In the Matter of the Adoption of a Child by J.E.V.And

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3238-13T3
APPROVED FOR PUBLICATION
IN THE MATTER OF THE ADOPTION OF October 23, 2015
A CHILD BY J.E.V. and D.G.V.
_________________________________ APPELLATE DIVISION
Argued September 17, 2015 – Decided October 23, 2015
Before Judges Fuentes, Koblitz and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex
County, Docket No. FA-07-0115-14.
Alexis Miriam Miller argued the cause for
appellant L.A. (Donahue Hagan Klein &
Weisberg, LLC, attorneys; Ms. Miller, on the
brief).
Bonnie Frost argued the cause for
respondents J.E.V. and D.G.V. (Einhorn,
Harris, Ascher, Barbarito & Frost,
attorneys; Matheu D. Nunn and Mark Wechsler,
on the brief).
Respondent The Children's Home Society has
not filed a brief.
The opinion of the court was delivered by
KOBLITZ, J.A.D.
After a two-day trial at which she represented herself,
L.A. appeals from the March 4, 2014 order terminating her
parental rights to her young daughter as part of a private
adoption.1 We reverse and remand, 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.2
The Children's Home Society of New Jersey (CHS) knew from
its first interaction with L.A. that she was indigent, yet at no
time was L.A. provided legal counsel. Nor did the court inform
L.A. that she was entitled to appointed counsel. Although this
case began with L.A. trying to ensure the well-being of her
daughter, and the Division of Child Protection and Permanency
(the Division) was never involved, L.A. would have been accorded
more due process had her situation been brought to the attention
of the Division based on child welfare concerns.
No evidence was introduced at trial that L.A. abused or
neglected her daughter; nor that she was addicted to drugs or
alcohol, or suffered from mental illness. To the contrary,
poverty alone seems to have given rise to L.A.'s concerns
1
The adoption was stayed pending appeal of the termination of
her parental rights.
2
L.A. sought counsel on appeal. We referred her request to the
Public Defender's Office, which indicated it was not statutorily
permitted to represent parents appealing private adoption
matters. After initial briefing, we ultimately appointed
counsel to represent L.A., and asked the parties to submit
supplemental briefs on the issue of her entitlement to trial
counsel.
2 A-3238-13T3
regarding the care of her two-year-old special-needs daughter.
Initially contemplating adoption, L.A. placed the child with
CHS. After the mandated pre-adoption counseling, which
statutorily requires the advisement that adoption in New Jersey
entails "the permanent end of the relationship and all contact
between the parent and child,"3 L.A. decided not to surrender her
parental rights. She left her daughter with CHS for short-term
foster care, and continued to visit the child. L.A. signed a
plan agreeing to find a job and permanent housing with the aim
of continuing to parent her daughter.
L.A. lived with her sister in Pennsylvania for several
months, causing her to miss visits with her daughter. She also
gave birth to a baby boy while her daughter was in foster care.
L.A.'s two sons continued to live with her throughout the
litigation. L.A. was still receiving welfare assistance and
living at a shelter at the time of trial. L.A.'s transient
housing and inability to pay for her daughter's care4 were known
to the agency and the court, and plaintiffs submitted evidence
3
N.J.S.A. 9:3-41(a). Pursuant to N.J.A.C. 10:121A-5.4(c)(1)(i),
an adoption agency is required to document that the birth parent
was provided such counseling.
4
CHS did not seek payment from L.A. The agency paid the foster
family $13 per day plus reimbursed expenses, until the case
changed from foster care to an adoption case.
3 A-3238-13T3
of such to demonstrate that L.A. had failed to fulfill her
parental duties.
After an unsuccessful short-term foster placement, the
child was placed with plaintiffs. The evidence adduced at trial
indicates that plaintiffs provided the child with a loving
family, which included another girl of the same age. Plaintiffs
also provided access to helpful professional resources to
address the child's special needs.
Approximately one year after assuming custody, CHS wrote to
L.A. in a March 1, 2013 letter5:
The Children's Home Society is a licensed
adoption agency in the State of New Jersey.
You placed your daughter . . . in the care
of [CHS] on March 8, 2012. Since that time,
you have been inconsistent with visitation,
you have not maintained consistent contact
with your counselor . . . and you have made
no viable plan to parent your daughter. As
such, we are going to make an adoption plan
for your child.
. . . .
