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.

 headshot_diamond_jessicaJessica 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

Although most people are familiar with the concept of “due process” in the criminal context, we sometimes forget that due process also extends to civil litigation. “Due process” is basically the opportunity to be heard at a “meaningful time and in a meaningful manner”.

Typically, whenever a litigant is seeking relief from the Court, a motion must be filed, stating the time and place when it will be presented to the Court, the grounds upon which it is made and the relief sought. Although litigants may also seek emergent relief, notice must still be provided to the other party. While the notice requirement is not wholly inflexible, it may only be waived in circumstances where it can be shown that immediate and irreparable damage will likely result to the moving party before notice can be served/informally given and a hearing had thereon.

A common example of this in the matrimonial context is when a litigant is seeking to ask the Court to freeze assets because of a fear that the other side may liquidate or abscond with marital assets. Obviously, if the other side were first notified of this request, they would have the opportunity to do just that: liquidate or abscond with the assets. Thus, in very limited circumstances, the notice requirement will be waived, however, only a temporary order would issue and the other side would then be given the ability to immediately be heard by the Court as to why the relief sought should be ultimately granted moving forward.

In the recent published (precedential) case In the Matter of the Adoption of a Child by M.E.B. and K.N., the Appellate Division gave us a primer on the bounds of due process in a civil context. A short summary of the facts are as follows: The paternal grandparents of a child filed a Verified Complaint for Adoption after what they describe as a “verbal and implied consent of the child’s birth parents, who refused to contribute to or provide for the needs of the child”, essentially abandoning the child to their care.

Once the Complaint was filed, a preliminary order was issued for a hearing and the child was temporarily placed in the paternal grandparents care. Upon receiving this order, the child’s mother, filed an ex parte (i.e., without notice to the grandparents) Order to Show Cause refuting the allegations of abandonment asserting that she never relinquished her parental obligations. The child’s father also supported the return of the child to the mother’s care and for his parents to be restrained from further contact of the mother and the child.

The Court held the hearing on the mother’s application ex parte, again, without the paternal grandparents having notice of the hearing or a chance to be heard. The Court ultimately found that the paternal grandparents lacked standing and dismissed their Complaint for adoption with prejudice. The plaintiffs’ appealed the dismissal of their Complaint given the lack of opportunity to be heard prior to their Complaint being dismissed.

In recognition of a litigant’s right to due process, the Appellate Division reversed and remanded this matter for further proceedings finding,

It is one thing to schedule ex parte review of an application initiated by an order to show cause that also seeks temporary restraints; it is quite another to terminate the litigation on an ex parte basis. If a party demonstrates the need for ex parte relief, the judge considers the matter on the record and, upon a specific finding that immediate and irreparable harm would result were notice given, could issue an order to show cause. The adverse party must then be given an opportunity to be heard, including the chance to show injunctive relief was inappropriate or improvidently granted.

The Appellate Division found that the grandparents were not served with the mother’s pleadings and were not informed that a hearing would be held. Although, as noted above, there are situations in which it can be found that immediate and irreparable harm would occur if notice was given prior to the hearing, no such finding was made and could not be inferred from the record on appeal.

When an injunction is requested, the proceeding to consider the order to show cause with restraints must be on the record, requisite findings supporting relief must be made, and the adverse party must be given an opportunity to be heard on the scheduled return date. Even when restraints are not entered, the adverse party must be given the opportunity to respond to the entry of an order to show cause.

The takeaway from this case is that if you find that an Order has been entered in your case without notice to you and the opportunity to be heard, you should immediately consult with experienced counsel to determine the validity of that order and whether it can be ultimately challenged.

Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or

Yesterday, Dusten Brown dropped his four year custody claim for his daughter, Veronica.  This story has been in the news over the past several years, and has evoked strong feelings on all sides. Most of the media attention for the story surrounded the applicability of the Indian Child Welfare Act, which was ruled on by the United Supreme Court last summer.  The story, regardless of the ending, leads me to bring some strong recommendations for any parents trying to work things out, often times without adequate counsel.  The story, generally, is as follows:

Dusten Brown was a member of the Cherokee Nation and was in the Army in Oklahoma.  Christina Maldonado was a non-Indian single mother of two. Brown and Maldonado became engaged to be married in December 2008, and Maldonado informed Brown that she was pregnant in January 2009. Upon learning Maldonado was pregnant, Brown the allegedly began to press Maldanado to get married, and refused to provide any financial support until after the two had married. Maldonado broke off the engagement and cut all communications with Brown. In June, Maldonado sent Brown a text message asking if he would rather pay child support or relinquish his parental rights. Brown responded via text message that he relinquished his rights.

