DCPP VS. R.D.B. AND M.N.M., IN THE MATTER OF THE GUARDIANSHIP OF R.D.B., II, AND D.L.J.M. (FG-07-0074-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4795-18T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

June 5, 2020
v.
APPELLATE DIVISION
A.O.J.,1

Defendant-Appellant,

and

R.D.B. and M.N.M.,

Defendants.
_________________________

IN THE MATTER OF THE
GUARDIANSHIP OF R.D.B.,
II, and D.L.J.M.,

Minors.
_________________________
Submitted April 22, 2020 – Decided June 5, 2020

Before Judges Fuentes, Haas and Mayer.

1
We use initials and pseudonyms to refer to the parties and children to protect
their privacy and preserve the confidentiality of these proceedings. R. 1:38-
3(d)(12).
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0074-19.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Bruce P. Lee, Designated Counsel, on the
briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Amy L. Bernstein, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Margo E.K. Hirsch,
Designated Counsel, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant A.O.J. is the biological mother of seven-year-old R.D.B. II

(Robert) and six-year-old D.L.J.M. (Daniel).2 She appeals from the Judgment

of Guardianship entered by the Family Part terminating her parental rights to

her two sons. The judge assigned to manage this case made the decision to

2
The boys have different biological fathers. They were both named as
defendants in this guardianship case. The Family Part terminated the parental
rights of Robert's biological father, R.D.B. Daniel's biological father, M.N.M.,
surrendered his parental rights on May 8, 2019. These defendants are not a
part of this appeal.
A-4795-18T1
2
terminate A.O.J.'s parental rights after conducting a one-day trial in which she

was not present nor represented by counsel. We reverse.

The record shows A.O.J. complained to the judge about her inability to

communicate with her attorney "for months." The judge did not make any

efforts to address or determine the validity of A.O.J.'s concerns. Instead, the

judge dismissed A.O.J.'s allegations outright and characterized the attorney as

"one of the very, very best" attorneys who have appeared before her. Without

a formal motion supported by certification from the attorney or prior notice to

A.O.J., the judge granted an oral application made by the attorney assigned by

the Public Defender – Office of Parental Representation (OPR) to be relieved

as counsel of record for A.O.J. in this guardianship trial.

The judge made clear to A.O.J. that the judiciary was powerless to

interfere with the OPR's prerogative concerning the assignment of counsel . In

the judge's own words: "my hands are tied." A.O.J. was left with only two

options: (1) retain private counsel or (2) proceed without a lawyer. Although

the record reflects A.O.J. inquired about how to retain private counsel, this

theoretical option was truly illusory. The reality of her impecunious situation

left her with only one untenable outcome, self-representation.

A-4795-18T1
3
 At the time the judge granted the OPR counsel's oral request to withdraw

as A.O.J.'s attorney of record in the case, the judge was well aware of A.O.J.'s

lengthy history of dysfunctional behavior including alcoholism, prostitution,

domestic violence, and homelessness. The judge allowed OPR counsel to

abandon her client, leaving A.O.J. to proceed in this case without any legal

guidance, and without making any findings about her intellectual abilities,

educational background, and/or ability to comprehend the substantive and

procedural aspects of this guardianship trial. Although the judge indicated on

the record she would assign the previously relieved OPR attorney to act as

A.O.J.'s standby counsel at the time of trial, this never came to pass.

Based on these uncontested facts, we are satisfied the Family Part

violated A.O.J.'s constitutional and statutory right to be represented by

competent counsel. The trial judge's response to A.O.J.'s dissatisfaction with

her assigned OPR counsel is irreconcilable with the approach the Supreme

Court established in N.J. Div. of Child Prot. & Perm. v. R.L.M. (In re R.A.J.),

236 N.J. 123, 149-51 (2018). We thus vacate the Judgment of Guardianship

against her and remand this matter for a new trial.

A-4795-18T1
4
 I

A.O.J. was born in 1994 and has an extensive history with the Division

of Child Protection and Permanency (Division). She resided with her

alcoholic grandmother as a child because of her mother's substance abuse

problem. The Division eventually removed her from her grandmother's

custody due to her grandmother's alcoholism. She resided with a foster family

until she was old enough to leave on her own accord. She claimed the foster

family members "were very violent" with her.

A.O.J.'s first encounter with the Division as an adult occurred on

February 17, 2012, when she was pregnant with Robert. The Division

intervened because she was not receiving prenatal care, was homeless, and was

using marijuana. The Division caseworker who wrote the Screening Summary

noted that A.O.J. "was kicked out of her mother's home on an unknown date

and called a 'crack head' . . . [she] has no family or friends." A Division

contact sheet dated May 2, 2012 reflected that A.O.J. was then residing at the

Isaiah House, receiving $526 in food stamps, and purportedly receiving

prenatal care from an OB/GYN physician in Clifton, whom she refused to

identify by name. A.O.J. was approximately five months pregnant with Robert

at the time. The Division closed the case on May 10, 2012. A.O.J. continued

A-4795-18T1
5
to reside at the Isaiah House until Robert was born. When she attempted to

returned in late July 2012 following the birth of her son, she was prohibited

from residing at Isaiah House. Division records document that the staff at

Isaiah House reported A.O.J. "was constantly attacking other clients and staff

as well as throwing chairs and causing other disturbances."

At the Division's request, Dr. Sonia Oquendo conducted a psychiatric

evaluation of A.O.J. in January 2013. A.O.J. was nineteen years old at the

time and her infant son Robert was five-months old. Dr. Oquendo noted that

A.O.J. completed the tenth grade a few years earlier and was preparing to take

her GED examination. Dr. Oquendo reviewed A.O.J.'s traumatic childhood,

which included sexual abuse, abandonment, and two psychiatric admissions;

the first occurred at age twelve when she was admitted at Beth Israel Hospital

after she expressed suicidal ideations to a Division caseworker; the second

incident occurred when she was fourteen years old and expressed a desire "to

assault some girls who had jumped her and hit her with a machete."

Dr. Oquendo also noted A.O.J.'s substance abuse problem with

marijuana, which began when she was fourteen years old as well as her family

history of domestic violence. A.O.J. told Dr. Oquendo that she was arrested

on two separate occasions; the first time was for physically assaulting her

A-4795-18T1
6
sister "after being coached by her grandmother." She was arrested a second

time when she assaulted the school security guard who "embarrassed her and

pinched her while she was attending school with an ankle bracelet."

