DCPP VS. R.D.B. AND M.N.M., IN THE MATTER OF THE GUARDIANSHIP OF R.D.B., II, AND D.L.J.M. (FG-07-0074-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4795-18T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
June 5, 2020
v.
APPELLATE DIVISION
A.O.J.,1
Defendant-Appellant,
and
R.D.B. and M.N.M.,
Defendants.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF R.D.B.,
II, and D.L.J.M.,
Minors.
_________________________
Submitted April 22, 2020 – Decided June 5, 2020
Before Judges Fuentes, Haas and Mayer.
1
We use initials and pseudonyms to refer to the parties and children to protect
their privacy and preserve the confidentiality of these proceedings. R. 1:38-
3(d)(12).
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0074-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Bruce P. Lee, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Amy L. Bernstein, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Margo E.K. Hirsch,
Designated Counsel, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant A.O.J. is the biological mother of seven-year-old R.D.B. II
(Robert) and six-year-old D.L.J.M. (Daniel).2 She appeals from the Judgment
of Guardianship entered by the Family Part terminating her parental rights to
her two sons. The judge assigned to manage this case made the decision to
2
The boys have different biological fathers. They were both named as
defendants in this guardianship case. The Family Part terminated the parental
rights of Robert's biological father, R.D.B. Daniel's biological father, M.N.M.,
surrendered his parental rights on May 8, 2019. These defendants are not a
part of this appeal.
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terminate A.O.J.'s parental rights after conducting a one-day trial in which she
was not present nor represented by counsel. We reverse.
The record shows A.O.J. complained to the judge about her inability to
communicate with her attorney "for months." The judge did not make any
efforts to address or determine the validity of A.O.J.'s concerns. Instead, the
judge dismissed A.O.J.'s allegations outright and characterized the attorney as
"one of the very, very best" attorneys who have appeared before her. Without
a formal motion supported by certification from the attorney or prior notice to
A.O.J., the judge granted an oral application made by the attorney assigned by
the Public Defender – Office of Parental Representation (OPR) to be relieved
as counsel of record for A.O.J. in this guardianship trial.
The judge made clear to A.O.J. that the judiciary was powerless to
interfere with the OPR's prerogative concerning the assignment of counsel . In
the judge's own words: "my hands are tied." A.O.J. was left with only two
options: (1) retain private counsel or (2) proceed without a lawyer. Although
the record reflects A.O.J. inquired about how to retain private counsel, this
theoretical option was truly illusory. The reality of her impecunious situation
left her with only one untenable outcome, self-representation.
A-4795-18T1
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At the time the judge granted the OPR counsel's oral request to withdraw
as A.O.J.'s attorney of record in the case, the judge was well aware of A.O.J.'s
lengthy history of dysfunctional behavior including alcoholism, prostitution,
domestic violence, and homelessness. The judge allowed OPR counsel to
abandon her client, leaving A.O.J. to proceed in this case without any legal
guidance, and without making any findings about her intellectual abilities,
educational background, and/or ability to comprehend the substantive and
procedural aspects of this guardianship trial. Although the judge indicated on
the record she would assign the previously relieved OPR attorney to act as
A.O.J.'s standby counsel at the time of trial, this never came to pass.
Based on these uncontested facts, we are satisfied the Family Part
violated A.O.J.'s constitutional and statutory right to be represented by
competent counsel. The trial judge's response to A.O.J.'s dissatisfaction with
her assigned OPR counsel is irreconcilable with the approach the Supreme
Court established in N.J. Div. of Child Prot. & Perm. v. R.L.M. (In re R.A.J.),
236 N.J. 123, 149-51 (2018). We thus vacate the Judgment of Guardianship
against her and remand this matter for a new trial.
A-4795-18T1
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I
A.O.J. was born in 1994 and has an extensive history with the Division
of Child Protection and Permanency (Division). She resided with her
alcoholic grandmother as a child because of her mother's substance abuse
problem. The Division eventually removed her from her grandmother's
custody due to her grandmother's alcoholism. She resided with a foster family
until she was old enough to leave on her own accord. She claimed the foster
family members "were very violent" with her.
A.O.J.'s first encounter with the Division as an adult occurred on
February 17, 2012, when she was pregnant with Robert. The Division
intervened because she was not receiving prenatal care, was homeless, and was
using marijuana. The Division caseworker who wrote the Screening Summary
noted that A.O.J. "was kicked out of her mother's home on an unknown date
and called a 'crack head' . . . [she] has no family or friends." A Division
contact sheet dated May 2, 2012 reflected that A.O.J. was then residing at the
Isaiah House, receiving $526 in food stamps, and purportedly receiving
prenatal care from an OB/GYN physician in Clifton, whom she refused to
identify by name. A.O.J. was approximately five months pregnant with Robert
at the time. The Division closed the case on May 10, 2012. A.O.J. continued
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to reside at the Isaiah House until Robert was born. When she attempted to
returned in late July 2012 following the birth of her son, she was prohibited
from residing at Isaiah House. Division records document that the staff at
Isaiah House reported A.O.J. "was constantly attacking other clients and staff
as well as throwing chairs and causing other disturbances."
At the Division's request, Dr. Sonia Oquendo conducted a psychiatric
evaluation of A.O.J. in January 2013. A.O.J. was nineteen years old at the
time and her infant son Robert was five-months old. Dr. Oquendo noted that
A.O.J. completed the tenth grade a few years earlier and was preparing to take
her GED examination. Dr. Oquendo reviewed A.O.J.'s traumatic childhood,
which included sexual abuse, abandonment, and two psychiatric admissions;
the first occurred at age twelve when she was admitted at Beth Israel Hospital
after she expressed suicidal ideations to a Division caseworker; the second
incident occurred when she was fourteen years old and expressed a desire "to
assault some girls who had jumped her and hit her with a machete."
Dr. Oquendo also noted A.O.J.'s substance abuse problem with
marijuana, which began when she was fourteen years old as well as her family
history of domestic violence. A.O.J. told Dr. Oquendo that she was arrested
on two separate occasions; the first time was for physically assaulting her
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sister "after being coached by her grandmother." She was arrested a second
time when she assaulted the school security guard who "embarrassed her and
pinched her while she was attending school with an ankle bracelet."
Dr. Oquendo ended her psychiatric evaluation of A.O.J. with the
following conclusions:
[A.O.J.] has been exposed to multiple traumatic events
during her life including physical abuse and sexual
molestation. She exhibited multiple behavioral
problems since an early age and was impulsive,
aggressive, and assaultive. She was exposed to her
mother's substance abuse and [her mother was]
probably selling drugs in her house and she has a poor
relationship with her mother. She learned to use
aggression as a conflict resolution, which has created
problems both at home, at school, and at a different
placement that she has resided. She received poor
prenatal care, but since the birth of her son she
described significant changes in the way she acts and
thinks. She is attached to her 5-month-old son and I
had the opportunity to observe her interacting with
him in a caring and an appropriate way.