A few months prior to the baby’s birth, Maldonado began to work with an adoption attorney to place the child with a couple in South Carolina, the Capobiacos.   Maldonado’s attorney misspelled Brown’s name and provided an incorrect date of birth, so the Cherokee Nation was not put on notice of the proposed adoption. After receiving permission from Oklahoma authorities, based in part on the identification of the child as Hispanic instead of Native American, the Capobiancos took the child to South Carolina.Four months after the birth of the child and just days from deployment to Iraq, Brown was served with notice of the proposed adoption. Brown signed the document, believing that he was relinquishing rights to Maldonado. Brown, once he realized what he was signing, immediately tried to retrieve the document, and failing that, contacted the Judge Advocate General at his army base for assistance.  Seven days after being notified of the proposed adoption by the Capobiancos, Brown had obtained a stay of the adoption proceedings under the Servicemembers Civil Relief Act and he deployed with his Army unit to Iraq.

Subsequently, the South Carolina courts ruled that the Indian Child Welfare Act applied to the case, and that the child had to be turned over to Brown. The South Carolina Supreme Court affirmed on several basis, and then , the Capobiancos sought review by the United States Supreme Court.  The US Supreme Court agreed to hear the case on the narrow issues of the applicability of the Indian Child Welfare Act, and in June of 2013, held that the Act did not apply to these circumstances.

The fight then ensued between the two states, South Carolina, and Oklahoma.  South Carolina allowed the Capobiancos to legally adopt the child, but Oklahoma did not allow the child to be removed from the state.  Oklahoma ultimately allowed the child to be taken to South Carolina on September 23.

On October 10, 2013, almost four years since the start, Brown announced he was giving up his fight.

So, for the last four years, a child has been shuttled throughout the country, and three parents have been through an emotional ( and financial )nightmare.  What is particularly frustrating is that much of this could and should have been prevented had Brown fully understood what he was signing, and had not been misinformed about his initial agreement to give up custody in return for a release of financial obligations.

First, a parent cannot simply agree to give up custody in return for a “pass” on financial responsibility for a child. Moreover, a common misconception is that parental rights is the same as custody. It is not.  Custody, as most people understand it, is the ability to make decisions about a child generally.  Most people who think they are willing to give up custody believe they would still have the ability to communicate with the child later, and re-establish a relationship.  Termination of parental rights, on the other hand, is an absolute cessation of any contact or rights to and about a child.  If someone is relinquishing their parental rights, there must be assurances that it is a fully informed decision.

Second, there are complicated legal issues involved in any custody or adoption matter which goes across state lines.  This is not something you want to be uninformed about.  Each state may have its own custody laws and standards.

Finally, for prosepctive adoptive parents of children in other states, it is imperative that you know that all the I’s have been dotted, and all the T’s crossed.  This nighmare for the Capobiancos was really, at the heart, stared by a clerical error, intentional or not

I have previously posted several blog entries about custody and parental rights where DYFS ("Division of Youth & Family Services"), NJ’s child protective agency, has involvement.  To read those posts click here, here, or here.

On September 29, 2010, the NJ Supreme Court issued an opinion addressing the standards to be applied to a sibling’s request for visitation after children are placed outside the natural family’s home and after they are adopted.  The opinion of In the Matter of D.C. and D.C., Minors provides guidelines for those siblings who seek to continue a relationship with their adopted and/or placed siblings and addresses a very important issue for families across this state.

The facts of D.C. can be summed up as follows: Nellie, the biological sister of Hugo and twins sought custody and visitation of her siblings after DYFS removed the children from her mother’s care and placed them in separate homes.  In 2005, Nellie, then age 23, resided in Va.  Hugo was 14 years old at the time.  In 2006, Hugo was placed with Nellie.  In 2007, DYFS discussed visitation of the twins with Hugo and Nellie.  In August 2007, Va.’s child placement agency ("RDSS") approved placement of the twins with Nellie and Hugo but expressed concerns about Nellie’s ability to support the children.  Based on that concern, visitation was recommended to ease the transition.  Then, in late 2007, RDSS rescinded its recommendation for placement of the twins with Nellie and Hugo because of Hugo’s poor grades and Nellie’s job loss.

The biological mother’s parental rights were terminated in December 2007.  In January 2008, DYFS approved Nellie as kinship legal guardian of Hugo, but not the twins.  At the same time, Nellie was informed visitation with the twins would stop.  In April 2008, Nellie filed an action seeking placement of the twins in her care or alternatively reestablishing the sibling visitation.  DYFS opposed her application.


