IN THE MATTER OF THE ADOPTION OF A CHILD BY C.B. ( COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 9, 2019
• Docket: A-3247-16T2
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 limit ed. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3247-16T2

IN THE MATTER OF THE ADOPTION OF A CHILD BY C.B. _____________________

Submitted September 25, 2019 – Decided October 9, 2019

Before Judges Fuentes, Haas and Enright.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket Nos. FA-03-0081-16 and FA-03-0082-16.

Watson Bell Law Firm, LLC, attorneys for appellant (Angela D. Watson, on the brief).

Law Office of Scott T. Schweiger, attorneys for respondent (Scott T. Schweiger, on the brief).

PER CURIAM

Defendant D.B.1 appeals from the March 16, 2017 judgments of

guardianship and the amended judgment of guardianship dated April 17, 2017

1 We refer to the adult parties by initials and to the children by fictitious names, to protect their privacy. R. 1:38-3(d)(12). terminating his parental rights to his two children, D.B. (Daniel) and A.B.

(Annie).2 The judgments permitted plaintiff C.B. to proceed on separate

complaints to adopt Daniel and Annie. C.B. is the husband of the children's

biological mother, E.B.

D.B. contends the trial court erred in terminating his parental rights and

abused its discretion when it denied his adjournment requests on three of the

four trial dates held in this matter. D.B. further claims the trial court abused its

discretion when it denied his request on October 3, 2016 to permit him to

represent himself. Based on our review of the record and applicable law, we

discern no such error. Instead, we are satisfied the evidence placed before the

trial court overwhelmingly supports the decision to terminate D.B.'s parental

rights. Accordingly, we affirm substantially for the reasons set forth by Judge

Mark P. Tarantino in his thorough oral decision of March 16, 2017.

We will not recite in detail the history of this matter. Instead, we

incorporate by reference the factual findings and legal conclusions contained in

2 The amended judgment of April 17, 2017 was entered nunc pro tunc to March 16, 2017 to address a clerical error in one of the judgments which neglected to terminate D.B.'s parental rights as to Annie. A-3247-16T2 2 Judge Tarantino's decision. We add the following comments to provide context

to our decision.

D.B. and E.B. were divorced in 2010 after several years of marriage.

Daniel and Annie were born in 2005 and 2007, respectively. D.B.'s presence in

his children's lives can be best described as sporadic, due to his substance abuse

and mental health issues, as well as his frequent periods of incarceration. For

example, in 2007 and 2008, D.B. was incarcerated for approximately fifteen

months, after which he was incarcerated again for violating a final restraining

order secured by E.B.

In 2011, D.B. was admitted to Trenton Psychiatric Hospital for mental

health issues and also remanded to jail for violating his parole after testing

positive for narcotics. In 2012, he was admitted to Ancora Psychiatric Hospital

after attempting suicide while incarcerated. Upon his release from Ancora, he

overdosed on prescription medication. Subsequently, in December 2013,

defendant was incarcerated for robbery and remained confined throughout this

litigation.

Beginning in 2009, C.B. assumed the parental role that D.B. left vacant.

C.B. helped the children reach milestones, such as teaching them how to ride a

bike, and he attended parent-teacher conferences and the children's

A-3247-16T2 3 extracurricular activities. In light of his involvement with Daniel and Annie,

C.B. filed separate complaints in December 2015 to adopt each child. D.B.

immediately objected to the proposed adoptions and requested that the court

appoint counsel for him. His request for counsel was granted. Moreover, the

trial court appointed guardians ad litem (GALs) for D.B. and each of the

children. In September 2016, the children's GALs submitted a joint report

supporting C.B.'s petitions for adoption.

A number of case management conferences were conducted in this matter.

After one such conference in July 2016, Judge Tarantino entered an order

scheduling a guardianship trial to begin on October 3, 2016. Although the

guardianship trial commenced on that date, it continued on three additional dates

over a period of almost six months. One trial date had to be cancelled due to

inclement weather.

