Your Right to Your Baby. Your Right to a Lawyer.
The Supreme Court of New Jersey has again recognized the important constitutional right to appointed counsel in a parental termination case – this time in a case involving a contested private adoption.
In The Matter of the Adoption of a Child by J.E.V. and D.G.V., decided July 26, 2016, Chief Justice Rabner, writing for a unanimous court, held that an indigent parent who faces the termination of her parental rights in a contested private adoption proceeding has to right to have an attorney appointed for her.
It all started in 2009, when the biological mother (L.A.) gave birth to a daughter. When the child was two and one-half years old, L.A. decided to give the child up for adoption and placed her with the Children’s Home Society (CHS), a state-licensed adoption agency. Two months later, after pre-adoption counseling, however, L.A. changed her mind and chose not to surrender her parental rights.
Meanwhile, the child had been placed in short-term foster care. In April 2012, the agency placed the child with J.E.V. and D.G.V.
In July 2012, with the help of a counselor at CHS, L.A. agreed to a service plan that stated her goal was the “eventual parenting of the child.” The plan called for weekly meetings with a birth parent counselor. L.A. also agreed to look for work and stable housing. A revised service plan dated December 1, 2012 built on those goals and also contemplated developmental services for the child.
Months later, CHS advised L.A. that it intended to proceed with the child’s adoption. In a letter dated March 1, 2013, CHS told L.A. that it was “going to make an adoption plan for her child.” The letter enclosed multiple forms for L.A.’s consent, and advised L.A. that she could file a written objection with the Surrogate’s Office within 35 days. The letter said: “You have the right to be represented by an attorney, and you may or may not have the right to have counsel appointed to represent you. You may contact the Essex/Newark Legal Service in Essex County in which this action is pending by calling (973) 624-4500.”
L.A. did not sign the consent forms. Instead, she wrote three objection letters. On August 1, 2013 , with the agency’s consent, J.E.V. and D.G.V. filed a complaint for adoption. The court entered an order scheduling a hearing and directing that L.A. receive notice. The order stated, among other things, that L.A. had “the right to appear, object, file written objections, and have counsel or court-appointed counsel, if unable to afford counsel.”
The notice advised L.A. as follows: “If you are unable to obtain an attorney, you may communicate with the New Jersey Bar Association by calling (732) 249-5000. You may also contact the Lawyer Referral Services of the Essex County Bar Association at (973) 533-6775, if you cannot afford an attorney, you may contact the Essex County Legal Aid Society at (973) 622-0063 or the Essex County Surrogate’s Court at (973) 621-4900. If you qualify, the Court will appoint counsel for you free of charge.” On October 31, 2013, at the case-management conference, the trial court briefly raised the topic of representation with L.A., but did not tell her that a lawyer would be appointed to represent her if she could not afford one.
The court presided over a two-day trial in February and March 2014. J.E.V. and D.G.V. were ably represented by counsel; L.A. appeared pro se. L.A. was confused about several aspects of the trial process, the role of expert psychologists, and the legal standards that applied to the case. Petitioners called eight witnesses to testify, including an expert psychologist; L.A. declined to cross-examine most of them. L.A. testified but did not call an expert or any other witnesses. L.A. also declined to make a closing statement. At the close of the trial, the court concluded that the statutory requirements had been met and terminated L.A.’s parental rights.
L.A. appealed, and the Appellate Division appointed counsel to represent her. The panel reversed and remanded for a new trial, holding “that L.A. had a constitutional and statutory right to court-appointed counsel beginning before trial, when the private adoption agency first determined to proceed with an adoption over her objection.”
In affirming the decision of the Appellate Division, the Supreme Court emphasized that the due process guarantee of the State Constitution entitles indigent parents to legal representation in contested private adoptions, and the entitlement arises when the parent formally objects to the agency’s decision to proceed toward adoption. The Court also noted that funding will be necessary to pay for such representation in the future and called upon the Legislature to “act and address this issue.”