Right to counsel

Litigation, Termination of Parental Rights (State) - Birth Parents

In In re Guardianship of C.M., 386 A.2d 913 (N.J. J. & D.R.Ct. 1978), the court considered the right to counsel in the context of a voluntary surrender of parental rights.  In that case, a parent who was blind and suffered from alcohol problems was represented by legal aid in a  dependency petition.  The state then filed to terminate parental rights, and a representative of the state met with the parent (without her prior legal aid attorney present) and obtained a surrender of custody and consent to adoption.  Legal aid then objected on her behalf to the surrender on the grounds that she was not represented.  Although “The court is satisfied from the evidence that the documents were fully read and explained to H.M., and that she understood them and signed them voluntarily and willingly”, and that “The testimony of H.M. does not sustain a showing of any fraud, duress or misrepresentation by DYFS”, it still found an “overriding equitable consideration” to negate the consent, and cited to Crist v. N. J. Div. Youth and Family Serv., 320 A.2d 203 (N.J. App. Div. 1974) (right to counsel in termination of parental rights cases) for the proposition that the parent was constitutionally entitled to counsel.  The court treated the signing of the surrender as a “critical stage” of the termination petition and held she was entitled to counsel (appointed, if necessary).  The court also declined to find waiver of the right to counsel in the light of the parent’s physical and mental health issues.  

Appointment of Counsel: categorical Qualified: yes