Dr. Oquendo did not find a sufficient psychiatric basis to confirm a
diagnosis of Bipolar Disorder for A.O.J. She opined, within a reasonable
degree of medical certainty, that A.O.J. "does not need to be under the care of
a psychiatrist and that treatment with medication is not indicated."
The Division's next encounter with A.O.J. occurred on September 4,
2014. In a Screening Summary, the Division's Local Office Permanency
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Adoption Supervisor documented a telephone call made by A.O.J.'s biological
mother who reported that A.O.J. had "housing issues" and she and her two
children were residing with her. The Division supervisor also noted that
A.O.J.'s mother "has an extensive history of substance abuse concerns and has
not been [compliant] with services." The supervisor was particularly
concerned because A.O.J. "has also left her children in the care of [her
mother]." The supervisor ended the Screening Summary with the following
observation: "No details are known in terms of a time frame or [A.O.J.'s]
whereabouts. It is unknown at this time if [A.O.J.'s mother] has been under
the influence of drugs while caring for the two children."
After further investigation, A.O.J. admitted to a Division caseworker
that she and the children were temporarily residing with her mother, but she
denied allowing her mother unsupervised access to the children. The children's
biological fathers were both incarcerated at the time and did not provide any
economic assistance to A.O.J. to defray the cost of their food and housing.
Despite these financial difficulties, A.O.J. declined the Division's offer of
assistance. The Division caseworker noted that "the home [was] free of clutter
[and]. . . [t]here was food . . . and running utilities."
A-4795-18T1
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The Division caseworker received a report about the boys' medical
condition. The physician did not find any known illnesses and concluded that
A.O.J. was providing appropriate care. The medical report mentioned that the
older boy Robert "is [a]sthmatic . . . [but] [h]is parent is providing appropriate
care." The caseworker twice noted in the investigation summary: "There are
no concerns of abuse or neglect."
On June 11, 2015, the Division received another referral alleging A.O.J.
and her two sons had been "staying from place to place . . . for the past five
months." The reporter claimed that A.O.J. and the children "were recently
staying at the Riviera Motel . . . [until she] was put out[.]" The Screening
Summary ended with the following disturbing statement: "[A.O.J.] is a
prostitute. Reporter states the children are with her or other people while [she]
works. Reporter was informed by someone that the children are also with
[her] while she is prostituting; no details provided. [A.O.J.] smokes marijuana
daily. The children are not in daycare and stay with [A.O.J.] during the day."
While the Division was investigating these allegations, on July 4, 2015,
the East Orange Police Department responded to a physical altercation
between A.O.J. and R.D.B., her oldest son's biological father. Division
records show that both A.O.J. and R.D.B. were intoxicated at the time of the
A-4795-18T1
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altercation. According to the Division investigator who responded to the
scene, A.O.J. was so impaired by alcohol that she "was not able to fully
articulate what happened." R.D.B.'s aunt told the Division investigator that
A.O.J. chased R.D.B. with a knife and threatened to kill him. The two boys
were asleep during the altercation. A.O.J. told the investigator that R.D.B.
instigated the altercation; she denied striking him or threatening him with a
knife. The police officers who responded to the scene arrested both A.O.J. and
R.D.B.
On July 4, 2015, the Division executed an emergency removal of the
children without judicial authorization pursuant to N.J.S.A. 9:6-8.29 and
placed them into a resource home. On July 7, 2015, the Division filed an
Order to Show Cause (OTSC) for Temporary Custody and a Verified
Complaint to Appoint a Law Guardian with Temporary Custody. On this day,
the judge, who managed this case from its inception through the final
guardianship trial, granted the Division's petition for temporary custody of the
children. The judge found sufficient grounds to remove the children from
A.O.J.'s care and custody, thereby avoiding imminent danger to the children's
life, safety, or health. The judge made the following factual findings in
A-4795-18T1
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support of this decision based only on the events described by the Division in
the Verified Complaint:
[I]t would not be safe for the minors, [Robert] and
[Daniel] to remain in the care of their mother [A.O.J.]
. . . [because she] was involved in a domestic violence
incident with her paramour, [R.D.B.], and allegedly
threatened to kill him with a knife. [A.O.J.] was
subsequently arrested and charged with terroristic
threats to kill, and simple assault. [R.D.B.] is the
father of [Robert]. [R.D.B.] is on parole in New York
and resides with his aunt, and needs to be further
assessed to determine if he is an appropriate caretaker
for his son. [M.N.M.] is the putative father of
[Daniel]. [M.N.M.] is currently incarcerated at Essex
County Detention Center.
The Division thereafter relocated the children to a new resource home where
they remained until December 18, 2015.
A.O.J. completed a 5A form and was found financially eligible to be
assigned counsel by the OPR. The attorney that the OPR assigned to represent
A.O.J. appeared on her behalf in all subsequent hearings and case management
conferences, until the court granted her oral application to be relieved from
this responsibility on February 7, 2019. A.O.J.'s OPR counsel first appeared
on the return date of the OTSC on July 29, 2015 and was present on A.O.J.'s
behalf during the case management conferences held on August 14, 2015 and
October 1, 2015. This attorney represented A.O.J. at the fact-finding hearing
A-4795-18T1
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held on November 13, 2015. At the conclusion of this hearing, the judge
found the Division did not prove, by a preponderance of the evidence, that
A.O.J. had abused or neglected her sons on July 4, 2015, as defined in N.J.S.A.
9:6-8.9(d). The judge ordered the Division to remove from its records the
"established" finding of abuse and neglect against A.O.J. and replace it with
"[n]ot [e]stablished" or "unfounded" based upon the court's ruling. The judge
found, however, that the evidence showed a need to continue the Family Part's
jurisdiction under N.J.S.A. 30:4C-12 based on the need for the Division's
services due to A.O.J.'s "housing instability, alcohol use, and history of
prostitution." 3
On September 18, 2015, the Division arranged for A.O.J. to be evaluated
by Catholic Charities to determine what type of services she needed to
organize her life and regain custody of the children. The appellate record
contains several assessment reports from this philanthropic agency. An
assessment dated June 29, 2016 includes A.O.J.'s account of the severe,
psychologically traumatic events she experienced as a child. She reported that
3
N.J.S.A. 30:4C-12 "provides the means for the Division to effectuate
services to children in need when a parent does not consent to the Division's
supervision, care, or custody." N.J. Div. of Youth & Family Servs. v. I.S., 214
N.J. 8, 33 (2013).
