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NOT FOR PUBLICATION WITHOUT THE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,

v.

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).

APPROVED FOR PUBLICATION

June 5, 2020

APPELLATE DIVISION
2

A-4795-18T1

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.
3

A-4795-18T1

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.
4

A-4795-18T1

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.
5

A-4795-18T1

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 
6

A-4795-18T1

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 
7

A-4795-18T1

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 
8

A-4795-18T1

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."
9

A-4795-18T1

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 
10 A-4795-18T1

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 
11 A-4795-18T1

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 
12 A-4795-18T1

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).
13 A-4795-18T1

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 
14 A-4795-18T1

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 
15 A-4795-18T1

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 
16 A-4795-18T1

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.
17 A-4795-18T1

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 
18 A-4795-18T1

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.
19 A-4795-18T1

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.
20 A-4795-18T1

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. 
21 A-4795-18T1

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 . . . 
22 A-4795-18T1

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.
23 A-4795-18T1

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.
24 A-4795-18T1

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 
25 A-4795-18T1

Georgia for a bonding evaluation. The DAG also summarized other services 

the Division had arranged for A.O.J., such as counseling at the Family 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.
26 A-4795-18T1

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 
27 A-4795-18T1

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."
28 A-4795-18T1

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:
29 A-4795-18T1

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 
30 A-4795-18T1

[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 
31 A-4795-18T1

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.
32 A-4795-18T1

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.
33 A-4795-18T1

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:
34 A-4795-18T1

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
35 A-4795-18T1

[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.
36 A-4795-18T1

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 
37 A-4795-18T1

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 
38 A-4795-18T1

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.
39 A-4795-18T1

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 
40 A-4795-18T1

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)).
41 A-4795-18T1

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 
42 A-4795-18T1

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 crossexamine 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 
43 A-4795-18T1

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 
44 A-4795-18T1

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 selfrepresentation 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 
45 A-4795-18T1

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 selfrepresentation. As we have noted in a criminal appeal, 

"[t]he need for an unequivocal request for selfrepresentation 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 
46 A-4795-18T1

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.
47 A-4795-18T1

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.