N.J. Div. of Child Prot. & Permanency v. Q.W. (In re N.W.), DOCKET NO. A-1406-15T2

• Decision Date: 11 January 2018
• Docket Number: DOCKET NO. A-1406-15T2
• Parties: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. Q.W., Defendant-Appellant, and A.W. and M.T., Defendants. IN THE MATTER OF N.W. and A.W., Minors.
• Court: New Jersey Superior Court — Appellate Division

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. Q.W., Defendant-Appellant,andA.W. and M.T., Defendants.

IN THE MATTER OF N.W. and A.W., Minors.

DOCKET NO. A-1406-15T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted April 25, 2017

January 11, 2018

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Leone and Vernoia.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-0424-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Steven J. Colby, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Charles Ouslander, Designated Counsel, on the brief).

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Q.W. (Mother) appeals from an October 19, 2015 order terminating this Title Nine proceeding. Mother claims the trial court erred in proceeding to a fact-finding hearing without Mother's knowing and intelligent waiver of her right to counsel. We agree. We delineate the proper colloquy for a family court to follow in determining whether a waiver of counsel has been made knowingly and intelligently. We vacate the September 20, 2012 finding of abuse or neglect and remand for a new fact-finding hearing at which Mother has an opportunity to be represented by counsel.

I.

We summarize the underlying facts. Mother and defendant A.W. (Father), who is the father of the child A.W. (Daughter), were accused of abusing or neglecting Daughter (born 2006) and Mother'sson N.W. (born 1999).¹ Specifically, Mother and Father were accused of engaging in substance abuse and allowing the children to witness and become involved in domestic violence between Mother and Father, including an incident on May 15, 2012. Father was also accused of pushing, hitting, or attempting to push or hit the children on May 15.

On May 16, 2012, an emergency removal of the children was conducted by what is now known as the Division of Child Protection and Permanency (Division). On May 18, 2012, the Division filed a request for an order to show cause (OTSC), as well as a complaint alleging abuse or neglect by Mother and Father in violation of N.J.S.A. 9:6-8.21(c)(4)(b).

On May 18, the initial OTSC hearing was held before the OTSC judge. Mother was present and represented provisionally by an assistant public defender (A.P.D.), who argued the children should be returned to Mother because she had just obtained a temporary restraining order against Father. Father appeared without counsel, but the OTSC judge told him the A.P.D. also spoke for him. The judge upheld the removal, and awarded the Division care, custody, and supervision of the children.

The June 11 return hearing on the OTSC was held before a different judge (motion judge). At the start of the hearing, the A.P.D. who had represented Mother stated her client "has indicated that at this time she would like to proceed pro se." The motion judge conducted the following colloquy:

THE COURT: All right. [Mother], why do you want to proceed pro se?

. . . .

[MOTHER]: Because I feel like I have to speak to you and talk to you more on my own behalf. . . . Maybe you can get a . . . proper understanding. . . .

THE COURT: [You understand] these are very serious proceedings that could ultimately lead to the termination of your parental rights and if you represent yourself, you have to abide by the same rules of evidence as an attorney, so when we have a fact finding trial you're going to have to understand those rules of evidence so that you can proceed and defend yourself.

Do you think you'd be able to do that? . . .

[MOTHER]: Yes. Yes, [judge].

THE COURT: If I find that you are not able to do that, I'm going to appoint an attorney and I might even appoint a guardian ad litem if I don't feel you are capable of doing that. Do you still want to proceed pro se? Did you read the complaint? Do you understand the charges . . . do you know why you're here?

[MOTHER]: Yes, I know why I'm here.

THE COURT: Why?

[MOTHER]: Because someone — well, someone that I no longer am friends . . . with had called [the Division] on me.

THE COURT: But do you understand that a Judge has already granted the initial order to show cause and has granted the Division custody of your children?

[MOTHER]: Well, I was told that that Judge wasn't familiar with Family Court. That's what she told me.²

. . . .

THE COURT: Do you think that . . . you're going to be able to represent yourself? You sure you want to represent yourself?

[MOTHER]: I don't feel like I'm . . . being helped by her, not last time . . . or this time.

THE COURT: . . . [A]re you going to hire your own attorney or you can go to legal services?

