In the Matter of the Guardianship of R.A.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2849-15T2
A-3277-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, April 28, 2017

v. APPELLATE DIVISION

R.L.M. and J.J.,

Defendants-Appellants.
___________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF R.A.J., a minor.
___________________________________

Submitted February 28, 2017 – Decided April 28, 2017

Before Judges Fisher, Ostrer and Vernoia.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Atlantic County, Docket No. FG-01-50-15.

Joseph E. Krakora, Public Defender, attorney
for appellant R.L.M. (Theodore J. Baker,
Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney
for appellant J.J. (Carol A. Weil,
Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Cynthia Phillips, Deputy Attorney General,
on the brief).
 Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Noel C.
Devlin, Assistant Deputy Public Defender, of
counsel and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

In a February 26, 2016 judgment, the Family Part terminated

the parental rights of defendants R.L.M. (Rachel) and J.J. (Jim)

to their daughter, R.A.J. (Riley), who was born in December

2013.1 Both parties challenge aspects of the court's best

interests findings under N.J.S.A. 30:4C-15.1(a)(1)-(4). Jim

focuses on prongs three and four; Rachel on prong two. In

addition, Jim contends he is entitled to a new trial because the

court denied his request to represent himself. Rachel asserts

the court erred by considering hearsay opinions of non-

testifying experts. Riley's Law Guardian joins the Division of

Child Protection and Permanency (Division) in opposing the

parents' appeal.

Regarding defendants' challenge to the court's best

interests findings, we defer to the trial court's fact findings,

which were partly based on credibility determinations and

supported by substantial record evidence. See N.J. Div. of

Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014); Cesare

1 We utilize the trial court's pseudonyms for the parties, to
protect their privacy and for the reader's convenience.

2 A-2849-15T2
v. Cesare, 154 N.J. 394, 411-13 (1998). We affirm substantially

for the reasons set forth in the trial judge's well-reasoned

written decision.

We also find little merit in Rachel's evidentiary argument.

Although the trial judge reviewed the opinions of two non-

testifying mental health experts who examined Rachel years

before trial, it is apparent the error had no impact on the

court's ultimate conclusions. Instead, the court based its

holding on the opinions of experts who did testify as to more

recent evaluations.

We thus confine our extended comments to Jim's contention

that he has a constitutional right of self-representation, the

denial of which warrants a new trial. We conclude there is no

such constitutional right, and the court was, in any event,

justified in refusing to permit Jim to represent himself because

his request was equivocal and untimely.

I.

We need not review the facts in detail, as the trial court

set them forth at length in its forty-three-page written

opinion. It suffices to note that the Division effectuated a

3 A-2849-15T2
Dodd removal2 of Riley shortly after her birth. At the time, the

Division was engaged in a separate, ultimately successful,

guardianship action seeking the termination of parental rights

with respect to Rachel's five other children, the youngest of

which, a son, was also Jim's child. The court affirmed Riley's

removal and granted the Division's request for custody set forth

in its December 2013 verified complaint. In February 2015, the

court approved a permanency plan of termination of parental

rights to be followed by adoption, and the Division filed its

guardianship complaint the following April. The court conducted

several conferences over the ensuing months before trial in

February 2016.

At trial, the Division's case-worker detailed the parents'

inconsistent visitation and their failure to timely or fully

avail themselves of services — including parenting and mental

health services. Alan Lee, Psy.D., testified about

psychological and bonding evaluations he conducted. He opined

that both parents, in various ways, lacked the psychological and

emotional functioning to parent, and prospects were poor for

significant improvement in the near future. Dr. Lee stated the

parents' respective bonds with Riley were insecure. By

2 A "Dodd removal" is an emergency removal of a child from the
custody of a parent without a court order, as authorized by
N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.

4 A-2849-15T2
contrast, Riley had developed strong, reliable bonds with the

resource parents with whom she had lived since birth. He opined

neither parent could satisfactorily address the harm Riley would

suffer if she were separated from her resource parents and

termination of parental rights would not cause more harm than

good.

Rachel's treating psychologist over several months,

discussed Rachel's positive efforts over the course of twenty-

four sessions in improving her problem-solving skills, insight

and judgment. The psychologist noted Rachel was learning how to

cope with what she diagnosed as a dysthymic disorder. 3 But she

did not assess Rachel's parenting ability, and the court

sustained an objection to her offering an opinion about whether

Rachel was ready to reunify with Riley.

