                          RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                            SUPERIOR COURT OF NEW JERSEY
                                            APPELLATE DIVISION
                                            DOCKET NO. A-3238-13T3
                                              APPROVED FOR PUBLICATION

IN THE MATTER OF THE ADOPTION OF                    October 23, 2015
A CHILD BY J.E.V. and D.G.V.
_________________________________               APPELLATE DIVISION

           Argued September 17, 2015 – Decided October 13, 2015

           Before Judges Fuentes, Koblitz and Gilson.

           On appeal from Superior Court of New Jersey,
           Chancery   Division,   Family   Part,  Essex
           County, Docket No. FA-07-0115-14.

           Alex Miriam Miller argued the cause for
           appellant   L.A.  (Donahue   Hagan  Klein  &
           Weisberg, LLC, attorneys; Francis W. Donahue
           and Ms. Miller, on the brief).

           Bonnie   Frost     argued    the cause    for
           respondents J.E.V. and D.G.V.       (Einhorn,
           Harris,    Ascher,     Barbarito  &    Frost,
           attorneys; Matheu D. Nunn and Mark Wechsler,
           on the brief).

           Respondent The Children's Home Society has
           not filed a brief.


       The opinion of the court was delivered by

KOBLITZ, J.A.D.

       After a two-day trial at which she represented herself,

L.A.   appeals   from    the   March   4,    2014    order   terminating       her

parental   rights   to   her   young   daughter      as   part   of    a   private
adoption.1    We    reverse     and   remand,   holding     that   L.A.     had    a

constitutional and statutory right to court-appointed counsel

beginning before trial, when the private adoption agency first

determined to proceed with an adoption over her objection.2

     The Children's Home Society of New Jersey (CHS) knew from

its first interaction with L.A. that she was indigent, yet at no

time was L.A. provided legal counsel.            Nor did the court inform

L.A. that she was entitled to appointed counsel.               Although this

case began with L.A. trying to ensure the well-being of her

daughter, and the Division of Child Protection and Permanency

(the Division) was never involved, L.A. would have been accorded

more due process had her situation been brought to the attention

of the Division based on child welfare concerns.

     No evidence was introduced at trial that L.A. abused or

neglected her daughter; nor that she was addicted to drugs or

alcohol, or suffered from mental illness.                   To the contrary,

poverty   alone    seems   to   have    given   rise   to    L.A.'s   concerns


1
  The adoption was stayed pending appeal of the termination of
her parental rights.
2
  L.A. sought counsel on appeal. We referred her request to the
Public Defender's Office, which indicated it was not statutorily
permitted to represent parents appealing private adoption
matters.    After initial briefing, we ultimately appointed
counsel to represent L.A., and asked the parties to submit
supplemental briefs on the issue of her entitlement to trial
counsel.



                                       2                                  A-3238-13T3
regarding the care of her two-year-old special-needs daughter.

Initially     contemplating      adoption,       L.A.   placed      the    child    with

CHS.      After       the     mandated     pre-adoption       counseling,          which

statutorily requires the advisement that adoption in New Jersey

entails "the permanent end of the relationship and all contact

between the parent and child,"3 L.A. decided not to surrender her

parental rights.        She left her daughter with CHS for short-term

foster care, and continued to visit the child.                       L.A. signed a

plan agreeing to find a job and permanent housing with the aim

of continuing to parent her daughter.

       L.A.   lived    with    her   sister      in   Pennsylvania        for    several

months, causing her to miss visits with her daughter.                           She also

gave birth to a baby boy while her daughter was in foster care.

L.A.'s   two    sons    continued     to       live   with   her    throughout        the

litigation.       L.A. was still receiving welfare assistance and

living at a shelter at the time of trial.                          L.A.'s transient

housing and inability to pay for her daughter's care4 were known

to the agency and the court, and plaintiffs submitted evidence




3
  N.J.S.A. 9:3-41(a). Pursuant to N.J.A.C. 10:121A-5.4(c)(1)(i),
an adoption agency is required to document that the birth parent
was provided such counseling.
4
  CHS did not seek payment from L.A. The agency paid the foster
family $13 per day plus reimbursed expenses, until the case
changed from foster care to an adoption case.



