In the Matter of the Adoption of a Child by J.E v. and D.G.V.

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
In the Matter of the Adoption of a Child by J.E.V. and D.G.V. (A-39-15) (076767)
Argued April 12, 2016 -- Decided July 26, 2016
RABNER, C.J., writing for a unanimous Court.
In this appeal, the Court addresses a question of first impression: whether an indigent parent who faces
termination of her parental rights in a contested private adoption proceeding has a right to appointed counsel.
In 2009, respondent L.A. gave birth to a daughter. When the child was two and one-half years old, L.A.
placed her with the Children’s Home Society (CHS), a state-licensed adoption agency. L.A. initially was
contemplating adoption, but one or two months later, after pre-adoption counseling, L.A. changed her mind and
resolved not to surrender her parental rights. The child remained in short-term foster care. In April 2012, the
agency placed the child with petitioners, 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 thirty-five days. Toward the end of the letter, CHS advised L.A. as follows: “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.” 442 N.J. Super. 472, 474-75 (App. Div. 2015).
The Court granted J.E.V. and D.G.V.’s petition for certification. 223 N.J. 558 (2015).
1
HELD: Indigent parents who face termination of parental rights in contested proceedings under the Adoption Act,
N.J.S.A. 9:3-37 to -56, are entitled to counsel under Article I, Paragraph 1 of the State Constitution.
1. The Adoption Act outlines the process for adopting a child. As part of the judgment of adoption, the child’s
parent’s rights must be terminated, which can occur in a number of ways. Termination of parental rights may be
involuntary, and, as in this appeal, a prospective adoptive parent may petition for termination. In a contested action,
the court must ultimately determine whether the prospective adoptive parents have proven, by clear and convincing
evidence, that adoption is in the child’s best interest. Although under this scenario the order of adoption is entered
as part of a private adoption proceeding, the State’s involvement is real. The parent’s rights are terminated by
“state-authorized action.” (pp. 11-15)
2. In Lassiter v. Department of Social Services, 452 U.S. 18, 24 (1981), the United States Supreme Court
considered an indigent birth mother’s right to counsel in termination of parental rights cases initiated by the state.
The Court analyzed the question under the Due Process Clause of the Fourteenth Amendment and applied the
familiar three-factor test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976). A divided Court held that due
process did not require appointed counsel for indigent parents in every termination of parental rights case, and left
the decision to the trial court. Four justices dissented. Justice Blackmun, joined by Justices Brennan and Marshall,
stated “that due process requires the presence of counsel” for an indigent parent “threatened with judicial
termination of parental rights.” Id. at 35 (Blackmun, J., dissenting). Justice Stevens dissented separately, stressing
that the deprivation of parental rights is “more grievous” than a sentence of incarceration, and that counsel should be
appointed to ensure the fairness of the proceedings. Id. at 59-60 (Stevens, J., dissenting). (pp. 16-18)
3. Based on principles derived from Article I, Paragraph 1 of the State Constitution, New Jersey law has generally
provided more expansive rights to appointed counsel for indigent litigants than federal law. Relevant to this case,
New Jersey has granted indigent parents in termination of parental rights cases greater protection than Lassiter
affords. In N.J. Division of Youth & Family Services v. B.R., the Court found that “the need for counsel in a
parental termination case is evident” in light of concerns grounded in principles of due process. 192 N.J. 301, 306
(2007). The Court has found a right to counsel under the due process guarantee of the State Constitution in other
areas as well. In yet other right-to-counsel cases, the Court has emphasized due process concerns without relying on
the State Constitution. See Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) (“[A]s a matter of simple justice, no
indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of
magnitude without first having had due and fair opportunity to have counsel assigned without cost.”). Drawing
support from Rodriguez, and relying on due process grounds, Crist v. Division of Youth and Family Services, 128
N.J. Super. 402 (Law Div. 1974), aff’d in part, rev’d in part, 135 N.J. Super. 573 (App. Div. 1975), found a right to
counsel in termination cases. The Court has also found that due process requires the appointment of counsel for
“indigent parents who are at risk of incarceration at child support enforcement hearings,” determining that both the
Federal and State Constitutions guarantee that right. Pasqua v. Council, 186 N.J. 127, 149 (2006). (pp. 19-24)
4. The Court holds that an indigent parent who faces termination of parental rights in a contested private adoption
proceeding has a right to appointed counsel. A poor parent who seeks to protect the fundamental right to raise a
child, at a contested hearing under the Adoption Act, is entitled to counsel under the due process guarantee of the
New Jersey Constitution. In so holding, the Court draws on certain common principles from B.R. and the Mathews
test to analyze the due process issue. The termination of one’s parental rights plainly “implicates a fundamental
liberty interest.” B.R., supra, 192 N.J. at 305. When parental rights are terminated, the tie between parent and child
is severed completely and permanently. That is true whether the State files a petition to terminate or a prospective
adoptive parent proceeds under the Adoption Act. Without the assistance of counsel to prepare for and participate in
the hearing, the risk of an erroneous outcome is high. The parties are best served when both sides present arguments
with the help of able attorneys; the outcome not only protects the parent’s rights and the child’s welfare, but also
helps bring finality to an adoption proceeding. (pp. 24-27)
5. Although this is a case of first impression in New Jersey, other states have found that an indigent parent is
entitled to counsel in a private adoption matter, based on either due process principles under their state constitutions
or applicable statutes. (pp. 28-29)
2
6. Having determined that indigent parents are entitled to appointed counsel in a contested private adoption matter
under the due process guarantee of the State Constitution, the Court considers when the right to appointment of
counsel is triggered in private adoption cases. The critical event in the timeline occurs when the parent formally
objects to the agency’s decision to proceed toward adoption. The very reasons that call for a lawyer to be appointed
also favor the appointment of attorneys with the experience to handle these matters. The Office of Parental
Representation in the Public Defender’s Office has developed expertise in this area from its fine work in state-
initiated termination of parental rights cases. However, without a funding source, the Court cannot direct the office
to take on an additional assignment and handle contested cases under the Adoption Act. The Court trusts that, as in
the past, the Legislature will act and address this issue. (pp. 30-32)
7. Finally, the Court finds that L.A. did not waive the right to appointed counsel. In short, she was denied counsel,
and her parental rights were terminated at the end of the court proceeding. Because a complete denial of counsel
casts doubt on the fairness of the process followed, the Court must reverse the trial court’s decree and remand for a
new trial. The Court requests that the trial be expedited but expresses no opinion on what the outcome of the
proceeding should be. The Court declines amici’s request to require the appointment of a law guardian to represent
children in private adoption cases, noting that the Adoption Act does not authorize the appointment of a law
guardian. However, the Court reminds trial judges of their power to appoint a guardian ad litem under the Adoption
Act, N.J.S.A. 9:3-38(e), when the child’s best interests are not being adequately protected by counsel for the parties.