Rachel retained Michael Wiltsey, Ph.D., who diagnosed her

with adjustment disorder with mixed anxiety and depression. He

3 "The essential feature of Dysthymic Disorder is a chronically
depressed mood that occurs for most of the day more days than
not for at least 2 years . . . ." American Psychiatric
Association (APA), Diagnostic and Statistical Manual of Mental
Disorders, 345 (4th ed. 1994). During periods of depressed
mood, a person has two or more of the following: "poor appetite
or overeating, insomnia or hypersomnia, low energy or fatigue,
low self-esteem, poor concentration or difficulty making
decisions, and feelings of hopelessness . . . ." Ibid.; see
also APA, Diagnostic and Statistical Manual of Mental Disorders,
168 (5th edition 2013) (describing "Persistent Depressive
Disorder (Dysthymia)").

5 A-2849-15T2
observed parenting deficits and declined to recommend immediate

reunification. He opined that an assessment could be made

regarding parenting capacity after an additional three to six

months of strict compliance with services and visitation, but

his prognosis was "guarded . . . at best." Neither parent

testified, and Jim offered no witnesses in his defense.

The court found that the Division satisfied all four prongs

of the best interests test by clear and convincing evidence.

This appeal followed.

II.

Jim argues he is entitled to a new trial because the court

deprived him of his constitutional right to represent himself.

We conclude there is no such constitutional right in termination

of parental rights cases. Moreover, even if there were, Jim

failed to assert it in a timely, unequivocal manner.

A.

We begin with a review of the facts relevant to Jim's

argument. Beginning in 2014, Jim was represented by appointed

counsel through the Office of the Public Defender. He first

broached the subject of self-representation at the May 2015 case

management conference that followed the guardianship complaint

filing. He proposed to utilize the services of an uncle who was

a paralegal. As the following colloquy indicates, although the

6 A-2849-15T2
court was prepared to recognize a right of self-representation

if knowingly and intelligently exercised, the court neither

definitely granted nor denied Jim's request:

THE COURT: But let's move on to
another issue. You do not want to have an
attorney appointed to represent you, sir?4

[Jim]: No. No, ma'am.5

THE COURT: And why is that, sir?

[Jim]: That's because I have some
motions that I want to put in myself. I
actually — There's [sic] motions that I have
to put in there. There was a civil matter
that I had put in that was just about to be
dismissed, and I just got finished putting
it together, had my uncle put together a
reconsideration. It also has discovery with
it. Now what I'm intending to do is my
uncle is going to put together a package
that's going to be a motion —

THE COURT: Is your uncle an attorney?

[Jim]: He's a paralegal. I'm going to
put together — You can look him up. . . .
He's going to put in a motion which is going
to have some of the things from the civil
case and it's going to be in there. It's
going to be a grounds which we're going to
be asking for, the FG to, I believe he said
either be dismissed or whatever the case may
be, but that's what's going to be —

THE COURT: Okay.

4 We infer that Jim had previously asked to proceed pro se, but
the record does not include evidence of that.

5 As several judges presided over this matter, we will alter our
pronouns accordingly.

7 A-2849-15T2
 [Jim]: It's going to be put in next
week, this week. I'm actually going to pick
it up later today.

THE COURT: Okay. Sir, I think — Well,
let me start off by telling you, you have
the right to be represented by counsel, and
you have the right to represent yourself.
Not having an attorney is a big mistake.

[Jim]: I understand that, ma'am, but
I've had —

THE COURT: I just want to go on the
record —

[Jim]: — I've had an attorney up to
this far and I'm not satisfied. This is
where I'm at right now. It's about to be
taken and moved to another, another part of
the, another section of the case. You're
about to go into permanency and everything
else. I felt as though if, if having an
attorney was so great then we would have a
better — I did everything that they asked me
to do as far as every, every — I went to
psychological, I did whatever they asked me
to do, and yet we're still about to move
forward, move into another part of the case.

. . . .

THE COURT: — you, you let me know how
it works for you when you don't have an
attorney, okay?

[Jim]: Yes, ma'am.

. . . .

THE COURT: But certainly you have the
right to represent yourself, and if that's
what your wish is, 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, but you

8 A-2849-15T2
 insist that you want to represent yourself,
that is certainly your right. Okay?

Jim did not attend the case management conference the next

month. His appointed attorney stated on the record that Jim had

been at the courthouse, but left because of illness. The

request to represent himself was unmentioned during the ensuing

colloquy.