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 [sic] . . . .
5
The agency also attached to the letter forms for the surrender
of parental rights. This letter was not introduced as evidence
at trial. Because both parties included it in their appendix,
and it is useful to our understanding of the history of this
matter, we have considered it.
4 A-3238-13T3
CHS then executed an "agency consent to early filing of
adoption complaint" on July 8, 2013, pursuant to N.J.S.A. 9:3-
47(a), stating that the agency "believe[d]" that L.A. had
"abandoned the child" and "was not fit to parent the child." If
L.A. had been involved with the Division, and if it appeared
that the child was in need of services, the Division would have
initiated judicial proceedings under Title 30 before the initial
placement of the child outside the home,6 and within a year would
have had to satisfy a judge that adoption was the appropriate
plan.7
At the suggestion of CHS, plaintiffs filed the adoption
complaint on July 18, 2013, attaching the agency consent. L.A.
6
See N.J. Dep't of Children & Families, Removal of a Child, in
Child Protection & Permanency Manual (2011),
http://www.state.nj.us/dcf/policy_manuals/CPP-II-C-2-700.pdf
(stating that the Division "may seek and/or accept a parent's
consent" for placement without judicial approval only in
situations where the placement sought is in congregate care or
an independent living arrangement, and only if the child has not
been subject to abuse or neglect); see also N.J. Div. of Youth &
Family Servs. v. T.S., 426 N.J. Super. 54, 64-66 (App. Div.
2012) (intervention by the Division is proper "to protect a
child who, although not abused or neglected, is in need of
services to ensure its health and safety"). Pursuant to
N.J.S.A. 30:4C-12, after appropriate investigation by the
Division, it could apply for an order granting care and custody
of the child to the Division.
7
See N.J.S.A. 30:4C-61.2(a)(2) ("A permanency hearing shall be
held that provides review and approval by the court of the
placement plan . . . no later than 12 months after the child has
been in placement.").
5 A-3238-13T3
objected to the adoption at every opportunity. At the initial
pre-trial conference in October 2013, more than seven months
after the letter from CHS announcing the plan for adoption, the
court asked L.A.: "Do you intend to get an attorney at all in
this matter?" She responded: "Working on it." The court
informed L.A. that she should obtain a lawyer "quickly" to
comply with the discovery schedule.8 At no time was she advised
that a lawyer would be assigned to represent her if she could
not afford to retain counsel.
L.A.'s situation is different from private adoption
situations in other reported decisions. L.A.'s circumstances do
not present a stepparent adoption, see N.J.S.A. 9:3-48(a)(4); In
re Adoption of Children by G.P.B., 311 N.J. Super. 38, 40 (App.
Div. 1998), rev'd 161 N.J. 396 (1999); see also In re Adoption
of a Child by J.R.D., 246 N.J. Super. 619, 625 (Ch. Div. 1990)
("The substantial number of stepparent adoptions is no longer
considered a surprising or an unusual phenomenon."); nor is this
an objection to adoption of a newborn registered by a
noncustodial parent after the custodial parent's surrender of
8
This interchange can hardly be viewed, as urged by plaintiffs,
as a waiver of her right to appointed counsel. See N.J. Div. of
Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 266 (App.
Div. 2002) (describing waiver as the intentional relinquishment
of a known right).
6 A-3238-13T3
parental rights.9 See N.J.S.A. 9:3-47(c); In re Adoption of a
Child by P.F.R., 308 N.J. Super. 250, 252 (App. Div. 1998). Nor
is this a situation where a custodial parent or parents have
left their child with a family member or friend for an extended
period of time. See In re Adoption of a Child by J.D.S., 353
N.J. Super. 378, 385 (App. Div. 2002), certifs. denied, 175 N.J.
432 (2003).10 L.A. left her special-needs child in foster care
with a State-licensed agency. That agency placed the child with
a foster family11 who was unknown to L.A. The agency then
decided on its own that L.A. was an unfit mother and had
abandoned her child, and encouraged the foster family to file an
adoption complaint over the objection of L.A.
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). CHS acted here in
a fashion similar to the Division, but without providing the
9
The identity of the child's father is unknown.
10
We note that the objecting parent in the published cases were
represented by counsel.
11
The foster mother testified that her family received the same
training as Division-certified resource families. See N.J.S.A.
30:4C-27.5.