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she was sexually assaulted three times between ages twelve to fourteen years
old. The first sexual assault was perpetrated by an adult male cousin. The
other two sexual assaults were committed by strangers. According to A.O.J.,
when she told her grandmother and mother about these incidents of sexual
violence, they both told her "it was good for her to have that experience."
A.O.J. also told the counselor who conducted this assessment that she
intentionally "buried" or consciously repressed these traumatic childhood
experiences because of the response she received from her family. The
counselor specifically noted that "she blamed herself for being raped." The
Catholic Charities assessment report concluded that A.O.J. needed "mental
health counseling for her past sexual traumas and her domestic violence."
On November 13, 2015, more than three months after the children's
emergency removal, the Division's case manager assigned to coordinate the
services ordered by the Family Part met with A.O.J. The Division Contact
Sheet entered that same day documented the following difficulties:
[A.O.J.] indicated she has started with her substance
abuse treatment. Case manager accompanied her to
the Family Justice Center for domestic violence. Case
manager expressed the difficulty with finding services
for [A.O.J.] due to [her] being the batterer. Case
manager also indicated that the other batterer is
currently incarcerated and she wanted to leave the
state. Case manager was advised that [A.O.J.] can
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receive assistance from the Victims Witness
Compensation program. It was stated they can supply
the first month's rent and security. Case manager also
provided her with a list of agencies that provide
batterers intervention counseling. Case manager and
[A.O.J.] left the facility.
A Contact Sheet entered by the case manager on November 16, 2015
shows that the only domestic violence services the Division provided
considered A.O.J. the batterer-aggressor, not the victim. Because the police
officers who responded to the scene considered A.O.J. and R.D.B. equally
culpable combatants, the Division labeled her a "domestic batterer" before she
was even arraigned on these charges.
Although the dispositive legal issue here is the wrongful denial of
counsel to A.O.J. during the guardianship trial, we will summarize A.O.J.'s
efforts to remain in contact with the children during the time leading to the
trial. Both children received a Comprehensive Health Evaluation conducted at
Saint Barnabas Children's Hospital on August 14, 2015. Daniel was nearly
one-and-a-half years old at the time. The report found his "gross and fine
motor skills, problem-solving skills and personal-social areas of development
were in the normal range," when compared to other children his age.
However, his "communication, social and emotional skills" were at-risk. The
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report recommended "a comprehensive speech evaluation to address his
reported and observed speech delays."
Robert was three-years old at the time of his evaluation. Although his
physical development was within the normal range when compared with
children his age, the physicians found he "has issues with calming himself
down, using words to describe feelings, and destroying toys and food on
purpose." His behavior and responses to questions during the evaluation
affected his ability to function and appeared to be related to his language
delays.
A Monthly Progress Report filed for the time period between October 5,
2016 and November 5, 2016 indicated the children experienced difficulties
acclimating to their foster home. Robert in particular did not "seem fully
comfortable in his living situation because of the fear he has for his foster
parent." (Emphasis added). While at home with his foster parent, Robert was
"quiet and [sat] very still . . . [He] seems very intimidated by his foster
mother." (Emphasis added). The foster parent reported that she had received
"many phone calls" from the school Robert attended "about him acting out and
being out of control." We note these dysfunctional displays seem consistent
A-4795-18T1
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with the concerns identified by the physicians who evaluated the boys at Saint
Barnabas Children's Hospital.
On May 25, 2017, the Division placed the children in a different foster
home. A Division Contact Sheet documented that the location of the new
foster home allowed A.O.J. to visit the children on a weekly basis and enabled
Robert to receive in-home therapy. The documentary evidence also shows the
Division was no longer pursuing family reunification. The Contact Sheet
indicated the Division's goal was "select home adoption." At this same time
the Division approved the boys to visit Daniel's aunt and uncle in the State of
Georgia. The couple told the Division they wanted to adopt both boys. The
uncle said he was a former professional baseball player with the Atlanta
Braves who retired in 1996.
On October 18, 2016, the Division filed a complaint for guardianship to
terminate A.O.J.'s parental rights to Robert and Daniel. Coincidently,
however, A.O.J. began to make significant progress and established a steady
record of compliance with court-ordered services. The Division was so
impressed with A.O.J.'s efforts following the filing of the guardianship
complaint that it petitioned the judge to change the plan from termination to
reunification.
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On September 7, 2017, the judge approved the Division's permanency
plan for reunification with the following caveat:
[A.O.J.] has been compliant with services and may
soon be able to care for the children independently.
However, she still does not have housing and needs to
demonstrate stability before the children can be placed
in her care. Dr. Singer completed an updated
evaluation of [A.O.J.] which recommended that she
work toward reunification, but that she still needs to
be monitored by a psychiatrist, continue participating
in therapy, complete her substance abuse treatment,
and obtain stable housing and employment.
The judge acknowledged the Division had provided reasonable services
to bring about a reunification plan that provided A.O.J. with "substance abuse
treatment, therapy, parenting skills, board rate, [and] relative assessments."
The judge thus dismissed the guardianship complaint and "reopened" the
proceedings under N.J.S.A. 30:4C-12. The order contains twelve numbered
items that the judge deemed worthy of clarification. Of particular relevance
here, item number eleven states: "Both [A.O.J.] and [Daniel's biological father,
M.N.M.,] have completed 5As and have been approved for counsel in [the] FN
[Title 30 case]."
A.O.J.'s efforts to maintain a positive lifestyle proved to be short lived.
In an order dated September 6, 2018, the judge found A.O.J.: (i) had not
received individual therapy despite a history of mental health issues; (ii) did
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not comply with ongoing screening for substance abuse, including hair follicle
tests; (iii) failed to sustain stable housing and secure suitable employment to
cover her living expenses; and (iv) repeatedly arrived late to scheduled visits
with the children. Conversely, the Division provided her with "psychological
and psychiatric evaluations, parenting skills training, supervised visitation,
drug testing, board rate, Medicaid, furniture, clothing, car seats, foster care
support services, psychosocial evaluation, therapy and behavioral assistance
services."
The judge rejected the Division's request to allow A.O.J. additional time
to comply with services and ordered the Division to present a new permanency
plan on October 2, 2018. On the return date, the Division again argued in
favor of allowing A.O.J. additional time to show her fitness to parent her sons.
The judge again rejected the Division's plan and rescheduled the matter for
November 1, 2018. After again finding no basis to provide A.O.J. with any
additional time to comply with the court-ordered services, on November 14,
2018, the judge ordered the Division to submit a permanency plan to terminate
A.O.J.'s parental rights and proceed with adoption. In an order dated January
8, 2019, the court also terminated the protective services litigation.
