A.J.L. VS. C.L. (FV-18-0256-21, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0499-20

A.J.L.,

Plaintiff-Respondent,

v.

C.L.,

Defendant-Appellant.
_______________________

Submitted May 19, 2021 – Decided June 11, 2021

Before Judges Fuentes and Whipple.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FV-18-0256-21.

Roberts & Teeter, LLC, attorneys for appellant
(Michael B. Roberts, on the briefs).

Dudley-Smith Law Firm, LLC, attorneys for
respondent (Celeste Dudley-Smith, on the brief).

PER CURIAM
 Defendant C.L. 1 appeals from a September 24, 2020 final restraining

order (FRO) entered by the Family Part after a Zoom trial. We vacate the

order and remand for a new trial.

On August 26, 2020, plaintiff A.J.L. was granted a temporary restraining

order (TRO) against defendant after alleging predicate acts of criminal

mischief and harassment, and a prior history of domestic violence. Plaintiff

appeared via Zoom and without counsel for a hearing on September 3, 2020,

and defendant did not appear. The Family Part judge stated on the record that

he would continue the TRO and carry the matter for two weeks. On September

17, 2020, a continuance order entered by a different judge stated the case was

being rescheduled due to defendant's request to retain counsel. There is no

transcript of a September 17, 2020 proceeding. The parties were summoned to

appear again on September 24, 2020, for an FRO trial. That day, defendant

and plaintiff appeared pro se. The court conducted a Zoom FRO hearing

where both parties testified. The court did not question defendant regarding

her prior request to retain counsel, nor did the judge advise her of her right to

do so. Defendant, who speaks Mandarin Chinese, testified in English despite

the appearance of a Mandarin interpreter. Much of the transcript is labeled

1
We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(10).
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"unintelligible." In an oral decision, the court granted the FRO. This appeal

followed.

On appeal, defendant argues she was denied her right to counsel and was

never advised of the consequences of the FRO. We agree.

In D.M.R. v. M.K.G., ____ N.J. Super. ___, ____ (App. Div. 2021) (slip

op. at 14-17), we recently addressed the transformation of our court system to

address the COVID-19 pandemic. We noted that since early 2020,

New Jersey Courts have operated primarily remotely
via platforms like Zoom, Microsoft Teams, and
telephone conferences, with the goal of preserving the
quality of justice our courts have traditionally striven
to provide when court was conducted in-person. Trial
courts and staff have undertaken a herculean effort in
rising to this unprecedented challenge. However,
despite their efforts, the formality of the courtroom
can fall away. Everyone may not have the same
access to technology. These proceedings often
involve unrepresented litigants unfamiliar with court
proceedings, which presents its own challenges now
amplified by the virtual proceeding.

[Id.]

We also stated "[a]lthough there are obvious, understandable challenges

facing judges who seek to administer effective trials using videoconferencing

technology, court directives and due process must nevertheless be maintained."

D.M.R., slip. op. at 4.

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 Based on our review of the record herein, we find the required due

process protections again fell short. Parties to a domestic violence action are

entitled to certain procedural due process rights. J.D. v. M.D.F., 207 N.J. 458,

478 (2011). "[O]rdinary due process protections apply in the domestic

violence context, notwithstanding the shortened time frames for conducting a

final hearing that are imposed by the statute." Ibid. Trial courts must

recognize those rights and ensure their protection, consistent with the

Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Id. at 479.

Defendants in domestic violence matters must be afforded a real

opportunity to obtain counsel. D.N. v. K.M., 429 N.J. Super. 592, 606-07

(App. Div. 2013). The right to seek counsel is an important due process right

that affords defendants "a meaningful opportunity to defend against a

complaint in domestic violence matters . . . ." Id. at 606. While due process

does not require the court to appoint counsel in a domestic violence context,

due process does require that a defendant understand that he or she has a right

to retain legal counsel and to be afforded a reasonable opportunity to retain an

attorney. Id. at 606-07. Particularly when a defendant appears without an

attorney, the court must make a finding that the defendant understood and

relinquished his or her right to employ counsel. Id. at 607. The trial judge

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should "adequately question [her] regarding her decision to decline the

opportunity to obtain legal representation." Id. at 607. She must also make a

clear and knowing waiver. Ibid.

Here, the court did not make any inquiries to determine whether the

litigant understood and knowingly relinquished her right to retain counsel.

The matter was rescheduled for a week later. When the parties returned for the

FRO hearing, the court did not acknowledge that defendant had requested an

adjournment of the original hearing date to retain counsel, nor did the court

inquire whether she was still seeking counsel or wanted to proceed pro se. At

no point in the record before us did the court engage defendant regarding her

right to counsel or advise her of the dangers of proceeding in the absence of

counsel, nor of the consequences of an FRO prior to proceeding with trial.

During the hearing, the court outlined the anticipated sequence of events

and proceeded immediately to take testimony. It is unclear whether defendant

understood the purpose of the hearing or court procedure. She was not able to

properly admit evidence. Although defendant was provided with a Mandarin

interpreter, there was an obvious, notable language barrier. She was unable to

ask proper questions on cross-examination and did not testify coherently or

persuasively on her direct examination. The record shows defendant was

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unable to communicate with the court. Defendant claimed the interpreter was

not translating her testimony correctly and imprudently opted to proceed

exclusively in English. The hearing continued with defendant testifying in

English. The record shows defendant was linguistically hampered by this

decision. During defendant's testimony, the judge acknowledged that he

understood "probably 90% of what she was saying." The transcript of the FRO

hearing provided to this court for the purposes of appeal indicated on 126

occasions what defendant was saying was "unintelligible." We conclude that

the irregularities during the remote trial substantially prejudiced defendant,

depriving her of due process.

Therefore, the FRO is vacated, the TRO is reinstated, and the matter is

remanded for a new trial, consistent with this opinion. We do not retain

jurisdiction.

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