(pp. 32-37)
The judgment of the Appellate Division is AFFIRMED.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and JUDGE
CUFF (temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-39 September Term 2015
076767
IN THE MATTER OF THE ADOPTION
OF A CHILD BY J.E.V. and
D.G.V.
Argued April 12, 2016 – Decided July 26, 2016
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 442 N.J. Super. 472 (App. Div.
2015).
Matheu D. Nunn argued the cause for
appellants J.E.V. and D.G.V. (Einhorn,
Harris, Ascher, Barbarito & Frost,
attorneys; Mr. Nunn and Bonnie C. Frost, on
the briefs).
Sean Marotta argued the cause for respondent
L.A. (Donahue, Hagan, Klein & Weisberg and
Hogan Lovells, attorneys; Mr. Marotta,
Francis W. Donahue, and Alexis M. Miller, on
the briefs).
Rebecca J. Livengood argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney; Ms. Livengood, Mr.
Barocas, Jeanne M. LoCicero, and Alexander
R. Shalom, on the letter brief).
Alice M. Plastoris argued the cause for
amicus curiae New Jersey Association for
Justice.
Melville D. Miller, Jr., argued the cause
for amicus curiae Legal Services of New
Jersey (Mr. Miller, attorney; Mr. Miller,
Jeyanthi C. Rajaraman, and Mary M. McManus-
Smith, on the brief).
1
Cheryl E. Connors argued the cause for
amicus curiae New Jersey State Bar
Association (Miles S. Winder III, President,
attorney; Mr. Winder, of counsel; Ms.
Connors, Brian G. Paul, and Amanda S. Trigg,
on the brief).
Mary E. Coogan and Peter G. Chen submitted a
brief on behalf of amicus curiae Advocates
for Children of New Jersey.
CHIEF JUSTICE RABNER delivered the opinion of the Court.
This appeal raises a question of first impression: whether
an indigent parent who faces termination of her parental rights
in a contested private adoption proceeding has a right to
appointed counsel.
Our culture and legal system both embrace the right to
raise one’s child. That fundamental right is forever terminated
when a child is adopted by another family. Under the law,
indigent parents have a right to counsel when the State
initiates a termination case. See N.J.S.A. 30:4C-15.4(a). The
issues are no less challenging or significant in a private
adoption matter. In both situations, parents who are poor and
typically have no legal training are ill-equipped to defend
themselves in court.
Because of the nature of the right involved -- the
invaluable right to raise a child -- and the risk of an
erroneous outcome without the help of an attorney, we hold that
indigent parents are entitled to appointed counsel in a
2
contested private adoption matter under the due process
guarantee of the State Constitution. We therefore affirm the
judgment of the Appellate Division.
I.
We draw the following facts from the testimony at trial as
well as other parts of the record on appeal. On August 24,
2009, respondent L.A. gave birth to a daughter. When the child
was two and one-half years old, L.A. placed her with the
Children’s Home Society (CHS), a state-licensed adoption agency.
L.A. was contemplating adoption when she initially placed
the child with CHS. At the time, L.A. believed that course was
in the child’s best interest in light of L.A.’s personal
circumstances. One or two months later, after pre-adoption
counseling, L.A. changed her mind and resolved not to surrender
her parental rights.
The child remained in short-term foster care. The agency
placed her with a foster family in March 2012 and moved her to a
second foster placement with petitioners, J.E.V. and D.G.V., the
following month. As the Appellate Division noted, the evidence
reveals that petitioners provided the child with a loving family
setting that included a daughter of about the same age, and
offered access to professional services “to address the child’s
special needs.” In re Adoption of a Child by J.E.V., 442 N.J.
Super. 472, 476 (App. Div. 2015).
3
L.A. visited her daughter periodically while she was in
foster care. From March through July 2012, L.A. visited the
child eight times; from August 2012 to February 2013, L.A. made
four visits. Throughout that period and afterward, L.A.’s
living arrangements were unstable. For part of the time, she
stayed with her sister in Pennsylvania; she also lived in
transitional housing and received public assistance. Id. at
475-76. L.A. lived with her two sons, born in 2006 and 2013,
while her daughter was in foster care. Ibid.
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. In addition, the plan called for L.A.
to visit her daughter weekly. L.A. did not sign the revised
plan.
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 because she had “been inconsistent with
visitation,” had not “maintained consistent contact with [her]
counselor,” and had “made no viable plan to parent [her]
4
daughter,” CHS was “going to make an adoption plan for [her]
child.”
The letter enclosed multiple forms for L.A.’s consent; one
was titled “Surrender and Relinquishment of Parental Rights and
Surrender of Custody.” The letter also advised L.A. that she
could file a written objection with the Surrogate’s Office
within thirty-five days.1
Toward the end of the letter, CHS advised L.A. as follows:
“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.” (Emphasis added.)
L.A. did not sign the consent forms. Instead, on March 28,
2013, she wrote the first of three objection letters. The two-
page, handwritten letter states at the outset, “I am objecting
to the adoption process of my daughter.” The letter describes
L.A.’s position and her plans for the child and asks that she
not be “deprived[d]” of her “motherly rights.” L.A. sent
similar letters dated October 8, 2013 and December 7, 2013.
1 A parent has the right to file written objections to an
adoption and must act within twenty days after notice is given,
in the case of a resident, and within thirty-five days, in the
case of a non-resident. N.J.S.A. 9:3-45(a).