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II
On January 15, 2019, the Division served A.O.J. with a Verified
Complaint for Guardianship and an Order to Show Cause (OTSC). She
completed a 5A form, was found eligible to be represented by the OPR, and
assigned the same attorney who represented her in the previous Title 9 and
Title 30 cases. The same judge who adjudicated these two previous cases was
assigned to manage and preside over this second guardianship action.
February 7, 2019 - Case Management Hearing
The record shows the presence of the Deputy Attorney General (DAG)
for the Division, the Law Guardian on behalf of the children, A.O.J., and an
OPR attorney, who indicated she was "provisionally representing" Daniel's
biological father, M.N.M. Robert's biological father, R.D.B., was not present.
The transcript of the case management conference shows A.O.J.'s OPR
attorney was present but did not enter her appearance on behalf of A.O.J. nor
make any attempt to apprise the judge that she was having problems with her
client since the termination of the protective services litigation.
As the following colloquy shows, the DAG was the first to inform the
judge about this controversy on the record.
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DAG: [A.O.J.] has been served and completed a 5A,
although it's our understanding she no longer wishes
to have [OPR counsel] represent her.
THE COURT: [addressing A.O.J.] Unfortunately, I
can't – one, you're assigned counsel, if there's a
problem with that counsel, they will not reassign you
another counsel and I can't make them reassign you a
counsel.
Yes?
....
[A.O.J.]: Since for months, months, I mean I've been
having complaints, I've let my caseworkers know, I let
the Judge['s] Chambers know, I mean, I've been
getting so much help, more from my [Division]
worker, it's like I feel like my [Division] worker is my
attorney, I can't even get in contact with her, let alone
get a [c]ourt date or nothing.
THE COURT: All right. This is all I can tell you.
This is what I can tell you, [A.O.J.] I have a lot of
attorneys [who] appear before me, a lot, and clearly,
[OPR counsel] is really one of the very, very best. So
it is unfortunate that you feel the way you feel.
[T]he rules are very clear, you get one attorney
assigned to you. If . . . for whatever reason, you do
not like that attorney, you cannot get along with that
attorney, I cannot order O.P.R. to provide you with
other counsel. That is not something I can do. I
encourage you to try and get counsel on your own but
there is nothing . . . my hands are tied. There is not
much else I can do.
[A.O.J.]: Okay.
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THE COURT: But I would suggest strongly that you
obtain counsel.
[Addressing A.O.J.'s OPR counsel]
Now . . . you're -- O.P.R. was not assigned in -- you
were assigned in the FN[?]
[A.O.J.'S OPR COUNSEL]: Yes, they were. In both,
so we're asking for the [c]ourt [to] [relieve] me in
regard to that.
THE COURT: All right. And [A.O.J.], you do not
wish to have [OPR counsel] represent you, correct?
[A.O.J.]: No.
THE COURT: Okay. Then [OPR counsel] you're . . .
relieved.
[(Emphasis added).]
The record shows that from this point forward, the judge interacted with
A.O.J. directly and without legal representation. This left A.O.J. bewildered
and frustrated. Furthermore, the judge continued to admonish her to retain
private counsel, knowing full well this was not a realistic option for this
economically impoverished, socially unsophisticated young woman. The
colloquy between A.O.J. and the judge illustrates this point:
THE COURT: [A.O.J.] . . . you were given a path that
you had to follow . . . to get . . . to have this case stay
in protective litigation and to get your children back,
you didn't follow it, I'm sorry. I'm sorry. So now . . .
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we're in guardianship, you're going to be offered . . .
services, I suggest you follow them, you do what I'm
ordering you to do and . . . then we'll make a
determination going forward. You have the
opportunity to visit, I suggest you take advantage of it.
[A.O.J.]: Oh, I always . . . see my children even –
THE COURT: Okay.
[A.O.J.]: even times that they said that I wasn't.
THE COURT: Okay.
[A.O.J.]: Could you ask [the Division caseworker]
about the times that she found out that –
THE COURT: No, I can't.
[A.O.J.]: You can't.
THE COURT: I ruled – I've already ruled on that, you
were given opportunities –
[A.O.J.]: From false information.
THE COURT: [A.O.J.], you were given opportunities,
you were supposed to be going to visitation through
the program and you didn't.
[A.O.J.]: I was sick and I cannot see my children when
I'm sick.
THE COURT: Well . . . it was months, it was months
–
[A.O.J.]: It was not months.
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THE COURT: -- I'm not going to – thank you, that's
done. I'm not going to hear any more. You have a
path, you know what you have to do, I suggest –
strongly suggest you obtain counsel. All right. Now, is
there anything that you – do you have any questions?
[A.O.J.]: So do you have any information on lawyer
services that I can get because I'll pay for them if I
have to.
THE COURT: We'll provide – I'll provide you with a
list if you wait outside.
[A.O.J.]: Has anybody put – research and investigate
everything was not accurate.
THE COURT: Okay.
[A.O.J.]: But a real lawyer will definitely get that
done.
[(Emphasis added).]
At the conclusion of the case management hearing, the judge entered an
order dated February 7, 2019 that provided A.O.J. telephonic visitation with
her two sons on Saturdays at 11:00 a.m., which would be "supervised by the
resource parent." The judge further ordered that the attorney assigned to
represent A.O.J. by "the Office of the Public Defender/Office of Parental
Representation [is] hereby relieved." The appellate record does not show that
anyone associated with the judiciary provided A.O.J. with "a list" of attorneys
for her to retain.
A-4795-18T1
23
March 5, 2019 - Case Management Hearing
The transcript of this hearing shows the DAG, the Law Guardian, and
the OPR attorney assigned to represent M.N.M. entered their appearance
before the court. Neither A.O.J., R.D.B., nor M.N.M. were present. The judge
made the following statement at the start of the hearing:
All right. I just wanted to put on the record that
[A.O.J.] had in the past, fired her court-appointed
counsel, she was advised and she advised the [c]ourt
that she would get her own private counsel, the
[c]ourt's received nothing with respect to any
representation for her. [R.D.B.] was provided with a
5A application that he did not complete, however, at
least the [c]ourt has not received it.
[(Emphasis added).]
The DAG advised the judge that the children were still residing in
Georgia in a licensed resource home. The DAG also apprised the court that
the Division was willing "to pay for monthly visits for [A.O.J.] to get to
Georgia, however, she did not attend her visit that was previously scheduled
for February 19th, [2019]." The DAG stated that the Division remained
willing to provide her with the means to see the children and the caseworker
planned to speak to her "to try to arrange a March visit." The Division had
also scheduled a psychological and bonding evaluation for A.O.J. on April 1,
2019. The children and the resource parents were coming that same day from
A-4795-18T1
24
Georgia for a bonding evaluation. The DAG also summarized other services
the Division had arranged for A.O.J., such as counseling at the Famil y Life
Education Center. The DAG confirmed that A.O.J. provided the Division with
a rent receipt at the last hearing. However, she still had not provided a copy of
the lease or proof of employment.
