New Jersey-2016-S3229-Introduced

An Act concerning adoption and amending and supplementing P.L.1977, c.367 (C.9:3-37 et seq.).

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 9 of P.L.1977, c.367 (C.9:3-45) is amended to read as follows:

9. a. In an adoption proceeding pursuant to P.L.1977, c.367 (C.9:3-37 et seq.), notice of the complaint may not be waived and a notice of hearing shall be served in accordance with the Rules of Court on each parent of the child to be adopted. The notice shall inform each parent of the purpose of the action and of the parent's right to file written objections to the adoption within 20 days after notice is given in the case of a resident and 35 days in the case of a nonresident, of the parent's right to be represented by legal counsel and, if indigent, of the requirement that the court provide the parent with counsel pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill). For purposes of this section, "parent" means (1) the husband of the mother of a child born or conceived during the marriage [or]; (2) a putative or alleged biological mother or father of a child; or (3) a legal guardian or custodian.

b. Notice pursuant to subsection a. of this section shall not be served on a parent:

(1) Who has executed a valid surrender to an approved agency pursuant to section 5 of P.L.1977, c.367 (C.9:3-41) or P.L.1955, c.232 (C.9:2-13 et seq.);

(2) Whose parental rights have been terminated in a separate judicial proceeding by court order;

(3) Who has, prior to the placement of the child for adoption, received notice of the intention to place the child, which notice shall inform the parent of the parent's right to be represented by and consult with legal counsel and, if indigent, of the requirement that the court provide the parent with counsel pursuant to section 3 of P.L. , c. (C ) (pending before the Legislature as this bill), the purpose of the placement, that failure to respond to the notice will prevent the person receiving the notice from objecting to any future adoption of the child, and that the parent has a right to file with the surrogate in the county in which venue is anticipated to lie, the address of which surrogate shall be included in the notice, written objections to the proposed placement within 20 days after notice is given, in the case of a resident, and 35 days in the case of a nonresident; and who has either failed to file written objections or denied paternity or maternity of the child. Failure to respond to this notice and object to the placement of the child for adoption shall constitute a waiver of all notice of any subsequent proceedings with regard to the child including proceedings for adoption or termination of parental rights;

(4) Who has given the child for adoption to the adopting parent, and the Superior Court, Chancery Division, Family Part, after a hearing at which the surrendering parent was heard as to the voluntariness of the surrender, has determined that the surrender was voluntary and proper;

(5) Whose child has been made available for adoption in a foreign state or country if the United States Immigration and Naturalization Service has determined that the child has been approved for adoptive placement. The finding of the United States Immigration and Naturalization Service shall be presumed valid and no notice shall be served ; or

(6) Who is presumed to be the biological father of the child who is the subject of the adoption proceeding pursuant to paragraph (2) of subsection a. of section 6 of P.L.1983, c.17 (C.9:17-43) but who, within 120 days of the birth of the child or prior to the date of the preliminary hearing, whichever occurs first, has not acknowledged paternity by amending the original birth certificate record filed with the local registrar's office in the municipality of birth of the child who is the subject of the adoption proceeding in accordance with birth record amendment procedures, or has not filed an action for paternity in court.

c. If personal service of the notice cannot be effected because the whereabouts of a [birth] parent of the child to be adopted are unknown, the court shall determine that an adequate effort has been made to serve notice upon the parent if the plaintiff immediately prior to or during the placement and not more than nine months prior to the filing of a complaint has:

(1) Sent the notice by regular mail and by certified mail return receipt requested, to the parent's last known address;

(2) Made a discreet inquiry as to the whereabouts of the missing parent among any known relations, friends and current or former employers of the parent;

