                         RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION


                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0007-15T2

NEW JERSEY DEPARTMENT
OF CHILDREN AND FAMILIES,                   APPROVED FOR PUBLICATION
DIVISION OF CHILD PROTECTION
                                                      June 17, 2019
AND PERMANENCY,
                                                APPELLATE DIVISION
        Petitioner-Respondent,

v.

L.O.,

     Respondent-Appellant.
__________________________________

             Argued May 21, 2019 – Decided June 17, 2019

             Before Judges Fisher, Suter and Firko.

             On appeal from the New Jersey Department of Children
             and Families, Division of Child Protection and
             Permanency, Agency Docket No. AHU 13-0922.

             Michael K. Furey argued the cause for appellant (Day
             Pitney LLP, attorneys; Michael K. Furey and Michael
             L. Fialkoff, on the brief).

             Christina A. Duclos, Deputy Attorney General, argued
             the cause for respondent New Jersey Department of
             Children and Families (Gurbir S. Grewal, Attorney
             General, attorney; Melissa H. Raksa, Assistant
             Attorney General, of counsel; Christina A. Duclos, on
             the brief).
            Amy E. Vasquez argued the cause for amicus curiae
            New Jersey State Bar Association (New Jersey State
            Bar Association, attorneys; John E. Keefe, Jr., of
            counsel; Amy E. Vasquez, on the brief).

            Katherine E. Haas argued the cause for amicus curiae
            American Civil Liberties Union of New Jersey
            (American Civil Liberties Union of New Jersey,
            attorneys; Katherine E. Haas, Alexander R. Shalom,
            and Jeanne M. LoCicero, on the brief).

      The opinion of the court was delivered by

FISHER, P.J.A.D.

      In this appeal, we consider for the first time whether an indigent parent or

guardian – substantiated for child abuse or neglect – is entitled to the

appointment of counsel when exercising the right to an administrative hearing.

Because the potential consequences of those proceedings are of significant

magnitude, we agree that, in this setting, counsel should be made available for

indigent parents and guardians both at the administrative level and in any appeal

of right to this court. Because that opportunity was denied defendant, we reverse

the final agency decision and remand for a new administrative hearing.

      The child at issue – Carolyn (a fictitious name) – was born in 2002. The

record reveals that her parents, Steven and defendant Lola (also fictitious names)

never married but began living together at the time of Carolyn's birth. Their

separation in 2009 triggered an acrimonious family court custody battle; Lola

                                                                           A-0007-15T2
                                        2
also obtained a domestic violence final restraining order against Steven, and he

was criminally convicted for assault arising from the same domestic violence

event.

         In 2011, the family judge presiding over the custody litigation ordered

reunification therapy to improve Steven's relationship with the child. Dr. S.-W.

was appointed for this purpose and first saw father and daughter in May 2012.

Their sessions, however, were limited because of assertions that Carolyn was

too ill to attend. Dr. S.-W. soon formed the belief that Lola was the cause of

Carolyn's emotional and physical stress, which was standing in the way of the

reunification sessions; the doctor suspected what she referred to as

"Munchausen By Proxy Syndrome."1

         In light of Dr. S.-W.'s communications to and testimony before the family

judge in the custody litigation, the judge temporarily changed "physical and

residential" custody to Steven on March 12, 2013. The next day, Dr. S.-W.


1
   What is usually referred to as "Munchausen Syndrome by Proxy," or, more
recently, "Factitious Disorder Imposed on Another," is a mental illness by which
a person caring for another, often a child – in seeking attention – acts as if the
cared-for individual has a physical or mental illness. Its effect on the cared-for
individual results from the obstacles it creates for health care providers striving
to identify the cared-for individual's nonexistent illness, thereby making the
matter worse.         See Munchausen Sydrome By Proxy, WebMD,
www.webmd.com/mental-health/munchausen-by-proxy (last visited June 5,
2019); Stedman's Medical Dictionary 1906 (28th ed. 2005).
                                                                            A-0007-15T2
                                         3
wrote to the family judge, emphasizing that her "original diagnosis of

Munchausen by Proxy Syndrome is a correct characterization of what has been

going on with [Carolyn]" (emphasis added), and that there "is strong evidence

that [Lola] is the cause of [Carolyn's] anguish, stress and physical symptoms";

a few days later, the family judge awarded Steven "temporary sole legal custody

and temporary residential custody" of the child and limited Lola to one hour of

visitation per week to be supervised at a Division of Child Protection and

Permanency office.