5
With the agency’s consent, petitioners J.E.V. and D.G.V.
filed a complaint for adoption on August 1, 2013.2 The court
entered an order on the same date, which scheduled a hearing and
directed 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.”
L.A. was served with a copy of the complaint, the order,
and a notice of hearing the following month. The notice
explained that the upcoming “hearing may ultimately lead to the
absolute irrevocable termination” of L.A.’s rights to her child.
The notice also 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.
At the initial case-management conference on October 31,
2013, the trial court briefly raised the topic of representation
with L.A.:
2 The Division of Child Protection and Permanency (Division) has
not been involved in this case. Nor have there been any
allegations of abuse or neglect against L.A.
6
Judge: Do you intend to get an attorney at
all in this matter?
[L.A.]: I’m working on it.
Judge: Okay, well you need to do so quickly
because any questions you want to serve should
be done within one week of today.
The court did not tell L.A. 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. Not surprisingly given her lack of legal
training, L.A. was confused about where to send interrogatories,
the role of expert psychologists, how to give an opening
statement, how to cross-examine witnesses, how to present and
object to evidence, 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. Unlike opposing counsel, who meticulously reviewed
the evidence and applied it to the legal standard in summation,
L.A. declined to make a closing statement.
At the close of the trial, the court marshaled the
evidence, concluded that the statutory requirements had been
met, and terminated L.A.’s parental rights.
7
L.A. appealed, and the Appellate Division appointed counsel
to represent her. Id. at 475 n.2. The panel held “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.” Id. at 474-75. The panel therefore reversed and
remanded for a new trial.
The Appellate Division observed that L.A. would have been
entitled to appointed counsel if the Division, acting on behalf
of the State, had sought to terminate her parental rights. Id.
at 475, 478 (citing N.J.S.A. 30:4C-15.4(a); N.J. Division of
Youth & Family Services v. B.R., 192 N.J. 301, 305-06 (2007)).
Here, a state-licensed agency “decided on its own that L.A. was
an unfit mother . . . and encouraged the foster family to file
an adoption complaint over” L.A.’s objection. Id. at 478. The
panel observed that the private agency acted “in a fashion
similar to the Division, but without providing the services to
promote reunification or the legal safeguards afforded parents
involved in litigation with the Division.” Ibid.
The panel concluded that “an indigent person” facing the
possible termination of parental rights -- an “irreversible”
decision “of constitutional dimensions” -- “needs” and is
“entitled to appointed counsel.” Id. at 479-80. For support,
the panel cited a line of cases that found a right to counsel
8
under the State Constitution even when that right was not
guaranteed by federal law. Id. at 480-81.
After oral argument, the Appellate Division issued an
order, on its own motion, which granted L.A. weekly visitation
with the child. After a number of intermediate steps that are
not relevant, this Court directed the trial court to assess the
impact of visitation on the child. The trial court promptly
appointed an expert, held a hearing, and found that the
immediate resumption of visitation would result in psychological
harm to the child. This Court, in turn, entered an order that
continued a stay of visitation pending this appeal, and also
continued the stay of adoption proceedings.
We granted J.E.V. and D.G.V.’s petition for certification.
223 N.J. 558 (2015). We also granted leave to appear as amicus
curiae to the following groups: the American Civil Liberties
Union of New Jersey (ACLU); the New Jersey Association for
Justice (NJAJ); Legal Services of New Jersey (LSNJ); The New
Jersey State Bar Association (NJSBA); and Advocates for Children
of New Jersey (ACNJ).
II.
In a supplemental brief to the Appellate Division,
petitioners J.E.V. and D.G.V. did not argue that L.A. had no
right to appointed counsel. Instead, they claimed that CHS and
the trial court “sufficiently advised [L.A.] of her right to
9
counsel.” They urged the court to find that L.A. “waived her
right to counsel after being apprised of that right.”
Petitioners have taken a different approach before this
Court. They contend that the Appellate Division “created a new
right to appointed counsel in termination proceedings under the
Adoption Act,” N.J.S.A. 9:3-37 to -56, which does not appear in
the statute. They also submit that neither equal protection nor
due process principles justify the appointment of counsel when a
parent voluntarily places a child for adoption and private
individuals initiate adoption proceedings.
Petitioners argue in the alternative that L.A. received
adequate notice of her right to counsel, understood that right,
and waived it through her conduct. Petitioners highlight two
written notices served on L.A. -- the trial court’s order
scheduling a hearing and the notice of hearing -- and note that
L.A. never asked for an attorney.
L.A. urges that the Appellate Division’s judgment be
upheld. She argues that “there is no more grave constitutional
need for appointed counsel than a permanent termination of
parental rights action against an indigent parent whether it be
initiated by the State or by private adoption.” She contends
that the right to appointed counsel in private adoption cases is
founded on due process and equal protection guarantees in the
State Constitution. L.A. relies on State case law that she
10
claims provides more expansive protection than federal law. She
also points to decisions from other states.
L.A. also contends that there is a flaw in petitioners’
waiver argument. She argues that she could not have “knowingly,
voluntarily, and intelligently waived a right that [petitioners]
strenuously argue she does not have.” L.A. submits that because
the right has not been clearly established, it would have been
impossible for her to waive it. She also points to ambiguities
in the language of the notices and the trial court’s failure to
inform her that she had a right to appointed counsel.
All five amici support the judgment of the Appellate
Division. The ACLU and NJAJ argue that due process and equal
protection doctrines require the appointment of counsel for
indigent parents who object to adoption proceedings. The NJSBA
and ACNJ focus on due process principles. LSNJ highlights that
termination of parental rights is a consequence of magnitude,
which gives rise to appointment of counsel. We refer below to
certain other arguments that amici present.
III.
A.
The Adoption Act outlines the process for adopting a child.
The law must “be liberally construed” to promote “the best
interests of children” and ensure that “the safety of children”
is “of paramount concern.” N.J.S.A. 9:3-37. “Due regard” must
11
also “be given to the rights of all persons affected by an
adoption.” Ibid.
A completed adoption establishes “the same relationship[] .