At the October 2015 case management conference, Jim

apparently abandoned his request to represent himself. Instead,

he advised the court he sought merely to retain substitute

counsel.

[Jim]: I want to get another lawyer.
I'm sorry.

THE COURT: Excellent. That's okay.
If you wish to do that.

[Jim]: I just want to put it on the
record that I'm not satisfied with my, my
representation, —

THE COURT: Okay.

[Jim]: — and I'm looking — I actually
have [another attorney]6 that was supposed to
take my case today, but for some reason she
couldn't take it. So —

THE COURT: If you do that and you get
another lawyer, you have that lawyer send a
letter to the court of representation and
come back to court on the date that we are
here next time.

6 Jim identified the attorney, whom we choose not to name.

9 A-2849-15T2
 The judge advised Jim that the case would continue to move

forward. He advised Jim that his right to appointed counsel did

not include the right to choose counsel. Jim responded that he

could afford to retain a lawyer:

[Jim]: That's what I'm saying. I just
got [a] retainer fee. I'm going to pay a
lawyer.

THE COURT: Excellent.

. . . .

THE COURT: [S]end a letter to the
Court. We'll come to court the next time we
have a hearing, and we'll have that lawyer
step into representation at that point.
Until that time [the appointed attorney]
remains.

[Jim]: Okay.

Later in the day's proceedings, Jim reiterated, "I'm going to

hire an attorney. I'm going to get a new attorney."

Jim did not file a substitution of attorney. Instead, he

tried to file at least one motion pro se. At a November 2015

case management conference, which Jim did not attend because of

work, the judge stated as long as Jim had representation, she

would not consider pro se filings unless they went through

counsel. Jim also did not attend the February 1, 2016 hearing,

and the issue of self-representation was not addressed.

At the first day of trial, the deputy attorney general

noted that Jim had just served all counsel, including his own

10 A-2849-15T2
attorney, a packet of pro se motions. Included was a "notice of

motion for new counsel" and a supporting certification. Jim

orally asserted that he had been at odds with his attorney for

"the last six or seven months," and that he did not "want him as

my attorney," but the court had "still allowed it." He was

dissatisfied because his attorney did not file a motion "to have

abuse and neglect removed from the record." The "abuse and

neglect" apparently referred to his understanding of the basis

for his loss of parental rights to his son in the 2014 judgment,

which Jim believed would affect his present case concerning

Riley.

Jim has not included his motion in the record, but we

surmise from the context of the discussion that it was not a

request to represent himself, but a request for a new attorney.

The judge described it as a "request of [Jim] to replace [his

attorney]." (Emphasis added). Later, Jim also stated he had

asked for "different representation." After an extended

colloquy, the judge denied the request.

The trial commenced with the case-worker's testimony. In

the midst of his attorney's cross-examination, Jim interjected

his dissatisfaction with the line of questioning. He alleged

his attorney did not consult with him. As he began to make

other points, the deputy attorney general argued "[i]f [Jim]

11 A-2849-15T2
wants to testify . . . he should do so." Jim responded that he

"wanted to represent himself." Interpreting that statement as a

current request to proceed pro se, the judge stated, "Well,

we're not going to allow you to do that at this time," and

ordered appointed counsel to continue.

The next day, the judge amplified his reasons for denying

Jim's requests to change counsel and represent himself. He

noted again that Jim requested at the beginning of trial "that

his counsel . . . be replaced." The court briefly addressed the

substance of Jim's complaint that his attorney's failure to file

the motion involving the adjudication related to his son

prejudiced him in the current proceeding. The court suggested

that Jim's own failure to appear in court may have impaired his

relationship with counsel. The court continued:

[W]hile the Court is sensitive to [Jim's]
request to change counsel, we simply find
that the request at this late date would
only serve to delay the proceedings and
unduly interfere with the minor child's
attempt to gain permanency in this matter.

Many of defendant [Jim's] complaints
about his counsel arise out, out of his
unwillingness to cooperate with [counsel].
Even yesterday at the conclusion of the
proceedings [counsel] attempted to
communicate with [Jim], but [Jim] simply
ignored him.

In further assessing the request under
the attendant circumstances, the Court rules
under State v. Crisafi, [128 N.J. 499

12 A-2849-15T2
 (1992)], and its progeny that the request to
change counsel is hereby denied. So we will
continue to proceed with this matter and
that will conclude any, any attempts at this
time to replace [counsel].

