Due Process Requires Counsel for an Indigent Parent in a Private Adoption Case That Would Terminate Parental Rights

In re Adoption of a Child by J.E.V. and D.G.V., 226 N.J. 90 (2016).  In this unanimous opinion, authored by Chief Justice Rabner, the Supreme Court ruled that an indigent parent who faces the termination of her parental rights in a private adoption proceeding has a right to appointed counsel under the due process guarantee of Article I, section 1 of the New Jersey Constitution.  The Court affirmed the ruling of the Appellate Division below, which had reversed the decision of the trial court, after a two-day trial with the indigent parent appearing pro se, to terminate her parental rights.

As the Chief Justice stated, New Jersey has long gone beyond the Supreme Court of the United States in requiring appointed counsel for indigent litigants.  In state-initiated proceedings to terminate parental rights (as opposed to the private adoption here), the Law and Appellate Division found a right to appointed counsel as far back as the 1970’s, and the Supreme Court approved those rulings in a 2007 case.  The Court has also found a right to appointed counsel, either as a matter of due process or of “simple justice,” in other contexts where there is a “consequence of magnitude.”

Those cases, the fact that the right to raise one’s own child is “far more precious … than property rights,” led the Court to find a right to appointed counsel in a private adoption proceeding.  Though the State is not directly involved as a party, the termination of parental rights in a private adoption occurs in a “state-authorized action” under the Adoption Act, N.J.S.A. 9:3-37 to -56.  Chief Justice Rabner offered a compelling analysis that led inexorably to the conclusion that due process called for appointed counsel for indigent parents in private adoption proceedings.

Though this was “a case of first impression in New Jersey,” Chief Justice Rabner observed that other states have likewise ruled that an indigent parent is entitled to counsel in a private adoption matter that will terminate parental rights.  Those jurisdictions did so either by statute or as a matter of constitutional due process.

The proposed adoptive parents argued that even if there were a right to appointed counsel, the indigent parent here waived that right.  Chief Justice Rabner did not agree.  He cited the familiar rule that waiver is the intentional relinquishment of a known right, and noted that the adoptive parents “argue that [the indigent parent] waived the right to counsel at the same time they claim no such right exists.”  No one explained that there was any right to counsel, so there was no waiver of any known right to counsel.

Finally, some amici curiae argued that the Court should require, as a matter of constitutional law, that a law guardian be appointed to represent the child in a private adoption case.  Chief Justice Rabner did not reach the issue.  The Adoption Act does not require that, and the issue was not raised directly in the appeal.  He suggested that the Legislature might “consider authorizing appointment of counsel for children in private adoption cases.”  He also reminded trial judges that they have the power to appoint a guardian ad litem for children under the Adoption Act.

Accordingly, the case was remanded.  But the Court directed that the remand be directed to a different trial judge, since the original judge had “made credibility findings in the first trial.”

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