DCPP VS. K.K. AND D.R., IN THE MATTER OF E.R.-K AND EZ.R.-K (FN-02-0046-17, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4485-17T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
K.K.,1
Defendant-Appellant,
and
D.R.,
Defendant.
__________________________
IN THE MATTER OF E.R.-K.
and Ez.R.-K.,
Minors.
___________________________
1
Pursuant to Rule 1:38-3(d)(12), we use initials to identify the adults and
pseudonyms to identify the children to protect their privacy and preserve the
confidentiality of these proceedings.
Argued October 10, 2019 – Decided July 29, 2020
Before Judges Fuentes, Haas and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FN-02-0046-17.
Carol L. Widemon, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Robyn A. Veasey, Deputy Public
Defender, of counsel; Carol L. Widemon, on the briefs).
Monique D'Errico, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jason W. Rockwell, Assistant
Attorney General, of counsel; Monique D'Errico, on the
brief).
Noel Christian Devlin, Assistant Deputy Public
Defender, argued the cause for minors (Joseph E.
Krakora, Public Defender, Law Guardian, attorney;
Noel Christian Devlin, of counsel and on the brief).
PER CURIAM
Defendants K.K. (father) and D.R. (mother) are the biological parents of
Elyssa, born in 2003, and Erik, born in 2005. On July 26, 2016, the Division of
Child Protection and Permanency (Division) filed a Verified Complaint for the
Care and Supervision of these two children in the Chancery Division, Family
Part in Bergen County. The Division also requested that the Family Part restrain
K.K. from having any contact with his children. At the time, the children were
residing with D.R. in Englewood and K.K. was residing in Newark. The
A-4485-17T3
2
Division commenced this action after it investigated Elyssa's allegations of
sexual abuse against her father. On September 22, 2016, approximately four
months before seeking judicial relief, the Division completed its investigation
and found sufficient evidence to substantiate that K.K. sexually abused his
biological daughter Elyssa when she was twelve years old.
K.K. denied the veracity of his daughter's allegations and requested a
plenary hearing before the Family Part. Judge Magali M. Francois conducted a
fact-finding hearing over a five-day period commencing on March 7, 2017 and
ending on April 7, 2017. The Division's case against defendant consisted of the
testimony of caseworker Magalena Sandoval; Licensed Clinical Social Worker
(LCSW) Joanne Glaeser, who is employed by the Audrey Hepburn Children's
House, located at Hackensack University Medical Center; and Elyssa herself.
The Law Guardian did not present any witnesses. Defendant K.K. called D.R.
as a witness, and he testified in his own defense.
Judge Francois also admitted into evidence the following documentary
exhibits: the audio/video recordings of the interviews of Elyssa, D.R., and K.K.
conducted by detectives from the Bergen County Prosecutor's Office (BCPO)
and the Request for Dismissal of Essex County Indictment No. 13-09-2148-I,
A-4485-17T3
3
made by the Essex County Prosecutor's Office (ECPO)2 on May 26, 2015, which
charged K.K. with three counts of first degree aggravated sexual assault,
N.J.S.A. 2C:14-2a(1), and three counts of second degree endangering the
welfare of a child, N.J.S.A. 2C:24-4a.
The Assistant Prosecutor who submitted the request to withdraw the
pending charges against K.K. provided the following explanation to the Essex
County Criminal Part Judge assigned to manage this case:
On April 29, 2015 this office received an affidavit from
[D.R.] indicating that her daughter had recently
disclosed to her that she had fabricated the charges
against her father [K.K.] She further indicated that her
daughter told her that she had learned the details from
her half-sister about [K.K.'s] prior conviction and
placement on Megan's Law [s]upervision. She
indicated that she did this because she was mad at her
father for being excessively strict with her. Based on
this affidavit both [D.R.] and her daughter were brought
into the prosecutor's office and re-interviewed. The
victim reiterated that she had fabricated the charges and
had used details garnered from her step-sister to make
these charges. [D.R.] also gave a sworn statement
indicating that she has not been in contact with
defendant and that he has not influenced the daughter.
This case relies solely on the testimony of the daughter
and while recantations are not uncommon with child
victims the victim in this case has been adamant that
2
For reasons not made clear in the record, Essex County was selected as the
venue for the prosecution of these criminal charges against K.K. The only
rational explanation is that the BCPO and ECPO reached an agreement pursuant
to Rule 3:14-1(a).