Dr. Oquendo ended her psychiatric evaluation of A.O.J. with the

following conclusions:

[A.O.J.] has been exposed to multiple traumatic events
during her life including physical abuse and sexual
molestation. She exhibited multiple behavioral
problems since an early age and was impulsive,
aggressive, and assaultive. She was exposed to her
mother's substance abuse and [her mother was]
probably selling drugs in her house and she has a poor
relationship with her mother. She learned to use
aggression as a conflict resolution, which has created
problems both at home, at school, and at a different
placement that she has resided. She received poor
prenatal care, but since the birth of her son she
described significant changes in the way she acts and
thinks. She is attached to her 5-month-old son and I
had the opportunity to observe her interacting with
him in a caring and an appropriate way.

Dr. Oquendo did not find a sufficient psychiatric basis to confirm a

diagnosis of Bipolar Disorder for A.O.J. She opined, within a reasonable

degree of medical certainty, that A.O.J. "does not need to be under the care of

a psychiatrist and that treatment with medication is not indicated."

The Division's next encounter with A.O.J. occurred on September 4,

2014. In a Screening Summary, the Division's Local Office Permanency

A-4795-18T1
7
Adoption Supervisor documented a telephone call made by A.O.J.'s biological

mother who reported that A.O.J. had "housing issues" and she and her two

children were residing with her. The Division supervisor also noted that

A.O.J.'s mother "has an extensive history of substance abuse concerns and has

not been [compliant] with services." The supervisor was particularly

concerned because A.O.J. "has also left her children in the care of [her

mother]." The supervisor ended the Screening Summary with the following

observation: "No details are known in terms of a time frame or [A.O.J.'s]

whereabouts. It is unknown at this time if [A.O.J.'s mother] has been under

the influence of drugs while caring for the two children."

After further investigation, A.O.J. admitted to a Division caseworker

that she and the children were temporarily residing with her mother, but she

denied allowing her mother unsupervised access to the children. The children's

biological fathers were both incarcerated at the time and did not provide any

economic assistance to A.O.J. to defray the cost of their food and housing.

Despite these financial difficulties, A.O.J. declined the Division's offer of

assistance. The Division caseworker noted that "the home [was] free of clutter

[and]. . . [t]here was food . . . and running utilities."

A-4795-18T1
8
 The Division caseworker received a report about the boys' medical

condition. The physician did not find any known illnesses and concluded that

A.O.J. was providing appropriate care. The medical report mentioned that the

older boy Robert "is [a]sthmatic . . . [but] [h]is parent is providing appropriate

care." The caseworker twice noted in the investigation summary: "There are

no concerns of abuse or neglect."

On June 11, 2015, the Division received another referral alleging A.O.J.

and her two sons had been "staying from place to place . . . for the past five

months." The reporter claimed that A.O.J. and the children "were recently

staying at the Riviera Motel . . . [until she] was put out[.]" The Screening

Summary ended with the following disturbing statement: "[A.O.J.] is a

prostitute. Reporter states the children are with her or other people while [she]

works. Reporter was informed by someone that the children are also with

[her] while she is prostituting; no details provided. [A.O.J.] smokes marijuana

daily. The children are not in daycare and stay with [A.O.J.] during the day."

While the Division was investigating these allegations, on July 4, 2015,

the East Orange Police Department responded to a physical altercation

between A.O.J. and R.D.B., her oldest son's biological father. Division

records show that both A.O.J. and R.D.B. were intoxicated at the time of the

A-4795-18T1
9
altercation. According to the Division investigator who responded to the

scene, A.O.J. was so impaired by alcohol that she "was not able to fully

articulate what happened." R.D.B.'s aunt told the Division investigator that

A.O.J. chased R.D.B. with a knife and threatened to kill him. The two boys

were asleep during the altercation. A.O.J. told the investigator that R.D.B.

instigated the altercation; she denied striking him or threatening him with a

knife. The police officers who responded to the scene arrested both A.O.J. and

R.D.B.

On July 4, 2015, the Division executed an emergency removal of the

children without judicial authorization pursuant to N.J.S.A. 9:6-8.29 and

placed them into a resource home. On July 7, 2015, the Division filed an

Order to Show Cause (OTSC) for Temporary Custody and a Verified

Complaint to Appoint a Law Guardian with Temporary Custody. On this day,

the judge, who managed this case from its inception through the final

guardianship trial, granted the Division's petition for temporary custody of the

children. The judge found sufficient grounds to remove the children from

A.O.J.'s care and custody, thereby avoiding imminent danger to the children's

life, safety, or health. The judge made the following factual findings in

A-4795-18T1
10
support of this decision based only on the events described by the Division in

the Verified Complaint:

[I]t would not be safe for the minors, [Robert] and
[Daniel] to remain in the care of their mother [A.O.J.]
. . . [because she] was involved in a domestic violence
incident with her paramour, [R.D.B.], and allegedly
threatened to kill him with a knife. [A.O.J.] was
subsequently arrested and charged with terroristic
threats to kill, and simple assault. [R.D.B.] is the
father of [Robert]. [R.D.B.] is on parole in New York
and resides with his aunt, and needs to be further
assessed to determine if he is an appropriate caretaker
for his son. [M.N.M.] is the putative father of
[Daniel]. [M.N.M.] is currently incarcerated at Essex
County Detention Center.

The Division thereafter relocated the children to a new resource home where

they remained until December 18, 2015.

A.O.J. completed a 5A form and was found financially eligible to be

assigned counsel by the OPR. The attorney that the OPR assigned to represent

A.O.J. appeared on her behalf in all subsequent hearings and case management

conferences, until the court granted her oral application to be relieved from

this responsibility on February 7, 2019. A.O.J.'s OPR counsel first appeared

on the return date of the OTSC on July 29, 2015 and was present on A.O.J.'s

behalf during the case management conferences held on August 14, 2015 and

October 1, 2015. This attorney represented A.O.J. at the fact-finding hearing

A-4795-18T1
11
held on November 13, 2015. At the conclusion of this hearing, the judge

found the Division did not prove, by a preponderance of the evidence, that

A.O.J. had abused or neglected her sons on July 4, 2015, as defined in N.J.S.A.

9:6-8.9(d). The judge ordered the Division to remove from its records the

"established" finding of abuse and neglect against A.O.J. and replace it with

"[n]ot [e]stablished" or "unfounded" based upon the court's ruling. The judge

found, however, that the evidence showed a need to continue the Family Part's

jurisdiction under N.J.S.A. 30:4C-12 based on the need for the Division's

services due to A.O.J.'s "housing instability, alcohol use, and history of

prostitution." 3

On September 18, 2015, the Division arranged for A.O.J. to be evaluated

by Catholic Charities to determine what type of services she needed to

organize her life and regain custody of the children. The appellate record

contains several assessment reports from this philanthropic agency. An

assessment dated June 29, 2016 includes A.O.J.'s account of the severe,

psychologically traumatic events she experienced as a child. She reported that

3
N.J.S.A. 30:4C-12 "provides the means for the Division to effectuate
services to children in need when a parent does not consent to the Division's
supervision, care, or custody." N.J. Div. of Youth & Family Servs. v. I.S., 214
N.J. 8, 33 (2013).