The Law Guardian questioned Division caseworker Adrienne Caldwell
to ascertain the type of services the Division was providing to the children.
Caldwell testified that "[a]t this time, there's no services in place." The Law
Guardian advised the judge that she planned to travel to Georgia "in the
coming weeks and/or months." At the conclusion of this case update, the
judge addressed the attorneys to select a single day to try the case. This
prompted the following statement by the court:
THE COURT: I'm only . . . nobody is telling me they
have experts, I have two defendants [R.D.B. and
A.O.J.] that don't have lawyers, so yeah, I'm looking
at one day. That could change but I'm -- and I'm not
adjourning this. So if anybody thinks they're going to
get an expert, they better get an expert.
[(Emphasis added).]
The judge scheduled the trial to start at 1:30 p.m. on April 9, 2019.
A-4795-18T1
25
April 9, 2019 - Case Management Hearing
The trial did not take place on this date. Instead, at the outset of the
hearing, the DAG advised the judge that the Division caseworker "notified
[A.O.J.] this morning that the hearing was going to be today, she said she's at
work but she would also like to appear by phone if possible." The Division
caseworker was also appearing via telephone. After overcoming the logistical
difficulties associated with the telephonic participation of witnesses, the DAG
again summarized the status of the bonding evaluations and, through the court,
asked A.O.J. "to contact the Division to coordinate a visit in person with the
children in Georgia for the month of May 2019."
The DAG claimed A.O.J. had not contacted the Division to coordinate
visiting the children during the months of February and March and had not
been "consistent" in her attempts to contact the children telephonically during
the same time period. According to the DAG, A.O.J. had not participated with
the services offered by the Division and, on the issue of stable housing,
continued to provide only rent receipts instead of a lease.
After the DAG concluded her summary report, the judge addressed
A.O.J. directly and urged her to secure the necessary proofs regarding housing
A-4795-18T1
26
and steady employment. The judge then again addressed A.O.J. on the issue of
retaining an attorney:
THE COURT: And [A.O.J.] I'm going to tell you this
again, I really think you should have counsel in this
matter. I've said this to you every time you've
appeared in [c]ourt, I said to you at the end of the last
-- you know, if you need [addressing the attorney
assigned to represent M.N.M.] . . . is it possible, does
the Division – I'm sorry, does O.P.R. have a list of
outside counsels?
[ATTORNEY FOR M.N.M.]: No.
[A.O.J.]: Actually I would – I definitely I would agree
to the (indiscernible). I listen to (indiscernible) in my
schedule of work right now when I work and thank
God, I was able to get (indiscernible) probably would
have missed it.
THE COURT: All right. I . . . realize this is difficult
but June 2nd is going to be here very soon and I'm –
[A.O.J.]: Yes.
The judge entered a case management order dated April 10, 2019 that
contained twelve items or matters that needed to be addressed before the start
of trial. Item number five stated: "[A.O.J.] was encouraged by the [c]ourt to
retain counsel to represent her in this matter." The judge scheduled the next
"Case Management Review on May 13, 2019, at 2:30 PM."
A-4795-18T1
27
May 8, 2019 – Hearing
Five days before the May 13, 2020 case management review hearing, the
judge held a hearing to consider appointing A.O.J.'s original OPR attorney as
standby-counsel in the guardianship trial scheduled to start in June 2019. The
transcript of this impromptu hearing shows only the DAG, Division
caseworker Latoya Mannon, and the Law Guardian were identified as present.
A.O.J. was not physically present and the judge did not take any steps to
arrange for her to participate telephonically. It is not clear from this record
whether A.O.J. was given prior notice of the hearing. The judge began the
hearing with the following prefatory remarks:
I called everyone here today on short notice because I
had some real concerns about [A.O.J.] and her
representation in this trial -- at trial. When we were
first here -- well, let me see, I believe it was February
7th [2019] when we were here to dismiss the -- let me
just -- let me -- let me start at the beginning.
From this point, the judge recited at length the procedural history of
A.O.J.'s involvement with the Division and the judiciary, which have been
described at length herein. The judge particularly referred to A.O.J.'s status as
a self-represented litigant in this guardianship case and made the following
statement about how this came to be:
A-4795-18T1
28
THE COURT: When we appeared in [c]ourt on
February 7th on the FG, [A.O.J.] was quite insistent
that -- well, she felt that she had not been listened to
in the FN, she believed that -- she filled out a 5A, was
advised that [OPR counsel], her counsel since 2015,
would continue to represent her and she was quite
upset about that. She made it very clear she did not
want [OPR counsel] to represent her. It was also
made very clear to her that once she completes a 5A,
she is assigned counsel. She does not have the
opportunity to select counsel. At that time she said
she would -- wanted to get outside counsel.
[The judge stopped her comments at this point to
acknowledge the presence of the OPR attorney who
represented M.N.M. in this guardianship case and
requested counsel to enter her appearance on the
record. The judge thereafter immediately resumed her
recitation.]
THE COURT: Okay. We were just going forward
because I wanted to put things on the record about
[A.O.J.], that's why we started without you.
At that time, I . . . strongly encouraged her to retain
counsel to represent . . . herself in this matter. I
explained . . . the seriousness of the subject matter, I
explained again that O.P.R. counsel -- that you could
not select your O.P.R. counsel, she was advised that --
she advised the [c]ourt she did not want [OPR
counsel] to represent her. I, at that point, [OPR
counsel] and the Office of Parental Representation
was relieved of their responsibilities in this matter.
She did state at the time that she would obtain outside
counsel.
She did not appear but brought this matter back on
March 5th [2019]. She did not appear in [c]ourt. The
A-4795-18T1
29
[c]ourt noted again that defendant had -- that I
received nothing from the defendant with respect to
representation of any kind.
On [April 10, 2019] she appeared telephonically, the
[c]ourt again stressed that she should retain counsel in
this matter. The [c]ourt has continually noted that
there would be no final -- no additional adjournments
of this trial. The trial was scheduled I believe for June
3rd. Considering the length of time these children
have been in -- in the Division's custody, made it very
clear there would be no adjournments of the trial date.
As of this date, in light of -- in light of what had
happened, I wanted the Division to reach out to
[A.O.J.]. I wanted her to appear in [c]ourt today. She
never told me she wanted to represent herself, which
is her right, nor did she say that she was going to have
-- fill out a form for O.P.R. I have [OPR counsel]
here because I was prepared to have [OPR counsel]
assigned to her as stand-by counsel.
