NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
R.L.M. and J.J., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF R.A.J., a minor.
Submitted February 28, 2017
appeal from the Superior Court of New Jersey, Chancery
Division, Family Part, Atlantic County, Docket No.
E. Krakora, Public Defender, attorney for appellant R.L.M.
(Theodore J. Baker, Designated Counsel, on the briefs).
E. Krakora, Public Defender, attorney for appellant J.J.
(Carol A. Weil, Designated Counsel, on the briefs).
Christopher S. Porrino, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney General, of
counsel; Cynthia Phillips, Deputy Attorney General, on the
E. Krakora, Public Defender, Law Guardian, attorney for minor
(Noel C. Devlin, Assistant Deputy Public Defender, of counsel
and on the brief).
Judges Fisher, Ostrer and Vernoia.
February 26, 2016 judgment, the Family Part terminated the
parental rights of defendants R.L.M. (Rachel) and J.J. (Jim)
to their daughter, R.A.J. (Riley), who was born in December
2013. Both parties challenge aspects of the
court's best interests findings under N.J.S.A.
30:4C-15.1(a)(1)-(4). Jim focuses on prongs three and four;
Rachel on prong two. In addition, Jim contends he is entitled
to a new trial because the court denied his request to
represent himself. Rachel asserts the court erred by
considering hearsay opinions of non-testifying experts.
Riley's Law Guardian joins the Division of Child
Protection and Permanency (Division) in opposing the
defendants' challenge to the court's best interests
findings, we defer to the trial court's fact findings,
which were partly based on credibility determinations and
supported by substantial record evidence. See N.J. Div.
of Youth & Family Servs. v. R.G., 217 N.J. 527, 552
(2014); Cesare v. Cesare, 154 N.J. 394,
411-13 (1998). We affirm substantially for the reasons set
forth in the trial judge's well-reasoned written
find little merit in Rachel's evidentiary argument.
Although the trial judge reviewed the opinions of two
non-testifying mental health experts who examined Rachel
years before trial, it is apparent the error had no impact on
the court's ultimate conclusions. Instead, the court
based its holding on the opinions of experts who did testify
as to more recent evaluations.
confine our extended comments to Jim's contention that he
has a constitutional right of self-representation, the denial
of which warrants a new trial. We conclude there is no such
constitutional right, and the court was, in any event,
justified in refusing to permit Jim to represent himself
because his request was equivocal and untimely.
not review the facts in detail, as the trial court set them
forth at length in its forty-three-page written opinion. It
suffices to note that the Division effectuated a Dodd
removal of Riley shortly after her birth. At the
time, the Division was engaged in a separate, ultimately
successful, guardianship action seeking the termination of
parental rights with respect to Rachel's five other
children, the youngest of which, a son, was also Jim's
child. The court affirmed Riley's removal and granted the
Division's request for custody set forth in its December
2013 verified complaint. In February 2015, the court approved
a permanency plan of termination of parental rights to be
followed by adoption, and the Division filed its guardianship
complaint the following April. The court conducted several
conferences over the ensuing months before trial in February
trial, the Division's case-worker detailed the
parents' inconsistent visitation and their failure to
timely or fully avail themselves of services - including
parenting and mental health services. Alan Lee, Psy.D.,
testified about psychological and bonding evaluations he
conducted. He opined that both parents, in various ways,
lacked the psychological and emotional functioning to parent,
and prospects were poor for significant improvement in the
near future. Dr. Lee stated the parents' respective bonds
with Riley were insecure. By contrast, Riley had developed
strong, reliable bonds with the resource parents with whom
she had lived since birth. He opined neither parent could
satisfactorily address the harm Riley would suffer if she
were separated from her resource parents and termination of
parental rights would not cause more harm than good.
treating psychologist over several months, discussed
Rachel's positive efforts over the course of twenty-four
sessions in improving her problem-solving skills, insight and
judgment. The psychologist noted Rachel was learning how to
cope with what she diagnosed as a dysthymic
disorder. But she did not assess Rachel's
parenting ability, and the court sustained an objection to
her offering an opinion about whether Rachel was ready to
reunify with Riley.
retained Michael Wiltsey, Ph.D., who diagnosed her with
adjustment disorder with mixed anxiety and depression. He
observed parenting deficits and declined to recommend
immediate reunification. He opined that an assessment could
be made regarding parenting capacity after an additional
three to six months of strict compliance with services and
visitation, but his prognosis was "guarded . . . at
best." Neither parent testified, and Jim offered no
witnesses in his defense.
court found that the Division satisfied all four prongs of
the best interests test by clear and convincing evidence.
This appeal followed.
argues he is entitled to a new trial because the court
deprived him of his constitutional right to represent
himself. We conclude there is no such constitutional right in
termination of parental rights cases. Moreover, even if there
were, Jim failed to assert it in a timely, unequivocal
begin with a review of the facts relevant to Jim's
argument. Beginning in 2014, Jim was represented by appointed
counsel through the Office of the Public Defender. He first
broached the subject of self-representation at the May 2015
case management conference that followed the guardianship
complaint filing. He proposed to utilize the services of an
uncle who was a paralegal. As the following colloquy
indicates, although the court was prepared to recognize a
right of self-representation if knowingly and intelligently
exercised, the court neither definitely granted nor denied
THE COURT: But let's move on to another issue. You do not
want to have an attorney appointed to represent you,
[Jim]: No. No, ma'am.
THE COURT: And why is that, sir?
[Jim]: That's because I have some motions that I want to
put in myself. I actually - There's [sic] motions that I
have to put in there. There was a civil matter that I had put
in that was just about to be dismissed, and I just got
finished putting it together, had my uncle put together a
reconsideration. It also has discovery with it. Now what
I'm intending to do is my uncle is going to put together
a package that's going to be a motion -
THE COURT: Is your uncle an attorney?
[Jim]: He's a paralegal. I'm going to put together -
You can look him up. . . . He's going to put in a motion
which is going to have some of the things from the civil case
and it's going to be in there. It's going to be a
grounds which we're going to be asking for, the FG to, I
believe he said either be dismissed or whatever the case may
be, but that's what's going to be -
THE COURT: Okay.
[Jim]: It's going to be put in next week, this week.
I'm actually going to pick it up later today.
THE COURT: Okay. Sir, I think - Well, let me start off by
telling you, you have the right to be represented by counsel,
and you have the right to represent yourself. Not having an
attorney is a big mistake.
[Jim]: I understand that, ma'am, but I've had -
THE COURT: I just want to go on the record -
[Jim]: - I've had an attorney up to this far and I'm
not satisfied. This is where I'm at right now. It's
about to be taken and moved to another, another part of the,
another section of the case. You're about to go into
permanency and everything else. I felt as though if, if
having an attorney was so great then we would have a better -
I did everything that they asked me to do as far as every,
every - I went to psychological, I did ...