. . between the child and the adopting parent as if the child
were born to the adopting parent.” N.J.S.A. 9:3-50(b). As part
of the judgment of adoption, the child’s parent’s rights must be
terminated. N.J.S.A. 9:30-50(c)(1). That can occur in a number
of ways.
A parent may voluntarily surrender a child to a state-
approved agency for adoption. N.J.S.A. 9:3-41(a). In other
words, the child will become available for adoption if the
parent voluntarily relinquishes all parental rights “for
purposes of allowing a child to be adopted.” N.J.S.A. 9:3-
38(j). Before a parent may sign a written document that
surrenders a child, the agency must offer counseling and inform
the parent that the surrender “means the permanent end of the
relationship and all contact between the parent and child.”
N.J.S.A. 9:3-41(a).
Termination of parental rights may also be involuntary.
That process can begin in several ways: (1) the Division may
petition for termination under N.J.S.A. 30:4C-15; (2) a state-
approved agency may petition for termination under N.J.S.A. 9:2-
18; or (3) a prospective adoptive parent may petition for
termination under N.J.S.A. 9:3-47 or -48. See Robert A. Fall &
12
Curtis J. Romanowski, New Jersey Family Law, Child Custody,
Protection & Support, § 6:1-3 at 87 (2016).
This appeal involves the third avenue, which was invoked
when L.A. declined to surrender her child to CHS for adoption.
Under that course, a prospective adoptive parent first files a
complaint for adoption. N.J.S.A. 9:3-44. Notice must be served
on each parent of the child, as defined in the statute, and must
inform them “of the purpose of the action and of the parent’s
right” to object. N.J.S.A. 9:3-45.
In a contested action, the court must ultimately determine
whether the prospective adoptive parents have proven, by clear
and convincing evidence, that adoption is in the child’s best
interest. J.E.V., supra, 442 N.J. Super. at 483; Fall &
Romanowski, supra, §6:3-1 at 93 (citing N.J.S.A. 9:3-46(a)); see
also Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388,
1391-92, 71 L. Ed. 2d 599, 603 (1982) (“Before a State may sever
completely and irrevocably the rights of parents in their
natural child, due process requires that the State support its
allegations by at least clear and convincing evidence.”).
Under N.J.S.A. 9:3-46(a), a judgment of adoption may be
entered over the objection of a parent who placed a child for
adoption if the court finds that the parent has either
“substantially failed to perform the regular and expected
13
parental functions of care and support” or is unable to perform
those functions. The functions include:
(a) the maintenance of a relationship with the
child such that the child perceives the person
as his parent;
(b) communicating with the child or person
having legal custody of the child and
parenting time rights, . . . unless prevented
from so doing by the custodial parent or other
custodian of the child or a social service
agency over the birth parent’s objection; or
(c) providing financial support for the child
unless prevented from doing so by the
custodial parent or other custodian of the
child or a social service agency.
[N.J.S.A. 9:3-46(a).]
When, as in this case, a parent has not placed the child
for adoption, the standard to be used in a contested action is
the “best interest of the child.” Ibid. The Adoption Act
defines the standard in this context as follows:
The best interest of a child requires that a
parent affirmatively assume the duties
encompassed by the role of being a parent. In
determining whether a parent has affirmatively
assumed the duties of a parent, the court
shall consider, but is not limited to
consideration of, the fulfillment of financial
obligations for the birth and care of the
child, demonstration of continued interest in
the child, demonstration of a genuine effort
to maintain communication with the child, and
demonstration of the establishment and
maintenance of a place of importance in the
child’s life.
[Ibid.]
14
See In re Adoption of Children by G.P.B., 161 N.J. 396, 410-11
(1999); J.E.V., supra, 442 N.J. Super. at 484-85.
To reach a decision, the trial court takes evidence at an
in-camera hearing. N.J.S.A. 9:3-47(c). If the court “finds
against the objecting parent,” the court enters “an order
terminating the parental rights of the parent.” Ibid. If, in
addition, the court “is satisfied that the best interests of the
child would be promoted by the adoption, the court shall enter a
judgment of adoption.” N.J.S.A. 9:3-47(d).
Although under this scenario the order of adoption is
entered as part of a private adoption proceeding, the State’s
involvement is real. The parent’s rights are terminated by
“state-authorized action.” In re Adoption of a Child by J.D.S.,
176 N.J. 154, 158 (2003) (holding that indigent parent facing
termination in private adoption matter is entitled to free
appellate transcript provided by Public Defender). Indeed, as
this Court noted in J.D.S., termination of parental rights under
the Adoption Act “is a component of the State’s overall and
coordinated system of child protection and supervision.” Ibid.
(citation omitted); see also M.L.B. v. S.L.J., 519 U.S. 102, 116
n.8, 117 S. Ct. 555, 564 n.8, 136 L. Ed. 2d 473, 488 n.8 (1996)
(noting “the challenged state action remains essentially the
same” in termination proceedings initiated by state agencies and
private parties); N.J.S.A. 9:3-47(c), -50(c)(1).
15
B.
In Lassiter v. Department of Social Services, 452 U.S. 18,
24, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d 640, 648 (1981), the
United States Supreme Court considered an indigent birth
mother’s right to counsel in termination of parental rights
cases initiated by the state. The Court analyzed the question
under the Due Process Clause of the Fourteenth Amendment and
applied the familiar test from Mathews v. Eldridge. Id. at 24-
25, 27, 101 S. Ct. at 2158-59, 68 L. Ed. 2d at 648-49 (citing
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47
L. Ed. 2d 18, 33 (1976)).
The Mathews test weighs three factors:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the Government’s interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.
[Mathews, supra, 424 U.S. at 335, 96 S. Ct. at
903, 47 L. Ed. 2d at 33.]
Lassiter applied the factors to the case before the Court. The
Court found that the parent’s private interest was “commanding”
because the “desire” and “right” to raise one’s children is “an
important interest,” and the State “sought not simply to
16
infringe upon that interest but to end it.” Id. at 27, 101 S.
Ct. at 2159-60, 68 L. Ed. 2d at 649-50.
Next, the Court found that the risk of an erroneous
determination could be “insupportably high.” Id. at 31, 101 S.