[(Emphasis added).]
At this point, the judge asked the DAG to place on the record what
efforts the Division had made to contact A.O.J. "since I issued this order and I
believe we scheduled this matter about a week ago." The DAG responded as
follows:
In brief, Your Honor, Ms. Mannon did text message
with [A.O.J.]. She responded, at least initially, that
she eventually wanted [her original OPR attorney]
back however, I don't believe Ms. Mannon has spoken
with her. Ms. Mannon went to her house several times
to try and make personal contact with her including
A-4795-18T1
30
this morning. Ms. Mannon had scheduled the
C.A.D.C. for today at 10:00 a.m. before this hearing.
She did not attend either.
Caseworker Mannon also described in detail her exchange of text
messages with A.O.J. regarding services arranged by the Division on May 1
through May 6, 2019. The record shows that at 11:36 a.m., the judge
telephoned A.O.J. from the bench, but the call was answered by a recording
indicating that the voice-mailbox was full. At this point, the judge addressed
A.O.J.'s original OPR attorney. 4
THE COURT: [addressing A.O.J.'s original OPR
attorney] I'm not going to appoint you as stand-by
counsel today. I . . . you know, I'm trying to work
with mom, she's not here, if she appears, I know that
was going to be over the objection of your office. I
know that she's not completed a 5A[.] I understand
that . . . it puts you certainly in a difficult position,
you being your office, and that's not to say, if she
appears at some point perhaps I will do it –
[OPR COUNSEL]: Right.
THE COURT: -- but I need her -- I need her to at
least show up.
[OPR COUNSEL]: And apparently, all we need is a
court order for stand-by counsel, that's it.
THE COURT: Yes and I was prepared -- I was
absolutely prepared to do that today but I'm not going
4
This is the first time the record reflects the presence of the OPR attorney.
A-4795-18T1
31
to appoint stand-by counsel to her if I can't get her in
[c]ourt. All right? I mean, if she appears, I very well
may do it, I will call you immediately. I'm going to --
this matter is scheduled for – I'm going to keep this on
for Monday, [May 13, 2019,] [and] see if -- that was
another date that she was advised of, if she appears, I
will call you and I'll let you know but if she fails to
appear in [c]ourt, I'm not going to go through – I'm
not going to make you go through that if there's
nothing for you to do, if she's not going to cooperate
at all. All right.
[OPR COUNSEL]: I'm going to wait a few more
minutes.
THE COURT: Okay. Thank you.
May 13, 2019 - Case Management Conference
The record shows that the only individuals who attended this case
management conference were the DAG, the Law Guardian, and Division
caseworker Mannon. The DAG advised the judge that the resource parents
maintained monthly logs of A.O.J.'s telephone contacts with the boys,
including text messages. Mannon was sworn in and testified about the
information contained in the logs. The DAG also represented that both boys
had been evaluated for sexual trauma at the Medlin Treatment Center in
Georgia. The visitation telephone logs and psychological evaluation reports
dated March 15, 2019 were e-filed.
A-4795-18T1
32
The judge confirmed on the record that the guardianship trial would start
on June 3, 2019. The DAG informed the court the only two witnesses the
Division would call at trial were caseworker Mannon and the psychologist who
conducted the bonding evaluations. The judge made the following statement:
All right. I just want you to be able to put on the
record in detail all the efforts you've made to try and
get [A.O.J.] recently. I mean, it's just . . . needless to
say I'm very upset about it because . . . we've been
trying to give her counsel and trying to get -- trying to
have some help for her and it's just – she's just
sabotaging herself, she's sabotaging any effort she
might have had to . . . salvage this.
June 3, 2019 - Guardianship Trial
The guardianship trial began and ended on June 3, 2019. A.O.J. did not
attend the trial nor did her original OPR attorney, whom the judge previously
indicated would likely attend the proceedings as A.O.J.'s standby counsel. The
judge telephoned A.O.J. from the bench at the start of the trial. The record
shows the judge reached A.O.J. at work. When the judge asked her if she
intended to attend the trial, A.O.J. responded that she had "two jobs back to
back" and was not aware of the date of the trial. The following colloquy
relates directly to the question of whether A.O.J. received prior notice of the
trial date:
A-4795-18T1
33
THE COURT: I'm sorry, I am giving you no – I've
made it very clear to you what day this was and that I
was not going to adjourn this matter.
[A.O.J.]: I did not get no date.
THE COURT: I told you the day. I told you the day --
[A.O.J.]: You -- okay –
....
[A.O.J.]: I'm doing an overnight shift --
THE COURT: I'm sorry.
[A.O.J.]: -- and someone couldn't call me –
THE COURT: Ms. Mannon has been trying to call
you, you've blocked her calls. 5
5
There is no competent evidence that A.O.J. blocked caseworker Mannon's
calls. The only competent evidence shows A.O.J.'s voice-mailbox was full at
the time Mannon called her. The only reference in the trial record that A.O.J.
blocked Mannon's telephone calls is in the form of the following incompetent
hearsay testimony from Mannon:
DAG: Now, how would you describe her
responsiveness with phone calls and text messages
currently?
A. I don't have a way of communicating with her since
May 2nd [2019] was the last time I spoke to her via
text only and since May 15th [2019], I asked my
colleague to swing by her house and at 11:30 in the
morning, she was at home and she advised my
colleague that she had
A-4795-18T1
34
[A.O.J.]: . . . I spoke with Ms. Mannon's supervisor
that I would like somebody else to call me and talk to
me because . . . every time I speak to Ms. Mannon . . .
[she] is very rude and I mentioned that numerous
amount of times.
....
And it seems like, never listens to no complaint,
everything I say which I was listening to everything
they saying and when I need someone to reach out to,
I don't have no one to reach out to . . . I don't have no
attorney, they're either the Division or their side – I'm
telling this lady, I'm tired of being disrespected, I'm
working two jobs, you have your job, I gotta [sic]
work to pay for myself. I can't be disrespected by the
agency and not even represented by -- sit down and
talk to me.
[(Emphasis added).]
At this point, the "court officer" administered A.O.J. the oath required
under N.J.R.E. 603 over the telephone. The judge thereafter addressed A.O.J.
directly. This exchange quickly degenerated into an exchange of accusations
between the judge and A.O.J. The judge retraced the procedural history of
blocked my number. So I don't have a way of
communicating with her via phone anymore.
Q. To the best of your knowledge, do you still remain
blocked on her telephone?
A. Yes because she still hasn't responded to my texts
or my phone calls.