Despite the finality of the court's decision, the matter

arose later in the proceeding when Jim interrupted the State's

direct examination of Dr. Lee without consent of his counsel.

Noting that Dr. Lee's opinion seemed to rely on the prior

finding of abuse and neglect, Jim stated he wanted to argue the

finding should be discarded. He insisted, "I have documents

that say[ ] that I am cleared. I did not do . . . what they

said."

He initially clarified that he was "not talking about [his

counsel] being dismissed." But Jim was then reminded that his

counsel had not filed a motion to challenge the prior finding.

Despite his earlier statement, Jim decried the inadequacy of his

representation and asserted he did not "want [current counsel]

representing me." At that point, the court apparently

understood that Jim either wanted to replace counsel or proceed

pro se. The court denied his request:

THE COURT: While . . . it is your
right to terminate your attorney, we're in
the middle of trial right now. I don't –
from what I've seen from you throughout this
proceeding – not only throughout this
proceeding, but in the months leading up to
this proceeding, this Court is not convinced
that you could go through the rest of this

13 A-2849-15T2
 trial and represent yourself. Meanwhile, it
would be –

[Jim]: Through the –

THE COURT: I have to balance so many
issues with respect to terminating this
trial right now to allow new counsel to
substitute in and come up to speed, that
this Court has already made the
determination that that would be unfair to
the interest of the minor child who has some
interest here at stake.

[(Emphasis added).]

In response, Jim tried to allay the court's concerns that

he would slow down the trial if he represented himself:

I can promise you this. I would not
object to [anything] that they do. I – if I
was [sic] to take over my case . . . . I'm
not going to put in motions trying to stop
them to proceed [sic]. Why? Because I plan
to try to give everything back on appeal.
The only thing I would try to establish if I
was [sic] to take over this case is the fact
that I'm innocent of the [prior] abuse and
neglect . . . . That's it.

The colloquy concluded without a further discussion of

Jim's representation. Instead, the court entered into evidence

a letter, which Jim had apparently been holding, that allegedly

supported his challenge to the prior abuse and neglect finding.

Jim then excused himself from the proceeding and did not return

for the rest of the day. Jim was also absent for most of the

trial the next day, after telling his counsel he was sick. He

was present at the start of the final day of trial, but

14 A-2849-15T2
apparently left after refusing to testify. No further

discussion regarding his representation occurred.

B.

It is now well-settled that an indigent parent in New

Jersey is entitled to appointed counsel in termination of

parental rights cases. In re Adoption of a Child by J.E.V. and

D.G.V., 226 N.J. 90, 105, 108 (2016); N.J. Div. of Youth &

Family Servs. v. B.R., 192 N.J. 301, 306 (2007); Crist v. N.J.

Div. of Youth & Family Servs., 135 N.J. Super. 573, 575 (App.

Div. 1975). The right arises from the due process guarantee of

our State Constitution. J.E.V., supra, 226 N.J. at 105; B.R.,

supra, 192 N.J. at 305-06 (citing N.J. Const. art. I, ¶ 1).7 The

Legislature has authorized the Office of the Public Defender to

implement this right to counsel. See N.J.S.A. 30:4C-15.4(a).

The right is also embodied in our Rules of Court. See R. 5:3-

4(a). The question presented is whether there is a corollary

right of self-representation.

Jim relies on the criminal defendant's right of self-

representation. See State v. King, 210 N.J. 2, 16 (2012) ("The

7 By contrast, the United States Supreme Court in Lassiter v.
Dep't of Soc. Servs., 452 U.S. 18, 31-32, 101 S. Ct. 2153, 2162,
68 L. Ed. 2d 640, 652 (1981), declined to find a federal due
process right to counsel in all termination of parental rights
cases, requiring instead a case-by-case weighing of interests.

15 A-2849-15T2
corollary to the right of a criminal defendant to be represented

by an attorney is the defendant's right to represent himself."

(citing Faretta v. California, 422 U.S. 806, 814, 95 S. Ct.

2525, 2530, 45 L. Ed. 2d 562, 570 (1975))). He notes that, like

denial of an accused's right to counsel, denial of a criminal

defendant's right of self-representation is a structural error

that entitles the defendant to a new trial without considering

whether the denial caused harm at trial. See King, supra, 210

N.J. at 22 (citing McKaskle v. Wiggins, 465 U.S. 168, 177 n.8,

104 S. Ct. 944, 950 n.8, 79 L. Ed. 2d 122, 133 n.8 (1984)). Jim

contends the denial of the alleged right of self-representation

in a termination of parental rights case likewise produces a

structural error compelling reversal.