      The inflammatory nature of the Munchausen charge – even though that

diagnosis was later largely disowned or found to be an improper or inaccurate

label – appears to have been the impetus for the wedge driven between Lola and

Carolyn. At the time Dr. S.-W. was urging her Munchausen diagnosis in mid-

March 2013, the judge referred the matter to the Division for investigation. On

June 19, 2013, the Division gave written notice to Lola that its investigation

resulted in a substantiation of abuse or neglect; in his later testimony before the

administrative   law   judge    (ALJ),   Division    Investigator   Kevin    Buck

acknowledged that Dr. S.-W.'s assertion that her Munchausen diagnosis was "a

correct characterization" was "one piece of evidence the [D]ivision used to

support [its position] that [Lola has] a mental health issue." The family judge


                                                                            A-0007-15T2
                                         4
entered an order continuing the new custody arrangement indefinitely, and

Lola's supervised visitation was later suspended altogether.

      Lola appealed the substantiation finding, and a hearing was scheduled and

conducted before an administrative law judge (ALJ) in October 2014. The ALJ

heard testimony from Buck, Dr. S.-W., and two Division experts, Drs. Stephanie

Iacopelli and Colin Gass. The Division also had Lola evaluated by Dr. Michael

Gentile, whose report was considered by the ALJ. Lola was not offered counsel

and was left to conduct her own defense. She had no experts and only provided

her own testimony in response.

      In March 2015, the ALJ rendered her initial decision, rejecting the

Division's substantiation of abuse or neglect. The ALJ found that the Division

failed to demonstrate Carolyn "was actually a victim of Munchausen syndrome

by proxy" and that the Division had been "[s]elective" in its focus on Lola's

behavior. For example, the ALJ determined that the Division "shrewdly" quoted

portions of Dr. Gentile's report to justify abuse when, in fact, Dr. Gentile's

"entire medical opinion . . . casts doubts" on that finding. According to the ALJ,

Dr. Gentile found "no criteria of major depressive disorder or panic disorder"

and instead

              rendered a diagnosis of adjustment disorder with
              symptoms of anxiety and depression. [Lola] also

                                                                           A-0007-15T2
                                        5
            exhibited "mild symptoms of depression and anxiety,"
            which Dr. Gentile attributed to "the acrimony of the
            divorce and the separation from her 10-year-old
            daughter."

The ALJ particularly pointed out that Dr. Gentile found that Lola:

            has full insight into her condition and any allegations
            of Munchausen by proxy behavior is more related to an
            attempt to manipulate the system, so that decisions are
            made in her favor versus the underlying
            psychopathology characteristic of Munchausen
            syndrome by proxy. Her pattern of overreacting in
            times of stress may qualify her for a diagnosis of
            histrionic personality disorder.      Her attempts at
            manipulation are more suggestive of an antisocial
            personality disorder.

Dr. Gentile drew a conclusion, which the ALJ adopted, that Lola "does not suffer

from psychiatric illness that would require psychotropic medication"; instead,

according to the ALJ, Lola "would benefit from individual supportive

psychotherapy to help her adjust and cope with her current situation."

      In light of these and other findings, the ALJ determined that Lola's

"behavior was the result of an ongoing acrimonious marital breakup and custody

battle over her daughter" and the credible evidence did not preponderate to show

"that [Lola] created a substantial risk of harm to [Carolyn's] health and safety

based on [Lola's] mental-health issues or emotional impairment." The ALJ




                                                                         A-0007-15T2
                                       6
concluded that Lola's behavior, "while inappropriate, did not rise to the level of

gross or wanton neglect."

      The Division filed exceptions, to which Lola responded, albeit out of time.

The Assistant Commissioner accepted Lola's late submission but rejected the

ALJ's initial decision and reinstated the substantiated finding that Lola

emotionally abused the child. The Assistant Commissioner determined: that

Carolyn had suffered actual harm and that Lola's conduct was deliberate because

she "knew or should have known that her actions were having an impact" on the

child; that Lola's conduct – including the canceling of multiple therapy sessions

with no attempts to reschedule – was not to Carolyn's benefit; and that Lola's

conduct caused the child anxiety, gastrointestinal issues, and panic attacks, all

of which disappeared once Lola's unsupervised contact with the child was cut

off. This final decision directed the inclusion of Lola's name in the Child Abuse

Registry pursuant to N.J.S.A. 9:6-8.11.2


2
    It isn't difficult to conclude that the Munchausen misstep turned into
something of a runaway train. It seems to have influenced the judge's referral
in the first place – since that referral came right after Dr. S.-W. reconfirmed with
the family judge that her Munchausen diagnosis was "a correct characterization"
of Lola's actions – and the judge's rulings thereafter influenced the Assistant
Commissioner's rejection of the ALJ's findings, in that the Assistant
Commissioner relied on the family judge's opinion in substantiating abuse.
Lola's appointed counsel here argues to great effect that the Assistant
Commissioner may have overstepped her authority when taking judicial notice
                                                                             A-0007-15T2
                                         7
      Still without counsel, Lola appealed this final agency decision in August

2015. She immediately moved in this court for: the appointment of counsel;

permission to proceed as an indigent; permission to supplement the record; and

a determination that she was entitled to free transcripts of the evidentiary hearing

before the ALJ. We granted the indigency motion but denied Lola the right to

counsel, free transcripts and supplementation of the record.