A-4795-18T1
35
A.O.J.'s involvement with the Division and the court from 2015 to June 3,
2019, the date of trial. The judge claimed that A.O.J. had been uncooperative
and unwilling to communicate with the Division's caseworkers, and the court
repeatedly admonished A.O.J. that the court would hold the start of the trial
only until 10:30 a.m., giving A.O.J. fifteen minutes to report to court.
A.O.J. vehemently disputed the judge's claims that she had been
uncooperative and emphasized that she worked two jobs to support herself.
A.O.J. alleged the Division's caseworkers had been rude and disrespectful.
She ended this heated exchange by noting it was impossible for her to report to
court in fifteen minutes. The record shows the discussion between the judge
and A.O.J. came to an abrupt end as follows:
THE COURT: I'm giving you 15 minutes to get down
here. Thank you.
[A.O.J.]: Hum.
THE COURT: We're going to hold 15 minutes.
....
MS. MANNON: Address where she's at, see if I can
try to get someone to -- if she can't get here by herself.
THE COURT: I just called her. I hung up on her. She
hasn't told us yet where she – We're going to hold this
case [until] 25 minutes of 11:00. If you want to try
A-4795-18T1
36
and reach out to her again or have [the DAG] text her,
that's fine, but I am not holding this trial up today.
The guardianship trial proceeded without the biological mother and
without an attorney to represent her. The Division presented the testimony of
psychologist Dr. Elizabeth Stillwell. The Law Guardian stipulated to Dr.
Stillwell's expertise as a child psychologist. She testified on the question of
bonding. The Division's only other witness was caseworker Mannon. Before
Mannon took the stand to testify, the DAG advised the judge that Mannon
received a message from her supervisor about A.O.J. The DAG was not certain
whether A.O.J. had called back or the Division reached out to her. Regardless
of which one initiated the contact, the DAG indicated that "there was a
conversation about whether or not [A.O.J.] still wanted to appear." According
to the DAG, A.O.J. allegedly "hung up without saying whether or not she
wanted to come[.]" The DAG offered to call the Division supervisor to testify
about what was actually discussed. Alternatively, the DAG suggested the
judge call A.O.J. on the phone.
The judge declined to call A.O.J. but confirmed that the Division had
offered A.O.J. transportation. The judge declared a five minute recess to
permit the Division to contact A.O.J. The court recess lasted from 11:30:48
a.m. to 11:50:55 a.m. When the trial resumed, the DAG apprised the judge
A-4795-18T1
37
that Mannon's supervisor, Adrienne Caldwell, was present in court and ready
to testify about her conversation with A.O.J. The judge asked Caldwell, who
had been previously sworn as a witness, "to briefly tell us . . . is she coming or
isn't she?" Caldwell responded that despite her repeated requests for an
answer, A.O.J. did not definitively answer that question. Caldwell made clear,
however, that she told A.O.J. the Division would pick her up and transport her
to the courthouse. The conversation ended when the telephone was
disconnected. The judge concluded that A.O.J. had been given sufficient time
to arrive and participate at trial.
III
In this appeal, A.O.J. argues that the Family Part violated her
constitutional and statutory right to counsel when the court relieved her
assigned OPR attorney and terminated her parental rights to her sons in
absentia, in an ex parte, non-adversarial trial. A.O.J. acknowledges that an
indigent defendant who applies for representation from the OPR does not have
the right to select her attorney. However, she maintains that a trial judge is
ethically obligated to consider and determine whether a defendant's allegations
of attorney malfeasance are reasonably grounded.
A-4795-18T1
38
A.O.J. argues that she presented good cause for the judge to act because
her attorney failed to communicate with her and did not keep her informed
about the status of the case. Thus, A.O.J. claims the Family Part erred when it
dismissed her allegations against the OPR attorney without engaging in any
due diligence and allowed her to proceed without legal representation and
without making any inquiries to determine if A.O.J.'s impromptu decision "to
fire" her attorney constituted a knowing and intelligent waiver of her
constitutional and statutory right to counsel.
The Division's sixty-five-page brief in this appeal devoted the last three
pages to address A.O.J.'s arguments attacking the viability of the judgment of
guardianship based on a violation of her right to counsel. The Division argues
that A.O.J.'s arguments "do not merit exhaustive discussion" because "there is
no indication in the record" that she made these arguments before the trial
court. Therefore, "for that reason alone, these arguments should be ignored by
this court."
The Law Guardian's brief adopts a similarly dismissive legal posture.
According to the Law Guardian, A.O.J. "was advised of the importance of
obtaining counsel and provided with lists of legal resources on several
occasions." Even more disturbing, the Law Guardian cites to a section in the
A-4795-18T1
39
Forensic Psychological And Bonding Evaluations report authored by Dr.
Stillwell to make the following assertions:
[A.O.J.] offered no evidence that she called the Office
of Parental Representation to file a complaint, or took
steps to retain new counsel from the list of resources
provided to her. Dr. Stillwell opined that [A.O.J.]
externalized blame onto others. [A.O.J.'s] assertions
that her attorney was responsible for her bad outcomes
appeared to fit this pattern. [A.O.J.'s] attorney met her
responsibility under R.P.C. 1.4; any failure to
communicate was on the part of [A.O.J.].
We start our analysis by describing the fundamental principles that must
guide a trial judge's decision to permit a parent to proceed pro se in a
guardianship trial to terminate the parent's parental rights to his or her
children. "Parents in New Jersey charged with civil abuse and neglect under
Title Nine or who are subject to Title Thirty termination proceedings have a
constitutional right to counsel under the due process guarantees of Article I,
paragraph 1 of the State Constitution, and a statutory right under N.J.S.A. 9:6 -
8.43(a), 9:6-8.30(a), and 30:4C-15.4(a)." N.J. Div. of Child Prot. &
Permanency v. G.S., 447 N.J. Super. 539, 555 (App. Div. 2016) (citing N.J.
Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305 (2007); N.J. Div. of
Youth & Family Servs. v. E.B., 137 N.J. 180, 186 (1994); Crist v. N.J. Div. of
Youth & Family Servs., 135 N.J. Super. 573, 576-77 n.2 (App. Div. 1975)).
A-4795-18T1
40
N.J.S.A. 30:4C-15.4a provides:
a. In any action concerning the termination of parental
rights filed pursuant to [N.J.S.A. 30:4C-15], the court
shall provide the respondent parent with notice of the
right to retain and consult with legal counsel. 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 c.
of this section.
If the parent was previously represented by counsel
from the Office of the Public Defender in a child
abuse or neglect action filed pursuant to chapter 6 of
Title 9 of the Revised Statutes on behalf of the same
child, the same counsel, to the extent practicable, shall
continue to represent the parent in the termination of
parental rights action, unless that counsel seeks to be
relieved by the court upon application for substitution
of counsel or other just cause.
