In re Of
| Decision Date | 23 October 2015 |
| Citation | 124 A.3d 708,442 N.J.Super. 472 |
| Parties | In the Matter of the ADOPTION OF a Child by J.E.V. and D.G.V. |
| Court | New Jersey Superior Court — Appellate Division |
Alex Miriam Millerargued the cause for appellant L.A. (Donahue Hagan Klein & Weisberg, LLC, attorneys; Francis W. Donahue, Morristown, and Ms. Miller, on the brief).
Bonnie Frostargued the cause for respondents J.E.V. and D.G.V. (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Matheu D. Nunn and Mark Wechsler, Denville, 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.1We 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 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,”3L.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 care4were known to the agency and the court, and plaintiffs submitted evidence 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:
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,6and 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. 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.8At 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, 709 A.2d 271 (App.Div.1998), rev'd161 N.J.396, 736 A.2d 1277 (1999); see also In re Adoption of a Child by J.R.D.,246 N.J.Super.619, 625, 588 A.2d 446 (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 parental rights.9See N.J.S.A.9:3–47(c); In re Adoption of a Child by P.F.R.,308 N.J.Super.250, 252, 705 A.2d 1233 (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, 803 A.2d 123 (App.Div.2002), certifs. denied,175 N.J.432, 815 A.2d 478 (2003).10L.A. left her special-needs child in foster care with a State-licensed agency. That agency placed the child with a foster family11who 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, 929 A.2d 1034 (2007). CHS acted here 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.
The financially advantaged foster family retained a psychologist who conducted separate bonding evaluations12of the child with L.A. and with the foster parents, and conducted psychological testing of only the biological mother.13The 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.14The expert made no evaluation of the child with her older brother, although L.A. testified the two children had a close 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:
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, 929 A.2d 1034, 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, 820 A.2d 1237 (2003). Our Supreme Court opined:
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