April 16, 2009
KEVIN PLANKER, PLAINTIFF-APPELLANT,
DAYNA KOTT, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-1099-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 18, 2009
Before Judges Fisher and King.
This is an appeal from a denial of parenting time by several orders of the Family Part. The appellant is presently incarcerated serving a thirty-year to life sentence in the New Jersey State Prison at Trenton for murder of a female companion. His offense date was August 16, 1997. His sentence date was December 17, 1999.
Appellant lists fourteen points on appeal from denial of parenting time which we list as presented to us:
APPELLANT'S FUNDAMENTAL STATE AND FEDERAL CONSTITUTIONAL RIGHTS WERE DENIED BY THE LOWER COURT COMMITTING CUMULATIVE ERROR AND UPHOLDING SEVERANCE OF ALL PARENT-CHILD TIES.
DENYING REQUEST FOR ORAL ARGUMENT WAS PLAIN ERROR.
FAILURE TO RELY ON VERY RECENT FACTS WAS PLAIN ERROR.
THE LOWER COURT ERRED BY NOT HOLDING A HEARING.
THE LOWER COURT FAILED TO RELY ON SUPPORTABLE EVIDENCE.
THE LOWER COURT ERRED BY DENYING APPELLANT AN OPPORTUNITY TO REVIEW AND REPLY TO AN OPPOSING MOVING DOCUMENT.
THE LOWER COURT ERRED BY MAKING FALSE STATEMENTS.
INSUFFICIENT CONCLUSORY LANGUAGE AND DISREGARD FOR ASPECTS OF MOTIONS VIOLATED R. 1:7-4(a).
MISAPPLICATION OF COURT-CITED CASE LAW, DISREGARD FOR MOTION-CITED CASE LAW, AND CONSEQUENTIAL TERMINATION OF FUNDAMENTAL RIGHTS WITHOUT ANY PROCEDURAL SAFEGUARDS REQUIRES REVERSAL.
A. MISAPPLICATION OF COURT-CITED CASE LAW.
B. DISREGARD FOR CONTROLLING CASE LAW CITED TO COURT.
C. ESTABLISHED SCOPE OF PARENTAL RIGHTS.
D. CONSTRUCTIVE TERMINATION OF FUNDAMENTAL RIGHTS.
E. HEIGHTENED CONSTITUTIONAL CONCERN FOR PARENTAL INTERESTS.
F. MANDATORY INSTRUCTIONS THAT WERE IGNORED BELOW.
THE LOWER COURT ERRED BY CONSIDERING ONLY THE CHILD'S BEST INTEREST AND NOT CONSIDERING THE INDEPENDENT VITALITY OF APPELLANT'S ESSENTIAL RIGHTS AS A PARENT.
IT WAS REVERSIBLE ERROR FOR THE LOWER COURT TO USE APPELLANT'S INCARCERATION AS SOLE FACTOR RENDERING APPELLANT'S "CIRCUMSTANCES" GROUNDS FOR THE PARENT-CHILD RELATIONSHIP TO BE SEVERED.
BECAUSE APPELLANT'S RELATIONSHIP WITH HIS BIOLOGICAL CHILD WAS SEVERED, THE LOWER COURT WAS OBLIGATED TO PROTECT BOTH THE FATHER'S AND CHILD'S RIGHTS AND TO RESOLVE ALL DOUBTS AGAINST DESTROYING THE RELATIONSHIP.
ALL ORDERS OR JUDGMENTS TERMINATING OR UPHOLDING THE TERMINATION OF ALL TIES AND CONTACTS BETWEEN APPELLANT AND CHILD MUST BE VACATED, AND BOTH PARENT AND CHILD MUST RECEIVE EQUAL PROTECTION.
THE LOWER COURT ERRED BY BARRING APPELLANT FROM MOVING.
QUESTIONS OF LAW REGARDING EQUAL PROTECTION FOR PARENTS AND CHILDREN IN PROCEEDINGS THAT CAN RESULT IN A FAMILY COURT SEVERING PARENT-CHILD TIES AND CONTACTS.
1. Are indigent parents and/or children entitled to legal counsel in proceedings that can result in a Family Court severing the parent-child relationship?