Ct. at 2162, 68 L. Ed. 2d at 652. The Court observed that the
issues are “not always simple” and may involve expert testimony,
which can be difficult for parents with little education to
understand and refute. Id. at 30-31, 101 S. Ct. at 2161, 68 L.
Ed. 2d at 651-52.
The Court also noted that “the State has an urgent interest
in the welfare of the child” and “shares the parent’s interest
in an accurate and just decision.” Id. at 27, 101 S. Ct. at
2160, 68 L. Ed. 2d at 650. The State’s interest diverges from
the parent’s when it comes to fiscal and administrative costs.
Id. at 28, 101 S. Ct. at 2160, 68 L. Ed. 2d at 650. But that
“legitimate” interest, the Court concluded, “is hardly
significant enough to overcome private interests as important as
those here.” Ibid.
Still, the Court opted for a case-by-case approach because
the net weight of the factors had to be “weighed against the
presumption that there is no right to appointed counsel in the
absence of at least a potential deprivation of physical
liberty.” Id. at 31-32, 101 S. Ct. at 2161-62, 68 L. Ed. 2d at
652. The strength of the factors “in a given case” might tip
17
the balance in either direction. Ibid. As a result, a divided
Court held that due process did not require appointed counsel
for indigent parents in every termination of parental rights
case, and left the decision to the trial court, subject to
appellate review. Ibid. (citing Gagnon v. Scarpelli, 411 U.S.
778, 788, 93 S. Ct. 1756, 1763, 36 L. Ed. 2d 656, 665 (1973)).
Four justices dissented. Justice Blackmun, joined by
Justices Brennan and Marshall, wrote that the majority did not
take its analysis of the Mathews factors to a “logical
conclusion.” Id. at 49, 101 S. Ct. at 2171, 68 L. Ed. 2d at 663
(Blackmun, J., dissenting). According to the dissenters, the
outcome of the balancing process should have applied to the
overall category of cases and not to different litigants within
the same context. Ibid. The “obvious conclusion,” the dissent
stated, was “that due process requires the presence of counsel”
for an indigent parent “threatened with judicial termination of
parental rights.” Id. at 35, 101 S. Ct. at 2163, 68 L. Ed. 2d
at 654.
Justice Stevens dissented separately. He stressed that the
deprivation of parental rights is “more grievous” than a
sentence of incarceration, and that counsel should be appointed
to ensure the fairness of the proceedings. Id. at 59-60, 101 S.
Ct. at 2176, 68 L. Ed. 2d at 669-70 (Stevens, J., dissenting).
18
C.
New Jersey law has generally provided more expansive rights
to appointed counsel for indigent litigants than federal law.
Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006) (citations
omitted). Our case law over the years has focused on due
process concerns in different ways. Those principles derive
from Article I, Paragraph 1 of the State Constitution, which
provides that “[a]ll persons are by nature free and independent,
and have certain natural and unalienable rights, among which are
those of enjoying and defending life and liberty, of acquiring,
possessing, and protecting property, and of pursuing and
obtaining safety and happiness.” Time and again, this Court has
found that the right to due process of law is implicit in those
words. See, e.g., Jamgochian v. N.J. State Parole Bd., 196 N.J.
222, 239 (2008); Pasqua, supra, 186 N.J. at 147; Doe v. Poritz,
142 N.J. 1, 99 (1995); Greenberg v. Kimmelman, 99 N.J. 552, 568
(1985).
Relevant to this case, New Jersey has granted indigent
parents in termination of parental rights cases greater
protection than Lassiter affords. In Crist v. Division of Youth
and Family Services, 128 N.J. Super. 402, 416 (Law Div. 1974),
aff’d in part, rev’d in part, 135 N.J. Super. 573 (App. Div.
1975), the Law Division held that parents facing state-initiated
termination proceedings had a right to appointed counsel. As
19
the Law Division observed, to decide otherwise, in light of the
“compendium of sociological, psychological, or medical data,
well beyond the ken of the ordinary layman,” which an
unrepresented parent would have to deal with, would be “a
fundamental deprivation of procedural due process.” Id. at 415.
The Appellate Division affirmed that core holding but found
no basis for the Law Division’s order that the Division of Youth
and Family Services (DYFS), the Division’s predecessor, had to
pay appointed counsel. Crist, supra, 135 N.J. Super. at 575.
Without statutory authorization, the panel held, the Law
Division “lacks the power to compel [DYFS] to compensate
assigned counsel.” Ibid. Years later, the Legislature enacted
N.J.S.A. 30:4C-15.4(a), which directs the court to appoint the
Office of the Public Defender to represent indigent parents in
state-initiated termination proceedings. See B.R., supra, 192
N.J. at 306.
This Court approved of Crist in B.R. Ibid. We found that
“the need for counsel in a parental termination case is evident
in light of” the following concerns, which are grounded in
principles of due process:
the nature of the right involved; the
permanency of the threatened loss; the State’s
interest in exercising its parens patriae
jurisdiction only where necessary; and the
potential for error in a proceeding in which
the interests of an indigent parent, unskilled
20
in the law, are pitted against the resources
of the State.
[Ibid.]
The Court has found a right to counsel under the due
process guarantee of the State Constitution in other areas as
well. In Doe, supra, the plaintiff sought to enjoin the
registration and notification requirements for certain convicted
sex offenders under Megan’s Law. 142 N.J. at 26. The Court
upheld the law against a variety of constitutional challenges.
Id. at 12. The Court, however, concluded that a sex offender’s
tier classification can subject him or her to public stigma,
which “implicate[s] protectible liberty interests in privacy and
reputation, and therefore trigger[s] the right to due process”
under the Federal and State Constitutions. Id. at 30-31, 104-
06. As a result, the Court held that indigent sex offenders are
entitled to appointed counsel at tier classification hearings
and “strongly suggest[ed] that legislation providing for that
representation be adopted.” Id. at 30-31.
