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NOT FOR PUBLICATION WITHOUT THE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.
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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
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[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
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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
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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
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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
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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
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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
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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.
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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.
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