NJ Appellate Division Affirms Dual Representation by Public Defender’s Office
In a recent published decision, the Appellate Division of the New Jersey Superior Court held that separate staff attorneys from the Public Defender’s Office of Parental Representation (“OPR”) may represent individual parents in Title 9 and Title 30 litigation. See New Jersey Div. of Child Protection & Permanency v. G.S. and K.S., A-5222 (App. Div. Nov. 22, 2016)
The court held the following:
“the law does not categorically prohibit or even presumptively disfavor staff attorneys working out of the same OPR regional office from separately defending individual parents in a Title 9 or Title 30 case. In addition, when a significant divergence arises between the parents during the course of such litigation, the actual or potential conflict often may be mutually waivable by those clients, with appropriate consultation with counsel and substantiation of that waiver.”
One underlying idea of the court’s decision was that “parents in New Jersey charged with civil abuse and neglect under Title 9 or who are subject to Title 30 termination proceedings have a constitutional right to counsel under the due process guarantees of Article I, paragraph 1 of the State Constitution, and a statutory right under N.J.S.A. 9:6-8.43(a), 9:6-8.30(a), and 30:4C-15.4(a). N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305 (2007); N.J. Div. of Youth & Family Servs. v. E.B., 137 N.J. 180, 186 (1994). The statutory and constitutional rights of the parent must be “scrupulously protected.” N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009).” In other words, the court emphasized the importance of parents being represented by an attorney in cases involving child abuse and child neglect under Title 9 and termination of parental rights under Title 30.
As noted in this case, if the Division of Child Protection and Permanency (“DCP&P”), formerly known as the Division of Youth and Family Services (“DYFS”), takes your children, you are entitled to have an attorney represent you during the court proceedings. In fact, during DCP&P court cases, a Deputy Attorney General will represent the Division and a Law Guardian will represent the children and if the parents cannot afford an attorney, then the court will appoint a public defender to represent the parents. The bottom line is that the stakes are extremely high in child abuse and neglect litigation and termination of parental rights litigation because once DCP&P removes children from their parents, they cannot be returned without an appropriate court order.