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4
these are false charges. Without any additional
corroboration the State will be unable to meet its burden
and therefore I respectfully request that these charges
be dismissed.
After carefully reviewing the evidence presented by the parties, Judge
Francois found the Division proved, by a preponderance of the evidence, that
K.K. sexually abused Elyssa when she was twelve years old. The judge found
this incestuous sexual assault by her biological father caused Elyssa great
emotional trauma. Judge Francois accepted the opinion of the mental health
professional, who testified at the fact-finding hearing, that Elyssa suffers from
adjustment disorder with anxiety and requires individual therapy. Based on
these findings, Judge Francois concluded there was a legal and factual basis to
continue the Division's oversight.
In this appeal, K.K. urges us to vacate the Family Part's judgment finding
that he sexually molested his biological daughter and remand this matter for a
new fact-finding hearing because Judge Francois denied his request to represent
himself, in violation of his constitutional and statutory rights. Furthermore,
K.K. argues that Judge Francois's factual findings and analysis of the evidence
were improperly influenced by expert testimony that relied on Child Sexual
Abuse Accommodation Syndrome (CSAAS), a psychological doctrine that our
Supreme Court recently found to be scientifically unsound and inadmissible in
A-4485-17T3
5
criminal cases. State v. J.L.G., 234 N.J. 265, 272 (2018). K.K. claims that
acceptance of either of these arguments requires that we vacate Judge Francois's
findings and remand this matter for a new fact-finding hearing.
We are not persuaded by K.K.'s arguments and affirm substantially for the
reasons expressed by Judge Francois in her well-reasoned memorandum of
opinion.
I
The Division filed a Verified Complaint on July 26, 2016 that recited in
great detail K.K.'s history of sexual abuse of his biological daughters. The
Complaint began with a referral the Division received from a healthcare
professional on May 24, 1993, that alleged "two children had been brought to
the emergency room because the six year old female child stated that 'Daddy
[K.K.] put his finger in her private part.'" The referral also alleges that the older,
seven-year-old girl said
that she heard the six year old child yell and it was
further reported that [K.K.] told the seven year old child
that if she told, he would beat her. It was noted that the
family had already been discharged from the hospital.
The Division's online case management records
database indicated that the allegations were
substantiated.
[(Emphasis added).]
A-4485-17T3
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The Complaint also included a referral the Division received on May 15,
2004 involving a domestic violence incident between K.K. and D.R. The
altercation occurred in the presence of Elyssa, who was then seven months old.
The Division alleged that K.K. "dragged" D.R. with such force that it caused
baby Elyssa "to fall to the ground during the incident." Although Elyssa was
remarkably unscathed, her mother D.R. suffered visible "scrapes and cuts." The
police officers who responded to the scene "arrested and charged [K.K.] with
[s]imple [a]ssault3 and [p]roviding [f]alse [i]nformation 4 and [he] was
incarcerated." Independent of the criminal offenses related to this incident, the
police also arrested K.K. on an outstanding warrant "for [f]ailure to [r]egister
under Megan's Law." 5
The Division sought a temporary judicial decree for the care and
supervision of Elyssa and her bother Erik. The Deputy Attorney General (DAG)
appeared on behalf of the Division; the Law Guardian appeared on behalf of the
3
See N.J.S.A. 2C:12-1a
4
See N.J.S.A. 2C:29-3.
5
Pursuant to N.J.S.A. 2C:7-2a, a person who has been convicted of one or more
of the sex offenses delineated in N.J.S.A. 2C:7-2b must register with law
enforcement as provided under N.J.S.A. 2C:7-2c and d. A person who fails to
register as required by law "shall be guilty of a crime of the third degree."
N.J.S.A. 2C:7-2a(3).
A-4485-17T3
7
children; and an attorney assigned by the Public Defender – Office of Parental
Representation (OPR) appeared on behalf of D.R., who was present in the
courtroom. When Judge Francois inquired as to K.K.'s whereabouts, the DAG
said that K.K. was "released from incarceration" on July 14, 2016. The Division
caseworker "has reached out to him on several occasions and has not had a
response. So his whereabouts are unknown at this time."
The DAG thereafter called Division caseworker Magdalena Sandoval to
establish the veracity of the allegations in the complaint.
Q. Now, the biological father of the children is [K.K.]
Is that correct?
A. Correct.
Q. And he is not present here today, correct?
A. Correct.
Q. And have you tried to contact him to notify him of
this hearing?