7 A-3238-13T3
services to promote reunification or the legal safeguards
afforded parents involved in litigation with the Division.
The financially advantaged foster family retained a
psychologist who conducted separate bonding evaluations12 of the
child with L.A. and with the foster parents, and conducted
psychological testing of only the biological mother.13 The
expert determined that the foster parents had become the child's
psychological parents. He opined that separating the child from
her foster family would cause great harm, a greater harm than
severing the child's relationship with her biological mother.14
The expert made no evaluation of the child with her older
brother, although L.A. testified the two children had a close
12
See In re Guardianship of J.C., 129 N.J. 1, 19-21 (1992)
(discussing the function of comparative bonding evaluations in
"assessing the existence, nature, and extent of the harm facing
the child" if he or she were separated from the foster parents,
but noting the "grave pitfalls" of overreliance on bonding
theory in that it is often used "to keep children in foster care
rather than return them to their parents").
13
He did not diagnose the mother with a mental illness, but
indicated certain conditions should be ruled out by further
investigation.
14
Notably, our Supreme Court has expressed concern with
instances "where the Division removed a child from his or her
biological parents and placed the child with a foster family,
thereby causing a child-foster parent bond to form, and then
later attempted to rely on that bond as a basis for terminating
the rights of the natural parents." N.J. Div. of Youth & Family
Servs. v. I.S., 202 N.J. 145, 209 n.14 (2010); see In re
Guardianship of K.L.F., 129 N.J. 32, 45-46 (1992).
8 A-3238-13T3
relationship. Unlike the way a case involving the Division
would proceed, the first time the court was involved with this
family was after plaintiffs filed the adoption complaint.
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 in a situation such as this, 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:
9 A-3238-13T3
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 (citation omitted).]
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).15 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);
15
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).
10 A-3238-13T3
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,16 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) (internal citation and
quotation marks omitted).
L.A., when facing a consequence of such magnitude, imposed
by the action of a State-licensed agency, was entitled to
appointed counsel. Foster parents are statutorily precluded
16
See N.J.S.A. 2C:11-3b.
11 A-3238-13T3
from providing legal counsel to a birth mother past the first
forty days after the filing of the adoption complaint. See
N.J.S.A. 9:3-53. The OPD has not been statutorily authorized to
represent indigent parents in private adoptions.17 Private
counsel must therefore be assigned.
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. L.A. should have been
represented by counsel beginning in March 2013, when CHS first
advised her she was facing the termination of her parental
rights through adoption. With counsel, she would have been far
better prepared for trial when it began in late October. She
could have obtained her own expert, sought an attorney to
represent the minor child, and sought immediate enhanced
parenting time.
17
The OPD's statutory authority to represent parents in
termination cases derives from N.J.S.A. 30:4C-15.4(c), which
concerns actions filed by the Division.
12 A-3238-13T3
We note that had L.A. asked for her daughter to be
returned, we are aware of no legal authority that would have
allowed CHS to maintain custody of the child. The agency would
have had to return the child to L.A., or call the Division to
conduct an emergent evaluation of whether the child would be at
risk if returned to L.A. If the Division had determined that
the child would be at risk if returned, the Division could have
sought custody through the court. See N.J.S.A. 30:4C-11; see
also 9:6-8.18, -8.22.
A lawyer representing the biological parent would be of
assistance to the court as well as the parent. Although we
reverse and remand for a new trial, and thus need not discuss
any trial errors, to emphasize the need for counsel in this
complex matter, and ensure that the mistakes made are not
repeated, we point out several areas where the trial court
appears to have erred.18
The court did not explicitly make its findings by the
standard of clear and convincing evidence.19 The Supreme Court
18
Except as noted, these issues were not briefed by the parties.
Although we initially ordered the foster parents to provide L.A.
with a transcript based on her indigency, pursuant to J.D.S.,
supra, 176 N.J. at 158-59, we did not appoint counsel to
represent L.A. on appeal until we sought supplemental briefing
on the issue of her right to counsel.
19
The definition of clear and convincing evidence is:
(continued)
13 A-3238-13T3
of the United States has held that "[b]efore 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."
