Comparing the substantiation of a child abuse and neglect charge that results in a listing on the child abuse registry to a “governmentally-imposed scarlet letter,” the Appellate Division held that indigent parents or guardians facing such a charge are entitled to counsel at both the administrative level and any appeal as of right. The published decision, DCPP v. L.O., reverses the final agency decision and remands the matter back for a new administrative hearing. The New Jersey State Bar Association participated as amicus curiae, arguing that because inclusion on the child abuse registry is confidential and does not trigger the termination of parental rights, listing on the registry is not a “consequence of magnitude” triggering the right to counsel. The association further argued that if the court were to find the right to counsel, the representation should be provided by knowledgeable, experienced counsel through a state-funded source, and not through the random assignment of pro bono counsel. NJSBA Trustee Amy E. Vasquez argued the matter on behalf of the association.
The Appellate Division held that substantiation of a child abuse charge is a consequence of magnitude sufficient to warrant the appointment of counsel for an indigent defendant; the right attaches to administrative proceedings commenced when the government agency provides the parent or guardian with written notice an investigation has substantiated abuse or neglect, as well as when a final agency decision has been appealed to the Appellate Division as of right and further includes free transcripts; and, until such time as the Legislature acts, the right to counsel shall be enforced by courts and agencies through pro bono counsel from the Madden list.