      Lola forthwith moved for leave to appeal in the Supreme Court. In

January 2018, the Court granted leave to appeal in part, directed the Division to

order and pay for the transcripts, and appointed current counsel to represent Lola

in this court. The Supreme Court also authorized appointed counsel "to argue

the general and recurring issues of the right of indigent appellants like movant

to free transcripts and the assignment of counsel to prosecute an appeal from an

administrative proceeding that substantiates findings of abuse and neglect and


of the family judge's opinion that may have been influenced by the Munchausen
misstep. Other later proceedings before another administrative agency based on
Lola's claim that Dr. S.-W. engaged in professional misconduct in this matter –
apparently centering on her Munchausen diagnosis – led to entry of a November
2017 consent order which enjoined Dr. S.-W. from performing forensic
psychological services and memorialized her voluntary and permanent
retirement of her license to practice marriage and family therapy when her
license expired in June 2016. Clearly, the event that played a large role in all
that we now consider – the unsubstantiated Munchausen diagnosis – posed for
Lola levels of complexity and sophistication that would put any unrepresented
litigant to an overwhelming disadvantage.
                                                                             A-0007-15T2
                                         8
directs the listing of their names in the child abuse registry." 3 The matter was

remanded to this court for disposition of Lola's appeal and our consideration of

the broader question about the right to counsel in this setting.

      After the parties filed their merits briefs, the matter was listed for

disposition without oral argument on January 23, 2019. Upon review of the

parties' written submissions, this court scheduled oral argument and invited the

New Jersey State Bar Association (the State Bar), the American Civil Liberties

Union (ACLU), and the Public Defender's Appellate Section of the Office of

Parental Representation (OPR-A) to file amicus briefs on the right-to-counsel

argument. The State Bar and ACLU filed briefs. OPR-A declined the invitation

but its managing attorney wrote to this court to explain OPR-A's position,

stating:

            Both due and fundamental fairness suggest appointed
            counsel is the equitable outcome for indigent parents
            faced with State investigatory findings that may alter
            their livelihoods, reputation, or aspects of custody and
            visitation of their children now, or future born.

3
  This directive would appear to limit our consideration to whether someone in
Lola's position is entitled to counsel when appealing a final agency decision in
this setting. In briefing the matter, however, Lola's appointed counsel argues
that Lola was entitled to counsel at the administrative level. Because no one has
argued that Lola, in asserting broader rights to counsel, has exceeded the scope
of the Supreme Court's authorization, or that the issue is not otherwise ripe for
our consideration, we will consider not only the argument that Lola was entitled
to the appointment of counsel in this court but at the administrative level as well.
                                                                             A-0007-15T2
                                         9
            Unfortunately, until the [L]egislature acts to fund this
            representation through the Office of the Public
            Defender, this office is unable to ease the burden to
            those parents in these situations.

      In her merits brief, Lola argues that indigent parties should have the right

to appointed counsel in administrative proceedings in light of the severe

consequences that result from the finding itself as well as inclusion in the Child

Abuse Registry, which imposes limitations on employment and other

relationships. In response, the Department of Children and Families argues,

among other things, that because the Child Abuse Registry is cloaked in

confidentiality, it is of no great consequence when a parent or guardian is listed;

the Department also argues that administrative proceedings like that which

occurred here have been conducted for years without an indigent being given

the right to appointed counsel and, because the legal landscape has not since

changed, there's no need for this court to take the drastic step urged by Lola.

The ACLU agrees with Lola's position on the right to counsel and further

emphasizes the need for that same right to attach at the appellate level. The

State Bar sides with the Department and further argues that if this court were to

find a right to counsel, the burden of representing indigent parties similarly

situated should not fall upon the Bar.



                                                                            A-0007-15T2
                                         10
       We agree with Lola and the ACLU and hold that: (1) the consequences of

a child-abuse substantiation are of sufficient magnitude to warrant the

appointment of counsel for an indigent defendant; (2) that right attaches not only

to the administrative proceedings commenced when the government agency

provides the parent or guardian with written notice that an investigation has

substantiated abuse or neglect, but also when a final agency decision has been

appealed to this court as of right and it further includes the right to free

transcripts; and (3) until such time as the Legislature makes provision, the right

to counsel shall be enforced by courts and agencies through the appointment of

pro bono counsel from the Madden4 list. As a result, we reverse and remand for

a new substantiation hearing.