The record reflects that on the first day of trial, October 3, 2016, D.B.

requested an adjournment to obtain more documents, including a psychiatric

evaluation and risk assessment of himself. Additionally, he sought time to

secure transcripts from other proceedings which he believed were pertinent to

his defense. Additionally, D.B. asked for his counsel's removal. Judge

Tarantino denied each of these requests.

A-3247-16T2 4 When denying the adjournment request on the first day of trial, Judge

Tarantino noted C.B.'s adoption complaints had been pending for ten months.

The judge concluded D.B. had plenty of time to order transcripts and secure

evaluations. The judge also found the "best reason [D.B.] can come up with [for

his counsel's removal] is that there are things that he needs. And that's a

different issue than I don't have an attorney-client relationship." Judge

Tarantino expressed confidence D.B.'s counsel was an "experienced,

conscientious attorney by all indications," that he had "done a very thorough and

complete job" compiling over twenty exhibits, and was ready to proceed. Next,

the judge reminded the parties that he had to consider the children's need to have

this matter resolved.

On the second day of trial in October 2016, D.B. neither requested an

adjournment nor did he ask the court to revisit the issue of his counsel's removal.

However, in the latter part of the third day of trial on December 13, 2016, D.B.

requested an adjournment, through counsel. D.B.'s attorney stated that D.B.

indicated he was not of sound mind and did not have his proper medications.

D.B.'s attorney further advised that his client wanted a postponement due to the

A-3247-16T2 5 absence of his GAL.3 Counsel for C.B. objected to any postponement and

questioned whether D.B. might be engaging in a delay tactic, as D.B. had not

wanted to come out of his cell earlier that morning.

Judge Tarantino informed counsel that he had been assured by sheriff's

officers that D.B. was transported with his medications. The judge also noted

that D.B. had been alert during witness testimony that day and "he appeared to

be at least mentally okay," adding, "I'm very concerned that he is using this as a

delay tactic." Judge Tarantino expanded on such comments, stating he had been

"told by the jail people . . . that [D.B.] did receive his medications. . . . [T]here's

no way to know that for sure, but I do notice that during the day today, right

from the start, continuing well through [a witness's] testimony to the end of his

testimony a few moments ago, that [D.B.], to his credit, was alert, was

participating, was consulting with counsel, was looking at the witnesses. . . . He

was taking notes at times and was somebody who seemed to the court to be very

actively participating in his trial." Additionally, the judge stated D.B. did "not

necessarily need his guardian ad litem to be here when he testifies. . . . And if

3 The record indicates D.B.'s GAL was not present on this day of trial due to an illness. A-3247-16T2 6 [D.B.'s guardian] is sick, that is really not of huge consequence, because I know

[his GAL] has been involved with him since his appointment."

The court did not end its analysis there. Instead, the court engaged D.B.

in a colloquy, asking, "you don't feel up to testifying today. Is that what you're

saying?" Under oath, D.B. responded "well, I would like to start my testimony

and possibly finish it today, because I'm worried about having to go through this

again, being remanded on the next appearance." Judge Tarantino confirmed to

D.B. that if he did not testify that day, he would be brought back. The judge

then asked D.B. if he felt well enough to testify, to which D.B. said, "Yes."

Judge Tarantino probed further, asking D.B. if he had "the presence of mind to

be able to understand" questions asked of him and to answer those questions .

D.B. responded, "[y]es, Your Honor." With these assurances from D.B., Judge

Tarantino found the trial should continue as scheduled.

