231 A.3d 765
N.J. Super. Ct. App. Div.2020Background
- This is a contested stepparent adoption in which the biological mother (appellant) appealed the trial court's adoption order. The mother is entitled to counsel under In re Adoption of J.E.V.
- The Office of Parental Representation (OPD) withdrew from contested private adoptions; appellate counsel was assigned from the Madden list.
- Appellate counsel filed a brief relying on the wrong statute (N.J.S.A. 30:4C-15.1, a DCPP/TPR statute) and did not address the controlling contested private stepparent adoption statute (N.J.S.A. 9:3-46) or cite case law.
- Counsel failed to order the transcript of the judge's oral on-the-record decision (given Jan. 5, 2018), did not file a reply brief to respondent’s correct statutory argument, and submitted a deficient five‑page brief after multiple notices of defects.
- The Appellate Division sua sponte found appellate counsel’s representation objectively deficient (comparable to no representation), directed that the missing transcript be produced, adjourned the appeal, and ordered appointment of new appellate counsel with expedited scheduling for new briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effectiveness of appellate counsel | Appellant (via assigned counsel) argued DCPP failed reasonable‑efforts under N.J.S.A. 30:4C-15.1 | Respondent argued the case is a private contested stepparent adoption governed by best‑interests statute, not the DCPP statute | Counsel’s performance was objectively deficient (structural failure); new appellate counsel must be appointed and appeal adjourned |
| Proper legal basis/statute | Counsel urged relief under TPR/State‑initiated statute | Respondent: controlling statute is contested private adoption (N.J.S.A. 9:3-46); briefing must address best‑interests standard | Failure to identify or brief the controlling statute was a critical deficiency supporting need for new counsel |
| Record completeness (trial judge’s oral findings/transcript) | Appellant did not ensure transcript of Jan. 5 decision was ordered | Respondent ordered transcripts of trial days but not the judge’s oral findings; trial counsel was present at the ruling | Court directed expedited ordering of the missing Jan. 5 transcript, gave parties opportunity to review it, and permitted new briefing |
| Duty of assigned/pro bono counsel | Appellant entitled to competent appellate counsel; assigned counsel must represent competently | Assignment under Madden list permissible but counsel must be competent or notify court if unable to proceed or to retain substitute | Counsel must educate himself or obtain substitute; where representation is severely lacking, appellate court will intervene and remand for new counsel |
Key Cases Cited
- In re Adoption of J.E.V., 226 N.J. 90 (2016) (establishes indigent parents’ right to counsel in contested adoptions and need for experienced counsel)
- Madden v. Delran, 126 N.J. 591 (1992) (framework for court‑appointed counsel lists and duties when counsel lacks competence)
- N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301 (2007) (adopts Strickland standard for ineffective assistance in parental‑rights litigation)
- In re R.A.J. (N.J. Div. of Child Prot. & Permanency v. R.L.M.), 236 N.J. 123 (2019) (applies ineffective‑assistance standards to appellate counsel)
- Price v. Himeji, LLC, 214 N.J. 263 (2013) (discusses limited exercise of appellate court original jurisdiction under Rule 2:10-5)
- State v. Santos, 210 N.J. 129 (2012) (cautions against use of original jurisdiction where factfinding is involved)
- State v. Finneman, 458 N.J. Super. 383 (App. Div. 2019) (counsel must educate himself about relevant law when assigned)
- State v. Kates, 426 N.J. Super. 32 (App. Div. 2012) (deprivation of choice of counsel can be a structural error)