Wednesday, July 27, 2016

New Jersey Supreme Court case on the rights of parents to free legal counsel when facing the termination of parental rights

The New Jersey Supreme Court just issued a decision only yesterday affirming that a parent who previously placed her child in foster care had a right to free legal counsel when the foster care agency sought to terminate her parental rights so that her child could be placed up for adoption. See In the Matter of Adoption of a Child by J.F.V. and D.G.V.; (A-39-15). The decision in favor of the mother was unanimous. This right had already been established for parents in need of representation when facing termination of parental rights in cases involving the Division of Child Protection and Permanency (“DCPP”). N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J. 301 (2007). The right to representation for indigent parents when facing state inspired termination of parental rights was established under Federal law in Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981).

This case involved placement by a private agency rather than a state agency. The issue of the rights for parents falls under N.J.S.A. 9:3-47 or -48. rather than under N.J.S.A. 30:4C et seq. and was a matter of first impression in New Jersey. The issue at hand in this case was not whether the indigent parent had a right to representation but whether she waived that right according to the arguments presented on behalf of the proposed adoptive parents. There were court notices during the trial phase that advised that the indigent mother had a right to appointed counsel. However, at one case management conference, the trial court briefly informed the mother of a right to representation, but did not inform her that a lawyer would be appointed for her if she could not afford one. She did take advantage of her opportunity to refuse to consent to the adoption, but was not adequately informed of her rights at trial to have an attorney appointed.

The Supremes noted that, while this matter was brought as a private action by the prospective adoptive parents, that it is important to consider that the force and authority of the State to sever the parental bonds was still in effect. Thus, the termination under this adoption proceeding had the same effect and force of law as a termination commenced by a state agency. See  In re Adoption of a Child by J.D.S., 176 N.J. 154 (2003).

In looking to the history of the advancement of parental rights in termination proceedings, the New Jersey Supreme Court cited the statement of Justice Stevens of the US Supreme Court when he stressed in a dissenting opinion on the case of Lassiter, that the deprivation of parental rights can be even “more grievous” than a sentence of incarceration and that counsel should be appointed to a parent facing the termination of their rights. Lassiter, at 59-60. Or as the New Jersey Supreme Court noted, it would be hard to conceive that where the State was required to provide appointed counsel to indigent defendants faced with the loss of their driving privileges, and not be required to provide appointed counsel in a matter where a parent faced the extinction of their parental rights citing Crist v. Div. of Youth & Fam. Servs., 128 N.J.Super. 402, 415-16 (Law Div. 1974) aff’d in part, rev’d in part, 128 N.J. Super.  135 N.J. Super. 573 (App. Div. 1975).

The Court referred to the type of difficulties that the indigent mother faced when trying to handle her own defense without representation. These cases involve things like expert medical and psychological evidence who can be subjected to cross-examination. The mother did not present any evidence on her own behalf and likely did not know how to contest what evidence the other side presented that might have been objectionable. She was not able to address legal arguments and did not subject witnesses to cross examination.  And while the State may have a compelling interest in promoting adoptions in appropriate cases, the Supreme Court also noted that the public as well as the parent have a stake in insuring “an accurate and just decision.” Lassiter, supra, 452 .U.S. at 27. A contest between attorneys versed in the law and in presenting relevant and competent evidence to the court also permits the trier of fact (the judge) to render a just and competent decision. Lastly, the New Jersey Supreme Court noted that while this was a case of first impression in New Jersey, other states had already enacted such provisions by statute or by courts applying due process standards. And the Supreme Court rejected the petitioners’ (adoptive parents’) argument that because the state per se did not initiate this action but that private interests did, that due process interests were not invoked.

The Supreme Court instructed that the right to counsel for an indigent parent should commence when the adoption agency has received notice that the parent objects to the adoption, as the case is then likely to go to trial. The Supreme Court also instructed that the Director of the Administrator of the Courts provide form letters that are to be sent to the parents when asked whether they wish to consent to an adoption or not, and clearly noticing them of their right to appointed counsel. The only thing that the Supreme Court could not address is the funding for this representation. The Court noted that representation provided through the Office of Parental Representation (“OPR”) of the Public Defenders’ Office in representing parents when confronting Division initiated termination proceedings (and in abuse and neglect hearings as well), but realized there was no funding source provided as yet to permit OPR to handle these cases as well. They hoped that law firms would provide pro bono representation, but realized that the Legislature would need to provide the funding to insure that representation is available in these type of cases.

This case is an important extension of the rights of parents to due process because it goes beyond the times when these proceedings to terminate parental rights occur in proceedings involving the State through the DCPP and extends it to indigent parents who through misfortune may have to place their child or children in another person or agency’s care. The parent in this case, L.A., initially placed her child with an agency with the initial idea being adoption but later changed her mind after receiving pre-adoption counseling. While the child was still in placement, the mother actually agreed to a service plan whose goal was the “eventual parenting of [the] child.” She was also to seek work and permanent housing. However, after she failed to sign a revised service plan the placement agency announced its intention to move forward with adoption. 

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