In yet other right-to-counsel cases, the Court has
emphasized due process concerns without relying on the State
Constitution. In Rodriguez v. Rosenblatt, 58 N.J. 281, 295
(1971), for example, this Court held that “as a matter of simple
justice, no indigent defendant should be subjected to a
conviction entailing imprisonment in fact or other consequence
21
of magnitude without first having had due and fair opportunity
to have counsel assigned without cost.” The case involved two
defendants charged with disorderly persons offenses, for which
the maximum penalties were up to six months’ imprisonment and a
fine of not more than five hundred dollars. Id. at 284-85. The
Court reasoned that when serious consequences are at stake --
including actual imprisonment or even “the substantial loss of
driving privileges” -- poor defendants should have counsel
assigned because the “lack of legal representation may place
[them] at a disadvantage” in complex as well as simple matters.
Id. at 295.
Crist, discussed above, found a right to counsel in
termination cases. The ruling relied not only on due process
grounds but also drew support from Rodriguez: “It is difficult
to conceive of the loss of driving privileges to be more serious
than the loss of one’s children. Indeed, it is difficult to
consider many consequences of greater magnitude than the loss of
one’s children.” Crist, supra, 128 N.J. Super. at 415-16.
Following Rodriguez, the Court applied the consequence of
magnitude standard in other contexts. In State v. Hrycak, 184
N.J. 351, 362 (2005), the Court noted that counsel is provided
in DWI cases because the defendant faces a potential sentence of
22
imprisonment -- a consequence of magnitude.3 State v. Hamm, 121
N.J. 109, 124 (1990), cert. denied, 499 U.S. 947, 111 S. Ct.
1413, 113 L. Ed. 2d 466 (1991), noted that suspension of a
driver’s license is a consequence of magnitude. And in State v.
Hermanns, 278 N.J. Super. 19, 29-30 (App. Div. 1994), the
Appellate Division determined that substantial monetary
sanctions in a single proceeding “give[] rise to the right to
counsel under Rodriguez.”
The Court Rules likewise address this issue. Rule 7:3-2(b)
instructs municipal court judges to appoint counsel “[i]f the
court is satisfied that the defendant is indigent and . . .
faces a consequence of magnitude.” To determine whether a case
presents a consequence of magnitude, municipal court judges
consider if the defendant faces imprisonment, loss of driving
privileges, or an aggregate monetary sanction of $800 or more.
See Pressler & Verniero, Guidelines for Determination of
Consequence of Magnitude, Current N.J. Court Rules, Appendix to
Part VII at 2597 (2016).
The Court has also found that due process requires the
appointment of counsel for “indigent parents who are at risk of
3 That approach exceeds the level of protection available under
federal law, which provides counsel only in cases that lead to
actual imprisonment. See Scott v. Illinois, 440 U.S. 367, 369,
99 S. Ct. 1158, 1160, 59 L. Ed. 2d 383, 386 (1979).
23
incarceration at child support enforcement hearings.” Pasqua,
supra, 186 N.J. at 149. The Court held that both the Federal
and State Constitutions guarantee that right. Id. at 133. In
its analysis, the Court carefully considered the Mathews
factors, id. at 142-45, as well as case law interpreting Article
I, Paragraph 1 of the State Constitution, id. at 146-49.
Pasqua also called upon the Legislature to provide a
funding source to compensate appointed counsel. Id. at 153-54.
The Court recognized that, in the past, “the Legislature has
acted responsibly to provide funding” under similar
circumstances. Ibid. (citations omitted).
IV.
We find that an indigent parent who faces termination of
parental rights in a contested private adoption proceeding has a
right to appointed counsel. A poor parent who seeks to protect
the fundamental right to raise a child, at a contested hearing
under the Adoption Act, is entitled to counsel under the due
process guarantee of the New Jersey Constitution.
A.
We draw on certain common principles from B.R. and the
Mathews test to analyze the due process issue. They primarily
include “the nature of the right involved”; “the permanency of
the threatened loss”; the risk of error at a hearing conducted
without the help of counsel; and the State’s interest, which is
24
bounded by its parens patriae jurisdiction. B.R., supra, 192
N.J. at 306; Mathews, supra, 424 U.S. at 335, 96 S. Ct. at 903,
47 L. Ed. 2d at 33.
The right to raise one’s child is “deeply embedded in our
history and culture.” Moriarty v. Bradt, 177 N.J. 84, 101
(2003). That right has “been deemed ‘essential’” and is
considered “‘far more precious . . . than property rights.’”
N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599
(1986) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.
Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972)). The termination
of one’s parental rights, therefore, plainly “implicates a
fundamental liberty interest.” B.R., supra, 192 N.J. at 305.
When parental rights are terminated, the tie between parent
and child is severed completely and permanently. That is true
whether the State files a petition to terminate or a prospective
adoptive parent proceeds under the Adoption Act. The outcome is
the same: the end of the parent/child relationship. As the
Supreme Court observed in Lassiter, supra, a parent’s interest
in the decision to terminate her parental status is therefore
“commanding.” 452 U.S. at 27, 101 S. Ct. at 2160, 68 L. Ed. 2d
at 650.
Without the assistance of counsel to prepare for and
participate in the hearing, the risk of an erroneous outcome is
high. It is hardly remarkable to note that a parent who is a
25
layperson faces significant challenges if she appears on her own
to contest a private adoption proceeding. The issues are not
simple. They may involve complicated, expert medical and
psychological evidence. See id. at 30, 101 S. Ct. at 2161, 68
L. Ed. 2d at 651; Crist, supra, 128 N.J. Super. at 415. An
indigent parent who has no legal training will not know how to
work with a psychologist to prepare for a trial or how to cross-
examine the other side’s expert. She will have a hard time
developing defenses, gathering evidence, presenting a case, and
making arguments to address the relevant legal standard. See
Lassiter, supra, 452 U.S. at 45-46, 101 S. Ct. at 2169, 68 L.
Ed. 2d at 661 (Blackmun, J., dissenting). A parent without a
background in evidence law will also likely be unable to prevent
opposing counsel from introducing hearsay or other inadmissible
testimony.
Viewed from another perspective, factfinders benefit from
probing cross-examination and careful scrutiny of the evidence.
That is particularly true when it comes to expert medical
testimony. An indigent parent, with no legal or medical
knowledge, is unlikely to be able to help the court in that
regard.
