Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Do I Have A Right To A Lawyer If My Parental Rights May Be Terminated?

              Yes.  In New Jersey if you cannot afford a lawyer you have a constitutional right to have an attorney to represent you.

The lawyers at our East Brunswick, New Jersey, law firm understand that the possibility of losing a child is nightmare no parent wants to go through, but it does happen. A parent fighting in court to keep their child should always have an attorney by their side, but for some parent’s an attorney is not a financial possibility. Fortunately, the New Jersey Constitution protects a parent’s fundamental right to raise their child, and guarantee’s a court appointed attorney for the indigent in certain circumstances. In Adoption by J.E.V., the Supreme Court of New Jersey held that impoverished parents who face the termination of their parental rights due to contested proceedings under New Jersey Statute §§ 9:3-37 to -56, the Adoption Act, have the right to an attorney under Article I, Paragraph 1 of the New Jersey Constitution. As such, the Supreme Court of New Jersey affirmed the decision of the New Jersey Appellate Division to reverse a Family Part judgment that terminated a pro se mother’s parental rights, because she had a statutory and constitutional right to a court appointed attorney.

L.A. gave birth to a baby girl on August 24, 2009. Two and a half years later L.A. placed the child with the Children’s Home Society, which is an adoption agency licensed by the state. When L.A. first placed her daughter with Children’s Home Society, she was thinking about putting her up for adoption, because, at that time, she believed it would be in the child’s best interest. L.A. changed her mind about two months later, after pre-adoption counseling, and decided not to surrender her parental rights.

L.A.’s daughter stayed in foster care for a short period of time, and was then moved to her second foster parents, J.E.V. and D.G.V., who were the petitioners in the case. L.A. visited her child from time to time when she was in foster care. During that time and even afterwards, L.A.’s living arrangements were erratic. While she lived in Pennsylvania with her sister for some time, she also received public assistance and lived in transitional housing. She lived with her two previous children, sons born in 2013 and 2006, while her daughter was in foster care.

            On March 1, 2013, Children’s Home Society sent L.A. a letter which stated that they were going to make an adoption plan for her daughter because: her visitation with the child was inconsistent, she failed to maintain consistent contact with the counselor, and she did not make a viable plan to take care of her daughter. This letter came with several consent forms. One of these forms was titled Surrender and Relinquishment of Parental Rights and Surrender of Custody. The letter further informed L.A. that she could file a written objection to the adoption action within thirty-five days. The end of the letter informed L.A. that she had the right to be represented by counsel, and “may or may not have the right to have counsel appointed to represent [her].”

            L.A. refused to sign the consent forms, and on March 28, 2013, she wrote a two-page objection letter, in which she stated that she objected to the adoption of her daughter. In her letter, L.A. detailed her current circumstances, and her future plans with the child. She also asked that her “motherly rights” not be deprived. She sent two more comparable letters on October 8, 2013 and December 7, 2013.

            On August 1, 2013, D.G.V. and J.E.V. filed a complaint for adoption, with the permission of Children’s Home Society. As a result, the court sent L.A. notice that she had the right to object, appear, file objections, and “have counsel or court-appointed counsel,” if she couldn’t afford to retain one. On October 31, 2013, an initial case management conference was held, in which the trial judge informed L.A. that if she intended to hire an attorney, she needed to do so quickly. However, the Supreme Court of New Jersey noted that the trial judge did not inform her that a lawyer would be appointed to represent her if she was not able to afford one. At the end of a two-day trial, the trial court determined that the statutory factors had been met, and L.A.’s parental rights were terminated.

            L.A. appealed the trial court’s decision to terminate her parental rights. As a result, counsel was appointed to represent her by the New Jersey Appellate Division. The appellate panel held that L.A. had a statutory and constitutional right to a court appointed attorney that began before trial. Specifically, this right arose when the private adoption agency first decided to go ahead with an adoption, even though L.A. had objected. Therefore, the appellate panel reversed the judgment of the trial court and ordered that a new trial be held.

            J.E.V. and D.G.V. petitioned the Supreme Court of New Jersey to review the decision of the New Jersey Appellate Division, and argued that both Children’s Home Society and the trial court sufficiently informed L.A. of her right to counsel, and that L.A. waived her right to counsel after being informed of that right.

            L.A. urged the Supreme Court of New Jersey to uphold the New Jersey Appellant Division’s judgment. She argued that there is a constitutional guarantee of a court appointed attorney for indigent or impoverished parents in a contested action to permanently terminate parental rights, and whether the action was started by the State government or by a private adoption is irrelevant. Five public interest organizations supported L.A.’s argument and argued the cause amicus curiae. Amicus Curiae is a Latin term that translates to “friend of the court,” and is used to refer to people or organizations that are not parties to an action but offer information that bears on the case to assist the court. The organizations that joined L.A. included the American Civil Liberties Union of New Jersey, the New Jersey Association for Justice, Legal Services of New Jersey, the New Jersey State Bar Association, and Advocates for Children of New Jersey.

The right to raise one’s own child is a fundamental right, that is terminated forever when another family adopts that child. The Supreme Court of New Jersey held that an impoverished parent facing the termination of his or her parental rights in a contested proceeding of a private adoption has a right to a court appointed attorney. The right to raise one’s child is fundamental. A poor parent trying to protect that fundamental right has a due process right to counsel guaranteed by the New Jersey Constitution, and the Adoption Act. Furthermore, this right is triggered when the parent formally objects to an agency’s determination to go ahead with an adoption. The Court advised that in future cases, judges should inform parents of their right to counsel at the very first court proceeding. Moreover, if the parent still decides to go forward without counsel, the judge should make sure that the parent understands the nature of the case, and the problems the parent might face if he or she decides to waive the right to court appointed counsel.

            Finally, the Supreme Court of New Jersey found that L.A. had not waived her right to a court appointed attorney. According to the Court, she was denied counsel, and at the end of the proceeding, her parental rights were terminated. The fairness of the procedure was called into question because of the complete denial of counsel. Therefore, the Supreme Court had to reverse the trial court’s decision and order a new trial.