                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2849-15T2
                                              A-3277-15T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Respondent,                  April 28, 2017

v.                                       APPELLATE DIVISION

R.L.M. and J.J.,

     Defendants-Appellants.
___________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF R.A.J., a minor.
___________________________________

         Submitted February 28, 2017 – Decided April 28, 2017

         Before Judges Fisher, Ostrer and Vernoia.

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Family Part,
         Atlantic County, Docket No. FG-01-50-15.

         Joseph E. Krakora, Public Defender, attorney
         for appellant R.L.M. (Theodore J. Baker,
         Designated Counsel, on the briefs).

         Joseph E. Krakora, Public Defender, attorney
         for   appellant   J.J.    (Carol   A.  Weil,
         Designated Counsel, on the briefs).

         Christopher S. Porrino, Attorney General,
         attorney for respondent (Melissa H. Raksa,
         Assistant Attorney General, of counsel;
         Cynthia Phillips, Deputy Attorney General,
         on the brief).
            Joseph E. Krakora, Public Defender, Law
            Guardian,   attorney  for  minor   (Noel  C.
            Devlin, Assistant Deputy Public Defender, of
            counsel and on the brief).

      The opinion of the court was delivered by

OSTRER, J.A.D.

      In a February 26, 2016 judgment, the Family Part terminated

the parental rights of defendants R.L.M. (Rachel) and J.J. (Jim)

to their daughter, R.A.J. (Riley), who was born in December

2013.1      Both    parties      challenge     aspects   of    the    court's    best

interests       findings    under    N.J.S.A.    30:4C-15.1(a)(1)-(4).            Jim

focuses on prongs three and four; Rachel on prong two.                            In

addition, Jim contends he is entitled to a new trial because the

court denied his request to represent himself.                       Rachel asserts

the     court    erred      by   considering     hearsay      opinions    of     non-

testifying experts.          Riley's Law Guardian joins the Division of

Child    Protection        and   Permanency     (Division)      in    opposing    the

parents' appeal.

      Regarding       defendants'      challenge     to       the    court's     best

interests findings, we defer to the trial court's fact findings,

which    were      partly    based    on   credibility        determinations      and

supported by substantial record evidence.                      See N.J. Div. of

Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014); Cesare


1 We utilize the trial court's pseudonyms for the parties, to
protect their privacy and for the reader's convenience.



                                           2                               A-2849-15T2
v. Cesare, 154 N.J. 394, 411-13 (1998).                  We affirm substantially

for the reasons set forth in the trial judge's well-reasoned

written decision.

      We also find little merit in Rachel's evidentiary argument.

Although     the   trial     judge   reviewed      the    opinions   of   two     non-

testifying     mental      health    experts    who      examined    Rachel     years

before trial, it is apparent the error had no impact on the

court's    ultimate     conclusions.         Instead,      the   court    based   its

holding on the opinions of experts who did testify as to more

recent evaluations.

      We thus confine our extended comments to Jim's contention

that he has a constitutional right of self-representation, the

denial of which warrants a new trial.                    We conclude there is no

such constitutional right, and the court was, in any event,

justified in refusing to permit Jim to represent himself because

his request was equivocal and untimely.

                                        I.

      We need not review the facts in detail, as the trial court

set   them    forth     at    length   in    its    forty-three-page        written

opinion.      It suffices to note that the Division effectuated a




                                        3                                   A-2849-15T2
Dodd removal2 of Riley shortly after her birth.                   At the time, the

Division    was     engaged    in     a    separate,      ultimately   successful,

guardianship action seeking the termination of parental rights

with respect to Rachel's five other children, the youngest of

which, a son, was also Jim's child.                 The court affirmed Riley's

removal and granted the Division's request for custody set forth

in its December 2013 verified complaint.                   In February 2015, the

court    approved    a   permanency        plan   of   termination     of    parental

rights to be followed by adoption, and the Division filed its

guardianship complaint the following April.                  The court conducted

several    conferences     over     the     ensuing    months     before    trial    in

February 2016.

     At trial, the Division's case-worker detailed the parents'

inconsistent visitation and their failure to timely or fully

avail themselves of services — including parenting and mental

health     services.           Alan        Lee,    Psy.D.,        testified      about

psychological and bonding evaluations he conducted.                         He opined

that both parents, in various ways, lacked the psychological and

emotional functioning to parent, and prospects were poor for

significant improvement in the near future.                   Dr. Lee stated the

parents'    respective        bonds       with    Riley    were    insecure.         By


2 A "Dodd removal" is an emergency removal of a child from the
custody of a parent without a court order, as authorized by
N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.



                                            4                                 A-2849-15T2
contrast, Riley had developed strong, reliable bonds with the

resource parents with whom she had lived since birth.                    He opined

neither parent could satisfactorily address the harm Riley would

suffer    if    she     were   separated   from     her   resource    parents   and

termination of parental rights would not cause more harm than

good.