A. Yes. We did call. I called him.
Q. And were you able to get in touch with Mr. [K.]?
A. No. I left messages for him.
The OPR counsel representing D.R. apprised the court that her client
joined with the Division's application to obtain judicial restraints preventing
K.K. from having any contacts with her or the children. D.R.'s counsel also
A-4485-17T3
8
informed Judge Francois that K.K. "has been trying to reach her via telephone.
He's been calling her every day. She did go to the police and advise them and
it has been documented." Judge Francois made clear to D.R. that there was a
restraining order in effect. The judge also placed D.R. under oath, addressed
her directly, and told her: "It's important that you follow the case plan that you
entered with the [Division] representatives and not allow Mr. [K] to have any
contact with either [Elyssa or Erik]. Do you understand?" D.R. responded: "I
understand, Your Honor."
Judge Francois found sufficient credible evidence to substantiate the
issuance of restraints against K.K. The judge found that in the early morning of
July 11, 2016, police officers from the Englewood Police Department responded
to a domestic violence call from the home of D.R. The officers found K.K.
arguing with D.R. and the children. The officers arrested K.K. for vi olating an
active restraining order that was issued in February 2016. Although the children
were present at the time, they were not physically injured.
Of particular relevance here, Judge Francois found that
the family has a substantial and lengthy history with
[the Division] due to allegations of sexual abuse by
[K.K.] of [Elyssa] and his eldest daughters who are now
adults which occurred approximately 10 to 20 years
apart. Furthermore, there is [an] extensive history of
domestic violence between [K.K.] and [D.R.] dating
A-4485-17T3
9
back to May 20th, 2004 when [D.R.] obtained her first
initial Restraining Order.
Lastly, there have been allegations of substance abuse
by both parents, specifically marijuana and alcohol, and
physical abuse by [K.K.] Also, in 2008, [D.R.] and the
children [Elyssa and Erik] resided in a domestic
violence shelter in New York City for a short period of
time.
I am going to order that this matter be brought back on
August the 18th at 1:00 [p.m.]
Judge Francois characterized the August 18, 2016 hearing as the "Return
on the Order to Show Cause." The DAG appeared on behalf of the Division; the
Law Guardian entered her appearance on behalf of the children; and the OPR
counsel entered his appearance on behalf of D.R. Since the July 26, 2016
hearing, K.K. had not made any attempt to communicate with the court. Once
again, the record showed K.K. did not attend this hearing nor make any effort to
apply for representation by the OPR or retain private counsel.
The DAG reported to the court that "[t]he children continue in the care
and supervision of the Division [and] in the physical custody of [D.R.]," who
has met with the Division's domestic violence liaison. K.K. remained subject to
the court's restraining order and had not contacted the Division. The DAG made
the following representations to the court with respect to K.K.:
The Division has attempted to serve [K.K.] in Newark
on several occasions, however, we've been
A-4485-17T3
10
unsuccessful. The Sheriff's Department in Bergen
[County] cannot [serve] out of county so we . . . have
been using the Human Service Police to try to serve him
with the complaint.
The Division has attempted to contact [K.K.] via cell
phone on several occasions. His phone is now
disconnected.
D.R.'s counsel advised the court that in addition to the restraints imposed
against K.K. in this case, D.R. filed a domestic violence complaint against K.K.
and obtained a temporary restraining order (TRO). However, K.K. had not been
served with the domestic violence complaint or the TRO. Judge Francois
ordered psychological evaluations of the children and, at D.R.'s counsel's
request, ordered that the TRO issued against K.K. in the pending domestic
violence case "mirror" the restraints imposed in this case. Although the judge
scheduled a case management conference on October 13, 2016 at 1:30 p.m., the
court did not reconvene until November 3, 2016.
The November 3, 2016 case management conference was the first time
K.K. physically appeared before the Family Part since the Division filed the
verified abuse and neglect complaint on July 26, 2016. When the judge asked
K.K. if he was represented by counsel, he responded: "I'm not sure of what's
going on, Your Honor." The judge explained to K.K. that he needed to complete
the "5A form" to determine whether he is eligible to be represented by an OPR
A-4485-17T3
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attorney. The DAG stated for the record that the Division's investigation of the
sexual abuse allegations against K.K. had not been completed because his
"whereabouts had been unknown." The Division needed to interview K.K. about
Elyssa's allegations. BCPO detectives also planned to question K.K. later that
day.
