New Jersey Division of Child Protection and Permanency
149 A.3d 816
| N.J. Super. Ct. App. Div. | 2016Background
- Twin children were removed after both parents tested positive for opiates and admissions of substance misuse and a domestic violence incident; Division placed children with maternal aunt and filed Title Nine/Title Thirty petitions.
- Two OPR (Office of Parental Representation) staff attorneys from the same regional office (OPR-Central) separately represented mother (G.S.) and father (K.S.) throughout proceedings; no written conflict waivers appear in the record.
- At a permanency hearing, parents advocated directly opposed permanency plans (mother favored kinship legal guardianship with maternal aunt; father sought reunification with him), prompting the trial judge to sua sponte question a conflict.
- Trial judge ordered briefing and later found an actual conflict presumed prejudicial, directed a hearing to explore waivers/screening, and announced a prophylactic protocol (importing aspects of criminal dual-representation rules) for future cases where same-office staff represent co-parents.
- Appellate Division affirmed the court's authority to hold a hearing and probe conflicts/waivers, but held: same-office staff representation is not per se disallowed if adequate screening exists; the judge erred by wholesale adoption of criminal-rule procedures and the Bell hierarchy as mandatory in child-welfare cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether staff attorneys from same OPR office may separately represent co-parents when their positions diverge | Division/Law Guardian: court may and should inquire when parents' positions materially diverge to protect clients and children | OPR: no per se conflict; handling should be internal to OPR; substantial deference to OPR conflict review | Held: No categorical bar to same-office representation if screening; court may inquire case-by-case when divergence arises |
| Standard for disqualification or need for waiver when conflicting positions develop | Law Guardian: earlier judicial inquiry justified to avoid taint and delay; potential conflicts can warrant presumption of prejudice | OPR: threshold is "significant likelihood of prejudice" per Bell; court should defer unless that threshold met | Held: Bell’s standard may inform analysis, but court has supervisory role and may order a hearing before that threshold when specific divergent positions (e.g., competing permanency plans) arise |
| Whether client waivers can cure concurrent conflicts and how they must be obtained | OPR: waivers obtained (or can be) and should be respected; internal OPR protocols suffice | Parents (through OPR) argued waivers and internal safeguards render disqualification unnecessary | Held: Conflicts may be waivable under RPC 1.7(b) with informed consent; waivers must be knowing, voluntary, and documented; courts may evaluate sufficiency |
| Proper role and limits of trial court in supervising OPR dual representation practices | Law Guardian: proactive court oversight prevents later ineffective-assistance claims and delay | OPR/Appellants: excessive judicial micromanagement imports criminal procedures inappropriate for child-welfare practice | Held: Court has authority to raise and investigate conflicts; trial court erred by mechanically importing Bell/Rule 3:8-2 procedure as mandatory for Title Nine/Thirty cases and must defer to rule-making or committee for statewide protocols |
Key Cases Cited
- State v. Bell, 90 N.J. 163 (1982) (public defender dual-representation framework; deference to PD but caution about conflicts)
- Bellucci v. State, 81 N.J. 531 (1980) (presumption of prejudice where same-law-firm represents multiple criminal co-defendants)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- In re Petition for Review of Opinion 552 of Advisory Comm. on Prof'l Ethics, 102 N.J. 194 (1986) (government attorney may represent co-defendant officers absent actual or realistic conflict)
- State v. Cottle, 194 N.J. 449 (2008) (conflicts may undermine effective assistance; waiver and court discretion addressed)
- N.J. Div. of Youth & Family Servs. v. V.K., 236 N.J. Super. 243 (App. Div. 1989) (no conflict where co-parents presented consistent defenses and sought same outcome)