Respected Counselors, Litigators and Mediators

Partner, Frank Donahue, and Associate, Alex Miller, Prevailed in Reversing a Trial Court Decision which Terminated the Parental Rights of an Indigent Mother

Upon reviewing the trial record in this termination of parental rights matter, the Appellate Division requested that Frank Donahue of the firm of Donahue, Hagan, Klein & Weisberg undertake the pro bono representation of an indigent mother to address whether the mother was deprived of legal representation at the trial court proceeding, which ultimately resulted in the termination of her parental rights.

Associate, Alex Miller, then successfully argued before the Appellate Division that her client was entitled to a new trial and the constitutional right to court-appointed counsel at no cost.

On October 23, 2015, the Appellate Division decided In The Matter of the Adoption of a Child by J.E.V. and D.G.V. This is a case of first impression which means that this case involves a matter that has not been previously ruled on and there is no case law similar to the case in question.

This case involves the constitutional rights of a biological mother, L.A., and her two-year-old special needs daughter. L.A., while living in a shelter and relying on welfare assistance to support her family, requested the assistance of foster care from a state-licensed agency, The Children's Home Society (CHS). As a result of poverty, L.A. placed her two-year-old special needs daughter in short-term foster care through CHS and continued to visit with the child. Through CHS, L.A. signed a plan wherein she agreed to find a job and permanent housing with the intention of continuing to parent her daughter. L.A. also had a son, whom she parented throughout this matter.

While the child was in foster care, L.A. temporarily moved to Pennsylvania to live with her sister for several months. As a result of transportation issues while traveling from Pennsylvania, there were missed visits. L.A. also gave birth to a second son while her daughter was in foster care.

Approximately one year after L.A.'s daughter was placed in short-term foster-care, CHS advised L.A. by letter that they were making a plan for adoption. The same letter advised that L.A. "may or may not have the right to have counsel appointed to represent [her]." CHS then executed an "agency consent to early filing of adoption complaint" which stated that CHS believed that L.A. had "abandoned the child" and "was not fit to parent the child." Shortly thereafter, the foster family filed a Complaint for Adoption. L.A. objected to the adoption of her daughter at every opportunity.

When the matter reached the courtroom, the trial court did not inform L.A. that she was entitled to appointed counsel. On one occasion, prior to the trial, the court asked L.A. if she intended on obtaining a lawyer. When she responded that she was "working on it," the court informed her that she should act quickly, but again, did not advise her of her right to appointed counsel.

The trial lasted two days. L.A. represented herself while the foster family was represented by counsel and retained an expert psychologist. Immediately following the brief trial, the court issued an Order terminating L.A.'s parental rights.

The Appellate Division's opinion addressed the fact that this matter began by L.A. trying to ensure the well-being of her daughter. However, if this matter had been referred to the Division of Child Protection and Permanency (Division) based on child welfare concerns, L.A. would have been accorded more due process than she was provided for trying to ensure her child's well-being. Specifically, the Division's involvement would have promoted reunification and would have provided legal safeguards, such as the appointment of counsel for the biological parent and the child. Additionally, the Division frequently provides bus passes and other social services to make visitation easier.

Acknowledging the importance of the issue before the Court, the Appellate Division stated, "After the elimination of the death penalty, we can think of no legal consequence of greater magnitude than the termination of parental rights." After addressing the substantial magnitude of the rights at stake, the Appellate Division held that L.A. had a constitutional and statutory right to court-appointed counsel beginning before trial, when the private adoption agency first proceeded with an adoption over her objection.

The full opinion may be found at http://www.judiciary.state.nj.us/opinions/a3238-13.pdf.