                                           3                                    A-3238-13T3
of   such   to    demonstrate    that    L.A.    had    failed   to    fulfill      her

parental duties.

       After     an   unsuccessful      short-term      foster   placement,         the

child was placed with plaintiffs.               The evidence adduced at trial

indicates      that   plaintiffs     provided     the    child   with     a    loving

family, which included another girl of the same age.                     Plaintiffs

also    provided      access    to   helpful      professional        resources       to

address the child's special needs.

       Approximately one year after assuming custody, CHS wrote to

L.A. in a March 1, 2013 letter5:

            The Children's Home Society is a licensed
            adoption agency in the State of New Jersey.
            You placed your daughter . . . in the care
            of [CHS] on March 8, 2012. Since that time,
            you have been inconsistent with visitation,
            you have not maintained consistent contact
            with your counselor . . . and you have made
            no viable plan to parent your daughter. As
            such, we are going to make an adoption plan
            for your child.
            . . . .

            You have the       right to be represented by an
            attorney, and       you may or may not have the
            right to have      counsel appointed to represent
            you. You may       contact the Essex/Newark Legal
            Service [sic]      . . . .




5
  The agency also attached to the letter forms for the surrender
of parental rights. This letter was not introduced as evidence
at trial.   Because both parties included it in their appendix,
and it is useful to our understanding of the history of this
matter, we have considered it.



                                          4                                   A-3238-13T3
     CHS then executed an "agency consent to early filing of

adoption complaint" on July 8, 2013, pursuant to N.J.S.A. 9:3-

47(a),   stating   that   the   agency   "believe[d]"   that   L.A.   had

"abandoned the child" and "was not fit to parent the child."            If

L.A. had been involved with the Division, and if it appeared

that the child was in need of services, the Division would have

initiated judicial proceedings under Title 30 before the initial

placement of the child outside the home,6 and within a year would

have had to satisfy a judge that adoption was the appropriate

plan.7

     At the suggestion of CHS, plaintiffs filed the adoption

complaint on July 18, 2013, attaching the agency consent.             L.A.


6
  See N.J. Dep't of Children & Families, Removal of a Child, in
Child     Protection     &     Permanency      Manual      (2011),
http://www.state.nj.us/dcf/policy_manuals/CPP-II-C-2-700.pdf
(stating that the Division "may seek and/or accept a parent's
consent" for placement without judicial approval only in
situations where the placement sought is in congregate care or
an independent living arrangement, and only if the child has not
been subject to abuse or neglect); see also N.J. Div. of Youth &
Family Servs. v. T.S., 426 N.J. Super. 54, 64-66 (App. Div.
2012) (intervention by the Division is proper "to protect a
child who, although not abused or neglected, is in need of
services to ensure its health and safety").           Pursuant to
N.J.S.A. 30:4C-12, after appropriate investigation by the
Division, it could apply for an order granting care and custody
of the child to the Division.
7
  See N.J.S.A. 30:4C-61.2(a)(2) ("A permanency hearing shall be
held that provides review and approval by the court of the
placement plan . . . no later than 12 months after the child has
been in placement.").



                                    5                           A-3238-13T3
objected to the adoption at every opportunity.                     At the initial

pre-trial conference in October 2013, more than seven months

after the letter from CHS announcing the plan for adoption, the

court asked L.A.: "Do you intend to get an attorney at all in

this    matter?"      She     responded:      "Working     on   it."      The   court

informed    L.A.     that    she    should    obtain   a   lawyer      "quickly"     to

comply with the discovery schedule.8              At no time was she advised

that a lawyer would be assigned to represent her if she could

not afford to retain counsel.

       L.A.'s      situation       is   different      from     private    adoption

situations in other reported decisions.                L.A.'s circumstances do

not present a stepparent adoption, see N.J.S.A. 9:3-48(a)(4); In

re Adoption of Children by G.P.B., 311 N.J. Super. 38, 40 (App.

