N.J. Div. of Child Prot. & Permanency v. R.L.M. (In re R.A.J.)

• Decision Date: 10 December 2018
• Docket Number: A-17 September Term 2017,079473
• Citation: 198 A.3d 934,236 N.J. 123
• Parties: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.L.M., Defendant, and J.J., Defendant-Appellant. In the Matter of the Guardianship of R.A.J., a Minor.
• Court: New Jersey Supreme Court

236 N.J. 123

198 A.3d 934

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,

v. R.L.M., Defendant,andJ.J., Defendant-Appellant.In the Matter of the Guardianship of R.A.J., a Minor.

A-17 September Term 2017

079473

Supreme Court of New Jersey.

Argued September 12, 2018

Decided December 10, 2018

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).

JUSTICE PATTERSON delivered the opinion of the Court.

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, 95 A.3d 157 (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, 141 A.3d 254 (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 termination of parental rights, to be followed by R.A.J.'s adoption by her resource family.

B.

The Division filed a petition for guardianship pursuant to N.J.S.A. 30:4C-15 to -20, seeking the termination of the parental rights of R.L.M. and J.J. with respect to R.A.J.

Accompanied by the appointed counsel who had represented him in the prior action regarding R.A.J., J.J. attended the first case management conference in the action to terminate his parental rights. He told the court that he did not want an attorney appointed for him, because he had "some motions that I want to put in myself." J.J. explained to the court that his uncle, a paralegal, was preparing a package of applications, among them an application for the complaint to "be dismissed or whatever the case may be." The judge conducting the conference told J.J., "you have the right to be represented by counsel, and the right to represent yourself." She admonished him that "[n]ot having an attorney is a big mistake." J.J. responded that he was "not satisfied" with his attorney, citing the court's decision to proceed to a permanency determination as evidence that his attorney was deficient. The judge reiterated that J.J. had the right to represent himself, "as long as I've explained to you what your rights are and I've impressed upon you the mistake that you're making in not having an attorney."

As the case management conference continued, J.J.'s previously assigned counsel continued to speak on his behalf. The judge, evidently assuming J.J. had decided to represent himself, advised J.J. that he would have to schedule his own evaluations by experts as the case moved forward. Stating that he intended to show the judge he was "going to cooperate," J.J. responded that if the judge would give him the form to request assignment of counsel for the guardianship action, he would fill it out. The judge noted that her role was to explain to J.J. "what your options are," and that "[t]he choices that you make are yours." J.J. evidently applied for appointment of counsel, because his assigned attorney continued to represent him as the guardianship action went forward.

At the second case management conference, J.J., citing illness, left the courtroom before the conference began.

At the third case management conference, conducted by a different judge, J.J.'s counsel advised the court that J.J. wanted him to move to have a finding of abuse or neglect "taken out of his record from a prior case." The court instructed J.J.'s counsel to file a motion. Later in the conference, J.J. raised the subject of his representation. Rather than assert his right of...