But a criminal defendant's right of self-representation

arises from an accused's Sixth Amendment "right . . . to have

the Assistance of Counsel for his defence." U.S. Const. amend.

VI. See Faretta, supra, 422 U.S. at 818, 95 S. Ct. at 2532, 45

L. Ed. 2d at 572 ("The right of self-representation finds

support in the structure of the Sixth Amendment, as well as in

the English and colonial jurisprudence from which the Amendment

emerged."). The Sixth Amendment does not govern the present

matter because a termination of parental rights case is civil.

Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426,

16 A-2849-15T2
467 (App. Div.) (holding due process did not "confer a

constitutional right of confrontation or mandate a parent's

presence" at a civil termination of parental rights trial),

certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S.

1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004); cf. N.J. Div.

of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 634 (App.

Div. 2010) (noting Sixth Amendment safeguards do not apply to

civil abuse or neglect case).

Because defendant does not have a right of self-

representation under the Sixth Amendment, a different analysis

is required to evaluate his claimed right of self-

representation. To establish such a right, a parent must

demonstrate it arises from the right of procedural due process.

In recognizing the right to counsel in contested adoption cases,

our Supreme Court expressly applied principles set forth in

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47

L. Ed. 2d 18, 33 (1976), which enunciated a three-factor test

for ascertaining the due process protection owed. J.E.V.,

supra, 226 N.J. at 108. In both J.E.V., involving contested

adoptions, and B.R., involving termination of parental rights,

the Court has considered: "'the nature of the right involved';

'the permanency of the threatened loss'; the risk of error at a

hearing conducted without the help of counsel; and the State's

17 A-2849-15T2
interest, which is bounded by its parens patriae jurisdiction."

J.E.V., supra, 226 N.J. at 108 (quoting B.R., supra, 192 N.J. at

306).8

As the Court in J.E.V. explained, each of these factors

impels the conclusion that a parent is entitled to counsel. The

nature of the right involved is momentous; it is the parent's

fundamental right to raise one's child. J.E.V., supra, 226 N.J.

at 108-09. Termination of that right in a guardianship matter

is permanent. Id. at 109. Also significant is the fact that

"[w]ithout the assistance of counsel to prepare for and

participate in the hearing, the risk of an erroneous outcome is

high." Id. at 109; see also B.R., supra, 192 N.J. at 306

(noting "the potential for error in a proceeding in which the

interests of an indigent parent, unskilled in the law, are

pitted against the resources of the State"). The State has an

interest not only in the child's welfare, but also an interest,

shared with the parent, "in an accurate and just decision."

J.E.V., supra, 226 N.J. at 110 (internal quotation marks and

8 By comparison, Mathews states that, in assessing the "specific
dictates of due process," a court must consider: (1) "the
private interest that will be affected"; (2) "the risk of an
erroneous deprivation of such interest" and the value of other
safeguards; and (3) "the Government's interest, including the
function involved and the fiscal and administrative burdens" of
other safeguards. Mathews, supra, 424 U.S. at 335, 96 S. Ct. at
903, 47 L. Ed. 2d at 33.

18 A-2849-15T2
citation omitted). The Court thus found that the risk of error

when a parent is unrepresented compels the right to counsel in

TPR cases because it protects the parent's right to raise his or

her child as well as the State's and child's interests.

The same risk-of-error factor that supports a parent's

right to counsel also weakens a claim to a right of self-

representation.9 As the J.E.V. Court observed, pro se parents

are less likely than counseled ones to defend successfully an

ill-founded action to terminate their rights. 226 N.J. at 109;