(3) Unless otherwise restricted by law, made direct inquiries, using the party's name and last known or suspected address, to the local post office, the [Division of Motor Vehicles] New Jersey Motor Vehicle Commission, county welfare agency, the municipal police department, the Division of State Police, the county probation office, the Department of Corrections, and any social service and law enforcement agencies known to have had contact with the party, or the equivalents in other states, territories or countries. Failure to receive a response to the inquiries within 45 days shall be a negative response.

d. In any case where, within 120 days of the birth of the child or prior to the date of the preliminary hearing, whichever occurs first, the identity of a birth parent cannot be determined or where the known parent of a child is unable or refuses to identify the other parent, and the court is unable from other information before the court to identify the other parent, service on that parent shall be waived by the court.

e. In conducting the hearing required by paragraph (4) of subsection b. of this section, the court shall determine that the surrender is voluntary and that the birth parent knows (1) that the hearing is to surrender birth rights; (2) that the hearing is to permanently end the relationship and all contact between parent and child; (3) that such action is a relinquishment and termination of parental rights and consent on the part of the [birth] parent to the adoption; and (4) that no further notice of the adoption proceedings shall be provided to the [birth] parent if the surrender is accepted by the court.

(cf: P.L.1998, c.20, s.1)

2. Section 10 of P.L.1977, c.367 (C.9:3-46) is amended to read as follows:

10. a. A person who is entitled to notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-45) shall have the right to object to the adoption of his child within 20 days after the filing of the complaint for adoption for a State resident and 35 days after the filing in the case of a nonresident, the right to be represented by and consult with legal counsel, and if indigent, the right to have the court provide the person with counsel pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill). Failure to object within that time period constitutes a waiver of the right to object.

In a contest between a person who is entitled to notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-45) objecting to the adoption and the prospective adoptive parent, the standard shall be the best interest of the child. The best interest of a child requires that a parent affirmatively assume the duties encompassed by the role of being a parent. In determining whether a parent has affirmatively assumed the duties of a parent, the court shall consider, but is not limited to consideration of, the fulfillment of financial obligations for the birth and care of the child, demonstration of continued interest in the child, demonstration of a genuine effort to maintain communication with the child, and demonstration of the establishment and maintenance of a place of importance in the child's life.

A judgment of adoption shall be entered over an objection of a person who is entitled to notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-45) communicated to the court by personal appearance or by letter if the court finds, during the six-month period prior to the placement of the child for adoption or within 120 days after the birth of a child or prior to the date of the preliminary hearing, whichever occurs first, in the case of a child placed for adoption as a newborn infant:

(1) that the parent has substantially failed to perform the regular and expected parental functions of care and support of the child, although able to do so, or

(2) that the parent is unable to perform the regular and expected parental functions of care and support of the child and that the parent's inability to perform those functions is unlikely to change in the immediate future.

The regular and expected functions of care and support of a child shall include the following:

(a) the maintenance of a relationship with the child such that the child perceives the person as his parent;

(b) communicating with the child or person having legal custody of the child and parenting time rights, or unless prevented from so doing by the custodial parent or other custodian of the child or a social service agency over the birth parent's objection; or

(c) providing financial support for the child unless prevented from doing so by the custodial parent or other custodian of the child or a social service agency.

A parent shall be presumed to have failed to perform the regular and expected parental functions of care and support of the child if the court finds that the situation set forth in paragraph (1) or (2) has occurred during the six-month period prior to the placement of the child for adoption, or within 120 days after the birth of a child or prior to the date of the preliminary hearing, whichever occurs first, in the case of a child placed for adoption as a newborn infant.

In the case where the objecting parent is incarcerated during the six-month period prior to placement of the child for adoption, relevant factors to be considered in determining whether that incarcerated parent has failed to perform the regular and expected parental functions or is unable to perform the regular and expected parental functions pursuant to this subsection, shall include the extent of the relationship which existed between the parent and child prior to incarceration, including financial support; the efforts made to continue a relationship during the incarceration; the ability to communicate and visit with the child during incarceration; and the effect of the communication and visitation on the child's development in terms of providing nurturing and emotional support.

b. The guardian of a child to be adopted who has not executed a surrender pursuant to section 5 of P.L.1977, c.367 (C.9:3-41) and any other person who has provided primary care and supervision in his home for the child for a period of six months or one half of the life of the child, whichever is less, in the two years prior to the complaint shall be given notice of the action and in accordance with the Rules of Court shall have standing to object to the adoption, which objection shall be given due consideration by the court in determining whether the best interests of the child would be promoted by the adoption.