[MOTHER]: I asked her can I do that and she told me that I can't just switch from her to another person.

THE COURT: Well, if I grant your application you can.

[MOTHER]: Oh, okay. I would like to do that.

THE COURT: Well, I would recommend that you have an attorney.

[MOTHER]: Okay.

THE COURT: If you don't want to use the public defender, that's fine. I can relieve the public defender as counsel. But I would strongly suggest you either hire an attorney or you go to legal services and see if they would represent you.

[MOTHER]: Thank you.

THE COURT: All right. You're relieved as counsel.

[THE A.P.D.]: Thank you.

The A.P.D. did not participate further in the June 11 hearing. The motion judge heard testimony, received some comments from Mother, and ordered the children to continue in the Division's care, custody, and supervision. At the end of the hearing, the judge scheduled the next hearing for 9:00 a.m. on September 20, 2012, before a different judge (the trial judge). The motion judge added: "I would strongly suggest, [Mother], that you get an attorney to represent you."

The motion judge's June 11 order stated that the A.P.D. "was relieved as [Mother's] attorney per [Mother's] request. [Mother] was advised of her right to counsel, however, she indicated that she will proceed pro se on this matter." The order added that the September 20 hearing was a "Fact-Finding." The Division's attorney sent Mother a letter listing the exhibits and witnesses the Division would call, and explaining the findings the Division would seek at the September 20 fact-finding hearing.

When the September 20, 2012 fact-finding hearing commenced at about 10:00 a.m. before the trial judge, Mother and Father were not present. Father's attorney informed the trial judge "it's my understanding that [Mother] is pro se and will be representing herself and she is also not in the building." The following exchange took place:

[DIVISION'S ATTORNEY]: And, Your Honor, just by way of — for more information, both defendants were present at the last court hearing, which was before [the motion judge]. [Mother] chose to proceed pro se.

. . . .

[DIVISION'S ATTORNEY]: She did have a public defender assigned.

THE COURT: Did [the motion judge] question her . . . extensively?

[DIVISION'S ATTORNEY]: Yes, extensively.

. . . .

THE COURT: And she specifically chose to be pro se for the fact finding hearing, also?

[DIVISION'S ATTORNEY]: [The motion judge] went through that with her, Your Honor, yes.

THE COURT: And was she notified of the fact finding in court . . . of this date? Was she told it would be in this courtroom rather [than] in [the motion judge]'s?

[DIVISION'S ATTORNEY]: Yes, Your Honor.

A probation officer left a phone message for Mother on the record stating that the trial judge was proceeding with the fact-finding hearing. The trial judge was "quite concerned" because Mother was "acting as her attorney now." The judge wondered "if although she's insisting on being pro se if she's not showing up if I should appoint an attorney to represent her." The following exchange occurred:

[FATHER'S ATTORNEY]: The only issue I can . . . anticipate with that, Judge, . . . is the attorney is going to make an objection that they're not prepared to proceed with it. There are voluminous records in this case, and I know, I can anticipate that no attorney would be able to competently represent her just popping in right now. . . .

. . . .

[DIVISION'S ATTORNEY]: She had appointed [the A.P.D.] as her public defender. She chose to not have [the A.P.D.] represent her. And as I said before, . . . [the motion judge] did question her extensively, warned her of the difficulty of proceeding pro se, and that was thoroughly done on the record. I think both counsel were there, too.

THE COURT: Yeah.

[FATHER'S ATTORNEY]: . . . I do recall the discussions that she was seeking private counsel. I think it was the issue she didn't want a public defender, she wanted a private attorney.

And, you know, I know she spoke briefly to me about that and I explained to her that I represented . . . her boyfriend, . . . so Icannot represent her. But that was what she expressed to me. So I don't know if she retained private counsel. I don't know.

After a brief recess during which the trial judge apparently telephoned the motion judge, the trial judge decided to proceed, stating:

[B]ased on what you've told me and my conversation with [the motion judge], we're going to go forward. [The motion judge] has a memory of her being noticed in court that the fact finding would be here this morning and we have to consider moving ahead for the best interest of the children.

She had the opportunity to have counsel and very competent counsel and did not. So we're going to proceed. We're going to start the fact finding.

The trial judge heard the Division's testimony. During the testimony, ...