A-4795-18T1
12
she was sexually assaulted three times between ages twelve to fourteen years

old. The first sexual assault was perpetrated by an adult male cousin. The

other two sexual assaults were committed by strangers. According to A.O.J.,

when she told her grandmother and mother about these incidents of sexual

violence, they both told her "it was good for her to have that experience."

A.O.J. also told the counselor who conducted this assessment that she

intentionally "buried" or consciously repressed these traumatic childhood

experiences because of the response she received from her family. The

counselor specifically noted that "she blamed herself for being raped." The

Catholic Charities assessment report concluded that A.O.J. needed "mental

health counseling for her past sexual traumas and her domestic violence."

On November 13, 2015, more than three months after the children's

emergency removal, the Division's case manager assigned to coordinate the

services ordered by the Family Part met with A.O.J. The Division Contact

Sheet entered that same day documented the following difficulties:

[A.O.J.] indicated she has started with her substance
abuse treatment. Case manager accompanied her to
the Family Justice Center for domestic violence. Case
manager expressed the difficulty with finding services
for [A.O.J.] due to [her] being the batterer. Case
manager also indicated that the other batterer is
currently incarcerated and she wanted to leave the
state. Case manager was advised that [A.O.J.] can

A-4795-18T1
13
 receive assistance from the Victims Witness
Compensation program. It was stated they can supply
the first month's rent and security. Case manager also
provided her with a list of agencies that provide
batterers intervention counseling. Case manager and
[A.O.J.] left the facility.

A Contact Sheet entered by the case manager on November 16, 2015

shows that the only domestic violence services the Division provided

considered A.O.J. the batterer-aggressor, not the victim. Because the police

officers who responded to the scene considered A.O.J. and R.D.B. equally

culpable combatants, the Division labeled her a "domestic batterer" before she

was even arraigned on these charges.

Although the dispositive legal issue here is the wrongful denial of

counsel to A.O.J. during the guardianship trial, we will summarize A.O.J.'s

efforts to remain in contact with the children during the time leading to the

trial. Both children received a Comprehensive Health Evaluation conducted at

Saint Barnabas Children's Hospital on August 14, 2015. Daniel was nearly

one-and-a-half years old at the time. The report found his "gross and fine

motor skills, problem-solving skills and personal-social areas of development

were in the normal range," when compared to other children his age.

However, his "communication, social and emotional skills" were at-risk. The

A-4795-18T1
14
report recommended "a comprehensive speech evaluation to address his

reported and observed speech delays."

Robert was three-years old at the time of his evaluation. Although his

physical development was within the normal range when compared with

children his age, the physicians found he "has issues with calming himself

down, using words to describe feelings, and destroying toys and food on

purpose." His behavior and responses to questions during the evaluation

affected his ability to function and appeared to be related to his language

delays.

A Monthly Progress Report filed for the time period between October 5,

2016 and November 5, 2016 indicated the children experienced difficulties

acclimating to their foster home. Robert in particular did not "seem fully

comfortable in his living situation because of the fear he has for his foster

parent." (Emphasis added). While at home with his foster parent, Robert was

"quiet and [sat] very still . . . [He] seems very intimidated by his foster

mother." (Emphasis added). The foster parent reported that she had received

"many phone calls" from the school Robert attended "about him acting out and

being out of control." We note these dysfunctional displays seem consistent

A-4795-18T1
15
with the concerns identified by the physicians who evaluated the boys at Saint

Barnabas Children's Hospital.

On May 25, 2017, the Division placed the children in a different foster

home. A Division Contact Sheet documented that the location of the new

foster home allowed A.O.J. to visit the children on a weekly basis and enabled

Robert to receive in-home therapy. The documentary evidence also shows the

Division was no longer pursuing family reunification. The Contact Sheet

indicated the Division's goal was "select home adoption." At this same time

the Division approved the boys to visit Daniel's aunt and uncle in the State of

Georgia. The couple told the Division they wanted to adopt both boys. The

uncle said he was a former professional baseball player with the Atlanta

Braves who retired in 1996.

On October 18, 2016, the Division filed a complaint for guardianship to

terminate A.O.J.'s parental rights to Robert and Daniel. Coincidently,

however, A.O.J. began to make significant progress and established a steady

record of compliance with court-ordered services. The Division was so

impressed with A.O.J.'s efforts following the filing of the guardianship

complaint that it petitioned the judge to change the plan from termination to

reunification.

A-4795-18T1
16
 On September 7, 2017, the judge approved the Division's permanency

plan for reunification with the following caveat:

[A.O.J.] has been compliant with services and may
soon be able to care for the children independently.
However, she still does not have housing and needs to
demonstrate stability before the children can be placed
in her care. Dr. Singer completed an updated
evaluation of [A.O.J.] which recommended that she
work toward reunification, but that she still needs to
be monitored by a psychiatrist, continue participating
in therapy, complete her substance abuse treatment,
and obtain stable housing and employment.

The judge acknowledged the Division had provided reasonable services

to bring about a reunification plan that provided A.O.J. with "substance abuse

treatment, therapy, parenting skills, board rate, [and] relative assessments."

The judge thus dismissed the guardianship complaint and "reopened" the

proceedings under N.J.S.A. 30:4C-12. The order contains twelve numbered

items that the judge deemed worthy of clarification. Of particular relevance

here, item number eleven states: "Both [A.O.J.] and [Daniel's biological father,

M.N.M.,] have completed 5As and have been approved for counsel in [the] FN

[Title 30 case]."

A.O.J.'s efforts to maintain a positive lifestyle proved to be short lived.

In an order dated September 6, 2018, the judge found A.O.J.: (i) had not

received individual therapy despite a history of mental health issues; (ii) did

A-4795-18T1
17
not comply with ongoing screening for substance abuse, including hair follicle

tests; (iii) failed to sustain stable housing and secure suitable employment to

cover her living expenses; and (iv) repeatedly arrived late to scheduled visits

with the children. Conversely, the Division provided her with "psychological

and psychiatric evaluations, parenting skills training, supervised visitation,

drug testing, board rate, Medicaid, furniture, clothing, car seats, foster care

support services, psychosocial evaluation, therapy and behavioral assistance

services."

The judge rejected the Division's request to allow A.O.J. additional time

to comply with services and ordered the Division to present a new permanency

plan on October 2, 2018. On the return date, the Division again argued in

favor of allowing A.O.J. additional time to show her fitness to parent her sons.