see also Faretta, supra, 422 U.S. at 834, 95 S. Ct. at 2540, 45

L. Ed. 2d at 581 ("It is undeniable that in most criminal

prosecutions, defendants could better defend with counsel's

guidance than by their own unskilled efforts."). Recognizing a

9 We recognize that the right to appear pro se also arguably
affirms the parent's "individual dignity and autonomy."
McKaskle, supra, 465 U.S. at 178, 104 S. Ct. at 951, 79 L. Ed.
2d at 133. The right of self-representation also has deep
historical roots. In re Civil Commitment of D.Y., 218 N.J. 359,
374-76 (2014). "The Founders believed that self-representation
was a basic right of a free people." Faretta, supra, 422 U.S.
at 830 n.39, 95 S. Ct. at 2538 n.39, 45 L. Ed. 2d at 578 n.39.
Yet, Jim does not rest his claim on substantive due process, see
Lewis v. Harris, 188 N.J. 415, 435 (2006) (discussing a two-step
inquiry to determine whether a fundamental liberty interest
exists under substantive due process), nor has our Court
explicitly grounded the right to counsel, or the right of self-
representation on such grounds. See D.Y., supra, 218 N.J. at
373, 384 (declining to consider amicus curiae's argument that a
sexually violent predator committee has a right to self-
representation on substantive due process grounds). Therefore,
we shall not enter such uncharted territory.

19 A-2849-15T2
right of self-representation in parental rights cases that is as

broad as the right in criminal cases may pose an "unacceptable

danger that parental rights would be terminated when they should

not be." See In re Kathleen K., 953 N.E.2d 773, 778-79 (N.Y.

2011) (Smith, J., concurring) (rejecting grant of Faretta-type

right of self-representation in parental rights cases). The

enforcement of a right of self-representation in these cases may

disserve a parent's private right to raise one's own child.

Moreover, a right of self-representation may undermine the

child's, the State's, and the court's shared interest in an

accurate result. A self-represented criminal defendant may well

be entitled to "go to jail under his own banner." Faretta,

supra, 422 U.S. at 839, 95 S. Ct. at 2543, 45 L. Ed. 2d at 584

(Burger, C.J., dissenting) (internal quotation marks and

citation omitted). But a parent's self-destructive self-

representation in a termination of parental rights hearing

affects a broader set of interests than the parent's — including

the child's interest in the parental relationship. In addition,

as J.E.V. noted, the State shares a concern for the child and

"an accurate and just decision." J.E.V., supra, 226 N.J. at

110.

Also, the court has an independent obligation to terminate

parental rights "only in those circumstances in which proof of

20 A-2849-15T2
parental unfitness is clear." N.J. Div. of Youth & Family

Servs. v. F.M., 211 N.J. 420, 447 (2012). A court must guard

against delays caused by self-representation that disserve the

child's interests in permanency. See M.Y.J.P., supra, 360 N.J.

Super. at 470 ("[D]elays in the adjudication of parental rights

cases result in additional costs, and . . . impact negatively

upon a child's need for permanency."). Thus, while a trial

court in a criminal case "should not focus on whether a pro se

defendant will fare well or badly," State v. Reddish, 181 N.J.

553, 592 (2004), the court may more broadly review a parent's

capability to marshal a coherent and organized defense in a

termination of parental rights case.

The child's separate representation by a law guardian,

required by N.J.S.A. 30:4C-15.4(b), does not always satisfy the

child's interest in an accurate result. The law guardian may

often align the child's position with the Division's in a

termination of parental rights case. In those instances, the

task of testing the State's claims through the adversary process

falls to the parent. Permitting a parent to appear pro se would

thus undermine the "truth-seeking function of the adversary

process." State v. Byrd, 198 N.J. 319, 338 (2009) (internal

quotation marks and citation omitted).

21 A-2849-15T2
 Notably, in In re Civil Commitment of D.Y., we found that

procedural due process did not compel a right of self-

representation in civil commitment hearings under the Sexually

Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. 426

N.J. Super. 436, 443-44 (App. Div. 2012), rev'd on other

grounds, 218 N.J. 359 (2014). Invoking the Mathews factors, we

observed that, "the private interests affected by civil

commitment . . . are substantial . . . ." Id. at 444. However,

self-representation was not necessary to protect the defendant's

interests in a fair and accurate proceeding, id. at 445, and

"self-representation [was] likely to impede the government's

interest in ensuring the integrity of the fact-finding process

and the fairness of the result reached . . . ." Id. at 446. We

concluded there was no right of self-representation "because the

significant interests implicated . . . are adequately

safeguarded by extant procedural protections, including, most

importantly, the right to counsel." Ibid. We reach the same

result here.

In sum, we reject Jim's argument that he had a

constitutional right of self-representation.10

10We recognize the Court in J.E.V. implicitly contemplated cases
in which a parent in a contested adoption may waive the right to
counsel. See J.E.V., supra, 226 N.J. at 114. The Court
described the trial court's prerequisite inquiry to assure the
(continued)

22 A-2849-15T2
 C.

Although Jim relies on an asserted constitutional right,

and a claimed structural error from its denial, we briefly

address, for the sake of completeness, non-constitutional

sources of the right of self-representation.

