DCPP VS. B.K.L. AND K.P.W.L.IN THE MATTER OF THE GUARDIANSHIP OF N.F.L. (FG-15-0027-12, OCEAN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED)
A-4967-14T4/A-4968-14T4
| N.J. Super. Ct. App. Div. | Sep 28, 2017Background
- Parents (B.K.L. and K.P.W.L.) sued their appointed OPR attorneys in federal court during a guardianship trial, leading those attorneys to be relieved and parents to proceed pro se for the remainder of the trial.
- Trial court terminated both parents' rights to N.F.L. on June 22, 2015; parents appealed arguing they did not knowingly and intelligently waive counsel when they continued pro se.
- This Court previously remanded for an evidentiary hearing because the trial court had not conducted an adequate colloquy to establish a knowing, intelligent waiver of counsel.
- On remand Judge Brenner held an evidentiary hearing, found parents not credible, concluded they had options to obtain new appointed counsel from OPR but chose to proceed pro se, and would have made the same choice even if properly advised.
- Parents did not challenge the substance of termination on appeal; Mother also argued she lacked notice of the statutory basis for termination, which the Court rejected given repeated notice and the complaint’s allegations.
Issues
| Issue | Plaintiff's Argument (DCPP) | Defendant's Argument (Parents) | Held |
|---|---|---|---|
| Did parents knowingly and intelligently waive right to counsel when they proceeded pro se after their attorneys withdrew? | Parents waived counsel knowingly; they had options to seek new OPR counsel and chose to proceed pro se. | Parents contend they were not given a proper colloquy and thus did not validly waive counsel. | Judge Brenner’s factual finding that the waiver was knowing and intelligent is affirmed; parents’ testimony was not credible and record shows they acted pro se by choice. |
| Were parents effectively disqualified from obtaining new OPR counsel because of their federal suit? | DCPP: No; OPR availability was possible and parents were not disqualified. | Parents claim they were told they might be disqualified or that trial would proceed without counsel. | No disqualification found; statements relied on by parents were either not heard by them or did not state disqualification; OPR provided counsel later on appeal/remands. |
| Was proceeding mid-trial pro se improper or barred by precedent (timeliness/unequivocal request)? | Mid-trial change was unavoidable and permitted; waiver was unequivocal given conduct. | Parents argue requests were untimely and they were never properly advised; R.L.M. limitations purportedly support them. | Mid-trial self-representation can be allowed; R.L.M. does not bar parents from proceeding pro se mid-trial and parents’ conduct made waiver unequivocal. |
| Did Mother lack due process/notice of the statutory basis for termination (best-interests test)? | Complaint and repeated proceedings on remand put Mother on notice of N.J.S.A. 30:4C-15/15.1 four-prong best-interests test. | Mother argues she only had abandonment on remand and lacked specific notice. | Court rejects Mother’s claim—record and prior orders put her on notice and she had opportunities to argue the four-prong test. |
Key Cases Cited
- In re Guardianship of J.N.H., 172 N.J. 440 (N.J. 2002) (appellate review limits in parental termination cases)
- N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420 (N.J. 2012) (defer to family court fact-finding; substantial credible evidence standard)
- Cesare v. Cesare, 154 N.J. 394 (N.J. 1998) (trial court credibility assessments have particular weight)
- In re Adoption of a Child by J.E.V., 226 N.J. 90 (N.J. 2016) (colloquy requirement for waivers in certain parental-rights contexts)
- N.J. Div. of Child Prot. & Permanency v. R.L.M., 450 N.J. Super. 131 (App. Div. 2017) (parents’ Rule-based right to proceed pro se in TPR context; right not absolute)
- In re Civil Commitment of D.Y., 218 N.J. 359 (N.J. 2014) (standby counsel context under a statutory commitment scheme)