IN THE MATTER OF THE ADOPTION OF A CHILD BY C.J.

 

(NOTE: The status of this decision is Published.)

                         RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2593-17T2

IN THE MATTER OF THE                          APPROVED FOR PUBLICATION
ADOPTION OF A CHILD BY
                                                      April 28, 2020
C.J.
_________________________                         APPELLATE DIVISION


            Submitted March 18, 2020 – Decided April 28, 2020

            Before Judges Koblitz, Whipple and Mawla.

            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Gloucester County,
            Docket No. FA-08-0012-17.

            Reinherz & Reinherz, attorneys for appellant G.D.
            (David Anthony Huber, on the brief).

            Lynn Marie Castillo, attorney for respondent C.J.

      The opinion of the court was delivered by

KOBLITZ, P.J.A.D.

      We write to emphasize that an attorney has an obligation to inform the

court if he or she is not able to handle an assigned matter professionally due to

a lack of expertise and inability to obtain sufficient knowledge to represent the

client effectively, and is also unable to retain a substitute attorney

knowledgeable in the area. We sua sponte determine that appellate counsel

was ineffective and new appellate counsel must be assigned in this contested
stepparent adoption matter.      We therefore adjourn this appeal to appoint

substitute counsel.     Additionally, an adjournment of this time-sensitive

contested adoption is necessary because a transcript of the trial court's opinion

was not provided, nor was the seeming lack of a decision mentioned by either

counsel in briefing.

        The biological mother is appealing. She is entitled to counsel under the

Supreme Court case of In re Adoption of J.E.V.,  226 N.J. 90, 94 (2016). She

was represented at trial by the Office of Parental Representation in the Office

of the Public Defender (OPD). The OPD determined that due to a lack of

specific statutory authority and insufficient resources, it would no longer

represent parents in contested adoptions.      Our Clerk's Office assigned an

appellate attorney from the Madden1 list. The matter was also remanded to the

trial court to determine who would provide the transcripts. The trial judge

directed respondent to provide the transcript. Respondent ordered a transcript

of the three trial days, but not the judge's opinion, although respondent's

counsel was the trial attorney and was present for the decision on January 5,

2018.



1
    Madden v. Delran,  126 N.J. 591, 605-06 (1992).


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      After being informed by mail on three separate occasions of numerous

defects, counsel was permitted to submit his brief as is, more than a year after

the brief was originally due.     In his appellate brief, counsel argued that

respondent had not demonstrated that the Division of Child Protection and

Permanency (DCPP) made reasonable efforts to reunite the biological mother

and her child.    See  N.J.S.A. 30:4C-15.1(a)(3).       He did not mention the

controlling stepparent adoption statute.  N.J.S.A. 9:3-46. When respondent's

brief pointed out the correct controlling statute, counsel did not submit a reply

brief. And finally, appellate counsel did not raise the issue that the record

contained no judicial findings.

      The final day's trial transcript reveals that the judge informed the parties

he would "look to have [his] decision by . . . the 5th of January." Counsels'

"option would be to be present or to attend by phone or to just wait for the

signed order from the [c]ourt." The order of adoption was entered on January

5, 2018, the same date the judge placed his conclusions of fact and law on the

record.

      Neither party sought appellate oral argument. When we reviewed the

briefs and transcripts we noticed that the crucial transcript of the January 5




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decision had not been ordered, and directed that it be ordered on an expedited

basis.

         A parent who may lose his or her parental rights in a contested adoption

has the right to counsel. J.E.V.,  226 N.J. at 94. In J.E.V. our Supreme Court

said:

                     The very reasons that call for a lawyer to be
               appointed also favor the appointment of attorneys with
               the experience to handle these matters. Contested
               adoption proceedings raise important substantive
               issues and can lead to complicated and involved
               hearings. The Office of Parental Representation in the
               [OPD] has developed expertise in this area from its
               fine work in state-initiated termination of parental
               rights cases. Without a funding source, we cannot
               direct the office to take on an additional assignment
               and handle contested cases under the Adoption Act.
               See [Crist v. N.J. Div. of Youth & Family Servs., 135
               N.J. Super. 573, 575-76 (App. Div. 1975)].

                     In the past, as we noted in Pasqua, "the
               Legislature has acted responsibly" and provided
               counsel for the poor when the Constitution so
               requires. [Pasqua v. Council,  186 N.J. 127, 153
               (2006).] For example, after Crist, the Legislature
               enacted  N.J.S.A. 30:4C-15.4(a), which directs judges
               to appoint the [OPD] to represent indigent parents
               who ask for counsel in termination of parental rights
               cases under Title 30. Once again, we trust that the
               Legislature will act and address this issue.

                     In the interim, we have no choice but to turn to
               private counsel for assistance. We invite volunteer
               organizations to offer their services, as pro bono

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            attorneys have done in other areas. See, e.g., In re Op.
            No. 17-2012 of Advisory Comm. on Prof'l Ethics, 220
            N.J. 468, 469 (2014). Until the Legislature acts, we
            may need to assign counsel through the Madden list,
            which is not an ideal solution.

            [J.E.V.,  226 N.J. at 113 (citations omitted).]

      The right to counsel includes the right to appellate counsel. N.J. Dep't

of Children & Families v. L.O.,  460 N.J. Super. 1, 19 (App. Div. 2019). All

New Jersey attorneys are required to provide pro bono representation. "New

Jersey's Rules of Professional Conduct specifically address pro bono service."

In re Op. No. 17-2012,  220 N.J. at 485. RPC 6.1 provides that "[e]very lawyer

has a professional responsibility to render public interest legal service." The

fair administration of justice as well as indigent litigants who are entitled to

counsel rely on the generous and diligent efforts of pro bono counsel, both

volunteer and assigned. Lawyers are ethically bound to provide representation

that is reasonably diligent and not grossly negligent.  2 RPC 1.1 (a); RPC 1.3.

