NJ Supreme Court recognizes right to counsel for parents in adoption cases

Affirming a decision from the New Jersey Appellate Division, the Supreme Court of New Jersey held in Adoption by J.E.V., 141 A.3d 254 (N.J. 2016), that parents have a right to counsel in adoption cases under the due process clause of the New Jersey Constitution.  Key points from the decision:

• The court noted that New Jersey has generally provided more expansive rights to counsel than SCOTUS, and noted the court’s prior rejection of Lassiter with respect to termination of parental rights cases.  It also recognized the history of recognizing a right to counsel even in a non-constitutional way, using the “consequences of magnitude” doctrine that is specific to New Jersey and that incorporates due process principles without actually being a due process decision.

• The court observed that an adoption severs parental rights just as permanently as a state-initiated termination of parental rights case, and that the risk of error was high because adoption proceedings are complex.  It also said the state’s financial interest is "not a weighty one in light of the significant private interest involved."
  

• The court rejected the argument that due process is not triggered and/or the state is not involved in adoption proceedings.

• The court held that the right also attaches in agency adoption cases when the agency with whom the child has been placed makes a decision to move towards adoption and the parent formally objects (or in private cases, when the petition for adoption is filed and the parent objects).  On this front, the court noted, "Legal Services of New Jersey recommends that a uniform notice procedure be used. In this case, the agency sent L.A. a letter in March 2013 to notify her of its plan to move toward an adoption. We ask the Director of the Administrative Office of the Courts to review letters of this nature and develop a form designed to enable each parent to respond directly. At a minimum, the form letter, in plain language, should (1) advise parents that they have the right to object, (2) outline how they should do so, (3) explain that failure to respond to the notice in writing will constitute a waiver, (4) tell parents about the statutory right to counseling before they decide whether to sign a surrender form, (5) advise them what to do if they wish to surrender the child, (6) inform parents that they have the right to be represented by an attorney if they object and that the court will appoint counsel if they are indigent, and (7) provide details about how to apply for counsel. See N.J.S.A. 9:3-45.  To simplify matters, the form itself can provide a space to object directly.”

• The court rejected the argument that the mother had waived her right to counsel.  The court stated that waiver is relinquishment of a known right, and that the adoptive parents "argue that L.A. waived the right to counsel at the same time they claim no such right exists.”  The court added that "there was no established or ‘known' right until the Appellate Division’s ruling in this case. Beyond that, the letter and notices L.A. received were equivocal, and no one ensured that L.A. understood she had a right to court-appointed counsel and knew how to exercise it.”  The court added, "In the future, judges should inform a parent of the right to counsel at the first court proceeding. If a parent wishes to proceed pro se, the court should conduct an abbreviated yet meaningful colloquy to ensure the parent understands the nature of the proceeding as well as the problems she may face if she chooses to represent herself.”

• Along with rejecting waiver, the court also declined to apply a “harmless error” test, stating "Because a complete denial of counsel casts doubt on the fairness of the process followed, we must reverse the trial court’s decree and remand for a new trial."

• The court said it was key that experienced attorneys handle these matters, and that while the Office of Parental Representation is experienced, "Without a funding source, we cannot direct the office to take on an additional assignment and handle contested cases under the Adoption Act.”  But it noted that after its decision recognizing a right to counsel in civil contempt cases, the Legislature had authorized the PD’s office to handle such cases, and "we trust that the Legislature will act and address this issue.”  However, "In the interim, we have no choice but to turn to private counsel for assistance. We invite volunteer organizations to offer their services, as pro bono attorneys have done in other areas … Until the Legislature acts, we may need to assign counsel through the Madden list, which is not an ideal solution.”  The Madden decision was one where the court held that private attorneys could be compelled to take criminal cases without compensation, and currently the state maintains a Madden list of attorneys eligible to be appointed (although there are a slew of exceptions that can get attorneys off the list).

• Although urged by one of the amici, the court declined to address the issue of the right to counsel for children in such proceedings.  That issue was not raised by either party.

The case benefited from tremendous work by many amici, including Legal Services of New Jersey, the ACLU of NJ, the NJ State Bar, Advocates for Children, and the NJ Association for Justice.  The decision was covered by the New Jersey Law Journal, NJ.com, and Bristol Herald-Courier.

Following the decision, the New Jersey Law Journal urged the Legislature to respond to the decision and authorize the state public defender to handle such cases, rather than relying on courts conscripting untrained pro bono attorneys to handle the cases.