Santosky, supra, 455 U.S. at 747-48, 102 S. Ct. at 1391-92, 71
L. Ed. 2d at 603. Our Supreme Court has held that "[a]s part of
the Title 9 scheme, termination of parental rights under
N.J.S.A. 9:3-46 is a component of the State's overall and
coordinated system of child protection and supervision." J.D.S.,
supra, 176 N.J. at 158. Thus, while termination in a private
adoption is not sought by a State agency, the clear and
convincing standard should still govern the burden that
plaintiffs bear in order to terminate a birth parent's parental
rights. See J.D.S., supra, 353 N.J. Super. at 391-92, 96; see
also In re Adoption of a Child by P.S., 315 N.J. Super. 91, 111
(App. Div. 1998); In re Adoption of Child by O., 307 N.J. Super.
(continued)
[T]hat which produces in the mind of the
trier of fact a firm belief or conviction as
to the truth of the allegations sought to be
established, evidence so clear, direct and
weighty and convincing as to enable the
factfinder to come to a clear conviction,
without hesitancy, of the precise facts in
issue.
[I.S., supra, 202 N.J. at 168 (citation
omitted).]
14 A-3238-13T3
176, 184 (Ch. Div. 1997) ("In order to terminate a parent's
rights, clear and convincing evidence of the statutory criteria
must be demonstrated."). At oral argument, plaintiff's counsel
conceded that this high standard is required for the termination
of parental rights, while arguing that the court might have used
such a standard while not articulating it. An enhanced standard
of proof cannot be inferred if not expressly stated by the
court. See In re Civil Commitment of E.D., 183 N.J. 536, 552
(2005).
The trial court was also somewhat unclear in delineating
what standard it was using when determining what was "in the
best interest of the child." The issue of whether the trial
court used the correct criteria was anticipated and briefed by
the foster parents in their response to the mother's initial pro
se appellate brief.
Contrary to the argument set forth by the attorney
representing the foster parents before the trial court, L.A. did
not place her daughter for adoption as that term is used in the
statute. Although it was her initial intention to relinquish
her child for adoption, she did not sign a surrender of parental
rights after attending adoption counseling. Thus, she did not
knowingly or intelligently complete a placement for adoption.
She ultimately did agree to leave her child with CHS for
15 A-3238-13T3
temporary foster care; with a written plan calling for L.A. to
work toward goals with the aim of parenting her child. Thus,
the standard applicable when a child has been "placed for
adoption" is not appropriate here.
The inapplicable "placed for adoption" standard requires
that the court find:
during the six-month period prior to the
placement of the child for adoption
(1) that the parent has
substantially failed to perform
the regular and expected parental
functions of care and support of
the child, although able to do so,
or
(2) that the parent is unable to
perform the regular and expected
parental functions of care and
support of the child and that the
parent’s inability to perform
those functions is unlikely to
change in the immediate future.
[N.J.S.A. 9:3-46(a)(1), (2).]
The statute defines the regular and expected functions of
care and support of a child as:
(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, or unless prevented
from so doing by the custodial parent or
other custodian of the child or a social
16 A-3238-13T3
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).]
The trial court's determination should have been guided by
the standard applicable when a parent has not placed the child
for adoption, the "best interest of the child" standard, which
is statutorily defined as "whether a parent has affirmatively
assumed the duties of a parent." Ibid. In making this
determination,
[T]he 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.]
"A parent seeking to show that he or she has 'affirmatively
assume[d] the duties of being a parent' need only 'demonstrat[e]
. . . the establishment and maintenance of a place of importance
in the child's life.'" In re Adoption of Children by G.P.B.,
161 N.J. 396, 410 (1999) (alterations in original) (quoting
N.J.S.A. 9:3-46(a)). Our Supreme Court explained that, under
17 A-3238-13T3
this "best interest" analysis, "'demonstration of a continued
interest in the child [and] a genuine effort to maintain
communication with the child' . . . is not as difficult as a
demonstration . . . that the person has actually communicated
with the child or person having custody, as required in the
performance of 'regular and expected parental duties'" under the
inapplicable "placed for adoption" standard. Id. at 410-11
(alterations in original) (quoting N.J.S.A. 9:3-46(a)). The
Court also noted that the two standards differ in measuring a
birth parent's performance, insomuch as, in a best interest
determination, there is no consideration of the birth parent's
ability to perform, which is considered in the inapplicable
"regular and expected parental functions" test used when the
child has been "placed for adoption." Id. at 411. Lastly,
under a best interest analysis, there is no time limit to the
assessment, and proper consideration should be given to the
birth parent's actions over the course of the child's entire
life, as opposed to the six-month period expressly noted in the
"regular and expected parental functions" inquiry not applicable
here. Id. at 411, 413.
