In re J.E.V.

• Decision Date: 26 July 2016
• Parties: In the Matter of the ADOPTION OF a Child by J.E.V. and D.G.V.
• Court: New Jersey Supreme Court

226 N.J. 90

141 A.3d 254

In the Matter of the ADOPTION OF a Child by J.E.V. and D.G.V.

Supreme Court of New Jersey.

Argued April 12, 2016.

Decided July 26, 2016.

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, Denville, 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, Morristown, 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).

Cheryl E. Connors, Woodbridge, 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, Lawrenceville, and Amanda S. Trigg, Hackensack, 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 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, 124 A. 3d 708 (App.Div.2015)

.

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, 124 A.3d 708

. 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] 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 “deprive[d]” of her “motherly rights.” L.A. sent similar letters dated October 8, 2013 and December 7, 2013.

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.:

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.

L.A. appealed, and the Appellate Division appointed counsel to represent her. Id. at 475 n. 2, 124 A. 3d 708

. 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, 124 A. 3d 708. 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, 124 A. 3d 708

(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, 929 A. 2d 1034 (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, 124 A. 3d 708. 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” deci...