Div. 1998), rev'd 161 N.J. 396 (1999); see also In re Adoption

of a Child by J.R.D., 246 N.J. Super. 619, 625 (Ch. Div. 1990)

("The substantial number of stepparent adoptions is no longer

considered a surprising or an unusual phenomenon."); nor is this

an     objection     to     adoption    of    a   newborn       registered      by    a

noncustodial parent after the custodial parent's surrender of




8
  This interchange can hardly be viewed, as urged by plaintiffs,
as a waiver of her right to appointed counsel. See N.J. Div. of
Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 266 (App.
Div. 2002) (describing waiver as the intentional relinquishment
of a known right).



                                          6                                  A-3238-13T3
parental rights.9           See N.J.S.A. 9:3-47(c); In re Adoption of a

Child by P.F.R., 308 N.J. Super. 250, 252 (App. Div. 1998).                         Nor

is this a situation where a custodial parent or parents have

left their child with a family member or friend for an extended

period of time.            See In re Adoption of a Child by J.D.S., 353

N.J. Super. 378, 385 (App. Div. 2002), certifs. denied, 175 N.J.

432 (2003).10         L.A. left her special-needs child in foster care

with a State-licensed agency.              That agency placed the child with

a     foster    family11    who   was   unknown      to    L.A.     The   agency   then

decided        on   its   own   that    L.A.   was    an    unfit   mother   and    had

abandoned her child, and encouraged the foster family to file an

adoption complaint over the objection of L.A.

        The termination of parental rights by State action is of

constitutional magnitude, and parents unquestionably have the

right to counsel when the State moves to terminate parental

rights.        See N.J.S.A. 30:4C-15.4(a); N.J. Div. of Youth & Family

Servs. v. B.R., 192 N.J. 301, 305-06 (2007).                      CHS acted here in

a fashion similar to the Division, but without providing the


9
     The identity of the child's father is unknown.
10
  We note that the objecting parent in the published cases were
represented by counsel.
11
  The foster mother testified that her family received the same
training as Division-certified resource families.  See N.J.S.A.
30:4C-27.5.



                                           7                                  A-3238-13T3
services    to    promote      reunification            or     the     legal    safeguards

afforded parents involved in litigation with the Division.

      The   financially        advantaged             foster     family        retained     a

psychologist who conducted separate bonding evaluations12 of the

child   with     L.A.   and   with    the       foster       parents,     and    conducted

psychological      testing     of    only       the    biological        mother.13        The

expert determined that the foster parents had become the child's

psychological parents.          He opined that separating the child from

her foster family would cause great harm, a greater harm than

severing the child's relationship with her biological mother.14

The   expert     made   no    evaluation        of     the     child    with    her   older

brother, although L.A. testified the two children had a close


12
   See In re Guardianship of J.C., 129 N.J. 1, 19-21 (1992)
(discussing the function of comparative bonding evaluations in
"assessing the existence, nature, and extent of the harm facing
the child" if he or she were separated from the foster parents,
but noting the "grave pitfalls" of overreliance on bonding
theory in that it is often used "to keep children in foster care
rather than return them to their parents").
13
   He did not diagnose the mother with a mental illness, but
indicated certain conditions should be ruled out by further
investigation.
14
   Notably, our Supreme Court has expressed concern with
instances "where the Division removed a child from his or her
biological parents and placed the child with a foster family,
thereby causing a child-foster parent bond to form, and then
later attempted to rely on that bond as a basis for terminating
the rights of the natural parents." N.J. Div. of Youth & Family
Servs. v. I.S., 202 N.J. 145, 209 n.14 (2010); see In re
Guardianship of K.L.F., 129 N.J. 32, 45-46 (1992).



                                            8                                      A-3238-13T3
relationship.         Unlike the way                 a case involving the Division

would proceed, the first time the court was involved with this

family was after plaintiffs filed the adoption complaint.

      The adoption statute states in pertinent part:

               This act shall be liberally construed to the
               end that the best interests of children be
               promoted and that the safety of children be
               of paramount concern. Due regard shall be
               given to the rights of all persons affected
               by an adoption.

               [N.J.S.A. 9:3-37.]

