Upcoming Hearings – Mark Your Calendars
Show Up and Testify
Tuesday, January 28 – House Children and Family Law Committee Room 206-208, Legislative Office Building, 33 N State St., Concord, NH ⚠️1:30PM – HB553-FN – relative to the definition of abuse and neglect and conditions triggering a rebuttable presumption of harm in abuse and neglect cases❌ Oppose ❌ It is highly recommended that everyone read this bill in its entirety by clicking the bill title above, so you can fully understand the broad impact this will have for child and family justice. This bill has many, many issues for due process and the rights of children and parents. Children have the right to the care and protection of their parents, and parents have the right to direct the care of their children. Rights cannot be taken away by a low bar of evidence and processes that sidestep protections guaranteed by the constitution. Part 1 Article 15 of the New Hampshire Constitution provides that no one shall be deprived of their rights until afforded due process of law. A rebuttable presumption of harm flips the due process principle of innocence until proven guilty on its head in the absence of a triggering criminal conviction, and makes it so a parent or guardian is presumed unfit and must meet a series of subjective and poorly defined standards to continue caring for their child. Specific Issues With HB553-FN: Due Process Concerns: The bill allows family court to proceed with parental fitness tests without a conviction, bypassing due process guarantees under both the NH and U.S. Constitutions by not requiring a legal finding of guilt.Broadened Scope of Welfare: The bill extends the statute’s protection to emotional or psychological welfare, giving judges wide discretion without clear definitions, potentially allowing judicial overreach into parental rights even without criminal charges.Redefinition of Physical Injury: The new language presumes abuse from injuries of unknown origin when parents are primary caregivers, reversing the burden of proof and clashing with due process by assuming guilt without evidence.Trauma-Informed Care Controversy: The inclusion of “trauma-informed care” concepts, criticized for lacking scientific backing, could lead to misdiagnosis or overemphasis on trauma, with unclear and inconsistent application.Serious Impairment Expansion: The bill adds “any single incident or occurrence of serious injury or illness” to the definition of serious impairment, potentially mislabeling normal childhood accidents or illnesses as neglect or abuse.Parentification Concerns: Normal family dynamics where children occasionally support parents could be misconstrued as “parentification” under the bill, potentially leading to findings of abuse based on judicial discretion rather than legal conviction.Lower Evidence Standard: By using the “preponderance of the evidence” standard instead of “beyond a reasonable doubt,” the bill treats abuse and neglect more like civil than criminal matters, potentially leading to unjust loss of parental rights without sufficient proof of wrongdoing. (For an expanded analysis of the bill, scroll to the bottom of this email) |
There is some positive language in the bill, but given the drastic expansion of state authority and discretion to make findings of abuse based on vague and subjective language, without any requirement for a crime to have been determined to have taken place that harmed the child, this bill is an affront to the rights of children and parents as well as constitutional due process protections. Therefore we believe the committee should vote Inexpedient to Legislate. Please attend the hearing at 1:30 on Tuesday, January 28th, and give in person testimony against this bill. Committee testimony has the most impact on the outcome of a bill. You can also submit your opposition and written testimony online here. Additionally, you find committee member contact info here, and call them individually and/or send them an email. |
Spotlight – What is Due Process?
For this week’s Spotlight, let us focus on the requirements for constitutional due process and where those requirements come from. NH Constitution, Part 1, Article 15 states “No subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse or furnish evidence against himself. Every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defense, by himself, and counsel. No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” The Supreme Court of the United States and the Supreme Court of the State of New Hampshire have both interpreted “the law of the land” to be synonymous with “due process.” Black’s Law Dictionary 4th Edition states “’Law of the land,’ ‘due course of law,’ and ‘due process of law’ are synonymous,” and further: LAW OF THE LAND. Due process of law (q. v.).By the law of the land is most clearly intended the general law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. Dupuy v. Tedora, 204 La. 560, 15 So.2d 886, 891. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of general rules which govern society. Rich Hill Coal Co. v. Brashore, 334 Pa. 449, 7 A.2d 302, 316; In re Stobie’s Estate, 30 Cal.App.2d 525, 86 P.2d 883, 885. Everything which may pass under the form of an enactment is not the law of the land. Sedg.St. & Const.Law, (2d Ed.) 475. When first used in Magna Charta, the phrase probably meant the established law of the kingdom, in opposition to the civil or Roman law. It is now generally regarded as meaning general public laws binding on all members of the community. Janes v. Reynolds, 2 Tex. 251; Beasley v. Cunningham, 171 Tenn. 334, 103 S.W.2d 18, 20, 110 A.L.R. 306. It means due process of law warranted by the constitution, by the common law adopted by the constitution, or by statutes passed in pursuance of the constitution. Mayo v. Wilson, 1 N.H. 53.” (4) Think about it: If a statute deprives due process as warranted by the constitution, or by the common law adopted by the constitution, is it pursuant to the constitution and thus a valid law, or is it repugnant to the constitution and thus a nullity and void? Black’s Law Dictionary 4th Edition offers this definition of Due Process of Law (emphasis mine):“Law in its regular course of administration through courts of justice. 3 Story, Const. 264, 661. ‘Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.’ Cooley, Const. Lim. 441. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution—that is, by the law of its creation—to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. Pennoyer v. Neff, 95 U.S. 733, 24 L.Ed. 565. Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law. Zeigler v. Railroad Co., 58 Ala. 599. These phrases in the constitution do not mean the general body of the law, common and statute, as it was at the time the constitution took effect; for that would seem to deny the right of the legislature to amend or repeal the law. They refer to certain fundamental rights, which that system of jurisprudence, of which ours is a derivative, has always recognized. Brown v. Levee Com’rs, 50 Miss. 468. ‘Due process of law,’ as used in the constitution, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. Em- bury v. Conner, 3 N.Y. 511, 517, 53 Am.Dec. 325. And see, generally, Davidson v. New Orleans, 96 U.S. 104, 24 L.Ed. 616… The essential elements of ‘due process of law’ are notice and opportunity to be heard and to defend in orderly proceeding adapted to nature of case, and the guarantee or due process requires that every man have protection of day in court and benefit of general law. Dimke v. Finke, 209 Minn. 29, 295 N.W. 75, 79; Di Maio v. Reid, 13 N.J.L. 17, 37 A.2d 829, 830. Daniel Webster defined this phrase to mean a law which hears before it condemns, which proceeds on inquiry and renders judgment only after trial. Wichita Council No. 120 of Security Ben. Ass’n v. Security Ben. Assn., 138 Kan. 841, 28 P.2d 976, 980, 94 A.L.R. 629; J. B. Barnes Drilling Co. v. Phillips, 166 Okla. 154, 26 P.2d 766. |