Prior to the last day of trial in March 2017, D.B.'s attorney filed a motion

to be relieved as counsel, claiming D.B. had threatened him, had challenged his

recommendations, made "independent discovery demands and written directly

to the court." Defense counsel specifically certified that D.B. made the

following threat to him: "you best believe I am coming for you after I lose my

kids, you can take that any way you want." When the parties returned to court

A-3247-16T2 7 for the last day of trial on March 16, 2017, D.B. did not deny making this

statement. He nevertheless claimed that "it would be detrimental to [his] defense

if [his attorney] is relieved as counsel due to the fact that [he] had no time to

prepare to be able to represent [himself]." The trial court granted counsel's

motion to be relieved, concluding it was D.B.'s own behavior and conduct that

caused his counsel's removal and that if another attorney was appointed in his

counsel's stead, D.B. would treat superseding counsel no differently. The trial

continued the same day D.B.'s counsel was permitted to withdraw. Upon the

conclusion of all testimony on March 16, 2017, Judge Tarantino issued an oral

opinion terminating D.B.'s parental rights.

Judge Tarantino reviewed the evidence, evaluated and accepted the

credibility of plaintiff's witnesses and found D.B.'s testimony not credible. The

judge concluded D.B. had inadequately addressed the children's needs over a

significant period of time. The court also found D.B.'s testimony was self-

centered and focused on his needs rather than on the welfare of the children.

The judge found D.B.'s "position [is] largely . . . about himself, his

shortcomings, his regrets, not really focused on the children, very minimally."

Judge Tarantino observed that D.B. had not made a motion or attempted

to contact his children for over a year before he was incarcerated on the sentence

A-3247-16T2 8 he was currently serving. Judge Tarantino further commented, "this is a

common theme for [D.B.] where his words and intentions contradict [his

actions]."

Our task as an appellate court is to determine whether the decisions of the

Family Part are supported by substantial credible evidence in the record and

consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We

owe particular deference to a trial judge's credibility determinations and to "the

family courts' special jurisdiction and expertise." Id. at 413. Unless the judge's

factual findings are "so wide of the mark that a mistake must have been made,"

they should not be disturbed, even if we would not have made the same decision

if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs.

v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW

of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). "It is not our place

to second-guess or substitute our judgment for that of the family court, provided

that the record contains substantial and credible evidence to support" the judge's

decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49

(2012).

It is well established that although parental rights are fundamental, they

are not absolute. Instead, they are balanced against the "State's parens patriae

A-3247-16T2 9 responsibility to protect the welfare of the children." In re Guardianship of

K.H.O., 161 N.J. 337, 346 (1999) (citing In re Guardianship of J.C., 129 N.J. 1,

9 (1992)). When parental rights are at issue "the child's need for permanency

and stability emerges as a central factor" for the court to consider. New Jersey

Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 146 (2018) (quoting

K.H.O., 161 N.J. at 357); see J.C., 129 N.J. at 26 ("Because . . . children have

an essential and overriding interest in stability and permanency, it is inimical to

their welfare that their legal status remain unresolved.").

Timeliness is important in cases concerning parental rights because of the

impact a delay or interruption can have on a child awaiting permanency. The

Supreme Court recently reaffirmed that "'[t]rial judges are given wide discretion

in exercising control over their courtrooms' and have 'the ultimate responsibility

of conducting adjudicative proceedings in a manner that complied with required

formality in the taking of evidence and the rendering of findings.'" New Jersey

Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 366 (2017) (quoting

Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div.

2002)). We discern no error in Judge Tarantino's findings that it was appropriate

to commence the trial as scheduled, and to continue it as promptly as possible,

notwithstanding certain unavoidable delays.

A-3247-16T2 10 Regarding Judge Tarantino's denial of D.B.'s request to proceed as a self-

represented litigant on the first day of trial, again, we disagree with D.B. that

such a ruling constituted an abuse of discretion. A litigant may represent himself

when he is a competent party to the litigation. R.L.M., 236 N.J. Super. at 131.

Also, N.J.S.A. 30:4C-15.4 allows for a parent to proceed unrepresented in an

action to terminate parental rights. Id. at 132. Although a parent has the right

of self-representation, this right is not absolute; rather, the 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." Ibid. Thus, a

"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." Ibid. For a request to be

timely, the parent does not have to waive or invoke the right to self-

representation at the inception of action, but must do so as early as possible in

the proceeding—"well in advance of trial." Id. at 149. It is up to the discretion

of the trial court to accept or reject a parent's untimely request to self-represent.