The judge again rejected the Division's plan and rescheduled the matter for

November 1, 2018. After again finding no basis to provide A.O.J. with any

additional time to comply with the court-ordered services, on November 14,

2018, the judge ordered the Division to submit a permanency plan to terminate

A.O.J.'s parental rights and proceed with adoption. In an order dated January

8, 2019, the court also terminated the protective services litigation.

A-4795-18T1
18
 II

On January 15, 2019, the Division served A.O.J. with a Verified

Complaint for Guardianship and an Order to Show Cause (OTSC). She

completed a 5A form, was found eligible to be represented by the OPR, and

assigned the same attorney who represented her in the previous Title 9 and

Title 30 cases. The same judge who adjudicated these two previous cases was

assigned to manage and preside over this second guardianship action.

February 7, 2019 - Case Management Hearing

The record shows the presence of the Deputy Attorney General (DAG)

for the Division, the Law Guardian on behalf of the children, A.O.J., and an

OPR attorney, who indicated she was "provisionally representing" Daniel's

biological father, M.N.M. Robert's biological father, R.D.B., was not present.

The transcript of the case management conference shows A.O.J.'s OPR

attorney was present but did not enter her appearance on behalf of A.O.J. nor

make any attempt to apprise the judge that she was having problems with her

client since the termination of the protective services litigation.

As the following colloquy shows, the DAG was the first to inform the

judge about this controversy on the record.

A-4795-18T1
19
DAG: [A.O.J.] has been served and completed a 5A,
although it's our understanding she no longer wishes
to have [OPR counsel] represent her.

THE COURT: [addressing A.O.J.] Unfortunately, I
can't – one, you're assigned counsel, if there's a
problem with that counsel, they will not reassign you
another counsel and I can't make them reassign you a
counsel.

Yes?

....

[A.O.J.]: Since for months, months, I mean I've been
having complaints, I've let my caseworkers know, I let
the Judge['s] Chambers know, I mean, I've been
getting so much help, more from my [Division]
worker, it's like I feel like my [Division] worker is my
attorney, I can't even get in contact with her, let alone
get a [c]ourt date or nothing.

THE COURT: All right. This is all I can tell you.
This is what I can tell you, [A.O.J.] I have a lot of
attorneys [who] appear before me, a lot, and clearly,
[OPR counsel] is really one of the very, very best. So
it is unfortunate that you feel the way you feel.

[T]he rules are very clear, you get one attorney
assigned to you. If . . . for whatever reason, you do
not like that attorney, you cannot get along with that
attorney, I cannot order O.P.R. to provide you with
other counsel. That is not something I can do. I
encourage you to try and get counsel on your own but
there is nothing . . . my hands are tied. There is not
much else I can do.

[A.O.J.]: Okay.

A-4795-18T1
20
 THE COURT: But I would suggest strongly that you
obtain counsel.

[Addressing A.O.J.'s OPR counsel]

Now . . . you're -- O.P.R. was not assigned in -- you
were assigned in the FN[?]

[A.O.J.'S OPR COUNSEL]: Yes, they were. In both,
so we're asking for the [c]ourt [to] [relieve] me in
regard to that.

THE COURT: All right. And [A.O.J.], you do not
wish to have [OPR counsel] represent you, correct?

[A.O.J.]: No.

THE COURT: Okay. Then [OPR counsel] you're . . .
relieved.

[(Emphasis added).]

The record shows that from this point forward, the judge interacted with

A.O.J. directly and without legal representation. This left A.O.J. bewildered

and frustrated. Furthermore, the judge continued to admonish her to retain

private counsel, knowing full well this was not a realistic option for this

economically impoverished, socially unsophisticated young woman. The

colloquy between A.O.J. and the judge illustrates this point:

THE COURT: [A.O.J.] . . . you were given a path that
you had to follow . . . to get . . . to have this case stay
in protective litigation and to get your children back,
you didn't follow it, I'm sorry. I'm sorry. So now . . .

A-4795-18T1
21
we're in guardianship, you're going to be offered . . .
services, I suggest you follow them, you do what I'm
ordering you to do and . . . then we'll make a
determination going forward. You have the
opportunity to visit, I suggest you take advantage of it.

[A.O.J.]: Oh, I always . . . see my children even –

THE COURT: Okay.

[A.O.J.]: even times that they said that I wasn't.

THE COURT: Okay.

[A.O.J.]: Could you ask [the Division caseworker]
about the times that she found out that –

THE COURT: No, I can't.

[A.O.J.]: You can't.

THE COURT: I ruled – I've already ruled on that, you
were given opportunities –

[A.O.J.]: From false information.

THE COURT: [A.O.J.], you were given opportunities,
you were supposed to be going to visitation through
the program and you didn't.

[A.O.J.]: I was sick and I cannot see my children when
I'm sick.

THE COURT: Well . . . it was months, it was months
–

[A.O.J.]: It was not months.

A-4795-18T1
22
 THE COURT: -- I'm not going to – thank you, that's
done. I'm not going to hear any more. You have a
path, you know what you have to do, I suggest –
strongly suggest you obtain counsel. All right. Now, is
there anything that you – do you have any questions?

[A.O.J.]: So do you have any information on lawyer
services that I can get because I'll pay for them if I
have to.

THE COURT: We'll provide – I'll provide you with a
list if you wait outside.

[A.O.J.]: Has anybody put – research and investigate
everything was not accurate.

THE COURT: Okay.

[A.O.J.]: But a real lawyer will definitely get that
done.

[(Emphasis added).]

At the conclusion of the case management hearing, the judge entered an

order dated February 7, 2019 that provided A.O.J. telephonic visitation with

her two sons on Saturdays at 11:00 a.m., which would be "supervised by the

resource parent." The judge further ordered that the attorney assigned to

represent A.O.J. by "the Office of the Public Defender/Office of Parental

Representation [is] hereby relieved." The appellate record does not show that

anyone associated with the judiciary provided A.O.J. with "a list" of attorneys

for her to retain.

A-4795-18T1
23
 March 5, 2019 - Case Management Hearing

The transcript of this hearing shows the DAG, the Law Guardian, and

the OPR attorney assigned to represent M.N.M. entered their appearance

before the court. Neither A.O.J., R.D.B., nor M.N.M. were present. The judge

made the following statement at the start of the hearing:

All right. I just wanted to put on the record that
[A.O.J.] had in the past, fired her court-appointed
counsel, she was advised and she advised the [c]ourt
that she would get her own private counsel, the
[c]ourt's received nothing with respect to any
representation for her. [R.D.B.] was provided with a
5A application that he did not complete, however, at
least the [c]ourt has not received it.
[(Emphasis added).]

