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
Anthony J Van Zwaren, Esq.
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.