The Supreme Court of New Jersey’s recent decision in New Jersey Division of Youth and Family Services v. L.L., provides a good opportunity to review New Jersey’s Kinship Legal Guardianship Act. The Act is designed to address the needs of children and caregivers in long-term “kinship” relationships, placing those children who cannot safely reside with their parents in the care of a relative or family friend. This placement option avoids the need to terminate parental rights where adoption is either unlikely or not possible. 

The Act defines a “kinship legal guardian” as a “caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court[.]" From a legal rights standpoint, the guardian has the same “rights, responsibilities and authority relating to the child as a birth parent,” subject to various limitations set forth in the Act. By that same token, the birth parent can consent to an adoption or name change, must continue to pay child support, and can still have parenting time with the child as determined by the Court. As parental rights are not terminated, the Act logically provides that the child does not lose rights derived from the parents, such as rights of inheritance, benefits, etc.

Continue Reading Supreme Court Rules on New Jersey’s Kinship Legal Guardianship Act

Declaring unconstitutional a 30-year old state law prohibiting gay men and women from adopting children in Florida, a Circuit Court there recently concluded that Florida should no longer be the only state with a blanket ban of this kind. In the Matter of the Adoption of John Doe and James Doe came before the Court on a petition for adoption of two foster children by a gay man who had raised the children since 2004. 

The second Florida Court this year to declare the law unconstitutional, the Court declared that the law violated both the petitioner’s and the children’s equal protection rights guaranteed by the Florida Constitution without setting forth a rational basis. The Court also declared that the law unlawfully prevented a child’s right to permanency as provided by federal and state law pursuant to the Adoption and Safe Families Act of 1997. In so doing, the Court rejected the State’s arguments that the law served the best interests of children because homosexuals allegedly experienced higher levels of stressors detrimental to children; that such adoptions did not minimize children’s social stigmatization; and that the law protected a child’s societal moral interests.


Notably, Florida Attorney General Bill McCollum stated shortly after the decision’s release that it would be appealed, on behalf of the Department of Children & Families, to the Third District Court of Appeal in Miami. 



The New Jersey Appellate Division recently handed down an interesting decision regarding termination of parental rights and kinship legal guardianship interpreting the Kinship Legal Guardianship Act in New Jersey. In the matter of Division of Youth and Family Services v. D.H. and J.V., was a case where the Law Guardian filed an interlocutory appeal from the Division of Youth and Family Service’s (“DYFS”) Order approving a permanency plan to terminate the birth parents’ rights followed by a select-home adoption. The trial court rejected kinship legal guardianship (“KLG”), Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 et seq., as a permanent placement option, finding that “based on the child’s age, termination would be more appropriate.”

In this case, A.H., a five year old girl, lived with her maternal grandmother, K.P., for seventeen months prior to the hearing. K.P. wanted the child to live with her on a long-term basis, but did not wish to adopt her. It was clear from the evidence that neither biological parent could care for A.H. In this case, the appellate division reversed and remanded the trial court’s decision, finding that the KLG is an alternative permanency plan to severing parental rights.
KLG does not terminate parental rights. The birth parents retain the right to: (1) consent to adoption; (2) change the child’s name; and (3) visit the child. The birth parents are also obligated to pay child support, and the child is still eligible to receive inheritance, benefits, or insurance from his or her birthparents. When adoption is neither feasible nor, likely, particularly when kinship caregiver’s own child or sibling is the birth parent, an alternative to termination is desirable. A KLG will typically be a caregiver with “biological, legal, extended or committed emotional or psychological relationship with a child and who is willing to assume care of the child due to parental incapacity or inability, with the intent to raise the child to adulthood. Once the caregiver becomes a KLG, the caregiver is entitled to make all decisions relating to the care and well being of the child. KLG was enacted by the legislature to formalize the status of a relative who agrees to take on the responsibility for a child, and it can remain in place throughout the child’s minority.

In order to establish KLG is appropriate, the court must find, by clear and convincing evidence, that: (1) each parent’s incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable, or unwilling to perform the regular and expected functions of care and support; (2) thee parents’ inability to perform those functions is unlikely to change in the foreseeable future; (3) in cases in which [DYFS] is involved with the child … (a) [DYFS] exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible, nor likely; and (4) awarding kinship legal guardianship is in the child’s best interest. N.J.S.A. 3B:12A-6d.

To view this case click here