New Jersey Court Finds Right to Counsel for Birth Parents in Disputed Adoptions

The New Jersey Supreme Court ruled that a parent whose child is subject to private adoption has the right to counsel. Birth parents must be told by a judge that they have the right to court-appointed counsel if they cannot afford to hire a lawyer.

The unanimous ruling, released in the written statement, In the Matter of the Adoption of a Child by J.E.V. and D.G.V, on July 26 sets a new precedent for disputed adoptions in the state. In cases in which the state Department of Children and Family Services files to terminate a birth parent’s rights, judges are legally obligated to tell parents who cannot afford legal representation that they have a right to appointed counsel. Now, the same rule has been expanded to indigent parents sued by foster families or private adoption agencies seeking to terminate parental rights.

“Under the law, indigent parents have a right to counsel when the state initiates a termination case,” wrote Chief Justice Stuart Rabner for the court. “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.”

The decision guarantees that birth parents involved with private adoptions of their children have the same rights as those whose children’s’ adoptions are being pursued by the state. Many other states, including Massachusetts and Pennsylvania, have similar laws or court decisions.

The attorneys involved in the case are unsure how many adoption cases this decision would impact each year, but the decision would apply to all cases in which a child was placed with an adoption agency or in foster care without the birth parent surrendering parental rights.

The ruling is the result of a five-year adoption battle between a birth mother, identified by the initials L.A., and foster parents, identified by the initials J.E.V. and D.G.V. The child, who has special needs, was placed into foster care in April 2012 with J.E.V. and D.G.V.

The foster couple sought to adopt the young girl, and they filed a lawsuit against L.A. to terminate her parental rights. The first step in the adoption process is the termination of parental rights. The private adoption agency managing the case, the Children’s Home Society, filed court papers saying it believed L.A. had “abandoned the child” and “was not fit to parent the child.”

In the subsequent court proceedings L.A. was not explicitly told that an attorney would be appointed for her, so she represented herself, the written court decision says.

Foster parents J.E.V. and D.G.V. argued that poor parents did not have a right to an appointed attorney in private adoption cases, and that even if that right existed, L.A. waived it multiple times. The court terminated L.A.’s parental rights in the 2014 proceedings.

L.A. appealed the decision, and was given a state-appointed attorney in appellate court. That appellate court reversed the trial court’s decision, on the grounds that L.A. was entitled to an attorney during the initial proceedings, but was never told that. The recent Supreme Court decision upholds the appellate court’s ruling.

In the ruling, Rabner said the Public Defender’s Office of Parental Representation, the New Jersey office supplying legal defense for parents, is uniquely equipped to represent parents in cases where private adoption is sought.

Rabner, however, noted that there appears to be no current funding to support this private legal representation. “We trust that the Legislature will act and address this issue,” Rabner said, according to NJ Advance Media. Until then the judiciary will have to ask lawyers to represent indigent parents on a volunteer basis, the court said.

For L.A. and the foster parents involved in the case, the legal battle is set to continue. The justices ruled that L.A. should get new proceedings in trial court as she aims to reunite with her daughter. In the upcoming proceeding, L.A. must have an attorney provided at no cost to ensure that her right to due process isn’t violated, the court said.

The adoption case will be re-tried in Essex County, and a trial court judge must decide what the child’s “best interest” is – remaining with her foster family or returning to her birth mother.

Throughout the lengthy trial proceedings, the young girl, now six years old, has continued to live with her foster family, according to the attorneys who represented both sides in the hearing.

“It’s not about the (foster parents),” said Sean Marotta, one of L.A.’s attorneys, according to NJ Advance Media. “They are lovely people who love this girl very much … this is a broader legal issue that they unfortunately got caught up in.”