King, J.c.c., Temporarily Assigned.
This is an action instituted to test whether indigent parents who are threatened with removal of children from the home by a public agency are constitutionally entitled to counsel free of charge under the Federal Constitution. The Attorney General opposes plaintiffs, urging that the right to free counsel in this context is not a fundamentally protected right under the federal Due Process Clause or the Equal Protection Clause, and contends that the matter is one of exclusively legislative and/or executive concern. Although the question is one of first impression in New Jersey, the issue has been the subject of substantial judicial consideration in other jurisdictions.
This suit was precipitated by actions commenced by the Division of Youth and Family Services (DYFS) against the various plaintiffs under N.J.S.A. 30:4C-1 et seq. Concerned with "Dependent and Neglected Children," this chapter expresses the public policy of the State to be: "* * * that the preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare. * * *" N.J.S.A. 30:4C-1. In this instance the proceedings for custody of the children of the various plaintiffs were commenced by DYFS under N.J.S.A. 30:4C-12, which provides for a proceeding in the Juvenile and Domestic Relations Court before placing a child in the Division's custody for a period of up to six months. Such an order may be extended in a summary hearing upon application by the Division and notice to the parents. This chapter further provides that the Division may proceed in an appropriate situation to obtain an order terminating parental
rights and committing the child to the guardianship and control of the Division. N.J.S.A. 30:4C-20. There is no provision in the chapter providing for court-appointed counsel for indigent parents.
This action is brought by four plaintiffs who have been the subject of proceedings under the statute. On December 18, 1972 plaintiff Crist's child was removed from her home under an order of the Juvenile and Domestic Relations Court. In April and May of 1973 ten children were removed from plaintiff Mercado's home as a result of agency action. Plaintiff Crist's child was returned on July 20, 1973. Two of plaintiff Mercado's children still remain in foster placement. The Tazewells' seven children were removed pursuant to court order on February 15, 1974. On February 16, 1974 five children were returned but two children remain in foster care, and the Tazewells have requested a court date for formal hearing on the custody issue. All plaintiffs are represented in this proceeding by Camden Regional Legal Services, Inc., which office asserts that it is without the funds or facilities to represent all persons similarly situated. Camden Regional Legal Services, Inc. asserts that its office should not be required to represent indigent persons entitled to court-appointed counsel as a matter of right. All parties have moved for summary judgment on the pleadings and affidavits. Both plaintiff Crist and plaintiff Mercado have heretofore been represented by Camden Regional Legal Services during the custody proceedings already concluded. Plaintiffs Tazewell remain unrepresented in the custody proceeding and are awaiting a hearing. Plaintiffs Tazewell clearly have standing to raise the question presented.
Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a "personal stake in the outcome to the controversy," Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663, 678, as to ensure that "the dispute sought to be adjudicated will be presented in an adversary context and in
a form historically viewed as capable of judicial resolution." [ Sierra Club v. Morton, 405 U.S. 727, 732, 92 S. Ct. 1361, 1364, 31 L. Ed. 2d 636 (1972)]
Plaintiff Crist would seem to have no standing because her child was returned. As to her this action is dismissed. Since plaintiff Mercado may not in fact be able to secure the continued representation of Camden Regional Legal Services, Inc., and two of her children remain in the temporary custody of the State, she would appear to have the requisite standing to maintain this action.
The claim here presented has been the subject of a number of decisions in other states during the past seven or eight years, undoubtedly the product of the "poverty law explosion" and the United States Supreme Court's recognition of an expanded class of fundamental rights not specifically enumerated in the Bill of Rights, e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). The first decision touching on the problem was Chambers v. District Court of Dubuque Cty., 261 Iowa 31, 152 N.W. 2d 818 (Sup. Ct. 1967) see also Orcutt v. State, 173 N.W. 2d 66 (Iowa Sup. Ct. 1969). In a proceeding to terminate parental rights under a 1965 Iowa statute the parent had been provided with free counsel at the trial level as required by the statute. While the statute was silent as to the right to free counsel and a free transcript on appeal, the court found that both such rights inured to the parent, basing its decision on state grounds of statutory construction. In Chambers the Iowa Supreme Court felt that In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), strengthened its grounds for decision, but specifically avoided a finding of federal constitutional compulsion.