      When such an irreversible, critical decision is to be made

by the court in a situation such as this, an indigent person

needs     a   lawyer.        Because       the       preservation    of   families      is   a

"paramount      concern"      of     the    State,       N.J.S.A.    30:4C-1,    and     the

termination of parental rights is of constitutional dimensions,

B.R.,     supra,    192      N.J.    at    305,        indigent   parents    facing      the

termination of their parental rights by private agency action in

this type of situation are entitled to appointed counsel.                                Our

Supreme Court has held that indigent parents in private adoption

matters       are   entitled        to    free       transcripts,     provided     by    the

plaintiffs, or if plaintiffs are financially unable to provide

the transcript, then by the Office of the Public Defender (OPD).

In   re   Adoption      of    a    Child    by       J.D.S.,   176   N.J.   154,     158-59

(2003).       Our Supreme Court opined:




                                                 9                                 A-3238-13T3
            In a termination action based on Title 9
            findings of abuse or neglect, the OPD is
            responsible for representation and, even
            when a public interest law firm undertakes
            that   representation,  for   the  ancillary
            expenses necessary to that representation.
            We see no basis for distinguishing OPD's
            responsibility in this setting where, by
            virtue of State legislative authorization, a
            private party initiated the severing of
            parental rights for reasons congruent to the
            type of findings required in a Title 9
            termination action.

            [Id. at 158 (citation omitted).]

     Our    Supreme    Court      has    determined      that      "the     right    to

appointed    counsel   for     indigent        litigants     has     received       more

expansive    protection    under    our       state   law   than     federal    law."

Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006).15                        In Pasqua,

the Court determined that indigent persons facing a civil child

support     enforcement    hearing       that    could      result    in     coercive

incarceration were entitled to appointed counsel.                      Id. at 149.

Indigent persons in quasi-criminal matters facing a potential

"consequence of magnitude," including loss of driving privileges

or even fines, are entitled to appointed counsel.                     Rodriguez v.

Rosenblatt,    58   N.J.   281,    295    (1971),     superseded       by    statute,

Public Defender Act, N.J.S.A. 2A:158A-5.2, as recognized in W.

World, Inc., supra, 440 N.J. Super. at 195; see R. 7:3-2(b);

15
  See State v. W. World, Inc., 440 N.J. Super. 175, 187-88 (App.
Div. 2015) (discussing situations where indigent persons have
been held entitled to appointed counsel).



                                         10                                  A-3238-13T3
State    v.    Hermanns,       278    N.J.       Super.     19,    29   (App.      Div.    1994)

(holding "aggregate monetary sanctions of $1,800 in a single

proceeding gives rise to the right to counsel under Rodriguez").

Even    indigent       corporations         are       entitled     to   appointed       counsel

when facing a consequence of magnitude.                           W. World, Inc., supra,

440 N.J. Super. at 201-02.                  After the elimination of the death

penalty,16      we     can   think     of    no       legal    consequence         of   greater

magnitude       than     the       termination         of     parental    rights.             Such

termination          "sever[s]       the     parent-child           bond,      .    .     .     is

irretrievably          destructive          of     the      most     fundamental          family

relationship," and "the risk of error . . . is considerable."

M.L.B. v. S.L.J., 519 U.S. 102, 121, 117 S. Ct. 555, 566, 136 L.

Ed. 2d 473, 491 (1996) (internal citations and quotation marks

omitted).        "[A] natural parent's desire for and right to the

companionship,         care,       custody,       and    management       of    his     or    her

children is an interest far more precious than any property

right."       Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct.

1388, 1397, 71 L. Ed. 2d 599, 610 (1982) (internal citation and

quotation marks omitted).

       L.A., when facing a consequence of such magnitude, imposed

by    the     action    of     a    State-licensed          agency,      was    entitled       to

appointed      counsel.            Foster    parents        are    statutorily      precluded

16
     See N.J.S.A. 2C:11-3b.



                                                 11                                     A-3238-13T3
from providing legal counsel to a birth mother past the first

forty days after the filing of the adoption complaint.                                       See

N.J.S.A. 9:3-53.             The OPD has not been statutorily authorized to

represent        indigent      parents         in     private       adoptions.17       Private

counsel must therefore be assigned.