                                        I

       New Jersey has a long and proud tradition of recognizing and vindicating

the right to counsel in criminal proceedings dating back to the State's 1776

Constitution. In 1971, the Supreme Court noted that the right to appointed

counsel in petty criminal matters had not previously been recognized but

concluded "no indigent defendant should be subjected to a conviction entailing

imprisonment in fact or other consequence of magnitude without first having


4
    Madden v. Delran, 126 N.J. 591 (1992).
                                                                           A-0007-15T2
                                       11
had due and fair opportunity to have counsel assigned without cost." Rodriguez

v. Rosenblatt, 58 N.J. 281, 295 (1971) (emphasis added).

      Rodriguez's "consequence of magnitude" requirement has since informed

our courts when considering whether the right to counsel in noncriminal settings

is constitutionally required. In Pasqua v. Council, 186 N.J. 127, 149 (2006), the

Court held that an indigent defendant must be assigned counsel in civil matters

when incarceration may be a consequence of the defendant's willful failure to

pay child support. The right to counsel also attaches to: Megan's Law tier

classification matters, Doe v. Poritz, 142 N.J. 1, 31 (1995); involuntary civil

commitment proceedings, In re S.L., 94 N.J. 128, 142 (1983); contempt

proceedings alleging a violation of a restraining order, State v. Ashford, 374

N.J. Super. 332, 337 (App. Div. 2004); motor vehicle matters when license

suspension is at issue, State v. Moran, 202 N.J. 311, 325 (2010); and matters in

which a significant fine may be imposed, State v. Hermanns, 278 N.J. Super. 19,

30 (App. Div. 1994).

      In family matters, the Supreme Court recognizes an indigent parent or

guardian's right to appointed counsel in actions seeking the termination of

parental rights, N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306-

07 (2007), and in private adoption proceedings, In re Adoption of J.E.V., 226


                                                                          A-0007-15T2
                                      12
N.J. 90, 107-08 (2016). We have also recognized that an indigent parent or

guardian is entitled to appointed counsel when a court contemplates a temporary

change of custody, Crist v. N.J. Div. of Youth & Family Servs., 128 N.J. Super.

402 (Law Div. 1974), aff'd in part, rev'd in part, 135 N.J. Super. 573 (App. Div.

1975), because a temporary-custody proceeding "is frequently a prelude to a

petition to terminate parental rights," 128 N.J. Super. at 416.

      Even closer to the question at hand, our Supreme Court – alluding to Crist

– observed that it has "long [been] recognized" that in Title Nine actions "parents

charged with abuse or neglect of their children have a constitutional right to

counsel." N.J. Div. of Youth & Family Servs. v. E.B., 137 N.J. 180, 186 (1994).

The Legislature has recognized this as well. By enacting N.J.S.A. 9:6-8.43, the

Legislature declared not only that courts in Title Nine cases "shall advise"

parents and guardians of their "right to have an adjournment to retain . . . and

consult with [counsel]" but that those courts must also advise indigent parents

and guardians of their right to "apply for an attorney through the Office of the

Public Defender." Although the right to counsel in Title Nine matters is often

described in broad terms, see, e.g., N.J. Div. of Child Prot. & Permanency v.

G.S., 447 N.J. Super. 539, 555 (App. Div. 2016), it arises from the self-evident

fact that the "right to custody of one's children and the protection of the integrity


                                                                              A-0007-15T2
                                        13
of the family from arbitrary governmental action is a fundamental constitutional

right," N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 447

(App. Div. 2013) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). See

generally Fall & Romanowski, Child Custody, Protection & Support § 31:1-2(e)

(2019 ed.). But, so far, the right to counsel has been recognized as encompassing

only those abuse or neglect actions commenced in the Superior Court; the right

has not yet been held to apply in similar proceedings lodged and adjudicated at

the administrative level.

      We have recognized that a parent or guardian has the right to a hearing

when the Division's investigation into an abuse or neglect referral has either

been "substantiated," N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J.

Super. 390, 409 (App. Div. 1998), or "established," N.J. Div. of Child Prot. &

Permanency v. V.E., 448 N.J. Super. 374, 401-02 (App. Div. 2017). 5 And, while

it may not immediately follow that the right to a hearing alone establishes the


5
  Of note, the referral here was made on March 12, 2013. A few weeks later,
an amendment to the Department's regulatory framework, which added the less
onerous "established" category, N.J.A.C. 3A:10-7.3(c)(2), went into effect. We
need not decide whether this new category was available in the investigation of
this referral (the notice was served on Lola after the regulation's April 1, 2013
effective date). Because the Division's investigation "substantiated" the referral
here and because it is not clear that the "established" category was available at
the time of the investigation, we need not here decide whether the right to
counsel attaches when a parent or guardian challenges an "established" finding.
                                                                           A-0007-15T2
                                       14
right to counsel, we are satisfied the evolution of the latter in matters where the

government has taken action that impacts parental rights and family integrity

has inexorably led us to this place.6 With these pages of history in mind, we

proceed to consider whether the government action here actually threatened or

had a likelihood of extracting a "consequence of magnitude." Rodriguez, 58

N.J. at 295.

