The termination of parental rights by State action is of constitutional magnitude, and parents unquestionably have the right to counsel when the State moves to terminate parental rights


Law Lessons from In The Matter of the Adoption of a Child By J.E.V. and D.G.V., __ N.J. Super. __ (App. Div. 2015), Docket No. A-3238-13T3, October 13, 2015:

The termination of parental rights by State action is of constitutional magnitude, and parents unquestionably have the right to counsel when the State moves to terminate parental rights. See N.J.S.A. 30:4C-15.4(a); N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007).

The adoption statute states in pertinent part:

This act shall be liberally construed to the end that the best interests of children be promoted and that the safety of children be of paramount concern. Due regard shall be given to the rights of all persons affected by an adoption.

[N.J.S.A. 9:3-37.]

When such an irreversible, critical decision is to be made by the court, an indigent person needs a lawyer. Because the preservation of families is a “paramount concern” of the State, N.J.S.A. 30:4C-1, and the termination of parental rights is of constitutional dimensions, B.R., supra, 192 N.J. at 305, indigent parents facing the termination of their parental rights by private agency action in this type of situation are entitled to appointed counsel. Our 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., 176 N.J. 154, 158-59 (2003). Our Supreme Court opined:

In a termination action based on Title 9 findings of abuse or neglect, the OPD is responsible for representation and, even when a public interest law firm undertakes that representation, for the ancillary expenses necessary to that representation. We see no basis for distinguishing OPD’s responsibility in this setting where, by virtue of State legislative authorization, a private party initiated the severing of parental rights for reasons congruent to the type of findings required in a Title 9 termination action.

[Id. at 158.]

Our Supreme Court has determined that “the right to appointed counsel for indigent litigants has received more expansive protection under our state law than federal law.” Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006).[See State v. W. World, Inc., 440 N.J. Super. 175, 187-88 (App. Div. 2015) (discussing situations where indigent persons have been held entitled to appointed counsel).] In Pasqua, the Court determined that indigent persons facing a civil child support enforcement hearing that could result in coercive incarceration were entitled to appointed counsel. Id. at 149. Indigent persons in quasi-criminal matters facing a potential “consequence of magnitude,” including loss of driving privileges or even fines, are entitled to appointed counsel. Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971), superseded by statute, Public Defender Act, N.J.S.A. 2A:158A-5.2, as recognized in W. World, Inc., supra, 440 N.J. Super. at 195; see R. 7:3-2(b); State v. Hermanns, 278 N.J. Super. 19, 29 (App. Div. 1994) (holding “aggregate monetary sanctions of $1,800 in a single proceeding gives rise to the right to counsel under Rodriguez”). Even indigent corporations are entitled to appointed counsel when facing a consequence of magnitude. W. World, Inc., supra, 440 N.J. Super. at 201-02. After the elimination of the death penalty,[See N.J.S.A. 2C:11-3b.] 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.” M.L.B. v. S.L.J., 519 U.S. 102, 121, 117 S. Ct. 555, 566, 136 L. Ed. 2d 473, 491 (1996) (internal citations and quotation marks omitted). “[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.” Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d 599, 610 (1982).

The assigned lawyer should be present before the trial begins, when the private agency first decides to move toward adoption, to assist the parent in preparing for trial and in negotiating the process leading up to the filing of a complaint. In an action involving the Division, a lawyer is appointed through the OPD to represent the parent either when litigation begins, or certainly no later than when termination of parental rights is first sought by the State. N.J.S.A. 30:4C-15.4(a); B.R., supra, 192 N.J. at 305-06.

The Madden list[See Madden v. Delran, 126 N.J. 591 (1992).] may have to be utilized to provide counsel. The child may also be entitled to counsel in these situations. E.T., supra, 302 N.J. Super. at 539-41.

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