As the trial record reveals, L.A. struggled in the face of
those obstacles at trial. She was unable to cross-examine
effectively petitioner’s expert or fact witnesses and bypassed
26
cross-examination for most of them. She presented no evidence
other than her own testimony. She could not marshal the
evidence and apply it to the legal standard, and she declined to
present a closing argument altogether.
Without question, appointed counsel can assist parents like
L.A. and help reduce the risk of mistaken outcomes in contested
proceedings of this type.
As to the State’s interest to protect the welfare of
children, petitioners point to the general interest of the
public and the State to facilitate adoptions. Petitioners are
correct. Both the public and the State have a strong interest
in seeing that children are adopted in appropriate cases.
Because an adoption terminates parental rights, N.J.S.A. 9:3-
50(c)(1), the public, the State, and the parent also share an
“interest in an accurate and just decision.” Lassiter, supra,
452 U.S. at 27, 101 S. Ct. at 2160, 68 L. Ed. 2d at 650. The
adversary system, with an “equal contest of opposed interests,”
is designed to lead to that very outcome. Id. at 28, 101 S. Ct.
at 2160, 68 L. Ed. 2d at 650. In addition, when both sides
present arguments to a judge with the help of able attorneys,
the outcome not only protects the parent’s rights and the
child’s welfare, it also helps bring finality to an adoption
proceeding. All parties are best served in that way.
27
Lassiter also considered the fiscal burdens of appointed
counsel on the State. That is a legitimate concern -- in both
state-initiated termination cases and private adoption
proceedings -- but not a weighty one in light of the significant
private interest involved. See Lassiter, supra, 452 U.S. at 28,
101 S. Ct. at 2160, 68 L. Ed. 2d at 650.
B.
Although this is a case of first impression in New Jersey,
other states have considered the same issue. They have found
that an indigent parent is entitled to counsel in a private
adoption matter.
Lassiter set the constitutional floor for a parent’s due
process rights in a termination proceeding. It also invited
states to go further. Id. at 33, 101 S. Ct. at 2163, 68 L. Ed.
2d at 654. Among states that have done so, a number rely on due
process principles under their state constitutions.4 Others have
4 See, e.g., In re K.L.J., 813 P.2d 276, 286 (Alaska 1991)
(private adoption); In re Adoption of Meaghan, 961 N.E.2d 110,
112-13 (Mass. 2012) (private adoption, relying on due process
and equal protection principles); K.P.B. v. D.C.A. (In re
J.L.B.), 685 So. 2d 750, 752 (Ala. Civ. App. 1996) (private
action, discussing Ex parte Shuttleworth, 410 So. 2d 896, 899
(Ala. 1981)); In re Jay R., 197 Cal. Rptr. 672, 678 (Ct. App.
1983) (private adoption); see also J.B. v. Fla. Dep’t of
Children & Families, 170 So. 3d 780, 789-90 (Fla. 2015) (state-
initiated action); In the Interest of TM, 319 P.3d 338, 340
(Haw. 2014) (same). Other state courts require the appointment
of counsel in private adoption actions based on equal protection
grounds. See, e.g., Jo Ellen J. v. John M. (In re L.T.M.), 824
N.E.2d 221, 229-32 (Ill. 2005); J.E.B. v. K.C. (In re S.A.J.B.),
28
proceeded by statute.5
C.
As noted above, this Court has found that due process
requires appointment of counsel to indigent litigants in various
settings. Given the fundamental nature of the right to parent
that may be lost forever in a disputed adoption hearing, there
is no room for error here. We therefore hold that indigent
parents who face termination of parental rights in contested
proceedings under the Adoption Act are entitled to have counsel
represent them under Article I, Paragraph 1 of the State
Constitution.
For reasons discussed earlier, we do not accept
petitioner’s claim that because the Division did not initiate
this action, the State has no involvement and due process is not
implicated. See J.D.S., supra, 176 N.J. at 158; see also
M.L.B., supra, 519 U.S. at 116 n.8, 117 S. Ct. at 564, 136 L.
Ed. 2d at 488. Also, because we rely on due process principles,
679 N.W.2d 645, 649-51 (Iowa 2004); A.W.S. v. A.W., 339 P.3d
414, 419 (Mont. 2014); In re Adoption of K.A.S., 499 N.W.2d 558,
566 (N.D. 1993); Zockert v. Fanning, 800 P.2d 773, 779 (Or.
1990).
5 See, e.g., Ariz. Rev. Stat. Ann. § 8-221(B) (2016); Ky. Rev.
Stat. Ann. § 625.080 (2016); Me. Rev. Stat. Ann. tit. 18-A, § 9-
106(b) (2016); Mo. Rev. Stat. § 211.462 (2016); N.M. Stat. Ann.
§ 32A-5-16(E) (2016); N.Y. Family Ct Act §262(a)(vii) (2016);
Okla. Stat. tit. 10, § 7505-4.1(D) (2016); 23 Pa. Cons. Stat.
Ann. § 2313(a.1) (2016); Vt. Stat. Ann. tit. 15A, § 3-201(a)
(2016); Wash. Rev. Code Ann. § 26.33.110(3)(b) (2016).
29
we need not address L.A.’s and amici’s equal protection
arguments.
V.
We next consider when the right to appointment of counsel
is triggered in private adoption cases. The Appellate Division
observed that a lawyer should be assigned before trial, “when
the private agency first decides to move toward adoption.”
J.E.V., supra, 442 N.J. Super. at 481. We agree that counsel
should be appointed to help an indigent parent prepare for
trial. The critical event in the timeline occurs when the
parent formally objects to the agency’s decision to proceed
toward adoption. See id. at 487 (“[O]nce a private adoption
agency determines that it is going to seek adoption over the
objection of a parent, that parent has the right to counsel.”).
When a parent contests an agency’s decision, the dispute is
sharpened and likely headed to court. In non-agency adoption
cases, the issue is joined when a petition for adoption is filed
and the birth parent objects.