      Rachel's        treating       psychologist     over     several       months,

discussed Rachel's positive efforts over the course of twenty-

four sessions in improving her problem-solving skills, insight

and judgment.         The psychologist noted Rachel was learning how to

cope with what she diagnosed as a dysthymic disorder. 3                   But she

did     not    assess     Rachel's    parenting     ability,    and    the    court

sustained an objection to her offering an opinion about whether

Rachel was ready to reunify with Riley.

      Rachel retained Michael Wiltsey, Ph.D., who diagnosed her

with adjustment disorder with mixed anxiety and depression.                       He



3 "The essential feature of Dysthymic Disorder is a chronically
depressed mood that occurs for most of the day more days than
not for at least 2 years . . . ."          American Psychiatric
Association (APA), Diagnostic and Statistical Manual of Mental
Disorders, 345 (4th ed. 1994).     During periods of depressed
mood, a person has two or more of the following: "poor appetite
or overeating, insomnia or hypersomnia, low energy or fatigue,
low self-esteem, poor concentration or difficulty making
decisions, and feelings of hopelessness . . . ."      Ibid.; see
also APA, Diagnostic and Statistical Manual of Mental Disorders,
168 (5th edition 2013) (describing "Persistent Depressive
Disorder (Dysthymia)").



                                           5                              A-2849-15T2
observed parenting deficits and declined to recommend immediate

reunification.      He   opined   that      an    assessment   could   be   made

regarding parenting capacity after an additional three to six

months of strict compliance with services and visitation, but

his prognosis was "guarded . . . at best."                     Neither parent

testified, and Jim offered no witnesses in his defense.

    The court found that the Division satisfied all four prongs

of the best interests test by clear and convincing evidence.

This appeal followed.

                                      II.

    Jim argues he is entitled to a new trial because the court

deprived him of his constitutional right to represent himself.

We conclude there is no such constitutional right in termination

of parental rights cases.         Moreover, even if there were, Jim

failed to assert it in a timely, unequivocal manner.

                                      A.

    We    begin   with   a   review   of    the    facts   relevant    to   Jim's

argument.     Beginning in 2014, Jim was represented by appointed

counsel through the Office of the Public Defender.                     He first

broached the subject of self-representation at the May 2015 case

management conference that followed the guardianship complaint

filing.     He proposed to utilize the services of an uncle who was

a paralegal.      As the following colloquy indicates, although the




                                       6                                A-2849-15T2
court was prepared to recognize a right of self-representation

if   knowingly   and   intelligently    exercised,   the   court   neither

definitely granted nor denied Jim's request:

                THE COURT:     But let's move on to
           another issue.   You do not want to have an
           attorney appointed to represent you, sir?4

                 [Jim]:   No.   No, ma'am.5

                 THE COURT:     And why is that, sir?

                [Jim]:    That's because I have some
           motions that I want to put in myself.      I
           actually — There's [sic] motions that I have
           to put in there.    There was a civil matter
           that I had put in that was just about to be
           dismissed, and I just got finished putting
           it together, had my uncle put together a
           reconsideration. It also has discovery with
           it.   Now what I'm intending to do is my
           uncle is going to put together a package
           that's going to be a motion —

                 THE COURT:     Is your uncle an attorney?

                [Jim]: He's a paralegal. I'm going to
           put together — You can look him up. . . .
           He's going to put in a motion which is going
           to have some of the things from the civil
           case and it's going to be in there.     It's
           going to be a grounds which we're going to
           be asking for, the FG to, I believe he said
           either be dismissed or whatever the case may
           be, but that's what's going to be —

                 THE COURT:     Okay.


4 We infer that Jim had previously asked to proceed pro se, but
the record does not include evidence of that.

5 As several judges presided over this matter, we will alter our
pronouns accordingly.



                                    7                              A-2849-15T2
     [Jim]:   It's going to be put in next
week, this week. I'm actually going to pick
it up later today.

       THE COURT: Okay. Sir, I think — Well,
let   me start off by telling you, you have
the   right to be represented by counsel, and
you    have the right to represent yourself.
Not   having an attorney is a big mistake.

     [Jim]:     I understand that, ma'am, but
I've had —

     THE COURT:      I just want to go on the
record —

     [Jim]:   — I've had an attorney up to
this far and I'm not satisfied.      This is
where I'm at right now.     It's about to be
taken and moved to another, another part of
the, another section of the case.      You're
about to go into permanency and everything
else.   I felt as though if, if having an
attorney was so great then we would have a
better — I did everything that they asked me
to do as far as every, every — I went to
psychological, I did whatever they asked me
to do, and yet we're still about to move
forward, move into another part of the case.

      . . . .

     THE COURT: — you, you let me know how
it works for you when you don't have an
attorney, okay?

      [Jim]:    Yes, ma'am.

      . . . .

