December 01, 2015

Mother Who Placed Child in Short-term Foster Care with Private Agency had Right to Counsel before Termination Trial Began

Eva Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re J.E.V., 2015 WL 6394253 (N.J. Super. Ct. App. Div.).

Indigent mother had a constitutional and statutory right to court-appointed counsel beginning before termination of parental rights trial when private adoption agency first decided to proceed with an adoption over her objection. Once a private adoption agency decides to seek adoption over the objection of a parent, that parent has the right to counsel. In the future, a state-licensed private adoption agency must advise the court at the same time that it notifies an indigent parent it plans to proceed with adoption so counsel can be appointed. Whether the child is entitled to representation should also be considered.

Mother, L.A., left her special-needs daughter in foster care with a state-licensed adoption agency, which placed the child with a foster family unknown to her. The agency later decided L.A. was unfit and had abandoned her child and encouraged the foster family to file an adoption complaint over her objection. 

After a two-day trial at which she represented herself, L.A. appealed an order terminating her parental rights. The appellate court held the mother had a constitutional and statutory right to court-appointed counsel beginning before trial, when the private adoption agency first decided to proceed with an adoption over her objection.

The private but state-licensed agency knew from its first interaction with L.A. that she was indigent, but at no time provided her legal counsel. The court also did not inform her that she was entitled to appointed counsel. Although the state child welfare agency was never involved and L.A. placed her child voluntarily, she would have been accorded more due process had her situation been brought to the attention of the state child welfare agency.

The termination of parental rights by state action invokes constitutional rights. The private adoption agency acted in a manner similar to a state agency, but without providing the services to promote reunification or the legal safeguards afforded parents involved in child welfare cases. Unlike a case involving the state agency, the first time the court was involved with this family was after the adoption complaint was filed. No evidence was introduced at trial that L.A. abused or neglected her daughter, was addicted to drugs or alcohol, or suffered from mental illness. Poverty alone seems to have motivated L.A. to place her daughter, and she signed a plan to find a job and permanent housing with the goal of continuing to parent her daughter.

L.A. was entitled to appointed counsel, and because the office of the public defender is not statutorily authorized to represent indigent parents in private adoptions, private counsel should have been assigned. This lawyer should be present before the trial begins, when the private agency first decides to move toward adoption, to help the parent prepare for trial and negotiate the process leading up to the filing of a complaint.

The court also noted several areas where the trial court may have erred. It did not explicitly apply the clear and convincing evidence standard when terminating L.A.’s parental rights and was unclear in identifying what standard it used to determine the best interest of the child. As a result, the appellate court held prospectively that an indigent parent has the right to counsel once a private adoption agency determines it is going to seek adoption over the objection of that parent. A state-licensed private adoption agency must advise the court at the same time that it notifies the indigent parent. The court will then be able to appoint counsel and consider whether the child is also entitled to representation.