      The parties do not dispute that a substantiation of child abuse or neglect

compels the parent or guardian's inclusion in the Child Abuse Registry. N.J.S.A.

9:6-8.11; N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 619-

20 (App. Div. 2010). They also do not dispute that inclusion in the Child Abuse

Registry is permanent. There is no expiration date on this governmentally-

imposed scarlet letter. And there is no known mechanism by which a parent or

guardian may seek removal from the list or relief from its stigma and




6
    Although discussed at oral argument, the parties have not briefed nor
otherwise argued that the child was entitled to representation in either the
administrative proceedings or here. That is another troubling question we need
not decide now, but we do not foreclose its consideration in this matter following
today's remand to the administrative level.


                                                                            A-0007-15T2
                                       15
consequences.7 So, we proceed by recognizing that this one consequence is

indelible.

       Next, we have already recognized that substantiation has greater

consequences than the mere listing itself. As then Judge (later Justice) Long

said for this court in Matter of East Park High School, 314 N.J. Super. 149, 163

(App. Div. 1998), the listing not only injures the parent's "good name" but is

also "inextricably intertwined with [the parent's] capacity to obtain employment

in a vast array of education-related jobs." The listing may also tend to prevent

the parent from fostering or adopting children in the future. V.E., 448 N.J.

Super. at 392 n.7, 393; N.J.S.A. 30:5B-25.3.

       To be sure, that a parent or guardian has been listed in the Child Abuse

Registry is – in general – a confidential matter. N.J.S.A. 9:6-8.10a(a). But the

parent hardly becomes "a nameless number on a list which was later mislaid." 8

Far from it. As we observed in V.E., there is a "lengthy list of institutions,

governmental entities, and persons to whom the Division may release



7
  Some Megan's Law sex offenders are able to apply to be released from their
registration obligations after a conviction-free fifteen years. N.J.S.A. 2C:7-2(f).
Parents and guardians listed in the Child Abuse Registry have not been given
this same right allowed some sex offenders.
8
    Boris Pasternak, Doctor Zhivago (1957).
                                                                            A-0007-15T2
                                       16
information contained in the registry regarding any finding of abuse or neglect."

448 N.J. Super. at 392 (citing N.J.S.A. 9:6-8.10a(b)(1) - (23), and (c) - (g)).

Notwithstanding the statute's general confidentiality requirement, "the Division

is empowered to disclose 'all information' from its investigations of abuse or

neglect 'regardless of whether the allegations are substantiated and whether . . .

the information has been entered in the Central Registry.'" Id. at 392 (quoting

M.R., 314 N.J. Super. at 402); see also N.J. Div. of Youth & Family Servs. v.

S.S., 372 N.J. Super. 13, 27 (App. Div. 2004) (acknowledging that the scope of

permissible disclosures is extensive).      Disclosure may be made to police,

doctors, hospitals, the Office of Administrative Law, grand juries, and the

courts. N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 170 n.2

(2015); V.E., 448 N.J. Super. at 392-93.

      Perhaps more concerning beyond inclusion in the Child Abuse Registry is

the often direct and dire impact substantiation has on the relationship between

the parent and the affected child or other children as well. The administrative

finding, as the Supreme Court has already recognized, may "provide a basis for

an action to terminate a parent's custodial rights to a child." N.J. Div. of Child

Prot. & Permanency v. Y.N., 220 N.J. 165, 179 (2014); V.E., 448 N.J. Super. at

393-94. Substantiation alone – regardless of inclusion in the Child Abuse


                                                                           A-0007-15T2
                                       17
Registry – has the potential to directly impact parents' "constitutionally

protected right to maintain a relationship with their children." N.J. Div. of

Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009); see also N.S., 412

N.J. Super. at 619. Although further interference or termination has not been

sought here, we are mindful that the substantiation appears to have played a role

in the family judge's suspension of Lola's visitation rights – a circumstance that

continues even now.9

      If all this were not enough to satisfy Rodriguez's "consequences of

magnitude" standard, one cannot help but be struck by the simple injustice that

arises from the fact that an indigent parent or guardian facing a child abuse

charge in Superior Court is entitled to counsel but not when similarly charged

at the administrative level. As things now stand, the Division's choice of forum

determines whether indigent parents and guardians will or won't receive the

assistance of counsel. That this is where the line has been drawn is not in doubt;

in describing the status quo ante – the state of things up until now – in the

availability of counsel for indigent parents or guardians in child abuse and

neglect matters, the Department accurately asserts that "[h]ad the Division



9
  We are advised that Lola has not seen Carolyn in the past five years during
the suspension of supervised visitation and the pendency of this appeal.
                                                                           A-0007-15T2
                                       18
sought care, custody, or supervision of [Lola's] children, a Title 9 complaint

would have been filed and [Lola] would have been appointed counsel under

N.J.S.A. 9:6-8.43(b)[,] [but] [n]o such mandate attaches to administrative

challenges to abuse and neglect findings." So, had the litigation about this child

taken a different turn – if, for example, there was no pending custody suit – the

