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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-4967-14T4 A-4968-14T4
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
B.K.L. and K.P.W.L.,
Defendants-Appellants. ________________________________
IN THE MATTER OF THE GUARDIANSHIP OF N.F.L.,
Minor. ________________________________
Submitted December 13, 2016 – Remanded January 30, 2017 Resubmitted September 18, 2017 — Decided September 28, 2017
Before Judges Fisher, Leone, and Vernoia.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-0027-12.
Joseph E. Krakora, Public Defender, attorney for appellant B.K.L. (Amy Kriegsman, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant K.P.W.L. (Elizabeth D. Burke, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Schaffer, Assistant Attorney General, of counsel; Amy Klauber, Deputy Attorney General, on the briefs).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor N.F.L. (Damen J. Thiel, Designated Counsel, on the briefs).
PER CURIAM
This is the second time these appeals have come before us.
In our January 30, 2017 opinion, we remanded for an evidentiary
hearing. B.K.L. (Father) and K.P.W.L. (Mother) appeal Judge Robert
E. Brenner's March 29, 2017 ruling which held they knowingly and
intelligently waived their right to counsel during the
guardianship trial. We affirm, substantially for the reasons
stated by the Judge Brenner in his thorough March 29, 2017 opinion.
I.
We summarize the facts and procedural history detailed in our
prior opinion. During a guardianship trial, Father and Mother
filed a federal lawsuit against their attorneys. The trial court
granted their attorneys leave to withdraw. Father and Mother
represented themselves for the remainder of the trial. On June
22, 2015, the court issued an order terminating their parental
rights over their child, N.F.L.
2 A-4967-14T4 On appeal, Father and Mother challenged the trial court's
decision to relieve their counsel and have them continue the trial
pro se. We concluded that the court did not properly determine
whether Father and Mother knowingly and intelligently waived their
right to counsel, and remanded for an evidentiary hearing on
whether Father and Mother would have chosen to waive counsel and
represent themselves had they been properly advised of their
rights. N.J. Div. of Child Prot. & Permanency v. B.K.L. (In re
N.F.L.), No. A-4967-14/4968-14 (App. Div. Jan. 30, 2017) (slip op.
at 21-23).1
On remand, the judge who had conducted the guardianship trial
recused himself. As a result, Judge Brenner presided over the
evidentiary hearing. The judge heard testimony from both Mother
and Father, including testimony on what they would have done had
they received a meaningful colloquy. The judge then considered
the factors we described in our opinion.
The judge found "that Father and Mother did knowingly and
intentionally waive their right to counsel in connection with
trial," for several reasons. First, the judge found that Mother
1 We required that any person challenging the ruling on remand order the transcript on an expedited basis, and that the briefs to be filed on a tight schedule. However, appellants failed to order the transcript on an expedited basis, and the last brief was not filed until August 2017.
3 A-4967-14T4 and Father had no objection to the court's February 26, 2013 order
relieving their counsel, who had been appointed by the Office of
Parental Representation (OPR). Second, the judge found "both
Mother and Father had the option of obtaining new appointed counsel
in 2013 after their filing of the federal complaint against their
OPR attorneys resulted in the discharge of said attorneys."
Third, the judge found "Mother was aware of her option to
contact OPR to seek appointment of new counsel but chose not to
do so." Similarly, the judge found that "Father was aware he had
the option of obtaining new appointed counsel," and that "Father
chose, instead, to proceed without counsel for the remainder of
the trial." The judge found "no support" for Father's claim "that
he made a request for the appointment of new counsel and was
denied."
Fourth, the judge found "that even if Mother and Father had
been given a colloquy and were fully informed by the court as to
the dangers and difficulties of proceeding in a self-represented
capacity during the trial, they still would not have sought to be
appointed with new attorneys." "[N]otwithstanding the challenges
facing a self-represented litigant at trial, the court finds, even
accepting defendants' testimony regarding these challenges, they
still would have chosen to proceed in a self-represented capacity
if they had received the colloquy during the trial." Furthermore,
4 A-4967-14T4 the judge found their testimony denying their awareness of and
willingness to accept those challenges was repeatedly contradicted
by the trial record. That record showed that they cross-examined
witnesses, made objections, and called or tried to call witnesses
including Mother, and that Father gave a closing argument, all
without requesting the assistance of counsel during the extended
trial.