Nothing in this section shall be construed to preclude
the parent from retaining private counsel.
[(Emphasis added).]
Writing on behalf of a unanimous Court, Chief Justice Rabner recently
reaffirmed the importance of the right to representation in the context of
litigation effecting the parent/child relationship:
Without the assistance of counsel to prepare for and
participate in the hearing, the risk of an erroneous
outcome is high. It is hardly remarkable to note that a
parent who is a layperson faces significant challenges
A-4795-18T1
41
if she appears on her own to contest a private adoption
proceeding. The issues are not simple. They may
involve complicated, expert medical and
psychological evidence. An indigent parent who has
no legal training will not know how to work with a
psychologist to prepare for a trial or how to cross-
examine the other side's expert. She will have a hard
time developing defenses, gathering evidence,
presenting a case, and making arguments to address
the relevant legal standard. A parent without a
background in evidence law will also likely be unable
to prevent opposing counsel from introducing hearsay
or other inadmissible testimony.
[In re Adoption of J.E.V., 226 N.J. 90, 109 (2016)
(internal citations omitted).]
This is particularly relevant in cases in which the Division seeks to
terminate the parental rights of indigent parents:
[T]he need for counsel in a parental termination case
is evident in light of the nature of the right involved;
the permanency of the threatened loss; the State's
interest in exercising its parens patriae jurisdiction
only where necessary; and the potential for error in a
proceeding in which the interests of an indigent
parent, unskilled in the law, are pitted against the
resources of the State.
[B.R., 192 N.J. at 306 (emphasis added).]
Although parental rights are part of a select number of legally protected
rights that make up the core of our humanity, these rights are not absolute. In
re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The rights of a parent to
A-4795-18T1
42
rear her or his children must be balanced against the "State's parens patriae
responsibility to protect the welfare of the children." Id. at 346. Nearly six
months before the start of this guardianship trial, our Supreme Court
addressed, as a matter of first impression, "whether a parent has the right to
represent himself or herself in an action to terminate parental rights pursuant to
N.J.S.A. 30:4C-15 to -20." R.L.M., 236 N.J. at 131. In responding
affirmatively to this question, the Court reaffirmed our State's "longstanding
adherence to the principle that a competent litigant may represent himself or
herself in a matter in which he or she is a party, subject to exceptions set forth
in statutes, court rules, and case law." Ibid.
Thus, the Court in R.L.M. held that the right to be represented by
competent counsel in a termination of parental rights proceeding "is
constrained by two important considerations: the Family Part judge's
responsibility to reach an informed and fair determination of the child's best
interests, and the child's interest in permanency." Id. at 149. The Court also
noted that "[a]lthough a parent's decision to appear pro se in this complex and
consequential litigation represents poor strategy in all but the rarest case,
N.J.S.A. 30:4C-15.4 plainly authorizes that parent to proceed unrepresented."
Id. at 131-32. Mindful of these misgivings, the Court articulated the following
A-4795-18T1
43
admonition to dispel any lingering doubt about how a Family Part judge must
respond to a parent's invocation of her or his right to self-representation:
The parent's right of self-representation, however, is
by no means absolute. That right must be exercised in
a manner that permits a full and fair adjudication of
the dispute and a prompt and equitable permanency
determination for the child. The parent must inform
the court of his or her intention to appear pro se in a
timely manner, so as to minimize delay of the
proceedings. He or she must invoke the right of self-
representation clearly and unequivocally. In the event
of such an invocation, the court should conduct an
inquiry "to ensure the parent understands the nature of
the proceeding as well as the problems she may face if
she chooses to represent herself." The judge should
take appropriate steps, which may include the
appointment of standby counsel, so that the parent's
decision to represent himself or herself does not
disrupt the trial.
[Id. at 132 (quoting J.E.V., 226 N.J. at 114).]
The threshold determination is whether the parent-litigant is capable of
making a knowing and intelligent waiver of the right to counsel and thereafter
proceed pro se in a manner that will not disrupt or impede the orderly
administration of the trial. Id. at 149-50. Here, the record shows A.O.J.
complained to the judge about her OPR attorney's failure to communicate with
her and keep her abreast of the status of the case. However, the judge
continued the case management conference and did not make any effort to
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determine the validity of A.O.J.'s complaints. The judge merely "strongly"
suggested to A.O.J. to retain private counsel. When considered against the
judge's comprehensive familiarity with A.O.J.'s dysfunctional lifestyle and dire
financial circumstances, the suggestion to retain private counsel is nothing
more than an empty gesture. Equally clear is the absence of any rational basis
from which to even infer that A.O.J.'s complaints about her attorney's conduct
manifested her clear, unequivocal invocation of the right to waive her
constitutional and statutory rights to be represented by the OPR and proceed
from this point forward as a pro se litigant. Indeed, the Supreme Court made
clear in R.L.M.:
A parent's complaint about his or her attorney, or his
or her plan to replace current counsel with another
attorney, is not an invocation of the right of self-
representation. As we have noted in a criminal appeal,
"[t]he need for an unequivocal request for self-
representation by a defendant is a necessary
prerequisite to the determination that the defendant is
making a knowing and intelligent waiver of the right
to counsel."
[236 N.J. at 149-50 (quoting State v. Figueroa, 186
N.J. 589, 593 n.1 (2006)).]
The judge's ill-founded, precipitous decision to treat A.O.J.'s complaints
about her attorney as an unambiguous, knowing, and intelligent waiver of the
right to counsel irreparably impugned the fairness of this one-day guardianship
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trial. The record we have described at length shows, beyond any doubt, that
A.O.J.'s rights to be represented by counsel were violated. The mother of
these boys was thus relegated to play the role of spectator in the trial that
decided her parental rights to these children. The only remedy is to vacate the
judgment of guardianship terminating A.O.J.'s parental rights and remand this
matter for a new trial.
We are also compelled to comment on the procedural irregularities and
lack of decorum that permeated these proceedings. The record shows the
judge conducted a number of ex parte conferences and interactions with the
DAG and the Law Guardian. A.O.J. was marginalized due to her status as a
self-represented litigant. The judge's attempts to have A.O.J. participate
telephonically proved to be both ineffectual and frustrating for both A.O.J. and
the judge. The judge accepted and relied on hearsay testimony and other
forms of incompetent evidence from Division staff members on a number of
occasions because A.O.J. did not have an attorney present to protect her
interests. We thus conclude that the integrity of the judicial process requires
that this matter be assigned to a different judge on remand.
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Reversed and remanded. We direct the Presiding Judge of the vicinage's
Family Part to assign this case to a different judge. We do not retain
jurisdiction.
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