Division may very well have sought to invoke the Superior Court's jurisdiction

and that would have allowed for the appointment of counsel for Lola; because

the Division proceeded administratively, Lola was left to fend for herself. We

reject the notion that this artificial distinction should be determinative of the

targeted parent's right to counsel.

      There is no valid or logical reason for maintaining the distinction between

the existence of a right to counsel in a Superior Court child abuse action and the

denial of the same right at the administrative level; the present distinction further

reveals that simple justice requires today's ruling. All things considered, the

substantiation of child abuse carries "consequences of magnitude" that compel

our determination that indigent litigants at the administrative level are entitled

to the inestimable right to counsel.

      To summarize, the consequences threatened or likely to result in matters

like this seem to us greater than those that have been found sufficiently dire to


                                                                              A-0007-15T2
                                        19
warrant the constitutional right to counsel in other settings. See, e.g., Pasqua,

186 N.J. at 149 (finding that brief incarceration to coerce payment of a willful

refusal to pay child support is a consequence of magnitude that necessitates the

appointment of counsel for indigents facing that potential); State v. Hamm, 121

N.J. 109, 124 (1990) (finding that a license to drive "is nearly a necessity [and]

its deprivation is clearly a 'consequence of magnitude'"). In Pasqua, 186 N.J. at

149, the Court said that it could "find no principled reason why an indigent

facing loss of motor vehicle privileges or a substantial fine in municipal court

. . . would be entitled to counsel under state law but an indigent facing jail for

allegedly willfully refusing to pay a child support judgment would not." So too

here. We find no principled reason why, if the consequences in Pasqua or the

suspension of driving privileges considered in Hamm give rise to a right to

counsel, administrative proceedings that substantiate child abuse or neglect –

with all the consequences we have identified – should not. Indeed, we gather

that the Supreme Court already conveyed as much when it observed in E.D.-O.

that it was "mindful of the consequences of enrollment in the Registry and the

duration of those consequences," and that it was "aware that for some acts,

enrollment in the Registry may seem draconian." 223 N.J. at 195; see also D.N.

v. K.M., 216 N.J. 587, 592-95 (2014) (Albin, J., dissenting).


                                                                           A-0007-15T2
                                       20
       The proof of our holding is in the pudding. Child abuse proceedings are

legally complex as, often, are the particular factual disputes that they pose. 10

The transcripts in the proceedings before the ALJ reveal that Lola was incapable

of navigating, let alone untangling, these complexities. She was unaware of and

therefore unable to properly object to the admission of evidence damaging to

her.   Not surprisingly, she was ill-equipped to adequately cross-examine

witnesses or elicit testimony that might have been helpful. She was also faced

with the unusual circumstance of having to deal with Dr. S.-W.'s attorney-


10
    We need not here trace the many cases in which abuse or neglect has and
hasn't been found in order to demonstrate that a fine line is often drawn in such
matters. It suffices for present purposes to observe that, starting with G.S. v.
Department of Human Services, 157 N.J. 161, 178-79 (1999), the Court
recognized that the exercise of a minimum degree of care poses a fact -sensitive
question; the parent or guardian's mistakes must constitute more than simple
negligence but less than the intentional infliction of harm. Not only is that line
difficult to define but whether it has been crossed also depends on an
examination of all the "surrounding circumstances." N.J. Div. of Child Prot. &
Permanency v. A.B., 231 N.J. 354, 369-70 (2017); E.D.-O., 223 N.J. at 180. It
asks too much of laypersons, whose personal involvement can't help but
influence their ability to advocate their position, to rationally navigate among
these legal concepts. Even in the simplest case, when the relevant facts may be
clear or even undisputed, where or whether a particular charge of abuse or
neglect falls along the continuum defined by our case law, see N.J. Dep't of
Children & Families v. T.B., 207 N.J. 294, 309 (2011), may be the subject of
much debate and pose thorny questions even for seasoned attorneys, see E.D.-
O., 223 N.J. at 182-85; this seems to us demonstrated by the conflicting
conclusions reached by the ALJ and the Assistant Commissioner on the same
factual record. Clearly, Lola was greatly disadvantaged in this close case by
being left to defend herself throughout the administrative proceedings.
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husband's interference during the hearing. Lola complained about his signaling

to Dr. S.-W. during cross-examination; rather than halt this interference, the ALJ

allowed Dr. S.-W.'s husband to lodge objections to Lola's earnest but ineffective

cross-examination.