      The   assigned          lawyer      should       be    present     before      the   trial

begins, when the private agency first decides to move toward

adoption, to assist the parent in preparing for trial and in

negotiating the process leading up to the filing of a complaint.

In   an   action       involving         the    Division,       a    lawyer    is    appointed

through the OPD to represent the parent either when litigation

begins, or certainly no later than when termination of parental

rights is first sought by the State.                            N.J.S.A. 30:4C-15.4(a);

B.R.,     supra,       192    N.J.       at    305-06.          L.A.    should      have    been

represented by counsel beginning in March 2013, when CHS first

advised     her    she       was   facing       the       termination    of    her    parental

rights through adoption.                 With counsel, she would have been far

better prepared for trial when it began in late October.                                     She

could     have    obtained         her    own       expert,     sought    an     attorney     to

represent        the     minor      child,          and     sought     immediate      enhanced

parenting time.

17
   The OPD's statutory authority to represent parents in
termination cases derives from N.J.S.A. 30:4C-15.4(c), which
concerns actions filed by the Division.



                                                12                                     A-3238-13T3
       We    note    that     had   L.A.    asked     for   her    daughter      to   be

returned, we are aware of no legal authority that would have

allowed CHS to maintain custody of the child.                      The agency would

have had to return the child to L.A., or call the Division to

conduct an emergent evaluation of whether the child would be at

risk if returned to L.A.              If the Division had determined that

the child would be at risk if returned, the Division could have

sought custody through the court.                   See N.J.S.A. 30:4C-11; see

also 9:6-8.18, -8.22.

       A lawyer representing the biological parent would be of

assistance to the court as well as the parent.                           Although we

reverse and remand for a new trial, and thus need not discuss

any trial errors, to emphasize the need for counsel in this

complex      matter,    and    ensure      that    the    mistakes   made     are     not

repeated,     we    point     out   several       areas   where    the   trial    court

appears to have erred.18

       The   court     did    not   explicitly      make    its    findings    by     the

standard of clear and convincing evidence.19                      The Supreme Court


18
  Except as noted, these issues were not briefed by the parties.
Although we initially ordered the foster parents to provide L.A.
with a transcript based on her indigency, pursuant to J.D.S.,
supra, 176 N.J. at 158-59, we did not appoint counsel to
represent L.A. on appeal until we sought supplemental briefing
on the issue of her right to counsel.
19
     The definition of clear and convincing evidence is:
                                                                         (continued)


                                           13                                 A-3238-13T3
of the United States has held that "[b]efore a State may sever

completely    and        irrevocably        the     rights      of    parents     in   their

natural child, due process requires that the State support its

allegations         by    at   least        clear     and       convincing       evidence."

Santosky, supra, 455 U.S. at 747-48, 102 S. Ct. at 1391-92, 71

L. Ed. 2d at 603.          Our Supreme Court has held that "[a]s part of

the   Title     9    scheme,        termination          of   parental        rights   under

N.J.S.A.   9:3-46         is   a    component       of    the       State's    overall    and

coordinated system of child protection and supervision." J.D.S.,

supra, 176 N.J. at 158.                Thus, while termination in a private

adoption   is       not    sought      by    a    State       agency,    the     clear    and

convincing      standard           should    still        govern      the     burden     that

plaintiffs bear in order to terminate a birth parent's parental

rights.    See J.D.S., supra, 353 N.J. Super. at 391-92, 96; see

also In re Adoption of a Child by P.S., 315 N.J. Super. 91, 111

(App. Div. 1998); In re Adoption of Child by O., 307 N.J. Super.


(continued)

           [T]hat which produces in the mind of the
           trier of fact a firm belief or conviction as
           to the truth of the allegations sought to be
           established, evidence so clear, direct and
           weighty and convincing as to enable the
           factfinder to come to a clear conviction,
           without hesitancy, of the precise facts in
           issue.

           [I.S., supra,              202    N.J.    at       168    (citation
           omitted).]



