On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This is a parental termination case emanating from Essex County. After a lengthy trial, the trial court terminated B.R.'s rights to her children, A.W. and A.R. in a decision filed March 11, 2005. The court found that the New Jersey Division of Youth & Family Services (DYFS) had, by clear and convincing evidence, established multiple grounds for the termination.
B.R. appealed. As part of her arguments before that court, she contended that she had received ineffective assistance of counsel at the trial. Although the Appellate Division concluded that the claim was "legally inapplicable to this civil proceeding," the judges went on to note that on its merits, the representation of B.R. by counsel was not ineffective.
B.R. petitioned for certification. Her sole issue was the claimed ineffective assistance of counsel. The Supreme Court granted the petition.
HELD: Parents who are the subject of a termination action have the right to effective counsel. A claim of ineffective assistance of counsel is to be evaluated in light of the standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Such a claim must be raised on the parent's direct appeal from an order of termination.
1. All of the parties to the action now agree that a parent who is the subject of a termination action has the right to effective counsel. B.R. and amicus curiae Legal Services of New Jersey, Inc., argue that the right has a constitutional basis. DYFS takes the position that only a statutory right to counsel needs to be recognized. The Court concludes that the right to counsel in a termination case has both constitutional and statutory bases. (pp. 3-7)
2. In respect of a remedy, the ordinary response to a deficient performance by counsel in a civil context is a malpractice action for money damages. That has no resonance in an action for the termination of parental rights. Accordingly, the Court looks to the criminal law for a model. The parties differ on the standard to be used. DYFS argues that the two-part test of Strickland v. Washington, adopted by the United States Supreme Court in 1984, should apply. B.R. contends that the Strickland test does not go far enough to protect the liberty interest of parents who stand to lose their children. She would have the Court adopt an Oregon Supreme Court case that held the standard to be a determination of whether the proceeding was "fundamentally fair." (pp. 7-9)
3. Although the Court sees little practical difference between the two standards, it adopts the Strickland test because it is clear and familiar to judges and lawyers. Further, it carries a developed body of case law. The Court notes that it is following a majority of other jurisdictions in taking this action. (pp. 9-10)
4. The knottiest issue presented is the practical application of a post-trial remedy, given the time constraints that apply in a parental termination case because of a child's need for permanency. There are two approaches that can be used to raise the issue: direct appeals and various post-judgment motions in the trial court. Supporting the choice of the direct appeal as the proper method is the fact that in most cases it will take the least amount of time, thus enabling the child's circumstances to be stabilized more quickly. (pp. 10-13)
5. The Court acknowledges that there are practical considerations to be weighed. Although the Appellate Division will be able to decide many cases based on the record it has before it, occasionally a genuine issue of fact will require a temporary remand to the trial court for an accelerated hearing. Accelerated briefing would follow to minimize the delay in the final disposition of the matter. The Court is referring the subject to its Family Practice Committee for recommendations and codification of the expedited review process it has outlined. (pp. 13-14)
6. The Court has carefully reviewed the record in the within matter and has concluded that the representation B.R. received was not ineffective. The evidence amply supported the trial court's conclusions. (p. 14)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE ZAZZALI and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE LONG's opinion.
The opinion of the court was delivered by: ...