Next follows the decision of the Supreme Court of Minnesota, In re Karren, 280 Minn. 377, 159 N.W. 2d 402 (1968). The parent had failed to retain custody of the child and petitioned the Supreme Court of the state for an order compelling the court below to provide a transcript of the trial proceedings for appeal purposes at public expense. The parent
had been represented by the Legal Aid Society, which also provided counsel for her appeal, so there was no right to counsel issue. Plaintiff was a welfare client and the welfare department actually acquiesced in her application to compel the department to expend monies on the transcript. The Minnesota Supreme Court relied on Chambers v. District Court of Dubuque Cty., supra, and stated: "We are of the opinion that the circumstances here compel a finding as a matter of law that a transcript is a necessity which must be paid for out of appropriate welfare funds." (at 403).
Again, the basis for decision was controlled by the state court's interpretation of the local statutory scheme where no specific section of the statute provided for a free transcript, and the grounds for decision were not of a federal constitutional nature. The Minnesota court, mirroring the Iowa court in Chambers, did mention its sensitivity to the Gault decision, stating:
Although the [ Gault ] court did not find it necessary to decide whether an indigent delinquent must be furnished a free transcript, the opinion strongly underscores the necessity for according litigants in juvenile court all of the procedural due process customarily granted to defendants in criminal court. [ Id. at 404]
One month after In re Karren, supra, the Oregon Supreme Court issued the first opinion clearly placing the indigent parent's right to free counsel on a federal constitutional basis. State v. Jamison, 251 Or. 114, 444 P. 2d 15 (1968). In holding that where the parent in a termination proceeding is indigent, counsel must be supplied at public expense as a matter of due process, the court expressed the reasons for being so motivated:
The permanent termination of parental rights is one of the most drastic actions the state can take against its inhabitants. It would be unconscionable for the state forever to terminate the parental rights of the poor without allowing such parents to be assisted by counsel. Counsel in juvenile court must be made available for parents and children alike when the relationship of parent and child is threatened by the state. [at 17]
Once more Gault was a springboard for the court's finding. The Oregon court indicated that "the indigent are frequently the least able to cope with government in its official functions." Id. This observation concerning the tremendous imbalance between the parties in such a grave matter most certainly accords with this court's own personal experience in dealing with these matters. The Oregon court also was unimpressed by the civil-criminal dichotomy as controlling the denial of counsel below remarking, "the consequences of the denial of counsel are as serious as they are in most criminal prosecutions." Id.
The trend was temporarily reversed by a decision of an intermediate court of appeal in California in 1970. Robinson v. Kaufman, 8 Cal. App. 3d 783, 87 Cal. Rptr. 678 (D. Ct. App. 1970), cert. den., 402 U.S. 964, 91 S. Ct. 1624, 29 L. Ed. 2d 128 (1971), found no statutory or constitutional right to appointed counsel for either parent or child in a dependency or termination of rights proceeding. The court was unimpressed by Gault, choosing to limit its impact to situations where the traditional criminal sanction of incarceration against the child could be imposed. Essentially the case was considered by the California court as no different than a routine child custody battle between parents.
The United States Supreme Court denied a petition for certiorari in that case over dissents by Mr. Justice Black and Mr. Justice Douglas. Kaufman v. Carter, 402 U.S. 964, 91 S. Ct. 1624, 29 L. Ed. 2d 128 (1971). It is clear from the dissenting opinions that these two members of the court felt that the right of counsel in this type of proceeding was of a compelling and fundamental character which should be recognized under the Due Process and Equal Protection Clauses. Justice Douglas remarked: "Courts ought not be a private preserve for the affluent." 402 U.S. 964, 91 S. Ct. 1624, 29 L. Ed. 2d 127. Of course, denial of certiorari by the Supreme ...