Almost 50 years ago, our 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.

Custody of “Carolyn,” the daughter of an unmarried couple, was awarded to the father because the family judge accepted the finding of a later discredited expert that the mother “Lola's” “Munchausen by proxy syndrome” was the source of Carolyn's problems. Lola appealed pro se. Court-appointed experts rejected the diagnosis and assessed “adjustment disorder with symptoms of anxiety and depression.” Lola's name was included in the Child Abuse Registry pursuant to N.J.S.A. 9:6-8.11. Lola was unrepresented and had no experts of her own throughout as these impenetrable diagnoses were traded.

Lola appealed. Her motion for appointment of counsel denied, she moved before the Supreme Court for leave to appeal the right-to-counsel issue. The court remanded, authorized and appointed Michael K. Furey as counsel to prosecute the appeal before the Appellate Division. That panel, in an opinion by Judge Clarkson Fisher, has ruled that counsel must be afforded to indigents in cases of “parents or guardians who have been substantiated for abuse or neglect”.

As the panel noted, a finding of child abuse may support the termination of parental rights. The ruling is premised on the principle that placement on the Child Abuse Registry is a “consequence of magnitude,” a position urged not only by the petitioner, but supported by the Public Defender's Office, and the ACLU as amicus curiae. The State Bar Association, invited to appear by the Appellate Division, disagreed on the “consequence of magnitude” but pointed to the flaws in the remedy the court has adopted: resort to the Madden v. Delray list. Random appointment of counsel not only burdens uncompensated counsel but provides little assurance of skilled representation.

As the bar association observed, this problem has been confronted before: in Pasqua v. Council (2006), the court afforded the right to counsel in cases of child support obligors facing incarceration. The court held it would not “impress lawyers into service without promise of payment.” The court held that incarceration would not be available unless the Legislature provided a source of funding. Thirteen years have passed, and the Legislature has not acted. Similarly in J.E.V., the Supreme Court in 2006 found a right to counsel in a termination of parental rights case initiated by a private agency. It declined to order the public defender to provide representation, looking to the Legislature to act “responsibly.” It has not.

Similarly last year in Kavadas v. Martinez, Mercer County Assignment Judge Mary Jacobson found a right to notice, hearing, and counsel in termination of driving privileges of delinquent child support obligors. Left unresolved is who will provide such representation for those unable to hire counsel.

We are blessed with an agency—the Office of the Public Defender—that has the experience necessary to provide competent assistance in all of these cases. Awareness has grown of the financial burdens placed on low- and moderate-income people by our civil and criminal justice systems. We have a legislature and governor who both proclaim their commitment to expanding the protections afforded to citizens. It is long past time for the state to take action to afford due process, and to make progress to make access to justice a reality, not just a slogan.