                                             14                                    A-3238-13T3
176, 184 (Ch. Div. 1997) ("In order to terminate a parent's

rights, clear and convincing evidence of the statutory criteria

must be demonstrated.").              At oral argument, plaintiff's counsel

conceded that this high standard is required for the termination

of parental rights, while arguing that the court might have used

such a standard while not articulating it.                   An enhanced standard

of    proof   cannot     be   inferred      if   not   expressly     stated    by   the

court. See In re Civil Commitment of E.D., 183 N.J. 536, 552

(2005).

       The trial court was also somewhat unclear in delineating

what standard it was using when determining what was "in the

best interest of the child."                 The issue of whether the trial

court used the correct criteria was anticipated and briefed by

the foster parents in their response to the mother's initial pro

se appellate brief.

       Contrary     to    the    argument        set   forth    by    the     attorney

representing the foster parents before the trial court, L.A. did

not place her daughter for adoption as that term is used in the

statute.      Although it was her initial intention to relinquish

her child for adoption, she did not sign a surrender of parental

rights after attending adoption counseling.                    Thus, she did not

knowingly or intelligently complete a placement for adoption.

She    ultimately      did    agree    to    leave     her   child   with     CHS   for




                                            15                                A-3238-13T3
temporary foster care; with a written plan calling for L.A. to

work toward goals with the aim of parenting her child.                  Thus,

the   standard   applicable   when    a   child   has   been    "placed    for

adoption" is not appropriate here.

      The inapplicable "placed for adoption" standard requires

that the court find:

           during the six-month period prior            to     the
           placement of the child for adoption

                 (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.

           [N.J.S.A. 9:3-46(a)(1), (2).]

      The statute defines the regular and expected functions of

care and support of a child as:

           (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




                                     16                              A-3238-13T3
             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.

             [N.J.S.A. 9:3-46(a).]

      The trial court's determination should have been guided by

the standard applicable when a parent has not placed the child

for adoption, the "best interest of the child" standard, which

is statutorily defined as "whether a parent has affirmatively

assumed      the   duties    of   a    parent."     Ibid.     In   making   this

determination,

             [T]he 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.

             [Ibid.]

      "A parent seeking to show that he or she has 'affirmatively

assume[d] the duties of being a parent' need only 'demonstrat[e]

. . . the establishment and maintenance of a place of importance

in the child's life.'"            In re Adoption of Children by G.P.B.,

161   N.J.    396,   410    (1999)    (alterations    in    original)   (quoting

N.J.S.A. 9:3-46(a)).          Our Supreme Court explained that, under



                                         17                             A-3238-13T3
this "best interest" analysis, "'demonstration of a continued

interest    in    the    child     [and]      a    genuine       effort      to     maintain

communication with the child' . . . is not as difficult as a

demonstration . . . that the person has actually communicated

with the child or person having custody, as required in the

performance of 'regular and expected parental duties'" under the

inapplicable      "placed    for    adoption"           standard.          Id.    at     410-11

(alterations      in    original)    (quoting           N.J.S.A.      9:3-46(a)).            The

Court also noted that the two standards differ in measuring a

birth   parent's       performance,      insomuch         as,    in   a    best     interest

determination, there is no consideration of the birth parent's

ability    to    perform,   which       is    considered         in   the    inapplicable

"regular and expected parental functions" test used when the

child has been "placed for adoption."                       Id. at 411.                Lastly,

under a best interest analysis, there is no time limit to the

assessment,      and    proper   consideration            should      be    given      to    the

birth parent's actions over the course of the child's entire

life, as opposed to the six-month period expressly noted in the

"regular and expected parental functions" inquiry not applicable

here.     Id. at 411, 413.

    Although the trial court indicated it was considering the

best interest of the child in making its determination, and

clearly    did   not    focus    only    on       the    prior    six      months      of    the




                                             18                                        A-3238-13T3
child's life, the court appeared to be comparing the efforts

L.A. made to parent the child with those made by plaintiffs.