The judge found "incredible the testimony given by both Father
and Mother that, had they received a colloquy and been aware of
their options for representation at the time of trial, they would
not have chosen to proceed without counsel." The judge found
their testimony was belied by "their statements and actions during
the pendency of the trial," including Mother's declaration at
trial that "I don't need an attorney."
II.
"Appellate review of a trial court's decision to terminate
parental rights is limited[.]" In re Guardianship of J.N.H., 172
N.J. 440, 472 (2002). Our task is to determine whether the
decision "is supported by '"substantial and credible evidence" on
the record.'" N.J. Div. of Youth & Family Servs. v. F.M., 211
N.J. 420, 448 (2012) (citation omitted). "We ordinarily defer to
the factual findings of the trial court because it has the
opportunity to make first-hand credibility judgments about the
5 A-4967-14T4 witnesses who appear on the stand; it has a 'feel of the case'
that can never be realized by a review of the cold record." N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)
(citation omitted). "Particular deference is afforded to family
court fact-finding because of the family courts' special
jurisdiction and expertise in family matters." N.J. Div. of Child
Prot. & Permanency v. N.C.M., 438 N.J. Super. 356, 367 (App. Div.
2014) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)), certif.
denied, 222 N.J. 18 (2015). Thus, "[w]e will not overturn a family
court's factfindings unless they are so '"wide of the mark"' that
our intervention is necessary to correct an injustice." F.M.,
supra, 211 N.J. at 448 (citation omitted). We must hew to our
deferential standard of review.
III.
We affirm Judge Brenner's ruling on the waiver of counsel
issue substantially for the reasons stated in his opinion. We add
the following.
Judge Brenner found Father and Mother "were not credible,"
and his findings were "premised upon [their] lack of credibility."
They challenge the judge's credibility findings. However,
"reviewing courts should defer to the trial court's credibility
determinations." N.J. Div. of Youth & Family Servs. v. R.G., 217
N.J. 527, 552 (2014). "Because a trial court 'hears the case,
6 A-4967-14T4 sees and observes the witnesses, [and] hears them testify,' it has
a better perspective than a reviewing court in evaluating the
veracity of witnesses." Cesare, supra, 154 N.J. at 412 (citations
omitted). "When the credibility of witnesses is an important
factor, the trial court's conclusions must be given great weight
and must be accepted by the appellate court unless clearly lacking
in reasonable support." N.J. Div. of Youth & Family Servs. v.
F.M., 375 N.J. Super. 235, 259 (App. Div. 2005).
The judge's credibility findings were amply supported. The
judge found that "Father and Mother had an undeniable and powerful
interest" to testify falsely at the evidentiary hearing, that
their testimony was "often internally inconsistent and
contradicted by the trial record," and that "Father's testimony
throughout the evidentiary hearing was evasive and often non-
responsive or argumentative."
In particular, Judge Brenner found "no basis to support
defendants' claims [that] they were advised they may be
disqualified from seeking appointment of new counsel based on the
filing of the federal complaint and that the court advised them
it would look into the possible disqualification." Father and
Mother challenge that finding by pointing to a discussion they
were not present to hear.
7 A-4967-14T4 Before proceedings commenced on the fifth trial day, February
26, 2013, Father and Mother came to the courthouse and told their
attorneys they filed a federal complaint against them. Father and
Mother then left the courthouse. When court proceedings began
that day, Father's attorney applied "to be relieved individually
as counsel and also for [OPR] to be relieved." He stated he could
not "guarantee there will be representation from [OPR] on March
25th," the next trial day, and that "it is a possibility" OPR
would not have someone present on that day "due to the nature of
the litigation, what is going on in the federal litigation."
