Civil Gideon - Right to Counsel in Child Abuse Allegation by Division of Children and Families
Almost fifty years ago the New Jersey Supreme Court declared in Rodriguez v. Rosenblatt that an indigent defendant facing any “consequence of magnitude” is entitled to appointed counsel. From that petty criminal matter the right has been slowly extended in civil matters such as termination of parental rights, jailing and “automatic” suspension of driving privileges for failure to pay child support, suspension of driving privileges, and involuntary civil commitment. In Division of Children and Families v. L.O. the Appellate Division has extended that right to State Division of Children and Families administrative and judicial actions to substantiate child abuse, and place the defendant on the Child Abuse Registry.
The court considered whether indigent parents and guardians – once notified that an investigation has substantiated them for child abuse or neglect – are entitled to the appointment of counsel when exercising their right to an administrative hearing to challenge that determination.
Because the potential consequences of such administrative proceedings – including permanent listing in the Child Abuse Registry – are of significant magnitude, counsel must be made available for indigent parents and guardians both at the administrative level and in any appeal of right to this court, just as that right exists in Title Nine actions commenced in Superior Court.
The court also determined that until such time as the Legislature addresses this constitutional right counsel may be appointed to serve - without compensation - in such matters. Six months ago a Superior Court judges ordered the state to provide counsel to delinquent child support obligors in drivers license suspension cases. There too funding has not been appropriated. In this era of No new taxes pledges the Legislature has failed to respond in other instances where the right to counsel has been extended. The recently elected Democratic Governor and the Democratic majority legislature have often found themselves at odds. The statewide Office of the Public Defender stands ready - if funded - to provide competent representation. But I have my doubts about whether the Governor and Legislature will address this problem. - gwc