This is true whether counsel is financially compensated or is providing pro

bono representation. "The Advisory Committee on Professional Ethics has

described RPC 1.1 as the 'cornerstone for the rest of the rules .' Advisory


2
  By determining counsel was ineffective we render no opinion as to whether
the representation provided constitutes gross negligence. See RPC 1.1(a).


                                                                       A-2593-17T2
                                        5 Comm. Op. 671 (Apr. 5, 1993). In that opinion, the Committee concluded that

the duty of competence was 'fully applicable' to a pro bono representation."

Kevin H. Michels, New Jersey Attorney Ethics, ch. 14.2-1(b) (2020).

      We understand that most lawyers are not appellate experts. Few lawyers

have experience in contested adoptions. We have adjudicated fewer than a

dozen contested adoption appeals statewide since J.E.V. was decided in 2016.

Nonetheless, assigned counsel was obligated to educate himself as to the law.

See State v. Finneman,  458 N.J. Super. 383, 388 (App. Div. 2019).            The

"Resources" section of the Judiciary website's "Attorneys" page has a "Pro

Bono" link to educational material for pro bono assignments defending

domestic violence contempt cases, appealing municipal court convictions,

representing defendants at parole revocation hearings and representing birth

parents in private contested adoption cases.3

      In 1992 when establishing the Madden list for municipal court

assignments, our Supreme Court said:

            We leave it to the municipal court judges to direct
            counsel, who will usually inform them of their
            concerns, if any, about their competency, to provide
            substitute counsel when appropriate, a system

3
  The "Pro Bono" link also leads to the statement that the trial courts do not
appoint trial counsel from the Madden list in private contested adoption cases.


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            explicitly recognized under the old Rules. Ultimately,
            however, if the municipal court judge concludes that
            defendant will not receive effective assistance of
            counsel, the judge's obligation will be to select other
            counsel. No such selection shall occur, however, until
            the court concludes that that counsel is unable to
            obtain a substitute. In almost all cases that will
            depend upon his or her financial ability to do so.

            [Madden,  126 N.J. at 608.]

      It was appellate counsel's obligation to review the New Jersey Courts

website material concerning contested adoptions and Part II of the Court Rules

covering appeals.    Alternatively, counsel could have retained substitute

counsel with expertise in this area. See ibid. If counsel is unable to obtain

sufficient knowledge or retain counsel with expertise, counsel has the ethical

obligation to inform the appointing court of his or her inability to handle the

case assigned. See ibid.

      Competent counsel is particularly crucial when a parent's "invaluable

right to raise a child" is at stake due to the extreme importance of the

litigation. J.E.V.,  226 N.J. at 94. We have an obligation to ensure that the

welfare of the child is protected by way of a fair process with competent

counsel. As our Supreme Court stated in J.E.V., a self-represented parent is

not able to litigate as well as a lawyer.   Id. at 109-10. But that assumes

counsel is not ineffective. Because the parent is extremely unlikely to be in a

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position to gage the effectiveness of appellate counsel, we must intercede

when appellate counsel's efforts are clearly substandard.

      Our Supreme Court has "explained that [Rule] 2:10-5 'allow[s an]

appellate court to exercise original jurisdiction to eliminate unnecessary

further litigation, but discourage[s] its use if factfinding is involved.'" Price v.

Himeji, LLC,  214 N.J. 263, 294 (2013) (alterations in original) (quoting State

v. Santos,  210 N.J. 129, 142 (2012)). Exercising original jurisdiction to avoid

further delay, we sua sponte determine that appellant's counsel is ineffective.

      Generally, a litigant in a termination of parental rights case must

demonstrate that "(1) counsel's performance must be objectively deficient—

i.e., it must fall outside the broad range of professionally acceptable

performance; and (2) counsel's deficient performance must prejudice the

defense." N.J. Div. of Youth & Family Servs. v. B.R.,  192 N.J. 301, 307

(2007) (adopting standard for ineffective representation set forth in Strickland

v. Washington,  466 U.S. 668, 694 (1984), and adopted in State v. Fritz,  105 N.J. 42, 58 (1987)). The same standard applies to appellate counsel. See N.J.

Div. of Child Prot. & Permanency v. R.L.M. (In re R.A.J.),  236 N.J. 123, 153

n.3. If, as here, appellate counsel's representation is severely lacking, it is

comparable to a total lack of representation: a structural failure in the process


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where the litigant need not demonstrate prejudice. Similarly, "[d]eprivation of

counsel of choice is considered a 'structural error' not subject to harmless error

analysis   because   the   consequences     of   deprivation    are   'necessarily

unquantifiable and indeterminate.'"    State v. Kates,  426 N.J. Super. 32, 44

(App. Div. 2012) (quoting United States v. Gonzalez-Lopez,  548 U.S. 140, 150

(2006)).

      In a five-page brief, relying on the inapplicable statute  N.J.S.A. 30:4C-

15.1, appellate counsel argued that DCPP had not provided "reasonable

efforts," to reunify his client and her daughter. He cited to no cases in his

brief. He also did not exercise his client's right to reply to respondent's brief,

which pointed out that the matter involved the best interests of the child under

the contested private adoption statute rather than the incorrect statute relied on

by appellate counsel, which controls the termination of parental rights when

instigated by the State. Appellate counsel also did not question the lack of

judicial findings in the transcripts supplied. This level of representation is

tantamount to a total lack of appellate counsel, a structural defect. We adjourn

this matter to appoint new appellate counsel, and also to ensure that the parties

have an opportunity to review the transcript of the trial court's findings and

submit new briefs.


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Adjourned. The clerk will set a new expedited scheduling order.




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