We reject defendants' argument that these statements by
Father's attorney show they were advised they were disqualified
from seeking new counsel. Father and Mother did not hear the
statements because they had absented themselves from the
courthouse. Moreover, Father's attorney did not say that
defendants would be disqualified from seeking new appointed
counsel from OPR, only that there was a possibility that OPR would
not be able to provide an attorney on March 25. Further, the
trial court did not did not grant the application to relieve OPR,
but only relieved the attorneys defendant named in the federal
lawsuit. Finally, Judge Brenner found that Father and Mother were
not disqualified from getting new counsel from OPR. That finding
was supported by sufficient evidence, including that OPR furnished
8 A-4967-14T4 Father and Mother with counsel throughout this appeal and on both
remands.
Father and Mother also claim they were told the trial would
continue whether they had counsel or not. They cite the trial
court's comments on February 26 that it "still look[ed] on this
trial as being viable," and that "if . . . come the 25th of March
. . . these defendant litigants are self-represented . . . , the
trial is going to proceed forward." Again, they had absented
themselves from the courthouse and did not hear the court's
comments. In any event, the comments did not suggest that counsel
would not have been provided if requested by Father or Mother,
with trial proceeding with counsel as before. Moreover, the trial
court gave them at least four weeks to obtain new counsel.
Mother argues Judge Brenner gave undue weight to her
experience in seeking appointment of new counsel. The judge
stated: "Significantly, Mother knew she could call OPR to seek
appointment of new counsel, as she had done so approximately six
months prior to the entry of the February 26, 2013 order." Mother
testified that OPR gave her the same attorney after her earlier
request. She now argues she had no reason to believe a new request
would be granted in February 2013.
However, the situation in February 2013 was quite different
from the earlier situation. The trial court's February 26, 2013
9 A-4967-14T4 order granting her attorney's request to be relieved, telling her
she could come to court with a new attorney, and suggesting she
contact OPR. The judge found Mother's "reasons for not doing so
after [receiving] the February 26, 2013 order are neither
reasonable nor believable."
Lastly, Father and Mother cite the 2017 decision in N.J. Div.
of Child Prot. & Permanency v. R.L.M., 450 N.J. Super. 131 (App.
Div. 2017). Of course, that decision came years after the 2013
proceedings here and could not have influenced the trial court,
let alone Father and Mother. Nor does it support their arguments.
Mother argues R.L.M. held that parents in termination cases
do not have the right to represent themselves. R.L.M. held a
parent does not have "a constitutional right of self-
representation" or an explicit statutory right. Id. at 147-48.
However, we ruled that parents have "the Rule-based right to appear
pro se" in a termination case. Id. at 148; see Rule 1:21-1(a).
Of course, that "right is not absolute." R.L.M., supra, 450
N.J. Super. at 148. "[A] court may relax the Rule-based right of
self-representation in a termination of parental rights case if
it concludes that, on balance, the parent's pro se efforts would
significantly undermine the interests of the child, the State, and
the court in achieving an accurate result without undue delay."
Ibid.; see R. 1:1-2(a). Unlike the trial court in R.L.M., the
10 A-4967-14T4 trial court chose to allow Father and Mother to exercise their
Rule-based right to self-representation, and expressed its belief
the trial still could viably serve those interests. Defendants
do not show an inaccurate result, undue delay, or an abuse of
discretion.
Mother cites our statement in R.L.M., supra, that, as in
criminal cases, a self-representation request "must be made before
meaningful trial proceedings have begun." 450 N.J. Super. at 150
(quoting State v. Buhl, 269 N.J. Super. 344, 363 (App. Div.),
certif. denied, 135 N.J. 468 (1994)). Failure to make a timely
request is a basis to "find no abuse of discretion in the trial
court's denial of defendant's requests to proceed pro se," Buhl,
supra, 269 N.J. Super. at 364, but it does not preclude a court
from granting a mid-trial request under appropriate circumstances.
See United States v. Banks, 828 F.3d 609, 617 (7th Cir. 2016),
(ruling a defendant cannot "claim that the court was required to
reject" an untimely request for self-representation), cert.
denied, __ U.S. __, 137 S. Ct. 1122, 197 L. Ed. 2d 222 (2017). A
mid-trial change in representation was unavoidable once Mother and
Father sued their attorneys and caused them to be relieved.
