Right to Counsel in Contested Adoption

Source: Right to Counsel in Contested Adoption

Right to Counsel in Contested Adoption

L.A., a poor woman, turned to the Children Home Society of New Jersey (CHS) for help with her young special needs daughter. CHS temporarily placed her daughter with foster parents.  Because she feared  she would not be able to financially support her daughter’s special needs, L.A. initially was inclined to put her daughter up for adoption.  She ultimately changed her mind. Nevertheless, CHS  decided that the girl would be better off with her foster parents and, therefore,  moved to terminate L.A.’s  parental rights.  After a two day trial in which she represented herself L.A.’s parental rights were terminated.  No abuse or abandonment was alleged. On appeal, L.A. challenged the trial court’s determination, arguing, among other things, that in an action to terminate parental rights an indigent respondent has a right to appointed counsel regardless of whether the action was instituted by the State or a private agency.

It is well established that if the State moves to terminate parental rights that parent has a right to appointed counsel.  Until now  if the contested adoption is moved by a private adoption agency the parent has had no right to such representation.   But in October the Appellate Division of the Superior Court declared those days at an end.  In Matter of Adoption of J.E.V. the Appellate Division concluded:

After the elimination of the death penalty, we can think of no legal consequence of greater magnitude than the termination of parental rights. Such termination “sever[s] the parent-child bond, … is irretrievably destructive of the most fundamental family relationship,” and “the risk of error … is considerable… “[A] natural parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.”

Judge Ellen Koblitz, in a passionate eloquent opinion, concluded for the panel that “L.A., when facing a consequence of such magnitude, imposed by the action of a State-licensed agency, was entitled to appointed counsel.”  That conclusion is eminently correct and past-due.  When a child is taken from a parent by state action it should make no difference whether the initiative is by a public entity or a private adoption agency like CHS.  The court’s action provides the state action warranting the protection of counsel for the natural parent.

But the remedy is problematic.  The adoptive parents’ assert that the court lacked statutory authority and that the birth mother waived her right to counsel.  L.A. adhered to the principle stand fast if you stand well and opposed the cert petition.  The state Supreme Court granted certification on December 17, 2015 framing the question as “In a private adoption matter, does an indigent parent facing termination of parental rights under New Jersey’s Adoption Act have a right to appointed counsel?”.

The Supreme Court set a peremptory briefing schedule – perhaps assign that  the right to appointed counsel will be upheld: but who should that be?  The Appellate Division panel had referred the matter to the Administrative Director of the Court, urging consultation with the Conference of Presiding Family Judges.  “The Madden [v. DelRan] list may have to be utilized to provide counsel” the opinion suggests.  That decision held that private lawyers have a duty to represent people for free where the Public Defender is not required to do so.  But the “Madden list”– an alphabetized list of attorneys prepared by Assignment Judges in each vicinage pursuant to which lawyers are assigned to represent indigent defendants on a pro bono basis —  is insufficient.    Free labor imposed by court directive – even on those with a lawyer’s professional duty – will often be no match for the experience and resources of the statewide Office of the Public Defender, which represents parents  whose children have been removed based on allegations of abuse and neglect (Office of Parental Representation), the children who have been removed (Office of Law Guardian), and individuals involuntarily committed to State psychiatric facilities (Office of Mental Health Advocacy).

The Appellate Division asked the Public Defender to represent L.A. but the PD refused, saying it lacked statutory authorization to act in private agency actions.  Private counsel was then appointed.  But as the panel observes “(o)ur Supreme Court has held that indigent parents in private adoption matters are entitled to free transcripts, provided by the plaintiffs, or if plaintiffs are financially unable to provide the transcript, then by the Office of the Public Defender (OPD).    In re Adoption of a Child by J.D.S., 176N.J. 154  (2003).”

The New Jersey State Bar Association has decided to intervene as amicus curiae.  It is to be hoped that the Association will urge  that the principle of the right to counsel should be extended by the court to authorize the Public Defender to represent the indigent parent in privately initiated contested adoption matters.  The children and the parents are owed equal and competent representation consideration.  Regardless of who initiates the proceeding it remains the State which terminates completely the rights of the parent and severs the child from mother and father.  Such a view of state action prevailed in Edmonson v. Leesville Concrete, a 1991 case in which the United States Supreme Court held that empaneling a jury was a state function which subjected a lawyer’s peremptory jury challenge to the 14th Amendment principle of equal protection of the law.

– George Conk

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