Opinion
DOCKET NO. A-5310-13T1
06-09-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. V.J., Defendant-Appellant, and S.M., L.D., and M.I., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF P.A.C., P.D.M., P.V.J., P.L.J., and P.B.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Hand, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Elizabeth A. Davies, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Damen J. Thiel, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-41-13. Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Hand, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Elizabeth A. Davies, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Damen J. Thiel, Designated Counsel, on the brief). PER CURIAM
Defendant V.J. appeals a judgment that terminated his parental rights to three children, P.V.J. and P.V.J. (twins born in 2008), and P.B.M. (born in 2009). In his appeal, defendant argues that the judge erred in "failing to honor [defendant's] right to represent himself" and that the Division failed to establish each of the four prongs of the best interests test contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We find no merit in the former contention, and we affirm the judgment under review substantially for the reasons set forth by Judge Michael J. Blee in his well-reasoned written decision.
The guardianship action originally involved four parents and their five children. The children's mother, defendant S.M., eventually surrendered her parental rights to all five. L.D., the father of P.A.C., also surrendered his parental rights. And the parental rights of M.I., the father of P.D.M., were terminated at the conclusion of the trial in this matter. Only defendant, whose parental rights to the other three children were terminated at the conclusion of the trial, has appealed.
We first consider defendant's argument that he was erroneously deprived of the right to represent himself at trial. We start by observing that an action seeking the termination of parental rights "implicates a fundamental liberty interest" and that due process principles "serve[] as a bulwark against the loss of parental rights without counsel being afforded." N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305 (2007). The right to counsel in parental-termination matters arises not only from these constitutional principles, but by statute as well. See N.J.S.A. 30:4C-15.4(a). In addition, our Supreme Court has determined that the right to counsel in such matters necessarily incorporates the right to the effective assistance of counsel, B.R., supra, 192 N.J. at 306-07, which is to be analyzed by reference to the Strickland standard adopted for determining the effectiveness of counsel in criminal matters, id. at 309.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In applying these principles to the rights of an individual accused of a crime, it has been recognized that the accused possesses not only the right to effective counsel but also the right to self-representation. See Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975); State v. Crisafi, 128 N.J. 499, 509 (1992). Although this latter right has yet to be considered in the parental- termination setting, we need not attempt to provide any definitive parameters here. Even if we were to view defendant's rights as expansively as have our courts in the criminal setting — which was the approach taken by the trial judge here — we would conclude that Judge Blee properly rejected defendant's attempts to have his attorney dismissed in the midst of the trial so he could represent himself.
It is well established in the criminal setting that the accused must exercise his right of self-representation "in a timely fashion" and that this right "is not a license to 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); see also State v. Pessolano, 343 N.J. Super. 464, 473 (App. Div. 2001). As revealed during the extensive colloquy between the judge and defendant, at least two if not three prior attorneys provided by the Public Defender's Office did not meet with defendant's satisfaction at some point during these and earlier proceedings and were replaced. And when defendant requested dismissal of yet another attorney, and for the first time expressed a desire to represent himself — but apparently only because the Public Defender's Office refused to provide another attorney — the guardianship trial was in its fifth day. After thorough discussion about these circumstances and defendant's rights with defendant, the judge rejected the application to relieve defendant's attorney, and the matter proceeded without defendant, who refused to participate further that day. On the next trial day, defendant again expressed his desire to represent himself, and again, after thoroughly discussing the matter with defendant, the judge denied the request. In both instances, the request for self-representation was either accompanied by or would have inexorably required a continuation of the trial for at least sixty or ninety days. The judge correctly responded to defendant's requests by citing the importance of an expedited outcome for the children's sake — that the children's need for a permanent solution should not tolerate any further delay in the proceedings. We agree with the judge's determination that the children's interest in an expeditious disposition of the action — considering their removal from their parents occurred in August 2012 — outweighed defendant's dissatisfaction with his attorney. After closely examining the judge's consideration of these circumstances, as well as other factors outlined in decisions arising in the criminal realm, see, e.g., State v. Kates, 216 N.J. 393, 396 (2014); State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985), we are abundantly satisfied that the trial judge properly exercised his discretion in denying defendant's request to represent himself — a request that was sought first on the fifth day and again on the sixth day of an eight-day trial.
With that, we turn to defendant's arguments that the decision to terminate his parental rights was contrary to the weight of the evidence. By way of a thorough forty-three-page written decision, Judge Blee determined that all four prongs of the statutory test were established by clear and convincing evidence. In a nutshell, the judge found that defendant "has spent considerable amount of time incarcerated" and "has refused to receive offered services to address his substance abuse and issues with domestic violence[,] . . . [which] pose[] a serious threat to the children's health, safety and welfare." The judge also determined that:
The judge found from the evidence that defendant has a long criminal history, consisting of fifteen convictions, resulting in his "spen[ding] six years or more of his life incarcerated." Defendant was incarcerated at the time of trial.
[defendant's] defensiveness and denial of substance abuse and domestic violence issues impedes his ability to recognize and effectively meet the needs of his children. He also continues to violate the law resulting in numerous periods of incarceration. . . . He did not present any set of specific or coherent plans pertaining to his potentially caring for his children.These and the many other findings made by Judge Blee that clearly and convincingly favored termination of defendant's parental rights are amply supported by the evidence and command our deference. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We affirm substantially for the reasons set forth in Judge Blee's thoughtful written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
On May 13, 2015 — shortly before this matter was listed for disposition on its merits — defendant moved for a limited remand so the trial court might order visitation pending appeal. In light of our disposition of his appeal, the motion will be denied by separate order.
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CLERK OF THE APPELLATE DIVISION