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

Supreme Court of New Jersey

December 10, 2018

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

          Argued September 12, 2018

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 450 N.J.Super. 131 (App. Div. 2017).

          John A. Albright, Designated Counsel, argued the cause for appellant J.J. (Joseph E. Krakora, Public Defender Parental Representation, attorney; John A. Albright and T. Gary Mitchell, Deputy Public Defender, of counsel and on the briefs).

          Jennifer A. Lochel, Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, and James D. Harris, and Cynthia A. Phillips, Deputy Attorneys General, on the briefs).

          Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for respondent R.A.J. (Joseph E. Krakora, Public Defender Law Guardian, attorney; Noel C. Devlin, of counsel and on the briefs).

          Liza Weisberg argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Liza Weisberg, Alexander Shalom, Jeanne LoCicero, and Edward Barocas, on the brief).

          PATTERSON, J., writing for the Court.

         This appeal raises an issue of first impression before the Court: 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.

         Plaintiff New Jersey Division of Child Protection and Permanency (Division) brought a guardianship action against R.L.M. and J.J., seeking to terminate their parental rights to their daughter R.A.J. At a case management conference early in the proceeding, J.J. told the court that he did not want an attorney appointed for him. As the conference continued, J.J.'s previously assigned counsel continued to speak on his behalf. At the second case management conference, J.J. left the courtroom before the conference began. At the third conference, J.J. stated that he wanted to retain substitute counsel. The judge noted that J.J.'s assigned counsel would continue to represent him pending any substitution of attorney. J.J. did not retain private counsel. At the final case management conference and the pretrial conference, J.J.'s assigned counsel represented him; J.J. declined to appear.

         On the first day of the trial, J.J. told the trial court that did not want the attorney to represent him, citing his attorney's refusal to correct the allegedly erroneous record of an earlier proceeding. Although the trial court and the Division's counsel confirmed that the current matter was unrelated to any issues in the earlier proceeding, J.J. insisted that his attorney improperly refused to follow his instructions. The trial court denied J.J.'s request. J.J. renewed his request later that day; the judge again denied the request, reasoning that the dispute between J.J. and his attorney arose from J.J.'s failure to appear in court on numerous occasions and noting assigned counsel's diligent efforts on J.J.'s behalf. The court found that J.J.'s "request at this late date would only serve to delay the proceedings and unduly interfere with the minor child's attempt to gain permanency in this matter." J.J. later interrupted the examination of a witness to demand again that his counsel be dismissed. The trial judge denied the application, noting that the trial was in progress. The judge acknowledged J.J.'s "right to terminate [his] attorney," but stated that based on J.J.'s conduct over several months, he was unconvinced that J.J. could represent himself. The judge ruled that suspending the trial would be "unfair to the interest of [R.A.J.]"

         In a detailed written opinion substantially based on his assessment of the credibility of fact and expert witnesses, the trial judge concluded that the best interests of R.A.J. necessitated the termination of the parental rights of R.L.M. and J.J.

         An Appellate Division panel affirmed the trial court's determination. 450 N.J.Super. 131, 151 (App. Div. 2017). As to J.J.'s self-representation claim, the panel held that any constitutional aspect of that claim must derive from principles of procedural due process and found that self-representation compounds the risk of error in family proceedings, thereby undermining the trial court's effort to achieve a fair result. Id. at 142-45. The panel also addressed issues that J.J. did not raise, such as potential statutory and court-rule-based sources of a right to self-representation. Id. at 147. The panel found no explicit right of self-representation in N.J.S.A. 30:4C-15.4 and concluded that Rule 1:21-1(a)'s general grant of a right of self-representation to competent litigants in matters that directly affect them could be relaxed pursuant to Rule 1:1-2(a). Id. at 148.

         The Court granted J.J.'s petition for certification, in which he claimed only that he was entitled to a new trial by virtue of the trial court's denial of his request to represent himself. 231 N.J. 414 (2017).

