2011 Summer, Pg. 46. Lex Loci.

AuthorBy David W. Ruoff

New Hampshire Bar Journal


2011 Summer, Pg. 46.

Lex Loci

New Hampshire Bar JournalVolume 52, No. 2Summer 2011Lex LociBy David W. RuoffIn re Jack L., decided March 16, 2011, is a case about abandonment of a child and the termination of parental rights. Little Jack was born in February I999. In 2004, the probate court granted guardianship of Jack to his paternal grandmother because of some maltreatment by his mother. Three years later (2007), DCYF filed an abuse and neglect petition against the grandmother. The petition alleged that Jack and his sister had been neglected while in the grandmother's care.

At the district court hearing on the petition, the parents were present and the judge commented to both that they could lose their parental rights as a result of the petition being filed. For that reason, he appointed attorneys to represent each parent. A month later, both parents left the state and moved to the State of Washington. They did not attend the dispositional hearing held in November 2007, and the court awarded custody of Jack to DCYF. The parents also failed to attend the review hearing in March 2008. By that time they had moved and not notified DCYF of a current address. In April 2008 (Jack was nine years old) his father contacted DCYF and said that he was "in the area" and wanted to see Jack and his sister. He had one unauthorized visit with Jack at that time. He then disappeared again.

Several months later DCFY learned that the parents were living in Arkansas. In December 2008, DCYF filed a petition to terminate their parental rights based on the fact that the parents had abandoned Jack under RSA 170-C. In such proceedings the moving party must demonstrated a statutory ground for termination - in this case abandonment. Under NH law, parental rights are "natural, essential and inherent," see In re Adam R., 159 N.H. 788 (2010), but these rights can be terminated if due process safeguards are used. Ultimately, the Court must determine whether such termination is in the child's best interest.

The parents appeared at the termination hearing - with their appointed counsel - and made several clever arguments in their attempts to defeat the petition. They argued that 1) the grandmother had acted as their "agent" and that by operation of agency-law they were "present" and had not abandoned Jack and that 2) the petition should have been dismissed because the court did not appoint them a guardian (under the ADA) at the underlying hearing on the abuse and neglect petition (against the grandmother). The trial court found that the parents had abandoned Jack - hardly a shocking conclusion because of the six-month abandonment timeframe set forth in RSA 170-C:5, It was easily established that they had only a flickering interest in their son for most of his life.

The Supremes affirmed the termination of parental rights. While admitting that the agency argument was "novel" (a sure sign you are going to lose as a litigator is when the Court calls your argument "novel"), the Court affirmed its longstanding rule that a parent can delegate some parental duties, but such a delegation cannot amount to a complete abdication of one's parental responsibilities - as happened in Jack's case.

The Court also dismantled the parents' argument that the Americans with Disabilities Act required the trial court to appoint a GAL for them so that they could understand the underlying abuse and neglect case. The Court reasoned that since the petition was against the grandmother, there was no nexus between that petition and whatever role a GAL would have played in the underlying case for the parents. The Court concluded that whatever role a GAL might have played in the underlying abuse and neglect case was irrelevant to the termination of parental rights proceeding. Because the parents never manifested any meaningful intent to fulfill their obligations as parents - in effect "waiving" their parental rights - the Court affirmed the termination.

This case reminds me a quote I once read in an old case during law school: "the law helps those who help themselves, generally aids the vigilant, but rarely the sleeping, and never the acquiescent."//annan v. Dusch, 154 Va. 356, 379 (Va 1930). This is especially true, as it should be, for parental rights.

Hampton Police Association v. Town of Hampton, decided April 28, 2011, is an appeal of an order from Judge McHugh compelling the production of attorney-client invoices submitted to the Town of

Hampton by its outside counsel. The case is of special interest to the legal profession because it discusses the intersection of the RSA 91-A (Right to Know law) and the attorney-client privilege: Whether attorney billing records (and their attendant narrative descriptions for work performed) are privileged communications and are exempt from disclosure under RSA 91-A.

The plaintiff (the Association) made a right-to-know request of the Town of Hampton (the Town) for all billing records from the Town's outside counsel as they pertained to two items of litigation between the Town and the Association (an arbitration proceeding and subsequent Petition to Enforce the arbitration award). The Association apparently wanted to know exactly how much money the...

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