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Family law reform
Report: state law favors parental rights over child protection, needs fixing

01/05/17
By Ryan Lessard news@hippopress.com



 The Division of Children, Youth and Families is severely understaffed, its policies stifle corrective action, risks of future harm are not adequately assessed and state laws set the bar too high to prove risk of harm or neglect, according to a recent independent audit commissioned by Gov. Maggie Hassan.

Now, lawmakers must grapple with a number of recommendations made by the Center for the Support of Families, some of which call for removing some parental rights. 
Political analyst Wayne Lesperance said that will be a hard sell for the more conservative and libertarian-minded lawmakers in the state legislature.
“Granite Staters have a very strong sense of liberty and freedom,” Lesperance said. 
That culture has been largely enshrined in our laws, but in balancing the constitutional rights of parents with those of children, independent reviewers say lawmakers missed the mark.
 
Parental consent
One recommendation made in the report, released just before Christmas, would eliminate a provision requiring parental consent for child protective service workers to interview and routinely see all the children in a household during an assessment. 
“Determinations about maltreatment should not be made, or assessments determined incomplete,” the report said, “because the parents refuse access to the children. In this situation, parents’ rights should not supersede protection of the child.”
“I suspect it’s going to be a controversial issue like many of these things are,” said Republican state Rep. Frank Kotowski of Hooksett. 
As chairman of the Health and Human Services Committee, he’s likely to see some of the bills related to child protection since the House is poised to eliminate the family law committee that would traditionally review these kinds of reforms.
Democratic state Rep. Lucy Weber of Walpole is the current chair of the Commission to Review Child Abuse Fatalities. She is careful not to make predictions about how certain bills would play in the House, but she concedes there is usually tension where parental rights are concerned.
“Parental rights are fundamental constitutional rights, so any time you infringe on parental rights it’s a touchy subject,” Weber said. “But in my opinion the safety of children is one very good reason for needing to impinge sometimes on those rights, to limit those rights. … The tough thing is determining when and to what level you intrude on parental rights.”
Weber said there are other areas where lawmakers should consider rolling back some parental rights. For example, she said current law states that children who have already been removed from a home and placed in foster care still need to get field trip permission slips signed by their parents.
“I think it depends a lot on people’s life experiences, but some of it may wind up being partisan,” Weber said.
The issue of rebalancing the state laws around parental rights and child protection came up earlier this year when attorney Rus Rilee told local reporters he believed such an imbalance led to the serious abuse of plaintiffs he’s representing in a lawsuit against DCYF. 
Among his clients are the families of toddlers who were killed at the hands of their parents and small children who were sexually abused by their parents during ostensibly supervised visitations. These were often parents who were already on DCYF’s radar, but because of state law, Rilee contends, were still given access to their children they might not have had if those laws were not in place.
During a phone interview in October following the news of the lawsuit, the Hippo asked DCYF Director Lorraine Bartlett if she thought state law had struck a good balance between parental rights and child protection. She said she felt the law was sufficient as written so long as statutory requirements are “applied correctly” and not “as strictly as some may interpret them.” 
Bartlett could not be reached for further comment by press time.
 
Other changes
The independent reviewers also recommended changes to state law in other areas. The report said the state should align the standards of proof required for substantiating abuse or neglect with the standards required for proving it in court. The initial substantiation requires only probable or reasonable cause while court cases require a preponderance of evidence.
Reviewers also found that cases of children at risk of future harm were marked “unfounded,” despite evidence of maltreatment, if the child didn’t have physical injuries. An overworked assessment staff and a high legal bar were cited as contributing factors to what appeared to be an unusually high ratio of unfounded cases to founded cases. 
The report recommends state law clarify that cases should be marked founded whenever there is evidence the child is at risk of future harm.
Another problem identified in the report was the word “serious” in the state’s definition of neglect, which makes it inordinately hard to prove a risk of impairment when DCYF seeks to protect kids from neglectful conditions. It’s open to interpretation, and that interpretation is often “rigid,” according to the report.
In fact, reviewers could only find three examples in case law when the threat of serious impairment was successfully proven. 
Finally, reviewers also recommended the law require DCYF to retain its records of reports of abuse and neglect beyond three years. The standard is seven years, according to the report. The House passed a similar bill last session as one of the changes proposed by the Commission to Review Child Abuse Fatalities, but Weber said it failed to pass in the Senate.
She said opponents feared such records could be used unfairly as ammunition in divorce proceedings.
 
Next steps
Whether these changes get addressed any time soon is uncertain. The deadline for proposing new bills for this session has already passed, and lawmakers for the past few weeks have had some downtime for the holidays. Many said they had not yet even read the report on DCYF.
It’s possible some of the issues related to staffing will be addressed in the budget process.
But the legal reforms recommended in the report may require time for study.
Weber said the Commission has already been looking at the language defining abuse and will continue reviewing that in the months to come.
But Joy Barrett, executive director of the Granite State Children’s Alliance, said children at risk of serious harm and even death can’t afford to wait for improvements in the law. 
“In a pursuit to better protect children, some changes will take time, and that I would see as a challenge because we don’t necessarily have time,” Barrett said.
She’s optimistic everyone will work together in the interests of children but how a predominantly Republican-led legislature will react to calls to reduce parental rights and possibly spend more money is unclear.
Lesperance said one strategy advocates could pursue is increasing awareness and focusing on the kids. 
Another factor could be how Governor-elect Chris Sununu acts.
“There’s no question, if the governor makes this a priority you’ll have a much easier time to get this through,” Lesperance said. “I think that will go a long way to making these reforms happen.”
Sununu’s spokesperson emailed a written statement when asked where Sununu stands on the report’s legal recommendations.
“The report on DCYF identified a series of areas that are in need of improvement and provided practical recommendations that our team will closely evaluate in the coming weeks,” Sununu said in the statement. “I am confident we can implement real change that will provide for better protections for our children and families.” 





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