2. If an indigent parent represents himself in a Family Court proceeding where the opposing party cross-moves or the court moves sua sponte for termination of the parent-child relationship, is that parent able to raise claims of ineffective assistance of counsel when she or he had no option other than self-representation?
3. Can a pro-se incarcerated parent be held to the standards of an experienced attorney in Family Court matters, or does an indigent parent who has no option other than self-representation deserve to be granted some form of leniency regarding matters related to researching and citing authority and including legal jargon?
The respondent mother of the child, now about twelve, has filed no brief with us. She did oppose the application in the trial division. The child's mother made her desires quite clear when she said in her filing in the Family Part dated November 1, 2007, among other things:
25. Finally, I request that the court uphold its previous rulings. I request that the plaintiff be denied contact of any kind, letter, phone calls, visits, progress reports and pictures. I request that the court advise the plaintiff to desist his attempts to contact me on a personal level. I request that the court deny the plaintiff's request for counsel, special advocate, or guardian ad litem for my son, and his request for further proceedings. I request that the court honor my son's wishes and continue to protect his best interests by maintaining the no contact ruling. I request that the court deny the plaintiff's motion for reconsideration in its entirety.
She fears a negative impact on her son if any contact with appellant occurs.
Appellant applied for the Appellate Division Pro Bono Civil Pilot program in March 2008. Judge Fuentes issued an order on April 14, 2008 which said in pertinent part:
The motion to proceed as an indigent is granted. The motion for free transcripts, free copies, production of documents and assignment of counsel is denied without prejudice. Appellant is qualified for participation in the Appellate Division Pro Bono Civil Pilot Program. The motion for leave to appeal is unnecessary. Appellant is appealing from a final order of the Family Part.
We were advised by the case manager on March 30, 2009 that to date no attorney in the Program's volunteer pool had agreed to take on the case. The matter therefore was calendared before us for disposition.
From the record before us the initial judge did not terminate appellant's parental rights although he denied visitation to the father while in State Prison. The appellant remains the child's parent.
In her orders of October 15, 2007 and January 22, 2008 Judge Ustas denied appellant relief as had Judge Torack in his earlier order. Judge Ustas agreed with Judge Torack that appellant had not satisfied the court that visitation with the father in State Prison was in the child's best interest, the controlling standard. Fusco v. Fusco, 186 N.J. Super. 321, 326 (App. Div. 1982). We see nothing in the record before us to suggest that the judges who passed upon this issue in the Family Part abused their discretion in denying relief to appellant.
There is nothing in the record to support the thesis that visitation is in any sense in the best interests of the child here. Nor is there any suggestion in this record that a plenary hearing would assist the fact-finder in any respect. A plenary hearing almost certainly would produce nothing more enlightening than a continuation of the conflicting exhortations and recriminations of the parties. No additional or new evidence was proposed by the parties.
We conclude that the judges' several decisions that parental visitation is not in the best interest of the child are supported by the record before us, as well as the absence of any affirmative evidence in favor of appellant's contention.
We do part with the trial-court judges in one respect. In Part 5 of her order of January 22, 2008 Judge Ustas said:
5. Plaintiff is hereby prohibited from filing any further motions without pre-screening by the Court to determine if the motions are repetitive or frivolous without prior leave of the Court pursuant to Kozack v. Kozack, 280 N.J. Super. 272 (Chancery Div. 1994). If upon pre-screening, the Court determines the motion is repetitive or frivolous, the motion shall not be recognized by the Court. "The prehearing examination and screening of motions is particularly warranted where the history of the litigation demonstrates the use of repetitive and frivolous motions." Id. at 277. Plaintiff has been prohibited from filing any further applications until there is a significant change in Plaintiff's circumstances in the past on at least two prior occasions, pursuant to the directive of the Hon. Edward V. Torack, J.S.C., on the record, and in the Order dated October 15, 2007. Nevertheless, plaintiff has continued to file repetitive and frivolous motions, such as the three currently returnable before the Court.
We vacate that section of her order and Judge Torack's which constitute a prior restraint on filing further applications with the Family Part. We express no opinion on the merits of Kozack v. Kozack, 280 N.J. Super. 272 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997). We do conclude that the conduct of the litigant there was much more extreme than the conduct in the case before us.
We affirm the judgment denying parenting time; we vacate Section 5 of the order of January 22, 2008.
Affirmed, as modified.
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