DYFS v. N.S. and R.B./Matter if K.A.N., J.B., and K.B., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 54 (April 14, 2010) – Finding of abuse and neglect affirmed. “[N.S. asks] this court to consider … whether [her] right to counsel of her choice was violated by the denial of her request to substitute criminal counsel as her attorney in the Title Nine proceeding….
We reject N.S.’s predicate argument that her Sixth Amendment right to counsel was implicated when the Family Part denied Lawrence’s request for substitution. The Sixth Amendment safeguards an accused’s right to counsel to defend a criminal prosecution…. It is not applicable in this civil proceeding. When faced with the temporary loss of parental rights, a parent’s right to have legal representation is assured by the due process guarantee of Article I, paragraph 1 of the New Jersey Constitution and by N.J.S.A. 9:6-8.45….
Here, the concern in allowing dual representation by counsel centers on the disclosure of and access to DYFS files, released under Rule 5:12-3, to which the attorney representing a defendant is entitled. Criminal counsel would gain access to records that, by statute, are otherwise confidential due to the State’s compelling interest in protecting its child abuse information…. Although our review of Title Nine, federal legislation, and these authorities, counsels against unfettered access to the Division’s file outside the parameters of the Title Nine litigation, even for purposes of criminal defense, … we cannot agree with the wholesale rejection of all such requests….
We conclude these concerns should be addressed by the court in reviewing dual representation requests that might otherwise defeat the statutory confidentiality requirements. For example, after balancing the competing concerns posed, the court may allow dual representation subject to a protective order, which preserves the confidentiality of the source prompting the Division’s protective services litigation….
We believe these procedures safeguard the goals of the State to uncover and treat abuse and neglect, and to protect victim children, without unnecessarily sacrificing a parent’s right to exercise a desired choice of legal counsel…. Counsel who desire to provide dual representation to a Title Nine litigant, who is also a criminal defendant, have an affirmative obligation to disclose this fact to the court and other counsel. All parties, including the Division and the Law Guardian, must be afforded notice and an opportunity to review the request and address any perceived conflicts or any other overriding confidentiality concerns to be considered by the court in its review.”