoned “DSHS cites no case where this court has extended prosecutorial or judicial immunity to anyone but prosecutors and judges. Judges and prosecutors in this state are usually elected and highly visible officials.” Babcock v State, 809 P2d 143, 149; and went on to offer “The gravamen of this complaint is negligent investigation. Even prosecutors cannot claim unqualified immunity for performing investigatory functions under 42 U.S.C. Sec. 1983.” Babcock v State, 809 P2d 143, 151.

In an exhaustive review of their previous mistakes in “Babcock 1" as well as the underpinnings of immunity claims, the court went on to note:

“The Legislature has already chosen to deny caseworkers absolute immunity. In addition, binding state precedent and federal precedent under 42 U.S.C. Sec. 1983 show that the common law does not support absolute immunity from tort liability for negligent foster care investigation and placement in this case.” Babcock v State, 809 P2d 143, 149.

Writing for the court, Justice Utter noted:

“Absolute Immunity shields the recipient from liability for willful misconduct as well as negligence. A caseworker cloaked in absolute immunity could deliberately arrange a foster care placement with a known rapist in order to facilitate the sexual abuse of a child and escape tort liability. This should not be the law.” Babcock v State, 809 P2d 143, 149.

Finally, the court noted: “State precedent and legislative policy compel us to reject the caseworkers’ claim to absolute immunity. The precedent of intermediate and lower federal courts under 42 U.S.C. Sec. 1983 supports the same result.” 809 P2d 143, 150. And the court held that the acts of the DSHS and its social workers were not entitled to any type of immunity at all: “Legislative policy requires us to hold that DSHS cannot claim the qualified immunity of its caseworkers as does the majority of precedent on the subject.”, 809 P2d 143, 155.

PRIVATE PARTY IMMUNITY CLAIMS:

Private persons acting with a colorable claim under state law, or acting in concert with law enforcement officials cannot claim immunity under 42 USC § 1983. Adickes v S. H. Kress & Co., 398 U. S. 144, 152 (1970) may be seen as the origin of the “joint participation” doctrine advanced some years later in Lugar v Edmondson Oil Co, Inc., 457 U. S. 922 (1982). This doctrine received further refinement in Dennis v Sparks, 449 U.S. 24 (1986) where the Court sustained plaintiffs cause on the theory that private party conspirators to an injunction, acted under color of state law and in joint participation with state authorities.

In Howerton v Garcia, 708 F 2d 380 (9th Cir. 1983) the Federal Court of Appeals for the Ninth Circuit ruled that landlords who evicted a plaintiff without proper eviction procedures could make no legitimate claim to immunity:

“...there is no good faith immunity under section 1983 for private parties who act under color of state law to deprive an individual of his or her constitutional rights” 708 F 2d 380, 381.

In F.E. Trotter Inc. V Watkins, 869 F 2d 1312, 1318 (9th Cir. 1989) the Ninth Circuit ruled that there is no legitimate immunity claim for a private contractor’s actions while completing a land survey for the Navy. In Wyatt v Cole, 504 U.S. ___, 118 L. Ed 2d 504, 112 S Ct ___ (1992) the Supreme Court expanded its holdings with respect to immunity claims and private parties and ruled that even when relying in good faith, upon state statutes for replevin or garnishment, when the statutes are later declared unconstitutional, no immunity, not even “qualified immunity” may apply to the acts of private persons.

The Supreme Court, lesser Federal and State courts have made it quite clear that immunity must be granted very sparingly. Indeed, in Scheuer v Rhodes, 416 US 232 (1974) the Supreme Court turned aside arguments for immunity as it applied to governors. In Wood v Strickland, 420 US 308 (1975) the Supreme Court refused to give immunity to members of school boards, and in Hazo v Geltz, 537 F2d 747 (3d Cir. 1976) the federal court insisted that court personnel performing many of their functions were entitled to only "good faith immunity". In recent years, the court has refused to expand the concept of immunity to prison directors, Procunier v Navarette, 434 US 555 (1978) and to cabinet officers as well as their principle subordinates Butz v Economou, 98 S.Ct. 2894 (1978).