Although the trial court indicated it was considering the
best interest of the child in making its determination, and
clearly did not focus only on the prior six months of the
18 A-3238-13T3
child's life, the court appeared to be comparing the efforts
L.A. made to parent the child with those made by plaintiffs.
The policy in our State is not to remove children from less
capable parents for the purpose of placing them with more
capable parents, those with more economic resources, nor those
who are better educated. See G.P.B., supra, 161 N.J. at 404;
J.D.S., supra, 353 N.J. Super. at 394. The polestar inquiry "is
not whether the child would be better off with the adoptive
parent, but whether the biological parent has failed to fulfill
his or her duties." G.P.B., supra, 161 N.J. at 413; see P.S.,
supra, 315 N.J. Super. at 110 ("[T]ermination based upon the
child's 'best interest' . . . does not mean that termination is
appropriate just because the child 'might be better off' with
the foster or prospective adoptive parents."). Thus, along with
not articulating the proper standard of proof, we have serious
concerns as to whether the trial court used the proper legal
test in determining the outcome of the trial.
No consideration was given to the appointment of a law
guardian to represent the child, as is done by statute in every
case involving the Division. See N.J.S.A. 30:4C-15.4(b). We
recognize that lawyers are rarely appointed to represent
children in private adoptions. See In re Adoption of Child by
E.T., 302 N.J. Super. 533, 539-41 (App. Div.), certif. denied,
19 A-3238-13T3
152 N.J. 12 (1997). We emphasize, however, that while this
matter may have taken the route of a private adoption, from
L.A.'s perspective, in many ways it followed a parallel course
to a Division case. The central differences were that the court
was not involved until the very end, few social services other
than the opportunity to visit her child and meet with a "birth
parent counselor" were offered to the mother,20 and neither she
nor her child had any legal representation as the situation
evolved.
Applying these principles prospectively, we hold that, once
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. In the future, a State-licensed private
20
For example, plaintiffs presented evidence that L.A. did not
seek as many visits as she might have and was late to many
scheduled visits, in part because she had to take public
transportation. The Division frequently provides bus passes to
parents. L.A. was also criticized for not having permanent
housing, yet no evidence was adduced that CHS assisted her in
locating housing. In July 2012, L.A. signed a "service plan"
with CHS in which all four goals, including finding housing and
a job, were categorized as the full responsibility of L.A. In
that plan, it was noted that L.A. "has stated that parenting is
her goal." Had the Division sought to terminate parental
rights, it would have had to prove by clear and convincing
evidence that it had made reasonable efforts to reunify the
family, or the termination would not have been granted.
N.J.S.A. 30:4C-15.1(a)(3); see I.S., supra, 202 N.J. at 180
(reversing the termination of the father's parental rights in
part because the Division failed to make reasonable efforts to
reunify).
20 A-3238-13T3
adoption agency must advise the court at the same time that it
notifies an indigent parent that it plans to proceed with
adoption. The court will then be able to appoint counsel.
The assignment of counsel to an individual who does not yet
have a matter before the court presents an unusual
administrative challenge. We refer this matter to the Acting
Administrative Director of the Court, who may wish to consult
with the Conference of Presiding Family Judges to develop a
procedure. The Madden list21 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. We do not
address a non-custodial parent's entitlement to counsel when
objecting to adoption after the custodial parent's surrender of
parental rights, or objecting to a stepparent adoption, or
objecting after the child is left with a relative or friend. We
do not address these situations as they are not before us.
Because the trial court made credibility findings when L.A.
was not represented by counsel, in an excess of caution, we
remand to a different judge for trial. We do not intend to
imply a particular result after trial for these families and
this child, nor do we intend to preclude the possibility of a
negotiated compromise in this particular situation. As our
21
See Madden v. Delran, 126 N.J. 591 (1992).
21 A-3238-13T3
Supreme Court has eloquently stated, "[t]he possibility of
serious psychological harm to [a] child . . . transcends all
other considerations." Sorentino v. Family & Children's Soc'y,
72 N.J. 127, 132 (1976).
Reversed and remanded for a new trial at which L.A. must be
appointed an attorney and consideration given to appointing
counsel to represent the child. See R. 5:8A. We do not retain
jurisdiction.
22 A-3238-13T3