Mother also notes that a request must be "unequivocal."
R.L.M., supra, 450 N.J. Super. at 150 (quoting State v. Figueroa,
186 N.J. 589, 593 n.1 (2006)). Defendants' suit against their
11 A-4967-14T4 attorneys unequivocally caused their removal. Judge Brenner found
their subsequent conduct constituted a knowing and voluntary
waiver of counsel, and that they would have done the same had they
received the appropriate colloquy.
Father suggests R.L.M. requires the appointment of standby
counsel. R.L.M. noted that in commitment hearings for sexually-
violent predators, the Supreme Court held a "defendant has a
statutory right to appear pro se at a commitment hearing, but only
if standby counsel is present." Id. at 147 (emphasis added)
(citing In re Civil Commitment of D.Y., 218 N.J. 359, 384 (2014)
(citing N.J.S.A. 30:4-27.29(c) and -27.31(a))). However, the
Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, has
no applicability to parental termination proceedings, where the
right to counsel is governed by N.J.S.A. 30:4C-15.4.
In R.L.M., supra, we did not decide "whether N.J.S.A. 30:4C-
15.4 grants a right to appear pro se with standby counsel," because
the father there did not "propose to represent himself with the
assistance of standby counsel." Id. at 148-49. Similarly, we
need not decide that issue because neither Father nor Mother asked
for the assistance of standby counsel. See Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973); N.J. Div. of Youth & Family
Servs. v. H.B., 375 N.J. Super. 148, 186 (App. Div. 2005).
12 A-4967-14T4 Judge Brenner held the hearing, and considered the factors,
which we mandated in our prior opinion. He found that Father and
Mother had the option of obtaining new appointed counsel, that
they were aware of that option and instead chose to represent
themselves, and that they would have made the same choice if they
had received the meaningful colloquy subsequently called for in
In re Adoption of a Child by J.E.V., 226 N.J. 90, 114 (2016).
Judge Brenner's findings were supported by substantial
credible evidence, as described in his opinion. His findings were
also corroborated by the attitude of Father and Mother at trial.
Father believed his OPR attorney was "representing" the Division
and "working with the Division." Mother did not believe her OPR
attorney "was representing [her]." Father and Mother then sued
their OPR attorneys, alleging the attorneys were depriving them
of their constitutional rights. The belief that the OPR attorneys
were conspiring with the Division to deprive them of their rights
gave Father and Mother an incentive to forego asking for new OPR
attorneys, and instead to represent themselves.
Accordingly, we accept Judge Brenner's findings and reject
defendants' claim that they involuntarily went pro se.
IV.
On appeal, neither Mother nor Father challenge the substance
of the trial court's decision to terminate their parental rights.
13 A-4967-14T4 Father's initial appeal made a challenge to prong four, but only
"[b]ased upon the failure of the court to ensure that [he]
knowingly and intelligently waived his right to counsel" at the
trial. We have rejected that claim.
In the initial appeal, we did not reach Mother's claim that
she was not given adequate notice of the specific statutory basis
for termination, and thus was not afforded due process. We now
reject that claim. The Division's complaint alleged it was seeking
guardianship under N.J.S.A. 30:4C-15 through -22. In particular,
the complaint alleged that: (1) "the parental relationship harmed
the health and development of the child and threatens to do so in
the future"; (2) the parents "are unwilling or unable to eliminate
the harm facing the child, and are unwilling or unable to provide
a safe and stable home for the child," and "[t]he delay of
permanent placement for the child will add to the harm"; (3) the
Division made efforts to provide services to both parents, and
"has considered alternatives to termination of parental rights";
and (4) that "it would be in the best interest of the child . . .
to be placed under the guardianship of the Division for purposes
of adoption."