     THE COURT:  But certainly you have the
right to represent yourself, and if that's
what your wish is, as long as I've explained
to you what your rights are and I've
impressed upon you the mistake that you're
making in not having an attorney, but you



                        8                       A-2849-15T2
              insist that you want to represent yourself,
              that is certainly your right. Okay?

       Jim did not attend the case management conference the next

month.       His appointed attorney stated on the record that Jim had

been    at    the    courthouse,       but   left    because     of    illness.     The

request to represent himself was unmentioned during the ensuing

colloquy.

       At     the    October      2015     case     management        conference,   Jim

apparently abandoned his request to represent himself.                        Instead,

he    advised       the   court   he     sought   merely    to   retain     substitute

counsel.

                    [Jim]:        I want to get another lawyer.
              I'm sorry.

                   THE COURT:    Excellent.                That's okay.
              If you wish to do that.

                   [Jim]:   I just want to put it on the
              record that I'm not satisfied with my, my
              representation, —

                      THE COURT:       Okay.

                   [Jim]: — and I'm looking — I actually
              have [another attorney]6 that was supposed to
              take my case today, but for some reason she
              couldn't take it. So —

                   THE COURT: If you do that and you get
              another lawyer, you have that lawyer send a
              letter to the court of representation and
              come back to court on the date that we are
              here next time.


6   Jim identified the attorney, whom we choose not to name.



                                             9                                A-2849-15T2
    The judge advised Jim that the case would continue to move

forward.      He advised Jim that his right to appointed counsel did

not include the right to choose counsel.            Jim responded that he

could afford to retain a lawyer:

                   [Jim]: That's what I'm saying. I just
              got [a] retainer fee.   I'm going to pay a
              lawyer.

                  THE COURT:     Excellent.

                  . . . .

                   THE COURT:   [S]end a letter to the
              Court. We'll come to court the next time we
              have a hearing, and we'll have that lawyer
              step into representation at that point.
              Until that time [the appointed attorney]
              remains.

                  [Jim]:    Okay.

Later in the day's proceedings, Jim reiterated, "I'm going to

hire an attorney.     I'm going to get a new attorney."

    Jim did not file a substitution of attorney.                 Instead, he

tried to file at least one motion pro se.                At a November 2015

case management conference, which Jim did not attend because of

work, the judge stated as long as Jim had representation, she

would   not    consider    pro   se   filings   unless   they   went   through

counsel.      Jim also did not attend the February 1, 2016 hearing,

and the issue of self-representation was not addressed.

    At the first day of trial, the deputy attorney general

noted that Jim had just served all counsel, including his own



                                       10                              A-2849-15T2
attorney, a packet of pro se motions.             Included was a "notice of

motion for new counsel" and a supporting certification.                        Jim

orally asserted that he had been at odds with his attorney for

"the last six or seven months," and that he did not "want him as

my attorney," but the court had "still allowed it."                      He was

dissatisfied because his attorney did not file a motion "to have

abuse and neglect removed from the record."                   The "abuse and

neglect" apparently referred to his understanding of the basis

for his loss of parental rights to his son in the 2014 judgment,

which    Jim   believed   would   affect    his   present     case    concerning

Riley.

    Jim    has   not   included   his   motion     in   the   record,    but    we

surmise from the context of the discussion that it was not a

request to represent himself, but a request for a new attorney.

The judge described it as a "request of [Jim] to replace [his

attorney]."      (Emphasis added).         Later, Jim also stated he had

asked    for    "different   representation."            After   an     extended

colloquy, the judge denied the request.

    The trial commenced with the case-worker's testimony.                       In

the midst of his attorney's cross-examination, Jim interjected

his dissatisfaction with the line of questioning.                    He alleged

his attorney did not consult with him.                  As he began to make

other points, the deputy attorney general argued "[i]f [Jim]




                                     11                                 A-2849-15T2
wants to testify . . . he should do so."          Jim responded that he

"wanted to represent himself."       Interpreting that statement as a

current request to proceed pro se, the judge stated, "Well,

we're not going to allow you to do that at this time," and

ordered appointed counsel to continue.

      The next day, the judge amplified his reasons for denying

Jim's requests to change counsel and represent himself.                 He

noted again that Jim requested at the beginning of trial "that

his counsel . . . be replaced."          The court briefly addressed the

substance of Jim's complaint that his attorney's failure to file

the   motion   involving   the    adjudication    related   to   his   son

prejudiced him in the current proceeding.           The court suggested

that Jim's own failure to appear in court may have impaired his

relationship with counsel.       The court continued:

          [W]hile the Court is sensitive to [Jim's]
          request to change counsel, we simply find
          that the request at this late date would
          only serve to delay the proceedings and
          unduly interfere with the minor child's
          attempt to gain permanency in this matter.

               Many of defendant [Jim's] complaints
          about his counsel arise out, out of his
          unwillingness to cooperate with [counsel].
          Even yesterday at the conclusion of the
          proceedings    [counsel]   attempted    to
          communicate with [Jim], but [Jim] simply
          ignored him.

