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New Jersey Division of Child Protection and Permanency v. R.L.M.

Superior Court of New Jersey, Appellate Division

April 28, 2017

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
R.L.M. and J.J., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF R.A.J., a minor.

          Submitted February 28, 2017

         On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-50-15.

          Joseph E. Krakora, Public Defender, attorney for appellant R.L.M. (Theodore J. Baker, Designated Counsel, on the briefs).

          Joseph 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 brief).

          Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).

          Before Judges Fisher, Ostrer and Vernoia.

          OPINION

          OSTRER, J.A.D.

         In a 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.[1] 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 parents' appeal.

         Regarding 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 decision.

         We also 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.

         We thus 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.

         I.

         We need 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[2] 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 2016.

         At 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.

         Rachel's 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.[3] 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.

         Rachel 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.

         The court found that the Division satisfied all four prongs of the best interests test by clear and convincing evidence. This appeal followed.

         II.

         Jim 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 manner.

         A.

         We 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 Jim's request:

THE COURT: But let's move on to another issue. You do not want to have an attorney appointed to represent you, sir?[4]
[Jim]: No. No, ma'am.[5]
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 ...

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