In the course of this hearing, D.R.'s counsel asked the court to restrain
K.K. from having any contacts with D.R. pursuant to N.J.S.A. 9:6-8.55. The
DAG and Law Guardian joined D.R.'s counsel's request for restraints and added
that K.K. should also be restrained from having any contacts with the children.
In response to this application, Judge Francois addressed K.K. directly as
follows:
I am also telling you today, since you're unrepresented,
[K.K.], that you are going to be restrained from the
home where the children are living with their mother.
So you're not allowed to go there if you get released.6
And you are also restrained from any contact with the
children right now until I know what's going on from
the evaluations. Okay?
[(Emphasis added).]
At one point in the proceeding, the DAG advised the judge as follows:
DAG: Judge, [K.K.] had indicated to me that he does
not want to complete this application. He wants to
6
Based on the manner the judge phrased this statement, we infer K.K. was
detained at the time, most likely at the Essex County Correctional Facility.
A-4485-17T3
12
represent himself. I don't know if Your Honor wants to
hear him any further.
THE COURT: I strongly advise you against that. I
strongly advise you not to represent yourself. This is a
very serious matter regarding your rights as a parent.
[K.K.]: Okay.
THE COURT: And I strongly advise you to fill out the
form and you will be provided an attorney so that when
you have questions about what's going on in the
proceedings that you have someone to explain the
proceedings to you, to explain what your rights are
because this is a very serious matter. Okay?
[K.K.]: Okay.
THE COURT: So, please, sir, fill out the form and a
determination will be made whether or not you qualify
for a Public Defender. Okay?
[K.K.]: Okay, Your Honor.
THE COURT: Thank you, sir. We're going to come
back for another [c]ase [m]anagement [c]onference in
light of the fact that there's an ongoing investigation on
December 15th, [2016] at 9:00 [a.m.]
The judge scheduled another case management conference on December
15, 2016, in large part to allow the Division to continue its ongoing
investigation. K.K. did not appear at the December 15, 2016 case management
conference. However, an attorney from the OPR entered an appearance on his
behalf and requested the judge to reschedule the matter because the Essex
A-4485-17T3
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County Correctional Facility, where K.K. was detained at the time, had not
arranged for his appearance in court. Judge Francois granted K.K.'s counsel's
request and rescheduled the case management conference to December 22, 2016.
K.K. and his assigned OPR counsel were both present when the court
conducted the December 22, 2016 case management hearing. Although D.R.
was not present due to a scheduling conflict requiring her attendance at a
domestic violence counseling session, the court accepted her attorney's request
to waive her appearance. The DAG noted that all of the attorneys had received
a summary of the Division's investigation which substantiated Elyssa's claim
that she was sexually abused by her biological father. K.K.'s counsel
acknowledged receipt of the summary of the investigation and made clear that
K.K. denied the allegations and wanted to challenge the Division's conclusion
at a fact-finding hearing.
K.K.'s counsel raised a number of discovery issues that needed to be
addressed and resolved before the hearing. Specifically, K.K.'s OPR counsel
wanted the audio/video recording of Elyssa's interview by BCPO investigators
and "a copy of the [Division] file from 2013 to 2015." The DAG requested that
K.K.'s counsel "provide in writing a list of all of the items that she is requesting
here today." Although the record reflects some disagreement among the
attorneys about certain discovery matters, there is no evidence that K.K. was
A-4485-17T3
14
dissatisfied with his attorney or that he wanted to represent himself at the
forthcoming fact-finding hearing.
II
The fact-finding hearing began on March 7, 2017. After the attorneys
entered their appearance and indicated they were ready to proceed, K.K.'s OPR
counsel informed the court that K.K. wanted to address the court directly to
make an application. After the court clerk administered the oath required under
N.J.R.E. 603, K.K. addressed the court as follows:
Your Honor, with all due respect, I would like to
request the recusal of . . . my advocate . . . because I
believe there's been a conflict of interest in my situation
whereas, one, I have not obtained my full discovery.
Two, I feel the reason that she has brought to my
attention a new charge that [D.R.] put against me while
I was in jail and she said she couldn't do anything about
that so I feel I would be inadequately represented.
THE COURT: Okay. So, let me just say – let's start
with the easier -- the new charge. Why would [OPR
counsel] -- what new charge are you talking about?