Clearly, “immunity” is on the wane.

In the oft-cited Monroe v Pape 365 US 167 (1961) the Court said that actions undertaken by those who would claim immunity:

"Should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." 365 US at 187, 81 S Ct, 484 (1961).

C. BULLOCK V HUSTER - AN EXAMPLE OF IMMUNITY BROKEN

Bullock v Huster, 209 Mich App 551, ___ NW2d ___ (April 1995) is an intentional tort, negligence and breach of fiduciary duty action. The minor Plaintiff, Renee Bullock, is twelve (12) ears of age. This action is brought by her biological father, Ronald L. Bullock, as next friend.

Renee was born to Ronald Bullock and Sharon Pope in May of l983. When the Bullock/Pope relationship broke down, Ms. Pope took the child and left Mr. Bullock's home in the Spring of l985. Contemplating legal action, Mr. Bullock, a General Motors: Cadillac Division engineer, had himself psychologically evaluated by Dr. Louise Centers who found him to show no pathology and to be thoroughly normal.

In July of l986, Protective Services worker Shaffer of the Wayne County Department of Social Services documented child abuse by Sharon Pope on the older child in her home. Mr. Bullock attempted to change the living arrangement of his daughter through the court and pursuant to an Order for independent psychological evaluation by Referee Adele Jones of the Wayne County Circuit Court, Dr. John W. Francisco, completed a detailed psychological evaluation of Ms. Pope, Mr. Bullock and the child in January of l987.

Pursuant to Court order, Dr. Francisco found Mr. Bullock to be normal, but Ms. Pope to show signs of serious psycho-pathology. In a follow-up, Dr. Francisco explained to Referee Adele Jones that Ms. Pope had coached the minor child to allege sex abuse charges against Mr. Bullock. Thereafter, Mr. Bullock underwent a polygraph examination in reference to sex abuse allegations with Marcy Consulting and passed. Ms. Pope took the same polygraph examination with Marcy Consulting in reference to the fabrication of sex abuse allegations and failed.

In a supplemental report in March of l987, court appointed expert, Dr. Francisco, indicated that it was clearly Sharon Pope's idea to make-up the sex abuse allegations. Ms. Pope refused to continue with Dr. Francisco and took the minor child, Renee, to psychiatrist, Jaime Ayala. In his report dated May l987, Dr. Ayala indicates that Sharon Pope shows signs of serious psycho-pathology. In a follow-up September l987 evaluation by psychologist Susan Hamilton, Ms. Pope was said to be "shopping for witnesses who will verify her fraudulent allegations of sex abuse".

False allegations of sex abuse in custodial matters have been described as the cruelest, most reprehensible and damaging allegation one parent can make against the other parent. See: Wakefield and Ungerwager, Accusations of Child Sexual Abuse (Springfield: Charles Thomas, 1990) and Lorandos and Campbell, “Myths and Realities of Sexual Abuse Evaluation and Diagnosis: A Call for Judicial Guidelines”, Issues in Child Abuse Accusations, Volume 7, Number 1, 1995. In a detailed custody hearing in front of Wayne County Michigan, Friend of the Court Referee Jones in October of l987, the Referee recommended that legal and physical custody of the minor child, Renee Bullock should be vested in her biological father, Ronald Bullock. Sharon Pope protested, and the matter was set for trial in front of the Honorable Sharon Tevis Finch.

Mr. Bullock and his daughter, Renee, participated in supervised visitation and counseling with psychiatrist, Jaime Ayala, and in a March l988 report to the Court, Dr. Ayala indicated that Mr. Bullock showed no pathology but that little Renee had been traumatized by her mother, Sharon Pope. Responding to the significant difficulties plead, the Honorable Sharon Tevis Finch appointed a Guardian ad Litem, Defendant-Appellant in this action, Bette Huster, on April 6, l988. It was at this point that little Renee's life became significantly worse.