The policy in our State is not to remove children from less

capable   parents   for   the   purpose    of   placing   them   with   more

capable parents, those with more economic resources, nor those

who are better educated.        See G.P.B., supra, 161 N.J. at 404;

J.D.S., supra, 353 N.J. Super. at 394.          The polestar inquiry "is

not whether the child would be better off with the adoptive

parent, but whether the biological parent has failed to fulfill

his or her duties."       G.P.B., supra, 161 N.J. at 413; see P.S.,

supra, 315 N.J. Super. at 110 ("[T]ermination based upon the

child's 'best interest' . . .         does not mean that termination is

appropriate just because the child 'might be better off' with

the foster or prospective adoptive parents.").            Thus, along with

not articulating the proper standard of proof, we have serious

concerns as to whether the trial court used the proper legal

test in determining the outcome of the trial.

    No consideration was given to the appointment of a law

guardian to represent the child, as is done by statute in every

case involving the Division.          See N.J.S.A. 30:4C-15.4(b).          We

recognize   that    lawyers     are   rarely    appointed   to   represent

children in private adoptions.         See In re Adoption of Child by

E.T., 302 N.J. Super. 533, 539-41 (App. Div.), certif. denied,




                                      19                           A-3238-13T3
152 N.J. 12 (1997).       We emphasize, however, that while this

matter may have taken the route of a private adoption, from

L.A.'s perspective, in many ways it followed a parallel course

to a Division case.     The central differences were that the court

was not involved until the very end, few social services other

than the opportunity to visit her child and meet with a "birth

parent counselor" were offered to the mother,20 and neither she

nor her child had any legal representation as the situation

evolved.

     Applying these principles prospectively, we hold that, once

a private adoption agency determines that it is going to seek

adoption over the objection of a parent, that parent has the

right   to   counsel.   In   the   future,   a   State-licensed   private


20
  For example, plaintiffs presented evidence that L.A. did not
seek as many visits as she might have and was late to many
scheduled visits, in part because she had to take public
transportation. The Division frequently provides bus passes to
parents.   L.A. was also criticized for not having permanent
housing, yet no evidence was adduced that CHS assisted her in
locating housing.   In July 2012, L.A. signed a "service plan"
with CHS in which all four goals, including finding housing and
a job, were categorized as the full responsibility of L.A.   In
that plan, it was noted that L.A. "has stated that parenting is
her goal."     Had the Division sought to terminate parental
rights, it would have had to prove by clear and convincing
evidence that it had made reasonable efforts to reunify the
family, or the termination would not have been granted.
N.J.S.A. 30:4C-15.1(a)(3); see I.S., supra, 202 N.J. at 180
(reversing the termination of the father's parental rights in
part because the Division failed to make reasonable efforts to
reunify).



                                   20                             A-3238-13T3
adoption agency must advise the court at the same time that it

notifies         an    indigent    parent      that    it    plans   to   proceed      with

adoption.         The court will then be able to appoint counsel.

       The assignment of counsel to an individual who does not yet

have     a       matter      before      the        court    presents      an     unusual

administrative challenge.                We refer this matter to the Acting

Administrative Director of the Court, who may wish to consult

with the Conference of Presiding Family Judges to develop a

procedure.            The Madden list21 may have to be utilized to provide

counsel.          The child may also be entitled to counsel in these

situations.            E.T., supra, 302 N.J. Super. at 539-41.                  We do not

address      a    non-custodial        parent's       entitlement    to   counsel      when

objecting to adoption after the custodial parent's surrender of

parental         rights,    or    objecting     to     a    stepparent    adoption,      or

objecting after the child is left with a relative or friend.                             We

do not address these situations as they are not before us.

       Because the trial court made credibility findings when L.A.

was not represented by counsel, in an excess of caution, we

remand to a different judge for trial.                         We do not intend to

imply a particular result after trial for these families and

this child, nor do we intend to preclude the possibility of a

negotiated        compromise      in    this    particular      situation.        As    our

21
     See Madden v. Delran, 126 N.J. 591 (1992).



                                               21                                A-3238-13T3
Supreme   Court    has   eloquently    stated,    "[t]he     possibility     of

serious psychological harm to [a] child . . . transcends all

other considerations."       Sorentino v. Family & Children's Soc'y,

72 N.J. 127, 132 (1976).

    Reversed and remanded for a new trial at which L.A. must be

appointed   an    attorney   and   consideration     given    to   appointing

counsel to represent the child.            See R. 5:8A.    We do not retain

jurisdiction.




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