[K.K.]: I was brought -- I was brought to Central
Judicial Processing where they said that [D.R.] applied
new charges against me. One, breaking into her house,
threatening to kill her . . . and stalking her.
....
THE COURT: Okay. These are criminal charges,
correct?
A-4485-17T3
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....
[K.K.]: Okay. Yes, Your Honor.
The judge explained to K.K. that OPR counsel did not represent him with
respect to the criminal charges, even if the criminal charges are based on the
same allegations the Division has made in this abuse and neglect case. The
judge further explained that the Office of the Public Defender would assign a
different attorney to represent him in the criminal case. Notwithstanding the
judge's explanation, K.K. stated: "Well, I don't feel that all my rights will be
adequately adjudicated to the [c]ourt." When the judge asked him to explain,
K.K. claimed his OPR attorney "brought discovery" about matters unknown to
him and in "piecemeal."
Judge Francois asked K.K. to identify the type of discovery he claimed he
did not have an opportunity to review, "[b]ecause right now you haven't said
anything to me to convince me that [OPR counsel] is not ready for trial." Unable
to provide a rational basis to question OPR counsel's competence or readiness
to represent him in the fact-finding hearing, K.K. nonetheless told the judge: "I
feel I need to . . . do this pro [se] [.]" The judge explained to K.K. that at this
point in the proceedings, she would not permit him to proceed pro se. However,
the judge told him that he could "supplement whatever questions you feel that
your attorney hasn't asked." Undeterred by the judge's willingness to
A-4485-17T3
16
accommodate his belated concerns, K.K. sought leave from the court to retain
private counsel:
[K.K.]: Okay. Well, is it possible that I can have an
attorney that I can feel comfortable with? Because my
. . . family was seeking to get a proper attorney for me.
And I don't know . . . like she repeatedly said she
doesn't know me. I don't know her. And I felt
uncomfortable. She made – you know, there have been
times I felt uncomfortable.
Judge Francois viewed this belated request as a subterfuge by K.K. to
delay the hearing. His history with the Division showed he did not have the
financial means to retain private counsel.
THE COURT: Sir, you know what? I . . . almost feel
like you're trying to prolong this longer than it needs to
be.
[K.K.]: No, Your Honor. I'm not.
THE COURT: Yes. Because this is not the first time
that you've appeared before me and this case has been
pending for a very long time and there needs to be some
sort of resolution of this matter.
You want to have your hearing. You're entitled to it. I
am going to give it to you. But you're not going to
advise the [c]ourt as to how it's going to conduct these
hearings.
And, frankly, you qualified for a Public Defender. They
appointed someone who is more than qualified. More
than qualified to represent you in these matters because
[OPR counsel] does this on a regular basis.
A-4485-17T3
17
Now, if she was frank with you I don't know. You don't
. . . disclose to me nor am I entitled to know what the
two of you have discussed, so I'm not going to ask you.
But to say that she's not qualified to do this trial, I
disagree with you.
This exchange between K.K. and the judge continued for several more
pages throughout the transcript without resolution. K.K. finally asked the judge
if he could represent himself. This prompted the following colloquy:
THE COURT: -- you can represent yourself pro se. I
strongly suggest that you not represent yourself pro se.
And I can still have [OPR counsel] sit here to help you
through the trial if you wish to take over as lead counsel
which I don't think is a good idea.
[K.K.]: I reserve all . . . my unalienable rights, Your
Honor.
THE COURT: I'm sorry?
[K.K.]: I'd like to reserve all my unalienable rights.
THE COURT: What does that mean?
[K.K.]: Right to confrontation. The right to proper –
THE COURT: You have those -- you have that right. I
agree. You do have that right. Now, the way –
[K.K.]: The right to private counsel.
Once again, the judge explained in great detail the role of the OPR
counsel, as licensed attorney, which included the formulation of questions to
witnesses to ensure adherence to the rules of evidence and judicial decorum;
A-4485-17T3
18
K.K. could suggest OPR counsel ask additional questions by writing them on a
piece of paper and showing it to her. The record shows that at the end of this
exchange, the DAG expressed her concerns that K.K. intended to raise his
conflict of interest claims as a potential basis for appeal. After a brief recess,
the judge again addressed K.K. directly with respect to his desire to represent
himself:
THE COURT: The [c]ourt has just told you that it's not
a good idea but you've said I would rather go pro se.
Represent yourself, correct?
[K.K.]: Yes, Your Honor.