         HELD: The Court reaffirms New Jersey'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. No such exception is prescribed by the statute that governs this case. Although 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. 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. In this case, the court properly denied J.J.'s untimely and ambivalent claim.

         1. The Court recently recognized a self-representation right in an involuntary commitment hearing pursuant to the Sexually Violent Predator Act (SVPA). In re Civil Commitment of D.Y., 218 N.J. 359, 384 (2014). As stated in D.Y., "competent litigants in New Jersey have long been permitted to represent themselves in civil proceedings, with specific exceptions identified in statutes, court rules, and case law." Id. at 365. The Court acknowledged, however, that it has never viewed the right of self-representation to be absolute, id. at 377-79, and set forth three principles to guide courts confronting claims of self-representation in the SVPA setting, id. at 385-86. (pp. 16-21)

         2. In a termination of parental rights case, the Division has the burden to prove by clear and convincing evidence the four factors set forth in N.J.S.A. 30:4C-15.1(a). J.J.'s self-representation claim arose in a setting implicating several compelling interests -- a parent's right to raise his or her child, the State's parens patriae responsibility, and a child's urgent need for a safe and permanent home. The judge was required to consider complex fact and expert evidence to make a fair and expeditious decision. (pp. 21-25)

         3. As amended in 1999, N.J.S.A. 30:4C-15.4(a) states that "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." There is nothing mandatory about the statute's discussion of the assignment of counsel. N.J.S.A. 30:4C-15.4(b), in contrast, expressly provides that a child who is the subject of a termination of parental rights action must be represented by the Law Guardian. Thus, the Legislature plainly intended that legal representation be required only for the child at the center of a termination of parental rights action and envisioned that a parent could elect to appear pro se. (pp. 26-28)

         4. Based on the plain language of N.J.S.A. 30:4C-15.4, a parent has the right to represent himself or herself in an action to terminate his or her parental rights, with the assistance of standby counsel at the court's discretion. That right is constrained by important considerations. To assist the Family Part judges, the Court offers guidelines. First, the parent must assert the right of self-representation in a timely manner. Second, the parent must clearly and unequivocally invoke that right on the record and must knowingly, intelligently, and voluntarily waive the right to counsel. If the parent clearly and unequivocally invokes his or her right to proceed unrepresented, the court should engage in the "abbreviated yet meaningful colloquy" envisioned in the contested-adoption context in In re Adoption of a Child by J.E.V. and D.G.V., 226 N.J. 90, 114 (2016). Third, the trial court may, in its discretion, appoint standby counsel, but it is not required to do so. Fourth, the judge has the authority to take appropriate steps if an unrepresented parent declines to follow the court's instructions, disrespects the court or any participant in the hearing, or refuses to take part in the proceedings. No decision by a parent to proceed unrepresented should be permitted to impede a just and expeditious outcome for the child. (pp. 25-31)

         5. The recognition of a right of self-representation by parents in termination of parental rights proceedings, subject to the limitations stated above, rests on statutory grounds. The Court does not reach whether there is a constitutional basis for that right and does not embrace the Appellate Division's rejection of a constitutional right of self-representation in a termination of parental rights action. (pp. 31-32)

         6. In the proceedings to terminate his parental rights to R.A.J., J.J. did not assert his right of self-representation in the timely, clear, and unequivocal manner that New Jersey law requires. In a matter involving complex presentations of fact and expert evidence, the court correctly concluded that the dismissal of J.J.'s counsel would bring the proceeding to a halt for an indefinite period. Such a development would have delayed a permanency determination for R.A.J., undermining public policy. The trial judge acted appropriately to preserve the integrity of the proceeding and bring it to a conclusion, and the Appellate Division properly affirmed the trial court's determination. (pp. 32-35)

         AFFIRMED AS MODIFIED.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON's opinion.

          OPINION

          PATTERSON, JUSTICE.