The DAG advised the judge that the children were still residing in

Georgia in a licensed resource home. The DAG also apprised the court that

the Division was willing "to pay for monthly visits for [A.O.J.] to get to

Georgia, however, she did not attend her visit that was previously scheduled

for February 19th, [2019]." The DAG stated that the Division remained

willing to provide her with the means to see the children and the caseworker

planned to speak to her "to try to arrange a March visit." The Division had

also scheduled a psychological and bonding evaluation for A.O.J. on April 1,

2019. The children and the resource parents were coming that same day from

A-4795-18T1
24
Georgia for a bonding evaluation. The DAG also summarized other services

the Division had arranged for A.O.J., such as counseling at the Famil y Life

Education Center. The DAG confirmed that A.O.J. provided the Division with

a rent receipt at the last hearing. However, she still had not provided a copy of

the lease or proof of employment.

The Law Guardian questioned Division caseworker Adrienne Caldwell

to ascertain the type of services the Division was providing to the children.

Caldwell testified that "[a]t this time, there's no services in place." The Law

Guardian advised the judge that she planned to travel to Georgia "in the

coming weeks and/or months." At the conclusion of this case update, the

judge addressed the attorneys to select a single day to try the case. This

prompted the following statement by the court:

THE COURT: I'm only . . . nobody is telling me they
have experts, I have two defendants [R.D.B. and
A.O.J.] that don't have lawyers, so yeah, I'm looking
at one day. That could change but I'm -- and I'm not
adjourning this. So if anybody thinks they're going to
get an expert, they better get an expert.

[(Emphasis added).]

The judge scheduled the trial to start at 1:30 p.m. on April 9, 2019.

A-4795-18T1
25
 April 9, 2019 - Case Management Hearing

The trial did not take place on this date. Instead, at the outset of the

hearing, the DAG advised the judge that the Division caseworker "notified

[A.O.J.] this morning that the hearing was going to be today, she said she's at

work but she would also like to appear by phone if possible." The Division

caseworker was also appearing via telephone. After overcoming the logistical

difficulties associated with the telephonic participation of witnesses, the DAG

again summarized the status of the bonding evaluations and, through the court,

asked A.O.J. "to contact the Division to coordinate a visit in person with the

children in Georgia for the month of May 2019."

The DAG claimed A.O.J. had not contacted the Division to coordinate

visiting the children during the months of February and March and had not

been "consistent" in her attempts to contact the children telephonically during

the same time period. According to the DAG, A.O.J. had not participated with

the services offered by the Division and, on the issue of stable housing,

continued to provide only rent receipts instead of a lease.

After the DAG concluded her summary report, the judge addressed

A.O.J. directly and urged her to secure the necessary proofs regarding housing

A-4795-18T1
26
and steady employment. The judge then again addressed A.O.J. on the issue of

retaining an attorney:

THE COURT: And [A.O.J.] I'm going to tell you this
again, I really think you should have counsel in this
matter. I've said this to you every time you've
appeared in [c]ourt, I said to you at the end of the last
-- you know, if you need [addressing the attorney
assigned to represent M.N.M.] . . . is it possible, does
the Division – I'm sorry, does O.P.R. have a list of
outside counsels?

[ATTORNEY FOR M.N.M.]: No.

[A.O.J.]: Actually I would – I definitely I would agree
to the (indiscernible). I listen to (indiscernible) in my
schedule of work right now when I work and thank
God, I was able to get (indiscernible) probably would
have missed it.

THE COURT: All right. I . . . realize this is difficult
but June 2nd is going to be here very soon and I'm –

[A.O.J.]: Yes.

The judge entered a case management order dated April 10, 2019 that

contained twelve items or matters that needed to be addressed before the start

of trial. Item number five stated: "[A.O.J.] was encouraged by the [c]ourt to

retain counsel to represent her in this matter." The judge scheduled the next

"Case Management Review on May 13, 2019, at 2:30 PM."

A-4795-18T1
27
 May 8, 2019 – Hearing

Five days before the May 13, 2020 case management review hearing, the

judge held a hearing to consider appointing A.O.J.'s original OPR attorney as

standby-counsel in the guardianship trial scheduled to start in June 2019. The

transcript of this impromptu hearing shows only the DAG, Division

caseworker Latoya Mannon, and the Law Guardian were identified as present.

A.O.J. was not physically present and the judge did not take any steps to

arrange for her to participate telephonically. It is not clear from this record

whether A.O.J. was given prior notice of the hearing. The judge began the

hearing with the following prefatory remarks:

I called everyone here today on short notice because I
had some real concerns about [A.O.J.] and her
representation in this trial -- at trial. When we were
first here -- well, let me see, I believe it was February
7th [2019] when we were here to dismiss the -- let me
just -- let me -- let me start at the beginning.

From this point, the judge recited at length the procedural history of

A.O.J.'s involvement with the Division and the judiciary, which have been

described at length herein. The judge particularly referred to A.O.J.'s status as

a self-represented litigant in this guardianship case and made the following

statement about how this came to be:

A-4795-18T1
28
THE COURT: When we appeared in [c]ourt on
February 7th on the FG, [A.O.J.] was quite insistent
that -- well, she felt that she had not been listened to
in the FN, she believed that -- she filled out a 5A, was
advised that [OPR counsel], her counsel since 2015,
would continue to represent her and she was quite
upset about that. She made it very clear she did not
want [OPR counsel] to represent her. It was also
made very clear to her that once she completes a 5A,
she is assigned counsel. She does not have the
opportunity to select counsel. At that time she said
she would -- wanted to get outside counsel.

[The judge stopped her comments at this point to
acknowledge the presence of the OPR attorney who
represented M.N.M. in this guardianship case and
requested counsel to enter her appearance on the
record. The judge thereafter immediately resumed her
recitation.]

THE COURT: Okay. We were just going forward
because I wanted to put things on the record about
[A.O.J.], that's why we started without you.

At that time, I . . . strongly encouraged her to retain
counsel to represent . . . herself in this matter. I
explained . . . the seriousness of the subject matter, I
explained again that O.P.R. counsel -- that you could
not select your O.P.R. counsel, she was advised that --
she advised the [c]ourt she did not want [OPR
counsel] to represent her. I, at that point, [OPR
counsel] and the Office of Parental Representation
was relieved of their responsibilities in this matter.
She did state at the time that she would obtain outside
counsel.

She did not appear but brought this matter back on
March 5th [2019]. She did not appear in [c]ourt. The

A-4795-18T1
29
 [c]ourt noted again that defendant had -- that I
received nothing from the defendant with respect to
representation of any kind.

On [April 10, 2019] she appeared telephonically, the
[c]ourt again stressed that she should retain counsel in
this matter. The [c]ourt has continually noted that
there would be no final -- no additional adjournments
of this trial. The trial was scheduled I believe for June
3rd. Considering the length of time these children
have been in -- in the Division's custody, made it very
clear there would be no adjournments of the trial date.