THE COURT: Because you feel that she's not going to
do a good enough job and doesn't have your interests?
[K.K.]: It's not that. It's . . . first of all, I have all my
discovery. Second of all, my family plans to get . . . an
attorney for (inaudible).
THE COURT: Okay. But this is what I'm telling you.
I'm not delaying this trial today.
Despite her misgivings, the judge advised K.K. that she was willing to
reconsider her decision and allow him to represent himself. The judge
reiterated, however, that the one thing she would not do is delay the fact-finding
hearing.
THE COURT: We're going today. This has been on the
books for a long time. No prior motion had been made.
I am not going to delay this trial. If you want to
A-4485-17T3
19
represent yourself I'm going to relieve [OPR counsel]
and you can proceed with the trial representing
yourself.
[K.K.]: Or a proper attorney that I feel comfortable and
adequate with because I have that right.
THE COURT: You don't get to pick and choose your
Public Defender. Okay?
[K.K.]: Right. But my biggest thing is getting me a
lawyer.
THE COURT: You are appointed . . . a Public Defender
and [OPR counsel] has been representing you since the
beginning of this case when she was appointed by the
Public Defender's office. But you're not going to tell me
which Public Defender you're going to use. So you have
–
....
If I . . . may finish my thought? You have [OPR
counsel] who's been appointed to represent you through
the Public Defender's Office. If you don't want [OPR
counsel], that's fine. And you want to represent
yourself, that's fine. But those are your two choices
because we're going to have a trial today.
What do you want to do, sir? If you want to go pro se
as you indicated you wish to do we can go pro se. You
can represent yourself.
K.K. continued his defiance by engaging the judge in a nonsensical
discussion about the meaning of the term pro se. This combative exchange
A-4485-17T3
20
reached its climax when the court directed K.K. to provide a clear answer to the
following question:
THE COURT: No. No. I'm not going to delay this trial.
You have [an] adequate attorney because [OPR
counsel] is here. So you have an attorney. You have an
attorney through the Public Defender's office. You're
not going to pick and choose and delay this trial. So this
is -- I told you. Those are your two choices.
Do you want [OPR counsel] to stay on and represent
you or in the alternative, as you indicated earlier, you
wanted to represent yourself? You're entitled to do that.
So which one will it be?
[K.K.]: It's . . . clear, Your Honor, I don't know
everything, but I do know where I do need assistance.
And the fact of the matter is I would like to obtain a
lawyer I feel comfortable with without the feel of what
I've experienced already.
THE COURT: That's not an option, because you're not
delaying this case anymore.
[K.K.]: I'm not trying to delay the case. I just feel I need
adequate representation.
....
THE COURT: Those are your two choices. You want
to represent yourself you are entitled to do that. You
want an attorney. You have one that's been representing
you throughout the pendency of this case. You knew
about this trial. I'm not delaying the trial. Everybody is
here. The child was actually here yesterday but through
no fault of your own you were not produced.
[K.K.]: Okay. Proceed, Your Honor.
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21
At the conclusion of this exhaustive exchange, Judge Francois made the
following findings:
THE COURT: I think I've made it crystal-clear that the
defendant father indicated that he was going to proceed
with [OPR counsel] representing him because the
defendant father is not going to pick and choose who
from the Public Defender's Office he's going to have
represent him.
If he doesn't want [OPR counsel] he can move pro se
because he indicated at some point that he would . . .
rather represent himself. The [c]ourt advised him that
that was not a good idea in light of the seriousness of
what was going on today. And he has made a
determination that he was going to proceed with [OPR
counsel]. That's what . . . just . . . happened. So that the
record is clear.
DAG: Thank you. I just wanted the [c]ourt record on
that issue.
OPR COUNSEL: It is also my understanding that the
[c]ourt will permit [K.K.] and I time for him to write
down questions that I can read.
THE COURT: If he wishes to do so. Yes.
OPR COUNSEL: Thank you, Judge.
III
K.K. argues in this appeal that Judge Francois denied him his
constitutional and statutory rights to counsel. As the facts we have described at
length show, K.K.'s claim is without merit. This court recently reviewed and
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reaffirmed the basic principles underpinning a parent's right to counsel in cases
brought by the Division:
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).
[New Jersey Div. of Child Prot. & Permanency v.
A.O.J., ___ N.J. Super. ___, ___ (App. Div. 2020), (slip
op. at 40) (quoting N.J. Div. of Child Prot. &
Permanency v. G.S., 447 N.J. Super. 539, 555 (App.