         This appeal raises an issue of first impression in this Court: 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.

         Plaintiff New Jersey Division of Child Protection and Permanency (Division) brought a guardianship action in the Family Part against R.L.M. and J.J., seeking to terminate their parental rights to their daughter R.A.J. At a case management conference early in the proceeding, J.J. informed the trial court that he wanted to represent himself. Minutes later, J.J. changed course and requested that the court assign counsel to represent him. J.J. did not reassert the right to represent himself until the guardianship trial was underway. Reasoning that the dismissal of J.J.'s counsel in the midst of trial would suspend the proceedings, the court denied that request. At the trial's conclusion, the court determined that the Division had met its burden of proof by clear and convincing evidence as to all four prongs of N.J.S.A. 30:4C-15.1(a)'s best-interests standard, and terminated the parental rights of R.L.M. and J.J. An Appellate Division panel affirmed the trial court's termination of both parents' parental rights, rejecting J.J.'s constitutional claim to a right of self-representation. We granted J.J.'s petition for certification.

         We reaffirm New Jersey'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. In re Civil Commitment of D.Y., 218 N.J. 359, 365 (2014). No such exception is prescribed by the statute that governs this case. N.J.S.A. 30:4C-15.4 provides for the assignment of counsel, at the parent's request, to represent an indigent parent in an action to terminate parental rights. The statute, however, does not mandate such representation for any parent, whether indigent or not. Although 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.

         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." In re Adoption of a Child by J.E.V. and D.G.V., 226 N.J. 90, 114 (2016). 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.

         In this case, the court acted well within its discretion. Although J.J. initially asserted his right to represent himself in a timely and clear manner, he immediately withdrew his request and sought the appointment of assigned counsel. He did not reassert his right to represent himself until the trial was in progress. At that late stage, the trial court was no longer in a position to grant J.J.'s application without suspending the trial to the detriment of the child at the heart of this case. The court properly denied J.J.'s untimely and ambivalent claim.

         Accordingly, we affirm as modified the Appellate Division panel's determination.

         I.

         A.

         R.L.M. is the biological mother of six children. J.J. is the biological father of R.L.M.'s two youngest children, a son, R.J., and a daughter, R.A.J., who is the subject of this appeal.

         The guardianship action that gave rise to this appeal is one in a series of actions instituted by the Division with respect to the six children. Over the course of several years, the Family Part terminated R.L.M.'s parental rights to her five older children and terminated J.J.'s parental rights to his son R.J. The five older children were adopted, two by one family and three by another.

         The record in this appeal indicates that, in the prior proceeding involving R.J., the Family Part made no finding that J.J. abused or neglected his son. Nonetheless, J.J. insisted in this matter that, in the earlier proceeding, someone had mistakenly noted in the record that he had abused or neglected R.J. He repeatedly expressed his belief that the Division sought to terminate his parental rights to R.A.J. based on an erroneous finding that he had abused or neglected R.J.

         R.A.J. was born in 2013. Immediately after her birth, the Division conducted an emergency removal of R.A.J. pursuant to N.J.S.A. 9:6-8.29. R.A.J. was placed with the same resource family who then cared for and later adopted three of her older siblings. The Division filed a verified complaint seeking custody of R.A.J. The court granted that application.

         In May 2014, the court conducted a factfinding hearing. It made no finding that either R.L.M. or J.J. had abused or neglected R.A.J. The court concluded that both parents required services and ordered psychological, psychiatric, and substance abuse evaluations. A psychologist conducted a mental health evaluation of J.J. and reported his findings to counsel and the court. J.J. was granted visitation rights with respect to R.A.J. He visited her nine times between May and December 2014.

         Following a permanency hearing, in which J.J. was represented by appointed counsel, the court found that neither R.L.M. nor J.J. had participated in sufficient services to remedy the issues that had led to the Division's action. The court adopted the Division's recommendation of a permanency plan of ...


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