Eschewing a constitutional analysis, the Supreme Court in

D.Y. found that a SVP defendant has a statutory right to appear

pro se at a commitment hearing, but only if standby counsel is

present. D.Y., supra, 218 N.J. at 384. The Court relied on two

statutory provisions: (1) N.J.S.A. 30:4-27.31, which expressly

grants parties a right to appointed counsel if indigent, "[t]he

right to present evidence," and "[t]he right to cross-examine

witnesses," and (2) N.J.S.A. 30:4-27.29(c), which states that

the party "shall have counsel present at the hearing and shall

not be permitted to appear at the hearing without counsel."

D.Y., supra, 218 N.J. at 384.

(continued)
parent acts knowingly and voluntarily. Ibid. (stating "[i]f a
parent wishes to proceed pro se, the court should conduct an
abbreviated yet meaningful colloquy to ensure the parent
understands the nature of the proceeding as well as the
problems" of self-representation (citing State v. Crisafi, 128
N.J. 499, 511-12 (1992))). We do not view the Court's brief
discussion to imply a constitutional right to proceed pro se in
contested adoption hearings or termination of parental rights
cases.

23 A-2849-15T2
 By contrast, N.J.S.A. 30:4C-15.4(a) states "[i]f the parent

. . . is indigent and requests counsel, the court shall appoint

the Office of the Public Defender to represent the parent."

While that provision arguably implies that a parent may withhold

a request for counsel, the statute does not explicitly grant a

right of self-representation, with or without standby counsel.

Nor does the statute expressly grant the parent the right to

present evidence and cross-examine witnesses, as does the SVPA.

Our Court Rules generally grant natural persons the right

to appear without an attorney in a matter that directly affects

them:

A person not qualifying to practice [law]
pursuant to the first paragraph of this rule
shall nonetheless be permitted to appear and
prosecute or defend an action in any court
of this State if the person . . . is a real
party in interest to the action or the
guardian of the party . . . .

[R. 1:21-1(a).]

As with all Rule-created rights, this right is not

absolute. Under Rule 1:1-2(a), a rule "may be relaxed or

dispensed with . . . if adherence to it would result in an

injustice." Although the relaxation rule is sparingly applied,

especially where other Rules address the problem at hand, see,

e.g., Romagnola v. Gillespie, Inc., 194 N.J. 596, 604 (2008),

neither the Rule-based right to appear pro se nor other rules

24 A-2849-15T2
expressly weigh, as we must here, the child's countervailing

interests.

Certainly, a court may limit the Rule-based right to

vindicate calendar and other important interests. Cf. State v.

Kates, 216 N.J. 393, 396 (2014) (stating that a criminal

defendant's constitutional right to counsel of choice "may be

balanced against the demands of the court's calendar, among

other issues"). Accordingly, 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. See In re A.M., 79 Cal. Rptr. 3d 620, 628-

29 (Ct. App. 2008) (stating that court has discretion to deny a

parent's exercise of a statutory right of self-representation in

a juvenile dependency action after balancing parent's right

against other rights, including child's right to a prompt

resolution of case).

But we need not chart the boundaries of the court's power

under the Rules to limit the parent's entitlement to proceed pro

se. Nor need we decide definitively whether N.J.S.A. 30:4C-15.4

grants a right to appear pro se with standby counsel. Jim has

not asserted a statutory or Rule-based right to represent

25 A-2849-15T2
himself, nor did he propose to represent himself with the

assistance of standby counsel.

In any event, violation of the Court Rule or statute does

not automatically compel reversal, as no constitutional

deprivation is involved.11 Instead, we consider whether denial

of his alleged right to appear pro se was "clearly capable of

producing an unjust result . . . ." R. 2:10-2.12 Jim does not

attempt to demonstrate how the denial of his self-representation

right caused actual harm, and we discern none.

D.

Were we to recognize a right of self-representation,

whether under the Constitution, rule, or statute, it would not

11Automatic reversal based on "structural error" is reserved for
constitutional violations. State v. Camacho, 218 N.J. 533, 549
(2014) (noting that structural error has been found "only in a
very limited class of cases" and citing examples of
constitutional deprivations warranting such treatment (internal
quotation marks and citation omitted)); State v. Purnell, 161
N.J. 44, 61 (1999) (stating that "structural error affects the
legitimacy of the entire trial," citing limited class of
constitutional errors); see also Neder v. United States, 527
U.S. 1, 7, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35, 46 (1999)
(stating that structural errors are "fundamental constitutional
errors that defy analysis by harmless error standards" (internal
quotation marks and citation omitted)).