As of this date, in light of -- in light of what had
happened, I wanted the Division to reach out to
[A.O.J.]. I wanted her to appear in [c]ourt today. She
never told me she wanted to represent herself, which
is her right, nor did she say that she was going to have
-- fill out a form for O.P.R. I have [OPR counsel]
here because I was prepared to have [OPR counsel]
assigned to her as stand-by counsel.

[(Emphasis added).]

At this point, the judge asked the DAG to place on the record what

efforts the Division had made to contact A.O.J. "since I issued this order and I

believe we scheduled this matter about a week ago." The DAG responded as

follows:

In brief, Your Honor, Ms. Mannon did text message
with [A.O.J.]. She responded, at least initially, that
she eventually wanted [her original OPR attorney]
back however, I don't believe Ms. Mannon has spoken
with her. Ms. Mannon went to her house several times
to try and make personal contact with her including

A-4795-18T1
30
 this morning. Ms. Mannon had scheduled the
C.A.D.C. for today at 10:00 a.m. before this hearing.
She did not attend either.

Caseworker Mannon also described in detail her exchange of text

messages with A.O.J. regarding services arranged by the Division on May 1

through May 6, 2019. The record shows that at 11:36 a.m., the judge

telephoned A.O.J. from the bench, but the call was answered by a recording

indicating that the voice-mailbox was full. At this point, the judge addressed

A.O.J.'s original OPR attorney. 4

THE COURT: [addressing A.O.J.'s original OPR
attorney] I'm not going to appoint you as stand-by
counsel today. I . . . you know, I'm trying to work
with mom, she's not here, if she appears, I know that
was going to be over the objection of your office. I
know that she's not completed a 5A[.] I understand
that . . . it puts you certainly in a difficult position,
you being your office, and that's not to say, if she
appears at some point perhaps I will do it –

[OPR COUNSEL]: Right.

THE COURT: -- but I need her -- I need her to at
least show up.

[OPR COUNSEL]: And apparently, all we need is a
court order for stand-by counsel, that's it.

THE COURT: Yes and I was prepared -- I was
absolutely prepared to do that today but I'm not going

4
This is the first time the record reflects the presence of the OPR attorney.
A-4795-18T1
31
 to appoint stand-by counsel to her if I can't get her in
[c]ourt. All right? I mean, if she appears, I very well
may do it, I will call you immediately. I'm going to --
this matter is scheduled for – I'm going to keep this on
for Monday, [May 13, 2019,] [and] see if -- that was
another date that she was advised of, if she appears, I
will call you and I'll let you know but if she fails to
appear in [c]ourt, I'm not going to go through – I'm
not going to make you go through that if there's
nothing for you to do, if she's not going to cooperate
at all. All right.

[OPR COUNSEL]: I'm going to wait a few more
minutes.

THE COURT: Okay. Thank you.

May 13, 2019 - Case Management Conference

The record shows that the only individuals who attended this case

management conference were the DAG, the Law Guardian, and Division

caseworker Mannon. The DAG advised the judge that the resource parents

maintained monthly logs of A.O.J.'s telephone contacts with the boys,

including text messages. Mannon was sworn in and testified about the

information contained in the logs. The DAG also represented that both boys

had been evaluated for sexual trauma at the Medlin Treatment Center in

Georgia. The visitation telephone logs and psychological evaluation reports

dated March 15, 2019 were e-filed.

A-4795-18T1
32
 The judge confirmed on the record that the guardianship trial would start

on June 3, 2019. The DAG informed the court the only two witnesses the

Division would call at trial were caseworker Mannon and the psychologist who

conducted the bonding evaluations. The judge made the following statement:

All right. I just want you to be able to put on the
record in detail all the efforts you've made to try and
get [A.O.J.] recently. I mean, it's just . . . needless to
say I'm very upset about it because . . . we've been
trying to give her counsel and trying to get -- trying to
have some help for her and it's just – she's just
sabotaging herself, she's sabotaging any effort she
might have had to . . . salvage this.

June 3, 2019 - Guardianship Trial

The guardianship trial began and ended on June 3, 2019. A.O.J. did not

attend the trial nor did her original OPR attorney, whom the judge previously

indicated would likely attend the proceedings as A.O.J.'s standby counsel. The

judge telephoned A.O.J. from the bench at the start of the trial. The record

shows the judge reached A.O.J. at work. When the judge asked her if she

intended to attend the trial, A.O.J. responded that she had "two jobs back to

back" and was not aware of the date of the trial. The following colloquy

relates directly to the question of whether A.O.J. received prior notice of the

trial date:

A-4795-18T1
33
 THE COURT: I'm sorry, I am giving you no – I've
made it very clear to you what day this was and that I
was not going to adjourn this matter.

[A.O.J.]: I did not get no date.

THE COURT: I told you the day. I told you the day --

[A.O.J.]: You -- okay –

....

[A.O.J.]: I'm doing an overnight shift --

THE COURT: I'm sorry.

[A.O.J.]: -- and someone couldn't call me –

THE COURT: Ms. Mannon has been trying to call
you, you've blocked her calls. 5

5
There is no competent evidence that A.O.J. blocked caseworker Mannon's
calls. The only competent evidence shows A.O.J.'s voice-mailbox was full at
the time Mannon called her. The only reference in the trial record that A.O.J.
blocked Mannon's telephone calls is in the form of the following incompetent
hearsay testimony from Mannon:

DAG: Now, how would you describe her
responsiveness with phone calls and text messages
currently?

A. I don't have a way of communicating with her since
May 2nd [2019] was the last time I spoke to her via
text only and since May 15th [2019], I asked my
colleague to swing by her house and at 11:30 in the
morning, she was at home and she advised my
colleague that she had
A-4795-18T1
34
 [A.O.J.]: . . . I spoke with Ms. Mannon's supervisor
that I would like somebody else to call me and talk to
me because . . . every time I speak to Ms. Mannon . . .
[she] is very rude and I mentioned that numerous
amount of times.

....

And it seems like, never listens to no complaint,
everything I say which I was listening to everything
they saying and when I need someone to reach out to,
I don't have no one to reach out to . . . I don't have no
attorney, they're either the Division or their side – I'm
telling this lady, I'm tired of being disrespected, I'm
working two jobs, you have your job, I gotta [sic]
work to pay for myself. I can't be disrespected by the
agency and not even represented by -- sit down and
talk to me.

[(Emphasis added).]

At this point, the "court officer" administered A.O.J. the oath required

under N.J.R.E. 603 over the telephone. The judge thereafter addressed A.O.J.

directly. This exchange quickly degenerated into an exchange of accusations

between the judge and A.O.J. The judge retraced the procedural history of

blocked my number. So I don't have a way of
communicating with her via phone anymore.