Ibid.

Additionally, the right to self-representation must be invoked clearly and

unequivocally. Id. at 132. Once invoked, "the court should conduct an inquiry

'to ensure the parent understands the nature of the proceeding as well as the

A-3247-16T2 11 problems [he] may face if [he] chooses to represent [him]self.'" Ibid. (quoting

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

Here, D.B. specifically asked for the appointment of counsel shortly after

he was served with the adoption complaints. The trial court promptly

accommodated this request, but then it allowed D.B.'s counsel months to prepare

for trial. Inexplicably, D.B. waited until the first day of trial, October 3, 2016,

to seek his attorney's removal. Judge Tarantino patiently explored D.B.'s

rationale for wanting to remove his attorney but ultimately found D.B. provided

an insufficient basis for relieving his counsel. Further, the judge found D.B.'s

counsel was well prepared to proceed on D.B.'s behalf. Moreover, the judge

remained focused on the children's welfare, cautioning, "[t]his is not going to

become a delay tactic for [D.B.] or anybody else."

The facts of the instant case are similar to those in R.L.M, in which a

father informed the trial judge early in the proceedings that he wanted to

represent himself. 236 N.J. at 131. However, he changed his mind minutes later

and requested court-appointed counsel. Ibid. Once the guardianship trial was

in progress, the father reasserted his right to represent himself, asking that

counsel be dismissed. Id. at 131, 135. The trial court denied the application,

finding such a "request at this late date would only serve to delay the

A-3247-16T2 12 proceedings and unduly interfere with the minor child's attempt to gain

permanency in this matter." Id. at 131, 136-37. The Supreme Court affirmed

the trial court's denial of the father's application to represent himself, holding

the father "did not assert his right of self-representation in the timely, clear, and

unequivocal manner that our law requires." Id. at 152.

Here, too, D.B.'s request to represent himself was untimely and equivocal.

We see no basis to interfere with the judge's assessment that D.B.'s reasons for

seeking his attorney's removal were insufficient and that the trial should not be

delayed in the face of the children's need for permanency.

Turning to Judge Tarantino's determination to relieve D.B.'s counsel on

March 16, 2017, we note first that D.B. did not clearly ask for an adjournment

on this date. Instead, he indicated his case would be prejudiced if his attorney

was relieved. Even if D.B.'s comments could be construed as an adjournment

request, we are guided by the principle that an individual is entitled to

representation that is conflict free, "[b]ut, he may not profit from undermining

his attorney-client relationship through his own abusive or threatening conduct."

State v. Coclough, 459 N.J. Super. 45, 48 (App. Div. 2019). Even in a criminal

case where constitutional rights are implicated, "a defendant may be deemed to

waive or forfeit the right to counsel by such conduct." Id. at 55.

A-3247-16T2 13 D.B. does not deny making the troubling statement which formed the basis

for counsel's application to withdraw. He also does not deny writing directly to

the court or making independent discovery demands while his case was pending.

In light of D.B.'s disruptive behavior and menacing conduct toward his attorney,

we see no basis to interfere with Judge Tarantino's decision to relieve counsel.

Nor do we find Judge Tarantino abused his discretion in directing the parties to

proceed on the last day of trial, even if that meant D.B. represented himself. We

are confident that by the last day of trial, Judge Tarantino had interacted

sufficiently with D.B. and satisfied himself that D.B. would not be prejudiced

by proceeding with his testimony. Moreover, we note D.B. conceded during

cross-examination that he had fired his attorney on "multiple occasions" while

the case was pending, only to have his attorney caution D.B. against representing

himself. Under these circumstances, defendant's claim of prejudice arising from

his counsel's withdrawal is unpersuasive.

We therefore affirm substantially for the reasons expressed by Judge

Tarantino in his well-reasoned opinion delivered from the bench on March 16,

2017.

Affirmed.

A-3247-16T2 14