Div. 2016)).]
Our Supreme Court has also made clear, however, that a parent's right to
self-representation in these Family Part proceedings "is by no means absolute."
N.J. Div. of Child Prot. & Permanency v. R.L.M. (In re R.A.J.), 236 N.J. 123,
132 (2018). A parent wishing to exercise this right of self-representation must
do so 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 self-representation 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."
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[Ibid. (quoting In re Adoption of a Child by J.E.V. and
D.G.V., 226 N.J. 90, 114 (2016)).]
Here, the facts show with unmistakable clarity that K.K.'s invocation of
his right to self-representation was made as a tactic to delay the court from
conducting the fact-finding hearing. Judge Francois took every reasonable
measure to explain to K.K. what his legal options were under the circumstances.
K.K. was duly represented by counsel assigned by the OPR. The facts here
speak for themselves. K.K.'s aspersions of a conflict of interest by OPR counsel
were baseless and properly rejected in a summary fashion by Judge Francois.
We are bound to uphold findings made by the judge if they are supported
by "adequate, substantial, credible evidence." N.J. Div. of Child Prot. and
Permanency v. S.K., 456 N.J. Super. 245, 261 (App. Div. 2018) (quoting Cesare
v. Cesare, 154 N.J. 394, 411-12 (1998)). Deference to a Family Part judge's
decisions are appropriate because these jurists have "specialized knowledge and
experience in matters involving parental relationships and the best interests of
children." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 427
(2012). We discern no legal basis to disturb Judge Francois's decision in this
respect.
Finally, K.K. argues that we should reverse and vacate Judge Francois's
findings that K.K. sexually abused his daughter Elyssa because the Division's
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expert witness who examined the child referred to CSAAS during her testimony.
The judge admitted Joanne Glaeser, a LCSW employed by the Audrey Hepburn
Children's House, as an expert in the field of child psychology. The judge found
Glaeser's "unrebutted testimony to be credible" and "very consistent with her
written report." The judge found Glaeser's "clinical impressions supported a
conclusion that [Elyssa] was sexually abused by her father and that she had been
exposed to domestic violence, pornography and child maltreatment, all
perpetrated by [K.K.]."
K.K.'s argument attacking Glaeser's testimony is predicated entirely on
J.L.G., in which the Court held:
Based on what is known today, it is no longer possible
to conclude that CSAAS has a sufficiently reliable basis
in science to be the subject of expert testimony. We find
continued scientific support for only one aspect of the
theory -- delayed disclosure -- because scientists
generally accept that a significant percentage of
children delay reporting sexual abuse.
We therefore hold that expert testimony about CSAAS
in general, and its component behaviors other than
delayed disclosure, may no longer be admitted at
criminal trials. Evidence about delayed disclosure can
be presented if it satisfies all parts of the applicable
evidence rule. See N.J.R.E. 702. In particular, the State
must show that the evidence is beyond the
understanding of the average juror.
[234 N.J. at 272 (emphasis added).]
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The Court published its decision in J.L.G. on July 31, 2018. Judge
Francois released her decision in this case on June 26, 2017, more than a year
before J.L.G. The clear language of the holding in J.L.G. limits its application
to criminal cases. 234 N.J. at 272. In State v. G.E.P., we accorded the Court's
holding in J.L.G. pipeline retroactivity and reversed four criminal convictions
"because the admission of CSAAS expert testimony in these four cases calls into
question the validity of each guilty verdict." 458 N.J. Super. 436, 443 (App.
Div.), certif. granted, 239 N.J. 598 (2019).
However, we do not need to decide whether we should follow G.E.P. here
and accord J.L.G. pipeline retroactivity. The plain language in J.L.G. indicates
that expert testimony predicated on CSAAS "may no longer be admitted at
criminal trials." 234 N.J. at 272. As an intermediate appellate court, we discern
no basis to extend the Court's holding in J.L.G. beyond criminal trials. The
remaining arguments raised by K.K. lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E). We affirm the Family Part's findings
that the Division proved, by a preponderance of the evidence, that K.K. sexually
abused his biological daughter Elyssa, as defined in N.J.S.A. 9:6-8.21c(3) and
-8.21c(4), for the reasons expressed by Judge Francois in her well-reasoned
memorandum of opinion dated June 26, 2017.
Affirmed.
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