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 Adoption of J.E.V., 2016 WL 3981240 (N.J.).
An indigent parent in a contested private adoption proceeding has a due process right to appointed counsel. Termination of parental rights carries the same risks and consequences no matter if it is initiated by the state or a private party. The right to appointed counsel is triggered when a parent formally objects to the decision to proceed with an adoption.
Contemplating adoption, the mother placed her two-and–one-half year old daughter with a state-licensed adoption agency. After pre-adoption counseling the mother changed her mind and did not surrender rights. The child remained with the adoption agency and moved from short-term foster care to a foster family and then to a second foster family. The mother continued periodic visits and agreed to a service plan with a goal to resume parenting her daughter.
After the mother’s inconsistent visitation and lack of follow through with her service plan, the adoption agency informed the mother they were proceeding with the child’s adoption. The adoption agency mailed the mother several forms for her consent which she did not sign. A letter advised the mother that she could file a written objection. Additionally, the letter stated she had a right to counsel and may or may not have the right to have one appointed for her. The mother wrote three objection letters.
The daughter’s second foster family filed for adoption and the court set a hearing date. In the mother’s notice of this filing and hearing, she was again notified of her right to have counsel possibly appointed. At an initial case-management conference the judge asked her if she planned to get an attorney and she responded she was working on it. She was not told that if she could not afford an attorney the court would appoint one for her. The mother represented herself during a two-day trial. During trial, eight witnesses presented testimony, all put on by the foster parents and none cross-examined by the mother. The mother also did not present a closing argument. The court terminated the mother’s parental rights and she appealed.
The New Jersey Supreme Court reviewed state and national precedent. New Jersey’s Adoption Act set the judicial standard if a parent has not placed the child for adoption as the “best interest of the child.” If contested, the court must find the parent has either failed to perform or is unable to perform parental functions of care and support. The U.S. Supreme Court in Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981), established the parent’s right to counsel in termination of parental rights cases brought by the state on a case-by-case basis. New Jersey law and judicial standards provide for counsel when someone is indigent and faces a consequence of magnitude, which includes incarceration for any time, loss of driving privileges, or substantial monetary sanctions.
The New Jersey Supreme Court found an indigent parent facing termination of parental rights in a contested private adoption proceeding has a right to appointed counsel. The impact of parental termination is the same whether or not the state is the party filing for termination. Additionally, participating in such a complicated proceeding without counsel carries a high risk of an erroneous outcome, as demonstrated by the mother’s obstacles cross-examining and calling witnesses in this case. Finally, the state has an interest in protecting the welfare of children and an interest in accurate and just decisions.
The right to counsel is triggered in private adoption cases when the parent formally objects to the decision to proceed toward adoption. The New Jersey Supreme Court urges the Administrative Office of the Courts to review objection letters and develop a form. The New Jersey Supreme Court also urged the legislature to determine which experienced attorneys will be funded to represent such parents. In the interim, the court asked for private counsel.
In this case, the mother did not waive her right to counsel. A waiver is “the voluntary and intentional relinquishment of a known right.” No one acted to ensure the mother understood her right to appointed counsel and knew how to receive that counsel. In future cases, judges should inform the parent of this right at the first court proceeding and if the parent declines counsel, the judge should talk to the parent to ensure his or her decision is intentional and voluntary.