Immediately after being appointed as the Guardian ad Litem and hearing of the unsubstantiated and fallacious sex abuse allegations, Ms. Huster, upon exiting the courtroom, pointed her finger at Plaintiff/Appellee and said "and you, I'm not even going to talk to you!". Both little Renee's elderly grandparents were present and were shocked at Ms. Huster's orientation. Their shock and chagrin over her thorough lack of professionalism and outrageous bias became deeper and deeper throughout the process of this cause. They filed affidavits of complaint. Nothing was done about it.

Soon after Ms. Huster's appointment, she alienated both court appointed experts, Dr. Francisco and Dr. Ayala. Both of these doctors filed affidavits of complaint about Ms. Huster. Nothing was done about them. Indeed, in his Affidavit Dr. Ayala complains that when he was preparing to come to court and testify about the serious psycho-pathology in Ms. Pope and the trauma to the minor child, Ms. Huster insisted:

"you don't belong here and you're not coming into court. As far as I'm concerned there is nothing you and Dr. Francisco have to say that I'm interested in hearing" ( Attached to Plaintiff’s Appeal Brief as Exhibit C at p 2).

In a May l988 report by Friend of the Court investigators Mazur and Moryc, cited Sharon Pope's abuse and psychiatric problems and recommended custody be vested in Ron Bullock.

In a June l988 letter to the Honorable Sharon Tevis Finch, court appointed psychologist, Dr. Francisco, complained about Ms. Huster's actions in this case. Three weeks later, court appointed psychiatrist Dr. Ayala wrote to the Honorable Sharon Tevis Finch complaining of Ms. Huster's actions as well. Again, nothing was done about the complaints. Somehow, Ms. Huster was able to preclude the bulk of the testimony from experts Ayala and Francisco, and also to keep away from Judge Finch the devastating truth of Ms. Pope's failing the polygraph. Apparently the Court was so hoodwinked by Ms. Huster and her collusion with Sharon Pope, that the Court awarded custody to Sharon in December of l988.

In April of l989, Dr. Ayala wrote to the Court again complaining about Sharon's serious psychiatric problems. Dr. Francisco did the same and reiterated his concern about the "SAID" syndrome (Sexual Allegations in Divorce). Despite Dr. Fransisco's predictions that Ms. Pope would act out inappropriately against the child and flee, the Guardian ad Litem did nothing. In June of l989, Ms. Pope went underground and fled to Georgia with her children, concealed her whereabouts, used a relative's name and social security number to buy a car, open a bank account and obtain a driver’s license. In October of l990, she was convicted in the Wayne County Circuit Court and sentenced to 90 days in jail and 500 hours of community service.

Pursuant to Court order following the kidnaping, Melvin J. Guyer, Ph.D., J.D. of the Department of Psychiatry of the University of Michigan Children's Psychiatric Hospital was commissioned by the Court to conduct an independent psychological evaluation of the parties. Dr. Guyer is a licensed attorney in the State of Michigan and professor in the Department of Psychiatry at the University of Michigan Children's Psychiatric Hospital. Dr. Guyer wrote to the judge in December of l990, complaining about Ms. Pope's visitation refusal and psychiatric difficulties. When she was finally coerced to participate in the court ordered evaluation process, a psychological evaluation was conducted by Dr. Guyer's associate, Dr. Horner, wherein Sharon Pope was seen to have an IQ of 89 with serious psycho-pathology, but Ron Bullock was seen to have an IQ of l08 with normal personality. After completing a significant review of all of the psychological and psychiatric data, Professor Guyer authored a 24 page report describing Sharon Pope as pathological, a liar and someone who has been seriously abusing the minor child. Mr. Bullock was seen to be warm, normal and someone in whom custody should be vested immediately.

After receipt of Dr. Guyer's evaluation, Mr. Bullock was seriously injured in an automobile accident. During his convalescence, Mr. Bullock hired an expert in law and clinical psychology to review the entire file so as to come to some determination as to a plan with respect to the child's best interest. During the process of this detailed review, two additional independent expert evaluators in law and psychiatry were consulted and the opinion of these experts lead Mr. Bullock to petition the Wayne County Circuit Court to remove Guardian ad Litem from the custody case.