The complaint's allegations put Mother and Father on notice
that the Division was seeking termination under N.J.S.A. 30:4C-
14 A-4967-14T4 15(c)'s "best interests" test, whose four prongs are set forth in
N.J.S.A. 30:4C-15.1(a):
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
At the guardianship trial, the Division and the Law Guardian
presented evidence and argument seeking termination based on the
"best interests" test in N.J.S.A. 30:4C-15(c) and 15.1(a). The
trial court terminated Father's parental rights under the "best
interests" test, but terminated Mother's parental rights based on
abandonment. See N.J.S.A. 30:4C-15(e), -15.1(b).
Mother appealed, and filed a motion for remand. She stressed
"[t]he complaint was based on the best interests of the child and
the elements of the four-pronged test were discussed in detail."
15 A-4967-14T4 She "request[ed] that this court order the trial court judge to
re-evaluate the matter based on the four-prong 'best interests of
the child' standard." The Division did not object to a remand "to
clarify the court's findings under N.J.S.A. 30:4C-15 and the four-
part best interest of the child test codified at N.J.S.A. 30:4C-
15.1."
On January 27, 2014, we vacated the order terminating parental
rights, and remanded. At the May 15, 2014 hearing, the Law
Guardian raised whether the trial court should apply the "best
interests" test. At the September 5, 2014 hearing, the Law
Guardian and the Division urged the trial court to apply the "best
interests" test, which Father's counsel agreed was permissible.
On February 23, 2015, the court heard oral summations from the
parties to determine if the evidence at trial was sufficient to
support termination of defendants' rights under the "best
interests" test. The court ultimately applied that test on June
22, 2015. Because Mother had repeated notice over a long period
that her parental rights could be terminated under the "best
interests" test, she received "procedural due process – fair notice
and a meaningful opportunity to be heard." N.J. Div. of Youth &
Family Servs. v. R.D., 207 N.J. 88, 120 (2011).
This bears no resemblance to the cases Mother cites. Cf. id.
at 118 (finding an ambiguous "passing reference" did not give
16 A-4967-14T4 notice of which burden of proof would be applied in an abuse or
neglect proceeding); N.J. Div. of Youth & Family Servs. v. P.C.,
439 N.J. Super. 404, 413-14 (App. Div. 2015) (reversing where the
Division sought a finding of abuse or neglect only against the
father, but the court sua sponte and "without prior notice"
commenced abuse or neglect proceedings against the mother).
Mother notes she objected to considering the "best interests"
test and argued the trial court on remand could consider only
abandonment. Nonetheless, on February 23, 2015, Mother had the
opportunity to argue whether the evidence met the four prongs.
Mother notes that our January 27, 2014 order "remanded for
the [trial court's] reconsideration and additional findings on the
abandonment issue." However, on July 8, 2014, we granted the Law
Guardian's motion to clarify that order, stating:
Th[is] court's intention in entering the January 27, 2014 order was – and is now – to obtain findings from the trial judge on the abandonment issue but, also, to provide the judge with the opportunity to modify the disposition of the case if the judge felt the need to do so upon rendering findings on the abandonment issue. We also intended no limit on the trial court proceedings that would be needed in order to allow the judge to rendered informed findings on the abandonment issue.
[(Emphasis added).]
Thus, our intent in vacating and remanding was to permit the
trial court to make adequate findings on the abandonment issue
17 A-4967-14T4 and, if the court felt termination of parental rights could not
be justified under abandonment, to modify the disposition by
denying termination or by terminating on another basis.
Accordingly, the court was allowed to consider termination on the
basis of the "best interests" test under our July 8, 2014 order.2
In its June 22, 2015 oral opinion, the trial court considered
the trial evidence under the four prongs of the "best interests"
test. The court found "because we have a full-blown record that
there does not need to be any additional testimony." The court
also found the Division had proved, by clear and convincing
evidence, all four prongs of the "best interests" test and
terminated the parental rights of Mother and Father under that
test. Father and Mother have not shown any basis for us to
question the propriety of that order.
Affirmed.
2 The trial court did so without first making findings on abandonment. However, Mother was not prejudiced, as the court abandoned abandonment as a basis to terminate her parental rights.
18 A-4967-14T4