Right to counsel

In a pre-Lassiter case, the New Jersey Appellate Division held in Crist v. New Jersey Division of Youth & Family Services, 343 A.2d 815, 816 (N.J. Super. Ct. App. Div. 1975), that indigent parents who are subjected to a proceeding which may result in either temporary loss of custody or permanent termination of parental rights were entitled to counsel without cost under the due process clause of the state constitution. The Appellate Division incorporated the reasoning of the trial court, which was based on federal due process considerations involving the strength of the parental interest, statistics demonstrating that the presence of counsel made a determinative difference, and the rulings of other state courts around the country that found a right to counsel in such circumstances.

Although Crist’s reliance on federal due process considerations may have been upended by Lassiter, the New Jersey Supreme Court has cited Crist for the proposition that parents in proceedings that result in either temporary or permanent loss of parental rights have a right to counsel under the New Jersey Constitution. See e.g. N.J. Div. of Youth & Family  Servs. v. B.R., 929 A.2d 1034,1036 (N.J. 2007) (stating “[W]e recently recognized that the due process guarantee of Article I, paragraph 1 of the New Jersey Constitution serves as a bulwark against the loss of parental rights without counsel being afforded,” and citing to Crist).

In Crist, the court stated that because there are no court rules providing for the payment of compensation to assigned counsel to indigent parents, the counsel must be assigned to serve without compensation.