On December 22, l992, Judge Sharon Tevis Finch signed an Order appointing Mr. Bullock next friend for the purposes of prosecuting this action. On February 2, l993, Judge Finch declined to remove Guardian Bette Huster from the custody file without evidence of wrong-doing, however, Judge Finch made it clear that this would be her action when evidence of wrong-doing was made known to her. On this very same date, during the process of taking Dr. Guyer's deposition, Guardian ad Litem Huster and attorney for Ms. Pope objected when attorney for the father began to inquire of expert Guyer concerning the misrepresentation of little Renee Bullock's best interest by the Guardian ad Litem. The deposition was halted, and the parties telephoned Judge Finch who directed the parties, in a separate record, that expert witness Guyer (qualified as a psychologist expert and as an expert in law) could testify with respect to hypotheticals concerning representation and misrepresentation of the child by the Guardian ad Litem.

When expert Guyer was asked if it became known to him that a Guardian ad Litem had misrepresented the facts to him or any expert like him in a custody matter, would that constitute adequate representation? The response was clear: "I would regard that as inadequate representation". (Dep. 2/2/93, p 185, l 4-10 ). When specifically asked by counsel if a Guardian ad Litem was discovered to have called an expert witness the evening before the expert was scheduled to testify about the serious psychopathology in a custodial mother and told the expert witness that they would not be allowed to testify, despite having been subpoenaed by the biological father's attorney, "would that make any suggestions to you regarding her representation of the child's best interest?" whereupon expert Guyer offered:

"Well, it would seem ... the adversary process, even in these cases is intended to bring all the information before the court to make well-informed decision. If someone interfered with that process, I think in this instance it would interfere with the Court's ability to determine and assess the best interests of the child. So it would run against the child's best interest rather than furtherance of it." (Dep. 2/2/93, p186, l 12-19 emphasis added).

Continuing in a separate record, expert Guyer was asked if the Guardian ad Litem knew of the report of the court appointed expert describing serious psycho- pathology in the mother, and yet:

"represented to the court that Renee should remain with Sharon Pope as custodial parent, would you consider and regard that as adequate representation?"

Answer: "No, I would not." (Dep. 2/2/93, p 202, l 16-20).

And when asked in a cumulative hypothetical, if a Guardian ad Litem was aware of the reports of serious psycho-pathology in biological mother, reports of physical abuse perpetrated by biological mother, kidnaping by the biological mother, false allegations of sex abuse perpetrated by the biological mother and still recommended, even in spite of the biological father being seen to be normal, warm, caring, that the child be forced to remain with the biological mother, "would you regard that as adequate representation of this child?" The answer was simply "No." (Dep. 2/2/93, p 206).

On February 25, l993, Appellant-Defendant Huster petitioned Judge Finch for Summary Disposition of this cause. At a hearing held March 26, l993, the father as next friend vigorously argued that the Court's do not sit as a super-legislator and that collateral estoppel has no place in this action. The Court agreed. When Appellant filed a Motion for Reconsideration and for Stay of Proceeding Pending Appeal on April 9, l993, the father as next friend opposed the reconsideration as did the Court.

The Michigan Court of Appeals heard oral argument on Huster’s interlocutory appeal in November of 1994. On April 3rd, 1995 they issued their opinion: No immunity for Guardians ad Litem. The decision caused a stir among court appointed guardians in Michigan. In the Michigan Lawyer’s Weekly, these court appointed attorneys whined and complained that now they’d be subject to suit by disgruntled parents. And they’d have no insurance coverage. 9 Mich L. W. 837, April 24, 1995. The response was simple: Bullock is about negligence, not insurance.

Demosthenes Lorandos, Ph.D., J.D.
214 North Fourth Avenue, Ann Arbor, Michigan 48104
Telephone [734] 327-5030 - Facsimile [734] 327-5032

http://www.sado.org/~lorandos/

http://familyrightsassociation.com/bin/white_papers-articles/immunity_broken.htm