Appeal Adjourned

A decision issued today by the New Jersey Appellate Division found ineffective appellate representation

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 court underscored the right to counsel in adoption matters

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.

The attorney had been appointed and mishandled the appeal

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 court

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. 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 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.

The brief

In a five-page brief, relying on the inapplicable statute N.J.S.A. 30:4C15.1, 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