               In further assessing the request under
          the attendant circumstances, the Court rules
          under State v. Crisafi, [128 N.J. 499



                                    12                           A-2849-15T2
            (1992)], and its progeny that the request to
            change counsel is hereby denied. So we will
            continue to proceed with this matter and
            that will conclude any, any attempts at this
            time to replace [counsel].

    Despite the finality of the court's decision, the matter

arose later in the proceeding when Jim interrupted the State's

direct examination of Dr. Lee without consent of his counsel.

Noting    that   Dr.   Lee's    opinion       seemed   to    rely   on   the   prior

finding of abuse and neglect, Jim stated he wanted to argue the

finding should be discarded.              He insisted, "I have documents

that say[ ] that I am cleared.                I did not do . . . what they

said."

    He initially clarified that he was "not talking about [his

counsel] being dismissed."         But Jim was then reminded that his

counsel had not filed a motion to challenge the prior finding.

Despite his earlier statement, Jim decried the inadequacy of his

representation and asserted he did not "want [current counsel]

representing     me."      At     that        point,   the    court      apparently

understood that Jim either wanted to replace counsel or proceed

pro se.    The court denied his request:

                 THE COURT:    While . . . it is your
            right to terminate your attorney, we're in
            the middle of trial right now.     I don't –
            from what I've seen from you throughout this
            proceeding  –   not   only  throughout  this
            proceeding, but in the months leading up to
            this proceeding, this Court is not convinced
            that you could go through the rest of this



                                         13                                A-2849-15T2
            trial and represent yourself.           Meanwhile, it
            would be –

                 [Jim]: Through the –

                 THE COURT: I have to balance so many
            issues with respect to terminating this
            trial right now to allow new counsel to
            substitute in and come up to speed, that
            this    Court    has    already  made    the
            determination that that would be unfair to
            the interest of the minor child who has some
            interest here at stake.

            [(Emphasis added).]

      In response, Jim tried to allay the court's concerns that

he would slow down the trial if he represented himself:

                 I can promise you this.    I would not
            object to [anything] that they do. I – if I
            was [sic] to take over my case . . . . I'm
            not going to put in motions trying to stop
            them to proceed [sic]. Why? Because I plan
            to try to give everything back on appeal.
            The only thing I would try to establish if I
            was [sic] to take over this case is the fact
            that I'm innocent of the [prior] abuse and
            neglect . . . . That's it.

      The   colloquy   concluded     without    a   further   discussion     of

Jim's representation.       Instead, the court entered into evidence

a letter, which Jim had apparently been holding, that allegedly

supported his challenge to the prior abuse and neglect finding.

Jim then excused himself from the proceeding and did not return

for the rest of the day.           Jim was also absent for most of the

trial the next day, after telling his counsel he was sick.                   He

was   present   at   the   start    of   the   final   day    of   trial,   but



                                      14                              A-2849-15T2
apparently      left    after      refusing    to   testify.       No    further

discussion regarding his representation occurred.

                                        B.

     It    is   now    well-settled     that   an   indigent    parent       in   New

Jersey    is    entitled    to     appointed   counsel   in    termination         of

parental rights cases.            In re Adoption of a Child by J.E.V. and

D.G.V., 226 N.J. 90, 105, 108 (2016); N.J. Div. of Youth &

Family Servs. v. B.R., 192 N.J. 301, 306 (2007); Crist v. N.J.

Div. of Youth & Family Servs., 135 N.J. Super. 573, 575 (App.

Div. 1975).      The right arises from the due process guarantee of

our State Constitution.            J.E.V., supra, 226 N.J. at 105; B.R.,

supra, 192 N.J. at 305-06 (citing N.J. Const. art. I, ¶ 1).7                      The

Legislature has authorized the Office of the Public Defender to

implement this right to counsel.               See N.J.S.A. 30:4C-15.4(a).

The right is also embodied in our Rules of Court.                  See R. 5:3-

4(a).     The question presented is whether there is a corollary

right of self-representation.

     Jim    relies     on   the    criminal    defendant's     right    of    self-

representation.        See State v. King, 210 N.J. 2, 16 (2012) ("The



7 By contrast, the United States Supreme Court in Lassiter v.
Dep't of Soc. Servs., 452 U.S. 18, 31-32, 101 S. Ct. 2153, 2162,
68 L. Ed. 2d 640, 652 (1981), declined to find a federal due
process right to counsel in all termination of parental rights
cases, requiring instead a case-by-case weighing of interests.




                                        15                               A-2849-15T2
corollary to the right of a criminal defendant to be represented

by an attorney is the defendant's right to represent himself."

(citing Faretta v. California, 422 U.S. 806, 814, 95 S. Ct.

