In the recent decision In the Matter of the Adoption of a Child by J.E.V. and D.G.V., the New Jersey Supreme Court unanimously held that:
[A]n 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 this important decision, the Supreme Court built upon the strong foundation of preservation of parental rights under the due process clause which it has maintained time and time again, noting that as a State, our jurisprudence and legislation have historically sought to provide greater protections to the fundamental due process rights of parents than even United States Supreme Court jurisprudence and federal legislation.
In the case at issue, the biological mother of the child in the matter had placed the child with a private adoption agency; however, after counseling, the biological mother decided she no longer wished to terminate her parental rights and began a service plan designed to reunite with her child. Despite this, the private adoption agency began to make an adoption plan for the child and the potential adoptive parents instituted adoption proceedings over the biological mother’s written objections; she, in fact, objected in writing no less than three times. After an adoption hearing at which the biological mother was self-represented because she could not afford counsel, her parental rights were terminated and a Judgment of Adoption was entered in favor of J.E.V. and D.G.V.
Interestingly, the Court found that despite the fact that the adoption agency in this case was a private one, “the State’s involvement” in termination of parental rights was still “real” because the termination of parental rights under the Adoption Act is a part of the State’s “overall and coordinated system of child protection and supervision.” In other words, the State is still involved in the decision to terminate parental rights even in instances where the adoption is private as opposed to when the Division of Child Protection & Permanency institutes termination of parental right and/or adoption proceedings. Because the State is involved, constitutional due process rights – specifically, the fundamental right to parenthood – are implicated. And, where this paramount right is at issue, the Court went on, indigent parents opposing termination of parental rights and adoption proceedings cannot be expected to represent themselves adequately at trial given that they are laypeople unfamiliar with the rules of evidence, rules of court, and so on.
The Court went on to find that this right to counsel is triggered immediately upon the biological parent’s objection to the private adoption agency’s decision to proceed toward adoption of the child at issue. Put another way, when the indigent biological parent objects in writing, that parent must now immediately be appointed counsel so that he or she will be ably and adequately represented at trial.
Looking forward, the Supreme Court strongly encouraged the Administrative Office of the Courts and the Legislature to provide support to indigent parents who oppose the private adoption of their children, much in the way these entities took action when the Court addressed the issue of an indigent parent’s right to counsel when the Division of Child Protection & Permanency (a State agency, formerly DYFS) seeks to terminate parental rights and place the child away from his or her biological parents. For those cases, the Legislature previously established the Office of Parental Representation, a branch of the Office of the Public Defender which assists indigent biological parents with their cases for free. The Court recommended that the Director of the Administrative Office of the Courts develop a form designed to help indigent parents respond directly to private agencies’ notification of intent to proceed with adoption. The Court also called upon the Legislature to create an agency similar to the Office of Parental Representation to assist in private adoption cases. Time will tell whether these bodies will respond to the Court’s recommendations accordingly.
Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or firstname.lastname@example.org.