12 While California Courts apparently agree that there is no
constitutional right of self-representation in termination of
parental rights cases, they do acknowledge a statutory right,
the violation of which is subject to harmless error analysis.
See A.M., supra, 79 Cal. Rptr. 3d at 630-31; In re Justin L.,
233 Cal. Rptr. 632, 638 (Dist. Ct. App. 1987).

26 A-2849-15T2
be unqualified. Even a criminal defendant's self-representation

right, which is firmly moored in the Sixth Amendment, "is not

absolute" and may yield to the "State's equally strong interest

in ensuring the fairness of judicial proceedings and the

integrity of trial verdicts." King, supra, 210 N.J. at 18; see

also Reddish, supra, 181 N.J. at 587. "[T]he right of self-

representation is not a license to abuse the dignity of the

courtroom." D.Y., supra, 218 N.J. at 385 (quoting Faretta,

supra, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed.

2d at 581 n.46). A defendant must assert the right "in a timely

fashion" and may not "disrupt the criminal calendar, or a trial

in progress." State v. Buhl, 269 N.J. Super. 344, 362 (App.

Div.), certif. denied, 135 N.J. 468 (1994).

In particular, a self-representation request "must be made

before meaningful trial proceedings have begun." Id. at 363.

Also, an "unequivocal" request to represent oneself is a

prerequisite to waiving the right to counsel. State v.

Figueroa, 186 N.J. 589, 593 n.1 (2006). "[A] defendant cannot

'manipulate the system by wavering between assigned counsel and

self-representation.'" Buhl, supra, 269 N.J. Super. at 362

(quoting Crisafi, supra, 128 N.J. at 517).

Jim stated he wanted to represent himself well in advance

of trial, at the case management conference in May 2015. But

27 A-2849-15T2
his request was not unequivocal, as he seemed to propose to rely

on his uncle, a paralegal, to assist him. Whether Jim initially

sought a form of hybrid representation with a person with some

legal training, but unlicensed as an attorney, is unclear.13 The

trial judge did not clarify Jim's request. Yet, the judge's

failure to rule on Jim's request turned out to be

inconsequential. Jim did not merely waver in his request to

represent himself, he effectively withdrew the request the next

time he appeared in court. Specifically, he proposed to hire

his own attorney and asserted he had the wherewithal to do so.

The court stated he was free to hire new counsel, but the case

would proceed without delay.

Jim did not thereafter hire an attorney. Nor did he

promptly renew his request to represent himself, although he

apparently filed pro se motions. Instead, on the eve of trial,

he filed a motion that, as best we can tell from the incomplete

record, sought to replace appointed counsel with another

counsel.14 Only after cross-examination of the first trial

13 However, Jim would have no right to representation by a
paralegal, nor would he have a right to hybrid representation,
even if he had a right to represent himself. See Figueroa,
supra, 186 N.J. at 594 (pertaining to criminal defendant).

14We can only surmise as to the contents of Jim's day-of-trial
motion, which was not included in the appendix. See R. 2:6-1(a)
(stating appellant must include in the appendix "such other
(continued)

28 A-2849-15T2
witness had begun, did Jim revive his request to proceed pro se.

The judge correctly denied the request as untimely, since trial

had already begun. Jim's second mid-trial request was more

untimely.15

Thus, even if we recognized a right of self-representation,

Jim did not assert it timely or unequivocally. We discern no

abuse of discretion in the court's denial of the request to

proceed pro se.

In sum, we reject Jim's contention that he is entitled to a

new trial on the ground the court denied his constitutional

right of self-representation.

Affirmed.

(continued)
parts of the record . . . as are essential to the proper
consideration of the issues"); Cmty. Hosp. Grp., Inc. v. Blume
Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) ("Nor are
we obliged to attempt review of an issue when the relevant
portions of the record are not included."), certif. denied, 187
N.J. 489 (2006).

15Jim's repeated absences from court during the pendency of his
case, as well as during parts of the trial itself, also raise
doubts about his ability to represent himself and to do so
without disrupting the orderly completion of the trial.

29 A-2849-15T2