2525, 2530, 45 L. Ed. 2d 562, 570 (1975))).                He notes that, like

denial of an accused's right to counsel, denial of a criminal

defendant's right of self-representation is a structural error

that entitles the defendant to a new trial without considering

whether the denial caused harm at trial.                  See King, supra, 210

N.J. at 22 (citing McKaskle v. Wiggins, 465 U.S. 168, 177 n.8,

104 S. Ct. 944, 950 n.8, 79 L. Ed. 2d 122, 133 n.8 (1984)).                 Jim

contends the denial of the alleged right of self-representation

in a termination of parental rights case likewise produces a

structural error compelling reversal.

       But    a   criminal    defendant's    right   of    self-representation

arises from an accused's Sixth Amendment "right . . . to have

the Assistance of Counsel for his defence."                 U.S. Const. amend.

VI.    See Faretta, supra, 422 U.S. at 818, 95 S. Ct. at 2532, 45

L.    Ed.    2d   at   572   ("The   right   of   self-representation    finds

support in the structure of the Sixth Amendment, as well as in

the English and colonial jurisprudence from which the Amendment

emerged.").        The Sixth Amendment does not govern the present

matter because a termination of parental rights case is civil.

Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426,




                                        16                            A-2849-15T2
467   (App.     Div.)       (holding      due       process         did    not        "confer        a

constitutional         right      of   confrontation           or   mandate        a    parent's

presence"     at   a    civil      termination        of       parental     rights          trial),

certif. denied, 177 N.J. 575 (2003),                           cert. denied, 540 U.S.

1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004); cf. N.J. Div.

of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 634 (App.

Div. 2010) (noting Sixth Amendment safeguards do not apply to

civil abuse or neglect case).

      Because       defendant          does    not        have      a     right        of      self-

representation under the Sixth Amendment, a different analysis

is    required         to    evaluate         his     claimed           right         of       self-

representation.             To    establish        such    a     right,     a     parent        must

demonstrate it arises from the right of procedural due process.

In recognizing the right to counsel in contested adoption cases,

our   Supreme      Court     expressly        applied      principles           set    forth       in

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47

L. Ed. 2d 18, 33 (1976), which enunciated a three-factor test

for   ascertaining          the   due    process      protection           owed.            J.E.V.,

supra, 226 N.J. at 108.                 In both J.E.V., involving contested

adoptions, and B.R., involving termination of parental rights,

the Court has considered: "'the nature of the right involved';

'the permanency of the threatened loss'; the risk of error at a

hearing conducted without the help of counsel; and the State's




                                              17                                            A-2849-15T2
interest, which is bounded by its parens patriae jurisdiction."

J.E.V., supra, 226 N.J. at 108 (quoting B.R., supra, 192 N.J. at

306).8

     As the Court in J.E.V. explained, each of these factors

impels the conclusion that a parent is entitled to counsel.                    The

nature of the right involved is momentous; it is the parent's

fundamental right to raise one's child.                J.E.V., supra, 226 N.J.

at 108-09.        Termination of that right in a guardianship matter

is permanent.       Id. at 109.        Also significant is the fact that

"[w]ithout    the       assistance    of     counsel    to   prepare    for    and

participate in the hearing, the risk of an erroneous outcome is

high."      Id. at 109;      see also        B.R., supra, 192 N.J.        at 306

(noting "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").                 The State has an

interest not only in the child's welfare, but also an interest,

shared with the parent, "in an accurate and just decision."

J.E.V., supra, 226 N.J. at 110 (internal quotation marks and



8 By comparison, Mathews states that, in assessing the "specific
dictates of due process," a court must consider: (1) "the
private interest that will be affected"; (2) "the risk of an
erroneous deprivation of such interest" and the value of other
safeguards; and (3) "the Government's interest, including the
function involved and the fiscal and administrative burdens" of
other safeguards. Mathews, supra, 424 U.S. at 335, 96 S. Ct. at
903, 47 L. Ed. 2d at 33.



                                        18                               A-2849-15T2
citation omitted).           The Court thus found that the risk of error

when a parent is unrepresented compels the right to counsel in

TPR cases because it protects the parent's right to raise his or

her child as well as the State's and child's interests.

      The    same     risk-of-error       factor      that    supports         a    parent's

right   to   counsel        also    weakens     a   claim    to    a    right      of   self-

representation.9         As the J.E.V. Court observed, pro se parents

are less likely than counseled ones to defend successfully an

ill-founded action to terminate their rights.                          226 N.J. at 109;

see also Faretta, supra, 422 U.S. at 834, 95 S. Ct. at 2540, 45

L.   Ed.    2d   at   581    ("It    is   undeniable        that   in    most       criminal

prosecutions,         defendants      could     better      defend      with       counsel's

guidance than by their own unskilled efforts.").                          Recognizing a