      Lola attempted but failed to successfully move sixty-three documents into

evidence. And she had no expert of her own to refute the Division's considerable

presentation. Although Lola was successful in obtaining a favorable result from

the ALJ, her inability to adequately advocate for her own position may have

ultimately been the root cause for the final agency decision rendered against her

in this close case.

      Any adversary system that claims the ability to render just decisions must

necessarily feature "partisan advocacy on both sides." Herring v. New York,

422 U.S. 853, 862 (1975). Just as it is important to ascertain when a child has

been abused or neglected, it is important that a parent not be labeled an abuser,

and that the parental right not be infringed, through an infirm proceeding or

tilted playing field. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976); J.E.V.,

226 N.J. at 103. In such matters, the State has, at considerable expense, provided

the Division with the services of the Attorney General's office. Yet the State

has not provided representation for indigent parents and guardians on the other


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                                       22
side of these contests; to ensure a process that renders trustworthy outcomes, the

right to counsel must be offered to indigent parents and guardians. Indigent

litigants are asked to climb a steep hill in these settings. They are faced with

the stress caused by the circumstances themselves (here a hotly contested

custody battle) and the potential for a child abuse or neglect substantiation,

which carries additional significant consequences. In attempting to avoid these

consequences, the litigant must take on the Attorney General's office and the

Division's witnesses and experts.     The litigant must also navigate all the

procedural and substantive hurdles of litigation that are by no means as

simplistic as, for example, those involved in a municipal trial over a speeding

ticket. An indigent parent or guardian in this setting should not face all these

obstacles without the assistant of counsel.

      As has been said in another similar context, "[i]f the matter has any

complexities" – and there was no shortage of complexities here – "untrained

[litigants are] in no position to defend [themselves] and, even where there are

no complexities, [the] lack of legal representation may place [them] at a

disadvantage." Rodriguez, 58 N.J. at 295. For a litigant facing the government

and all its lawyers and resources in this setting, what the Court said in Gideon




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v. Wainwright, 372 U.S. 335, 344 (1963) in the criminal setting proves equally

true here: lawyers are "necessities, not luxuries."

      We conclude that indigent litigants are entitled to the appointment of

counsel when faced with a Division declaration that its investigation has

substantiated that litigant for child abuse or neglect.

                                         II

      We reach the same conclusion when considering the right to counsel on

appeal. Those substantiated for abuse by way of a final agency decision are

entitled to an appeal to this court as of right. R. 2:2-3(a)(2). Since an appeal is

available for those who can pay for it, it must also be provided for those who

can't. See Jones v. Barnes, 463 U.S. 745, 751 (1983); State v. Bianco, 205 N.J.

Super. 462, 472 (App. Div. 1985), aff’d, 103 N.J. 383 (1986). For an indigent

party to have an equal and meaningful opportunity to be heard on appeal, the

right to counsel must attach when the administrative matter has come before this

court on an appeal as of right.11




11
   We confine our holding to the right to counsel when there is an appeal as of
right; we offer no view as to whether that right attaches when the indigent is
desirous of pursuing discretionary review. Accord Douglas v. California, 372
U.S. 353, 356 (1963).
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                                        24
      This would include the right to free transcripts, for how else could

appointed counsel meaningfully attack the findings rendered against the indigent

litigant? As the Supreme Court held in Griffin v. Illinois, 351 U.S. 12, 18

(1956), "[t]here is no meaningful distinction between a rule which would deny

the poor the right to defend themselves in a trial court and one which effectively

denies the poor an adequate appellate review accorded to all who have money

enough to pay the costs in advance."

      Experience reveals that the right to trial counsel and the right to appellate

counsel go hand in glove. If the right isn't afforded at the trial level, appointed

counsel on appeal may find little to work with because of the limitations on the

scope of appellate review. See Henry v. Rahway State Prison, 81 N.J. 571, 580

(1980) (final agency decisions are entitled to deference and should be sustained

unless "arbitrary, capricious or unreasonable" or unsupported "by substantial

credible evidence in the record as a whole"). And, if only trial counsel is

provided and a litigant is left to pursue the right to appeal without counsel, any

good that may have been accomplished by trial counsel at the lower level may

be undone when the litigant is left unrepresented on appeal.