Q. To the best of your knowledge, do you still remain
blocked on her telephone?

A. Yes because she still hasn't responded to my texts
or my phone calls.

A-4795-18T1
35
A.O.J.'s involvement with the Division and the court from 2015 to June 3,

2019, the date of trial. The judge claimed that A.O.J. had been uncooperative

and unwilling to communicate with the Division's caseworkers, and the court

repeatedly admonished A.O.J. that the court would hold the start of the trial

only until 10:30 a.m., giving A.O.J. fifteen minutes to report to court.

A.O.J. vehemently disputed the judge's claims that she had been

uncooperative and emphasized that she worked two jobs to support herself.

A.O.J. alleged the Division's caseworkers had been rude and disrespectful.

She ended this heated exchange by noting it was impossible for her to report to

court in fifteen minutes. The record shows the discussion between the judge

and A.O.J. came to an abrupt end as follows:

THE COURT: I'm giving you 15 minutes to get down
here. Thank you.

[A.O.J.]: Hum.

THE COURT: We're going to hold 15 minutes.

....

MS. MANNON: Address where she's at, see if I can
try to get someone to -- if she can't get here by herself.

THE COURT: I just called her. I hung up on her. She
hasn't told us yet where she – We're going to hold this
case [until] 25 minutes of 11:00. If you want to try

A-4795-18T1
36
 and reach out to her again or have [the DAG] text her,
that's fine, but I am not holding this trial up today.

The guardianship trial proceeded without the biological mother and

without an attorney to represent her. The Division presented the testimony of

psychologist Dr. Elizabeth Stillwell. The Law Guardian stipulated to Dr.

Stillwell's expertise as a child psychologist. She testified on the question of

bonding. The Division's only other witness was caseworker Mannon. Before

Mannon took the stand to testify, the DAG advised the judge that Mannon

received a message from her supervisor about A.O.J. The DAG was not certain

whether A.O.J. had called back or the Division reached out to her. Regardless

of which one initiated the contact, the DAG indicated that "there was a

conversation about whether or not [A.O.J.] still wanted to appear." According

to the DAG, A.O.J. allegedly "hung up without saying whether or not she

wanted to come[.]" The DAG offered to call the Division supervisor to testify

about what was actually discussed. Alternatively, the DAG suggested the

judge call A.O.J. on the phone.

The judge declined to call A.O.J. but confirmed that the Division had

offered A.O.J. transportation. The judge declared a five minute recess to

permit the Division to contact A.O.J. The court recess lasted from 11:30:48

a.m. to 11:50:55 a.m. When the trial resumed, the DAG apprised the judge

A-4795-18T1
37
that Mannon's supervisor, Adrienne Caldwell, was present in court and ready

to testify about her conversation with A.O.J. The judge asked Caldwell, who

had been previously sworn as a witness, "to briefly tell us . . . is she coming or

isn't she?" Caldwell responded that despite her repeated requests for an

answer, A.O.J. did not definitively answer that question. Caldwell made clear,

however, that she told A.O.J. the Division would pick her up and transport her

to the courthouse. The conversation ended when the telephone was

disconnected. The judge concluded that A.O.J. had been given sufficient time

to arrive and participate at trial.

III

In this appeal, A.O.J. argues that the Family Part violated her

constitutional and statutory right to counsel when the court relieved her

assigned OPR attorney and terminated her parental rights to her sons in

absentia, in an ex parte, non-adversarial trial. A.O.J. acknowledges that an

indigent defendant who applies for representation from the OPR does not have

the right to select her attorney. However, she maintains that a trial judge is

ethically obligated to consider and determine whether a defendant's allegations

of attorney malfeasance are reasonably grounded.

A-4795-18T1
38
 A.O.J. argues that she presented good cause for the judge to act because

her attorney failed to communicate with her and did not keep her informed

about the status of the case. Thus, A.O.J. claims the Family Part erred when it

dismissed her allegations against the OPR attorney without engaging in any

due diligence and allowed her to proceed without legal representation and

without making any inquiries to determine if A.O.J.'s impromptu decision "to

fire" her attorney constituted a knowing and intelligent waiver of her

constitutional and statutory right to counsel.

The Division's sixty-five-page brief in this appeal devoted the last three

pages to address A.O.J.'s arguments attacking the viability of the judgment of

guardianship based on a violation of her right to counsel. The Division argues

that A.O.J.'s arguments "do not merit exhaustive discussion" because "there is

no indication in the record" that she made these arguments before the trial

court. Therefore, "for that reason alone, these arguments should be ignored by

this court."

The Law Guardian's brief adopts a similarly dismissive legal posture.

According to the Law Guardian, A.O.J. "was advised of the importance of

obtaining counsel and provided with lists of legal resources on several

occasions." Even more disturbing, the Law Guardian cites to a section in the

A-4795-18T1
39
Forensic Psychological And Bonding Evaluations report authored by Dr.

Stillwell to make the following assertions:

[A.O.J.] offered no evidence that she called the Office
of Parental Representation to file a complaint, or took
steps to retain new counsel from the list of resources
provided to her. Dr. Stillwell opined that [A.O.J.]
externalized blame onto others. [A.O.J.'s] assertions
that her attorney was responsible for her bad outcomes
appeared to fit this pattern. [A.O.J.'s] attorney met her
responsibility under R.P.C. 1.4; any failure to
communicate was on the part of [A.O.J.].

We start our analysis by describing the fundamental principles that must

guide a trial judge's decision to permit a parent to proceed pro se in a

guardianship trial to terminate the parent's parental rights to his or her

children. "Parents in New Jersey charged with civil abuse and neglect under

Title Nine or who are subject to Title Thirty termination proceedings have a

constitutional right to counsel under the due process guarantees of Article I,

paragraph 1 of the State Constitution, and a statutory right under N.J.S.A. 9:6 -

8.43(a), 9:6-8.30(a), and 30:4C-15.4(a)." N.J. Div. of Child Prot. &

Permanency v. G.S., 447 N.J. Super. 539, 555 (App. Div. 2016) (citing N.J.

Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305 (2007); N.J. Div. of

Youth & Family Servs. v. E.B., 137 N.J. 180, 186 (1994); Crist v. N.J. Div. of

Youth & Family Servs., 135 N.J. Super. 573, 576-77 n.2 (App. Div. 1975)).

A-4795-18T1
40
 N.J.S.A. 30:4C-15.4a provides:

a. In any action concerning the termination of parental
rights filed pursuant to [N.J.S.A. 30:4C-15], the court
shall provide the respondent parent with notice of the
right to retain and consult with legal counsel. If the
parent appears before the court, is indigent and
requests counsel, the court shall appoint the Office of
the Public Defender to represent the parent. The
Office of the Public Defender shall appoint counsel to
represent the parent in accordance with subsection c.
of this section.