9 We recognize that the right to appear pro se also arguably
affirms   the   parent's  "individual   dignity  and  autonomy."
McKaskle, supra, 465 U.S. at 178, 104 S. Ct. at 951, 79 L. Ed.
2d at 133.     The right of self-representation also has deep
historical roots. In re Civil Commitment of D.Y., 218 N.J. 359,
374-76 (2014).   "The Founders believed that self-representation
was a basic right of a free people." Faretta, supra, 422 U.S.
at 830 n.39, 95 S. Ct. at 2538 n.39, 45 L. Ed. 2d at 578 n.39.
Yet, Jim does not rest his claim on substantive due process, see
Lewis v. Harris, 188 N.J. 415, 435 (2006) (discussing a two-step
inquiry to determine whether a fundamental liberty interest
exists under substantive due process), nor has our Court
explicitly grounded the right to counsel, or the right of self-
representation on such grounds.    See D.Y., supra, 218 N.J. at
373, 384 (declining to consider amicus curiae's argument that a
sexually violent predator committee has a right to self-
representation on substantive due process grounds).   Therefore,
we shall not enter such uncharted territory.



                                           19                                       A-2849-15T2
right of self-representation in parental rights cases that is as

broad as the right in criminal cases may pose an "unacceptable

danger that parental rights would be terminated when they should

not be."    See In re Kathleen K., 953 N.E.2d 773, 778-79 (N.Y.

2011) (Smith, J., concurring) (rejecting grant of Faretta-type

right of self-representation in parental rights cases).                      The

enforcement of a right of self-representation in these cases may

disserve a parent's private right to raise one's own child.

       Moreover, a right of self-representation may undermine the

child's, the State's, and the court's shared interest in an

accurate result.         A self-represented criminal defendant may well

be entitled to "go to jail under his own banner."                      Faretta,

supra, 422 U.S. at 839, 95 S. Ct. at 2543, 45 L. Ed. 2d at 584

(Burger,    C.J.,    dissenting)        (internal    quotation    marks      and

citation   omitted).          But   a   parent's    self-destructive      self-

representation      in    a   termination    of    parental   rights   hearing

affects a broader set of interests than the parent's — including

the child's interest in the parental relationship.               In addition,

as J.E.V. noted, the State shares a concern for the child and

"an accurate and just decision."              J.E.V., supra, 226 N.J. at

110.

       Also, the court has an independent obligation to terminate

parental rights "only in those circumstances in which proof of




                                        20                             A-2849-15T2
parental     unfitness     is   clear."        N.J.   Div.    of       Youth   &    Family

Servs. v. F.M., 211 N.J. 420, 447 (2012).                     A court must guard

against delays caused by self-representation that disserve the

child's interests in permanency.               See M.Y.J.P., supra, 360 N.J.

Super. at 470 ("[D]elays in the adjudication of parental rights

cases result in additional costs, and . . . impact negatively

upon a child's need for permanency.").                   Thus, while a trial

court in a criminal case "should not focus on whether a pro se

defendant will fare well or badly," State v. Reddish, 181 N.J.

553, 592 (2004), the court may more broadly review a parent's

capability to marshal a coherent and organized defense in a

termination of parental rights case.

       The   child's    separate    representation           by    a    law    guardian,

required by N.J.S.A. 30:4C-15.4(b), does not always satisfy the

child's interest in an accurate result.                  The law guardian may

often    align    the   child's    position      with    the       Division's         in    a

termination of parental rights case.                  In those instances, the

task of testing the State's claims through the adversary process

falls to the parent.        Permitting a parent to appear pro se would

thus    undermine    the    "truth-seeking       function         of    the    adversary

process."        State v. Byrd, 198 N.J. 319, 338 (2009) (internal

quotation marks and citation omitted).




                                          21                                       A-2849-15T2
       Notably, in In re Civil Commitment of D.Y., we found that

procedural      due    process      did   not     compel       a    right    of        self-

representation in civil commitment hearings under the Sexually

Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.                                 426

N.J.   Super.      436,    443-44     (App.     Div.    2012),      rev'd        on    other

grounds, 218 N.J. 359 (2014).             Invoking the Mathews factors, we

observed     that,     "the     private        interests       affected      by        civil

commitment . . . are substantial . . . ."                    Id. at 444.         However,

self-representation was not necessary to protect the defendant's

interests in a fair and accurate proceeding, id. at 445, and

"self-representation          [was]   likely     to     impede      the    government's

interest in ensuring the integrity of the fact-finding process

and the fairness of the result reached . . . ."                      Id. at 446.            We

concluded there was no right of self-representation "because the

significant        interests     implicated        .     .     .     are     adequately

safeguarded by extant procedural protections, including, most

importantly, the right to counsel."                    Ibid.       We reach the same

result here.