(cf: P.L.1998, c.20, s.2)

3. (New section) a. In any action concerning the termination of parental rights filed pursuant to section 6 of P.L.1955, c.232, and any action concerning the adoption of a child for whom the parental rights of the parents have been terminated filed pursuant to section 11 of P.L.977, c.367 (C.9:3-47) or section 12 of P.L.1977, c.367 (C.9:3-48), notice of the right to retain and consult with legal counsel shall be provided to the respondent parent. If the parent appears before the court, is indigent, and requests counsel, the court shall appoint the Office of the Public Defender to represent the parent. The Office of the Public Defender shall appoint counsel to represent the parent in accordance with subsection b. of this section.

b. The Office of the Public Defender is authorized to provide representation to children and indigent parents in termination of parental rights proceedings under Title 9 of the Revised Statutes pursuant to the provisions of this section.

(1) In selecting attorneys to serve as counsel for indigent parents, the Office of the Public Defender shall take into consideration the nature, complexity and other characteristics of the cases, the services to be performed, the status of the matters, the attorney's pertinent trial and other legal experience and other relevant factors.

(2) The Office of the Public Defender shall ensure that an attorney selected pursuant to this section has received training in representing clients in termination of parental rights actions from the Office of the Public Defender or will receive such equivalent training, as soon as practicable, from other sources.

c. (1) Nothing in this section shall be construed to limit the powers of the Public Defender pursuant to section 7 of P.L.1967, c.43 (C.2A:158A-7).

(2) Nothing in this section shall be construed to preclude a parent from retaining private counsel.

4. This act shall take effect immediately.

STATEMENT

This bill requires the court to appoint legal counsel for indigent parents during adoption proceedings.

The bill mandates that in an adoption proceeding or prior to a child being placed for adoption, certain information must be provided to the parent. Specifically, the notice of hearing or notice of intention to place the child for adoption must inform each parent of the parent's right to be represented by and consult with legal counsel, and if indigent, of the parent's right to have the court provide the parent with counsel pursuant to the provisions of the bill. The bill also expands the definition of "parent" to include a legal guardian or custodian.

Currently, the law requires the court to inform each parent or person entitled to notice of an adoption action of the purpose of the action, the consequences of not responding to the notice in a timely manner, the parent's or person's right to file written objections, and the timeframe under which the objections must be filed. The law does not require the court to inform parents or other persons entitled to notice of the adoption action of the right to be represented by or consult with legal counsel or, if indigent, to be provided with counsel.

Under the provisions of the bill, in any action concerning a termination of parental rights or the adoption of a child for whom the parental rights of the parents have been terminated, the court would be required to provide the respondent parent with notice of the parent's right to retain and consult with legal counsel. If the parent is indigent, the court would be required to appoint the Office of the Public Defender to represent the parent.

Current law requires the court to provide notice of a parent's right to retain and consult with legal counsel or, if the parent is indigent, to appoint the Office of Public Defender to represent the parent in certain actions to terminate parental rights, but not in all instances. This bill would expand the instances in which the court is required to provide such notice and appoint the Public Defender to represent an indigent parent to include an action to terminate parental rights or when a parent files a complaint for adoption.

The bill also stipulates that the Office of the Public Defender would appoint counsel to represent the parent in accordance with guidelines established in the bill, and its provisions would not prohibit a parent from retaining private counsel or limit the powers of the Public Defender established pursuant to law.