If the parent was previously represented by counsel
from the Office of the Public Defender in a child
abuse or neglect action filed pursuant to chapter 6 of
Title 9 of the Revised Statutes on behalf of the same
child, the same counsel, to the extent practicable, shall
continue to represent the parent in the termination of
parental rights action, unless that counsel seeks to be
relieved by the court upon application for substitution
of counsel or other just cause.

Nothing in this section shall be construed to preclude
the parent from retaining private counsel.

[(Emphasis added).]

Writing on behalf of a unanimous Court, Chief Justice Rabner recently

reaffirmed the importance of the right to representation in the context of

litigation effecting the parent/child relationship:

Without the assistance of counsel to prepare for and
participate in the hearing, the risk of an erroneous
outcome is high. It is hardly remarkable to note that a
parent who is a layperson faces significant challenges

A-4795-18T1
41
 if she appears on her own to contest a private adoption
proceeding. The issues are not simple. They may
involve complicated, expert medical and
psychological evidence. An indigent parent who has
no legal training will not know how to work with a
psychologist to prepare for a trial or how to cross-
examine the other side's expert. She will have a hard
time developing defenses, gathering evidence,
presenting a case, and making arguments to address
the relevant legal standard. A parent without a
background in evidence law will also likely be unable
to prevent opposing counsel from introducing hearsay
or other inadmissible testimony.

[In re Adoption of J.E.V., 226 N.J. 90, 109 (2016)
(internal citations omitted).]

This is particularly relevant in cases in which the Division seeks to

terminate the parental rights of indigent parents:

[T]he need for counsel in a parental termination case
is evident in light of the nature of the right involved;
the permanency of the threatened loss; the State's
interest in exercising its parens patriae jurisdiction
only where necessary; and 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.

[B.R., 192 N.J. at 306 (emphasis added).]

Although parental rights are part of a select number of legally protected

rights that make up the core of our humanity, these rights are not absolute. In

re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The rights of a parent to

A-4795-18T1
42
rear her or his children must be balanced against the "State's parens patriae

responsibility to protect the welfare of the children." Id. at 346. Nearly six

months before the start of this guardianship trial, our Supreme Court

addressed, as a matter of first impression, "whether a parent has the right to

represent himself or herself in an action to terminate parental rights pursuant to

N.J.S.A. 30:4C-15 to -20." R.L.M., 236 N.J. at 131. In responding

affirmatively to this question, the Court reaffirmed our State's "longstanding

adherence to the principle that a competent litigant may represent himself or

herself in a matter in which he or she is a party, subject to exceptions set forth

in statutes, court rules, and case law." Ibid.

Thus, the Court in R.L.M. held that the right to be represented by

competent counsel in a termination of parental rights proceeding "is

constrained by two important considerations: the Family Part judge's

responsibility to reach an informed and fair determination of the child's best

interests, and the child's interest in permanency." Id. at 149. The Court also

noted that "[a]lthough a parent's decision to appear pro se in this complex and

consequential litigation represents poor strategy in all but the rarest case,

N.J.S.A. 30:4C-15.4 plainly authorizes that parent to proceed unrepresented."

Id. at 131-32. Mindful of these misgivings, the Court articulated the following

A-4795-18T1
43
admonition to dispel any lingering doubt about how a Family Part judge must

respond to a parent's invocation of her or his right to self-representation:

The parent's right of self-representation, however, is
by no means absolute. That 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. The 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. He or she must invoke the right of self-
representation clearly and unequivocally. In the event
of such an invocation, the court should conduct an
inquiry "to ensure the parent understands the nature of
the proceeding as well as the problems she may face if
she chooses to represent herself." The judge should
take appropriate steps, which may include the
appointment of standby counsel, so that the parent's
decision to represent himself or herself does not
disrupt the trial.

[Id. at 132 (quoting J.E.V., 226 N.J. at 114).]

The threshold determination is whether the parent-litigant is capable of

making a knowing and intelligent waiver of the right to counsel and thereafter

proceed pro se in a manner that will not disrupt or impede the orderly

administration of the trial. Id. at 149-50. Here, the record shows A.O.J.

complained to the judge about her OPR attorney's failure to communicate with

her and keep her abreast of the status of the case. However, the judge

continued the case management conference and did not make any effort to

A-4795-18T1
44
determine the validity of A.O.J.'s complaints. The judge merely "strongly"

suggested to A.O.J. to retain private counsel. When considered against the

judge's comprehensive familiarity with A.O.J.'s dysfunctional lifestyle and dire

financial circumstances, the suggestion to retain private counsel is nothing

more than an empty gesture. Equally clear is the absence of any rational basis

from which to even infer that A.O.J.'s complaints about her attorney's conduct

manifested her clear, unequivocal invocation of the right to waive her

constitutional and statutory rights to be represented by the OPR and proceed

from this point forward as a pro se litigant. Indeed, the Supreme Court made

clear in R.L.M.:

A parent's complaint about his or her attorney, or his
or her plan to replace current counsel with another
attorney, is not an invocation of the right of self-
representation. As we have noted in a criminal appeal,
"[t]he need for an unequivocal request for self-
representation by a defendant is a necessary
prerequisite to the determination that the defendant is
making a knowing and intelligent waiver of the right
to counsel."

[236 N.J. at 149-50 (quoting State v. Figueroa, 186
N.J. 589, 593 n.1 (2006)).]

The judge's ill-founded, precipitous decision to treat A.O.J.'s complaints

about her attorney as an unambiguous, knowing, and intelligent waiver of the

right to counsel irreparably impugned the fairness of this one-day guardianship

A-4795-18T1
45
trial. The record we have described at length shows, beyond any doubt, that

A.O.J.'s rights to be represented by counsel were violated. The mother of

these boys was thus relegated to play the role of spectator in the trial that

decided her parental rights to these children. The only remedy is to vacate the

judgment of guardianship terminating A.O.J.'s parental rights and remand this

matter for a new trial.

We are also compelled to comment on the procedural irregularities and

lack of decorum that permeated these proceedings. The record shows the

judge conducted a number of ex parte conferences and interactions with the

DAG and the Law Guardian. A.O.J. was marginalized due to her status as a

self-represented litigant. The judge's attempts to have A.O.J. participate

telephonically proved to be both ineffectual and frustrating for both A.O.J. and

the judge. The judge accepted and relied on hearsay testimony and other

forms of incompetent evidence from Division staff members on a number of

occasions because A.O.J. did not have an attorney present to protect her

interests. We thus conclude that the integrity of the judicial process requires

that this matter be assigned to a different judge on remand.

A-4795-18T1
46
 Reversed and remanded. We direct the Presiding Judge of the vicinage's

Family Part to assign this case to a different judge. We do not retain

jurisdiction.

A-4795-18T1
47