       In   sum,      we   reject      Jim's      argument         that     he        had    a

constitutional right of self-representation.10



10We recognize the Court in J.E.V. implicitly contemplated cases
in which a parent in a contested adoption may waive the right to
counsel.   See J.E.V., supra, 226 N.J. at 114.        The Court
described the trial court's prerequisite inquiry to assure the
                                                     (continued)


                                          22                                      A-2849-15T2
                                      C.

      Although Jim relies on an asserted constitutional right,

and   a   claimed   structural   error     from   its   denial,   we   briefly

address,    for     the   sake   of   completeness,      non-constitutional

sources of the right of self-representation.

      Eschewing a constitutional analysis, the Supreme Court in

D.Y. found that a SVP defendant has a statutory right to appear

pro se at a commitment hearing, but only if standby counsel is

present.    D.Y., supra, 218 N.J. at 384.          The Court relied on two

statutory provisions: (1) N.J.S.A. 30:4-27.31, which expressly

grants parties a right to appointed counsel if indigent, "[t]he

right to present evidence," and "[t]he right to cross-examine

witnesses," and (2) N.J.S.A. 30:4-27.29(c), which states that

the party "shall have counsel present at the hearing and shall

not be permitted to appear at the hearing without counsel."

D.Y., supra, 218 N.J. at 384.




(continued)
parent acts knowingly and voluntarily.   Ibid. (stating "[i]f a
parent wishes to proceed pro se, the court should conduct an
abbreviated yet meaningful colloquy to ensure the parent
understands the nature of the proceeding as well as the
problems" of self-representation (citing State v. Crisafi, 128
N.J. 499, 511-12 (1992))).   We do not view the Court's brief
discussion to imply a constitutional right to proceed pro se in
contested adoption hearings or termination of parental rights
cases.



                                      23                               A-2849-15T2
    By contrast, N.J.S.A. 30:4C-15.4(a) states "[i]f the parent

. . . is indigent and requests counsel, the court shall appoint

the Office of the Public Defender to represent                        the parent."

While that provision arguably implies that a parent may withhold

a request for counsel, the statute does not explicitly grant a

right of self-representation, with or without standby counsel.

Nor does the statute expressly grant the parent the right to

present evidence and cross-examine witnesses, as does the SVPA.

    Our Court Rules generally grant natural persons the right

to appear without an attorney in a matter that directly affects

them:

            A person not qualifying to practice [law]
            pursuant to the first paragraph of this rule
            shall nonetheless be permitted to appear and
            prosecute or defend an action in any court
            of this State if the person . . . is a real
            party in interest to the action or the
            guardian of the party . . . .

            [R. 1:21-1(a).]

    As      with    all    Rule-created       rights,        this    right     is     not

absolute.      Under      Rule    1:1-2(a),    a    rule     "may    be   relaxed     or

dispensed    with    . . .   if    adherence       to   it   would    result     in    an

injustice."        Although the relaxation rule is sparingly applied,

especially where other Rules address the problem at hand, see,

e.g., Romagnola v. Gillespie, Inc., 194 N.J. 596, 604 (2008),

neither the Rule-based right to appear pro se nor other rules




                                        24                                     A-2849-15T2
expressly weigh, as we must here, the child's countervailing

interests.

       Certainly,       a    court    may       limit       the    Rule-based         right      to

vindicate calendar and other important interests.                                Cf. State v.

Kates,      216   N.J.      393,    396    (2014)        (stating         that    a   criminal

defendant's constitutional right to counsel of choice "may be

balanced     against        the    demands      of    the    court's       calendar,         among

other issues").          Accordingly, a court may relax the Rule-based

right of self-representation in a termination of parental rights

case   if    it   concludes        that,     on      balance,      the    parent's        pro    se

efforts     would    significantly              undermine         the    interests        of    the

child, the State, and the court in achieving an accurate result

without undue delay.              See In re A.M., 79 Cal. Rptr. 3d 620, 628-

29 (Ct. App. 2008) (stating that court has discretion to deny a

parent's exercise of a statutory right of self-representation in

a   juvenile      dependency        action       after      balancing       parent's         right

against     other    rights,        including         child's       right     to      a    prompt

resolution of case).

       But we need not chart the boundaries of the court's power

under the Rules to limit the parent's entitlement to proceed pro

se.    Nor need we decide definitively whether N.J.S.A. 30:4C-15.4

grants a right to appear pro se with standby counsel.                                     Jim has

not    asserted     a    statutory         or     Rule-based        right     to      represent




                                                25                                        A-2849-15T2
himself,     nor   did   he   propose     to   represent      himself    with   the

assistance of standby counsel.

      In any event, violation of the Court Rule or statute does

not   automatically       compel      reversal,        as    no     constitutional

deprivation is involved.11           Instead, we consider whether denial

of his alleged right to appear pro se was "clearly capable of

producing an unjust result . . . ."                  R. 2:10-2.12    Jim does not

attempt to demonstrate how the denial of his self-representation

right caused actual harm, and we discern none.

                                        D.