      So, just as in other areas, the right to trial counsel for indigent parties

includes the right to counsel in an appeal as of right. Gideon's declaration of the


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                                       25
right to counsel at a criminal trial was soon followed by the Court's

determination that criminal defendants are entitled to counsel when pursuing an

initial appeal as of right, Douglas, 372 U.S. at 356-58, and later still, the Court

held that this right requires not just nominal counsel but "the effective assistance

of counsel on such an appeal," Evitts v. Lucey, 469 U.S. 387, 389 (1985).

Similarly, our Supreme Court has declared that a litigant facing the termination

of parental rights is entitled to the effective assistance of counsel both at trial

and on appeal. See B.R., 192 N.J. at 306. Although the parental relationship is

not as directly threatened in proceedings like those considered here as in a

parental termination matter or private adoption matter, we are satisfied the

consequences are of sufficient magnitude to warrant the attachment of the right

to counsel; the adjudication itself may play a role in a future infringement or

termination of the parental relationship.

      To ensure an indigent litigant isn't improvidently shoved out onto a

slippery slope toward termination or a severe and permanent limitation on a

parent-child relationship, we conclude that the right to counsel, which we have

found attaches at a hearing on the substantiation of a charge of abuse, should

also attach when a final agency decision of substantiation is appealed to this

court; it follows that free transcripts must also be provided.


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                                        26
                                       III

      The State Bar argues that, if such a right is found, the State should be

required to provide the funding for such representation without that burden

falling on the Bar.

      Our response is no different than that offered by J.E.V., where the

Supreme Court found a right to counsel in private adoption litigation. The Court

recognized that the Office of Parental Representation "has developed expertise

in this area," but in the absence of "a funding source," the Court declined to

require that office to take on these additional assignments. 226 N.J. at 113. The

J.E.V. Court also noted that the Legislature has in the past "acted responsibly"

in providing counsel for the poor when constitutionally required. Ibid. After

Crist, the Legislature enacted N.J.S.A. 30:4C-15.4(a), which directs judges to

appoint the Public Defender to represent indigent parents seeking counsel in

parental termination cases. Ibid.

      But the Court also realistically understood the existence of a present need

to address the problem while awaiting legislative action. Ibid. So, the J.E.V.

Court "invite[d] volunteer organizations to offer their services, as pro bono

attorneys have done in other areas," while also concluding that, absent




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                                      27
volunteers, there would likely be a need to resort to the Madden list, even though

that is "not an ideal solution." Ibid.

      We find ourselves in that same position and, in adhering to J.E.V.'s

guidance in a comparable circumstance, we come to the same conclusion. In the

case at hand, we will expand current pro bono counsel's able assistance to the

proceedings that follow at the administrative level. In other similar matters,

absent the alternatives suggested in J.E.V., we forthwith commend to ALJs the

utilization of the Madden list to secure counsel for parents and guardians

similarly situated.

      Contrary to other occasions when the Bar has been called upon to assist

indigent litigants, our holding does not open the proverbial floodgate that may

have been of concern when the Court considered the right to counsel in other

matters. See D.N., 216 N.J. at 592 (where Justice Albin noted in his dissent that

our courts annually dispose of approximately 35,000 DWI cases, many of which

require the assignment of pro bono counsel). In response to our inquiries about

the impact such a holding would have here, the Attorney General advised that

at the administrative level in the calendar years 2016, 2017, and 2018, there

were adjudicated, respectively, sixty-three, sixty-two, and forty-six contested

cases. While it may be fair to assume there would have been more if each parent


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                                         28
or guardian noticed of a substantiation was also advised of the right to appointed

counsel, we have been given no reason to assume the number would have been

so great as to cause the State Bar to urge that we find a different solution.

Accordingly, even if the existence of a right to counsel turned on a "cost

analysis" – it doesn't12 – the number of appointments necessary in this area pales

in comparison to others where the right to counsel was acknowledged

notwithstanding a significant impact on the Bar.

                                      ***

      Because Lola was not advised that, if indigent, she had a right to appointed

counsel, we vacate the final agency decision and remand for further proceedings

to determine whether the Division's investigation properly led to th e

substantiation of child abuse or neglect. We also direct the Department to

forthwith include in their notices that parents or guardians who have been

substantiated for abuse or neglect are entitled to the appointment of counsel if

they cannot afford counsel. And, in this particular matter, we direct that Lola's




12
  As Justice Albin recognized in his dissent in D.N., "[h]ad the United States
Supreme Court taken the cost-analysis approach, Gideon would not be on the
books today, nor would Rodriguez"; "[o]ur approach has not been that if too
many indigent defendants require counsel, we will provide counsel to none."
216 N.J. at 592.
                                                                           A-0007-15T2
                                       29
current appointed counsel continue to represent her in the remand proceedings

and any appeal as of right that may follow.

      Reversed and remanded. We do not retain jurisdiction.




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