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
30
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 very reasons that call for a lawyer to be appointed
also favor the appointment of attorneys with the experience to
handle these matters. Contested adoption proceedings raise
important substantive issues and can lead to complicated and
involved hearings. The Office of Parental Representation in the
Public Defender’s Office has developed expertise in this area
from its fine work in state-initiated termination of parental
rights cases. Without a funding source, we cannot direct the
office to take on an additional assignment and handle contested
cases under the Adoption Act. See Crist, supra, 135 N.J. Super.
at 575-76; see also Pasqua, supra, 186 N.J. at 153.
31
In the past, as we noted in Pasqua, “the Legislature has
acted responsibly” and provided counsel for the poor when the
Constitution so requires. Ibid. For example, after Crist, the
Legislature enacted N.J.S.A. 30:4C-15.4(a), which directs judges
to appoint the Office of the Public Defender to represent
indigent parents who ask for counsel in termination of parental
rights cases under Title 30. Once again, we trust that the
Legislature will act and address this issue. See Pasqua, supra,
186 N.J. at 153.
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. See, e.g., In re Op. No. 17-2012 of Advisory Comm. on
Prof’l Ethics, 220 N.J. 468, 469 (2014). Until the Legislature
acts, we may need to assign counsel through the Madden list,
which is not an ideal solution. See Madden v. Delran, 126 N.J.
591, 605-06 (1992).
VI.
We cannot find that L.A. waived her right to appointed
counsel in this case. “Waiver is the voluntary and intentional
relinquishment of a known right.” Cole v. Jersey City Med.
Ctr., 215 N.J. 265, 276 (2013) (quoting Knorr v. Smeal, 178 N.J.
169, 177 (2003)). Petitioners argue that L.A. waived the right
to counsel at the same time they claim no such right exists.
32
Indeed, 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. L.A. did not knowingly and
intentionally waive a right to have the court appoint a lawyer
to represent her.
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. Cf. State v. Crisafi, 128 N.J.
499, 511-12 (1992) (describing more in-depth inquiry required
before defendant in criminal case may waive right to counsel).
Only then will the court be in a position to confirm that the
parent both understands and wishes to waive the right to
appointed counsel.
Here, L.A. did not waive the right to counsel and resisted
the private adoption petition on her own. In short, she was
denied counsel, and her parental rights were terminated at the
end of the court proceeding.
Some courts have declined to conduct a harmless error
analysis under those circumstances. See State v. Shirley E. (In
33
re Torrance P.), 724 N.W.2d 623, 635 (Wis. 2006) (finding
structural error); K.A.S., supra, 499 N.W.2d at 567 (expressing
skepticism that “denial of counsel to an indigent parent in an
adoption proceeding which results in the termination of parental
rights can ever be ‘harmless’” and also finding harmful error in
particular case); but see People ex rel. S.D. Dep’t of Soc.
Servs., 691 N.W.2d 586, 592 (S.D. 2004) (finding harmless
error); see also Vivek Sankaran, No Harm, No Foul? Why Harmless
Error Analysis Should Not Be Used to Review Wrongful Denials of
Counsel to Parents in Child Welfare Cases, 63 S.C. L. Rev. 13,
14-15 (2011). 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. See Shirley
E., supra, 724 N.W.2d at 635.
We also decline petitioners’ request to reconsider N.J.
Division of Youth and Family Services v. I.S., 202 N.J. 145
(2010), and end the litigation now. I.S. evaluated the record
in a particular case and found insufficient evidence to
terminate a father’s parental rights. Id. at 151. Even if it
were appropriate to reconsider that ruling, the principles
considered in I.S. do not address the fact that L.A. was denied
34
counsel.6
Amici raise certain additional arguments in this appeal.
Among other points, the New Jersey Association for Justice and
Advocates for Children of New Jersey ask the Court to require
the appointment of a law guardian to represent children in
private adoption cases. Their argument rests on due process and
equal protection concerns.
Had the Division brought this case under Title 30, L.A.’s
child would have been represented by a law guardian. See
N.J.S.A. 30:4C-15.4(b); see also N.J.S.A. 9:6-8.21(d) and 9:6-
8.23 (requiring appointment of law guardian for children who are
subject of abuse and neglect proceedings and designating
attorneys in Office of Public Defender to fulfill that role).
The Adoption Act does not authorize the appointment of a
law guardian. The statute instead provides for the appointment
of a guardian ad litem, “a qualified person, not necessarily an
attorney,” “to represent the interests of the child.” N.J.S.A.
9:3-38(e). The court may appoint a guardian ad litem in its
discretion, ibid., except in two situations in which it must
act, see N.J.S.A. 9:3-47(b) (requiring appointment when agency
report is adverse to prospective parent); N.J.S.A. 9:3-48(d)
6 We also decline to address an argument raised by the ACLU
about whether a harm standard should be read into N.J.S.A. 9:3-
46, because this appeal does not pose the issue.
35
(requiring appointment when agency report, after preliminary
hearing, is adverse to grant of final judgment of adoption).
We are reluctant to tackle a constitutional question not
raised directly in an appeal, see Comm. to Recall Menendez v.
Wells, 204 N.J. 79, 95-96 (2010); Randolph Town Ctr., L.P. v.
County of Morris, 186 N.J. 78, 80 (2006), and order appointment
of counsel for children in all cases on constitutional grounds.
Instead, we invite the Legislature to consider authorizing
appointment of counsel for children in private adoption cases.
We also remind trial judges of their power to appoint a guardian
ad litem under the Adoption Act, N.J.S.A. 9:3-38(e), when the
child’s best interests are not being adequately protected by
counsel for the parties. There may well be cases when the
child’s interests differ from the parties, and a guardian ad
litem will afford the child a chance to be heard in a meaningful
way. See Meaghan, supra, 961 N.E.2d at 113. Trial courts have
the discretion to appoint an attorney or other qualified person
to that position. N.J.S.A. 9:3-38(e).
We agree with the Appellate Division that, in an abundance
of caution, the matter should not be remanded to the original
trial judge because the court made credibility findings in the
first trial. J.E.V., supra, 442 N.J. Super. at 487.
We request that the trial be expedited but express no
opinion on what the outcome of the proceeding should be.
36
VII.
For the reasons stated above, we affirm the judgment of the
Appellate Division.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and JUDGE CUFF (temporarily assigned) join in CHIEF
JUSTICE RABNER’s opinion.
37