      Were    we   to    recognize    a      right     of   self-representation,

whether under the Constitution, rule, or statute, it would not



11Automatic reversal based on "structural error" is reserved for
constitutional violations. State v. Camacho, 218 N.J. 533, 549
(2014) (noting that structural error has been found "only in a
very   limited  class   of   cases"   and  citing  examples   of
constitutional deprivations warranting such treatment (internal
quotation marks and citation omitted)); State v. Purnell, 161
N.J. 44, 61 (1999) (stating that "structural error affects the
legitimacy of the entire trial," citing limited class of
constitutional errors); see also Neder v. United States, 527
U.S. 1, 7, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35, 46 (1999)
(stating that structural errors are "fundamental constitutional
errors that defy analysis by harmless error standards" (internal
quotation marks and citation omitted)).

12 While California Courts apparently agree that there is no
constitutional right of self-representation in termination of
parental rights cases, they do acknowledge a statutory right,
the violation of which is subject to harmless error analysis.
See A.M., supra, 79 Cal. Rptr. 3d at 630-31; In re Justin L.,
233 Cal. Rptr. 632, 638 (Dist. Ct. App. 1987).



                                        26                                A-2849-15T2
be unqualified.        Even a criminal defendant's self-representation

right, which is firmly moored in the Sixth Amendment, "is not

absolute" and may yield to the "State's equally strong interest

in   ensuring    the    fairness    of        judicial    proceedings      and     the

integrity of trial verdicts."            King, supra, 210 N.J. at 18; see

also Reddish, supra, 181 N.J. at 587.                    "[T]he right of self-

representation is not a license to abuse the dignity of the

courtroom."      D.Y., supra, 218 N.J. at 385 (quoting Faretta,

supra, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed.

2d at 581 n.46).       A defendant must assert the right "in a timely

fashion" and may not "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).

     In particular, a self-representation request "must be made

before meaningful trial proceedings have begun."                     Id. at 363.

Also,   an    "unequivocal"      request       to   represent     oneself     is    a

prerequisite    to     waiving    the    right      to    counsel.      State       v.

Figueroa, 186 N.J. 589, 593 n.1 (2006).                   "[A] defendant cannot

'manipulate the system by wavering between assigned counsel and

self-representation.'"           Buhl,   supra,     269    N.J.   Super.    at     362

(quoting Crisafi, supra, 128 N.J. at 517).

     Jim stated he wanted to represent himself well in advance

of trial, at the case management conference in May 2015.                           But




                                         27                                A-2849-15T2
his request was not unequivocal, as he seemed to propose to rely

on his uncle, a paralegal, to assist him.                   Whether Jim initially

sought a form of hybrid representation with a person with some

legal training, but unlicensed as an attorney, is unclear.13                           The

trial judge did not clarify Jim's request.                        Yet, the judge's

failure      to     rule       on   Jim's        request    turned      out      to    be

inconsequential.           Jim did not merely waver in his request to

represent himself, he effectively withdrew the request the next

time he appeared in court.               Specifically, he proposed to hire

his own attorney and asserted he had the wherewithal to do so.

The court stated he was free to hire new counsel, but the case

would proceed without delay.

     Jim     did    not    thereafter       hire    an   attorney.       Nor     did   he

promptly renew his request to represent himself, although he

apparently filed pro se motions.                  Instead, on the eve of trial,

he filed a motion that, as best we can tell from the incomplete

record,      sought       to   replace      appointed      counsel      with   another

counsel.14         Only    after    cross-examination        of   the    first    trial



13 However, Jim would have no right to representation by a
paralegal, nor would he have a right to hybrid representation,
even if he had a right to represent himself.       See Figueroa,
supra, 186 N.J. at 594 (pertaining to criminal defendant).

14We can only surmise as to the contents of Jim's day-of-trial
motion, which was not included in the appendix. See R. 2:6-1(a)
(stating appellant must include in the appendix "such other
                                                    (continued)


                                            28                                 A-2849-15T2
witness had begun, did Jim revive his request to proceed pro se.

The judge correctly denied the request as untimely, since trial

had already begun.    Jim's second mid-trial request was more

untimely.15

     Thus, even if we recognized a right of self-representation,

Jim did not assert it timely or unequivocally.    We discern no

abuse of discretion in the court's denial of the request to

proceed pro se.

     In sum, we reject Jim's contention that he is entitled to a

new trial on the ground the court denied his constitutional

right of self-representation.

     Affirmed.




(continued)
parts of the record . . . as are essential to the proper
consideration of the issues"); Cmty. Hosp. Grp., Inc. v. Blume
Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) ("Nor are
we obliged to attempt review of an issue when the relevant
portions of the record are not included."), certif. denied, 187
N.J. 489 (2006).

15Jim's repeated absences from court during the pendency of his
case, as well as during parts of the trial itself, also raise
doubts about his ability to represent himself and to do so
without disrupting the orderly completion of the trial.



                                29                      A-2849-15T2
