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 |
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 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. 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:
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:
After a brief recess during which the trial judge apparently telephoned the motion judge, the trial judge decided to proceed, stating:
The trial judge heard the Division's testimony. During the testimony, ...
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