Procedural and Substantive Due Process Modern legal scholars describe two subset types of due process: procedural and substantive. Procedural due processCornell Law School’s Legal Information Institute (2024) describes procedural due process as follows (emphasis mine):The U.S. Constitution requires that federal and state governments abide by certain procedures to protect the essential interests of all citizens. The Fifth and the Fourteenth Amendments of the U.S. Constitution guarantee due process to all citizens. The Amendments, also known as the Due Process Clauses, protect citizens when the government deprives them of life, liberty, or property, and limits the government’s arbitrary exercise of its powers. The U.S. Constitution requires two types of due process: procedural due process and substantive due process. As indicated by the name, procedural due process is concerned with the procedures the government must follow in criminal and civil matters, and substantive due process is related to rights that citizens have from government interference (e.g. right to privacy). Procedural due process refers to the constitutional requirement that when the government acts in such a manner that denies a citizen of life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decision-maker. The government must also demonstrate that there is an articulated standard of conduct for their actions with sufficient justification. The requirements, called “fundamental fairness,” protect citizens from unjust or undue deprivation of interest. However, the specific procedures guaranteed by the U.S. Constitution may depend on the nature of the subject matter of the interest in question as well as each individual’s circumstances. In the article “Some Kind of Hearing,” the famous Judge Henry Friendly provides a list of due process elements for a fair hearing. Judge Friendly’s list remains highly persuasive to this day. The list goes as follows:1. A neutral and unbiased tribunal.2. A notice of the government’s intended action and the asserted grounds for it.3. The opportunity for the individual to present the reasons why the government should not move forward with the intended action.4. The right for the individual to present evidence, including the right to call a witness.5. The right for the individual to see the opposing side’s evidence.6. The right to cross-examination of the opposition’s witnesses.7. A decision based exclusively on the evidence presented.8. The opportunity to representation by counsel.9. The requirement that the tribunal prepare a record of the evidence presented.10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.In most cases, we examine the fundamental fairness of the government’s actions to determine whether the government has met the requirements for due process. The criteria for determining whether the due process requirements have been met depends on whether the particular government action concerns a civil or criminal proceeding. Specifically in civil contexts, the courts utilize a balancing test between private interests, the government’s public interest, and the possibility of the government procedure’s erroneous deprivation of private interest in evaluating government conduct. On the other hand, in criminal procedures, the court looks to whether the procedure the government has adopted is offensive to the notion of fundamental fairness for the due process analysis. The analysis for due process is thus inquiring more narrowly for criminal procedures.” (1) Substantive Due ProcessCornell Law School’s Legal Information Institute (2024) describes substantive due process as follows:“Substantive due process is the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference. Specifically, the Fifth and Fourteenth Amendments prohibit the government from depriving any person of “life, liberty, or property without due process of law.” The Fifth Amendment applies to federal action, and the Fourteenth applies to state action. Compare with procedural due process. The Supreme Court’s first foray into defining which government actions violate substantive due process was during the Lochner Era. The Court determined that the freedom to contract and other economic rights were fundamental, and state efforts to control employee-employer relations, such as minimum wages, were struck down. In 1937, the Supreme Court rejected the Lochner Era’s interpretation of substantive due process in West Coast Hotel v. Parrish, 300 U.S. 379 (1937) by allowing Washington to implement a minimum wage for women and minors. One year later, in footnote 4 of U.S. v. Carolene Products, 304 U.S. 144 (1938), the Supreme Court indicated that substantive due process would apply to: “rights enumerated in and derived from the first Eight Amendments to the Constitution, the right to participate in the political process, such as the rights of voting, association, and free speech, and the rights of ‘discrete and insular minorities.’”Following Carolene Products, the U.S. Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in U.S. history and tradition, viewed in light of evolving social norms. These rights are not explicitly listed in the Bill of Rights, but rather are the penumbra of certain amendments that refer to or assume the existence of such rights. This has led the Supreme Court to find that personal and relational rights, as opposed to economic rights, are fundamental and protected. Specifically, the Supreme Court has interpreted substantive due process to include, among others, the [certain] fundamental rights[.]” New Hampshire Family Court, DCYF, and Due Process Have you experienced deprivation of constitutional due process in the New Hampshire? If you have, we want you to know that you are not alone. The statutes governing DCYF and the Family Court contain provisions that are repugnant to the constitution. That is why New Hampshire Family Justice is here. To educate you about your rights, raise awareness about systemic problems, share compelling stories of injustice with the public, demand change to prevent further harm of New Hampshire children and families, and achieve remedy for irreparable damage caused by an unlawful and unfair system. In Liberty and Truth, Leah Cushman New Hampshire Family Justice |
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