July 25, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.W. AND A.R., MINORS.
On certification to the Superior Court, Appellate Division.
SYLLABUS BY THE COURT
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This is a parental termination case emanating from Essex County. After a lengthy trial, the trial court terminated B.R.'s rights to her children, A.W. and A.R. in a decision filed March 11, 2005. The court found that the New Jersey Division of Youth & Family Services (DYFS) had, by clear and convincing evidence, established multiple grounds for the termination.
B.R. appealed. As part of her arguments before that court, she contended that she had received ineffective assistance of counsel at the trial. Although the Appellate Division concluded that the claim was "legally inapplicable to this civil proceeding," the judges went on to note that on its merits, the representation of B.R. by counsel was not ineffective.
B.R. petitioned for certification. Her sole issue was the claimed ineffective assistance of counsel. The Supreme Court granted the petition.
HELD: Parents who are the subject of a termination action have the right to effective counsel. A claim of ineffective assistance of counsel is to be evaluated in light of the standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Such a claim must be raised on the parent's direct appeal from an order of termination.
1. All of the parties to the action now agree that a parent who is the subject of a termination action has the right to effective counsel. B.R. and amicus curiae Legal Services of New Jersey, Inc., argue that the right has a constitutional basis. DYFS takes the position that only a statutory right to counsel needs to be recognized. The Court concludes that the right to counsel in a termination case has both constitutional and statutory bases. (pp. 3-7)
2. In respect of a remedy, the ordinary response to a deficient performance by counsel in a civil context is a malpractice action for money damages. That has no resonance in an action for the termination of parental rights. Accordingly, the Court looks to the criminal law for a model. The parties differ on the standard to be used. DYFS argues that the two-part test of Strickland v. Washington, adopted by the United States Supreme Court in 1984, should apply. B.R. contends that the Strickland test does not go far enough to protect the liberty interest of parents who stand to lose their children. She would have the Court adopt an Oregon Supreme Court case that held the standard to be a determination of whether the proceeding was "fundamentally fair." (pp. 7-9)
3. Although the Court sees little practical difference between the two standards, it adopts the Strickland test because it is clear and familiar to judges and lawyers. Further, it carries a developed body of case law. The Court notes that it is following a majority of other jurisdictions in taking this action. (pp. 9-10)
4. The knottiest issue presented is the practical application of a post-trial remedy, given the time constraints that apply in a parental termination case because of a child's need for permanency. There are two approaches that can be used to raise the issue: direct appeals and various post-judgment motions in the trial court. Supporting the choice of the direct appeal as the proper method is the fact that in most cases it will take the least amount of time, thus enabling the child's circumstances to be stabilized more quickly. (pp. 10-13)
5. The Court acknowledges that there are practical considerations to be weighed. Although the Appellate Division will be able to decide many cases based on the record it has before it, occasionally a genuine issue of fact will require a temporary remand to the trial court for an accelerated hearing. Accelerated briefing would follow to minimize the delay in the final disposition of the matter. The Court is referring the subject to its Family Practice Committee for recommendations and codification of the expedited review process it has outlined. (pp. 13-14)
6. The Court has carefully reviewed the record in the within matter and has concluded that the representation B.R. received was not ineffective. The evidence amply supported the trial court's conclusions. (p. 14)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE ZAZZALI and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE LONG's opinion.
The opinion of the court was delivered by: Justice Long
Argued May 2, 2007
After a lengthy trial, B.R.'s parental rights to her children, A.W. and A.R., were terminated under N.J.S.A. 30:4C-15.1, on the ground that the New Jersey Division of Youth and Family Services (DYFS) had proven by clear and convincing evidence that the safety, health, and welfare of A.W. and A.R. had been and would continue to be endangered by B.R. because of her severe and persistent abuse and neglect of the children; that B.R. is unwilling or unable to provide a safe and stable home for the children; that further delay in permanency planning would add to that harm; that DYFS had made reasonable efforts to provide services to B.R.; that all other alternatives to termination were considered and deemed to be inappropriate; and that the termination of parental rights would not do more harm than good.
B.R. appealed.*fn1 The Appellate Division concluded that the trial judge's findings were fully supported by the record and rejected B.R.'s claims of ineffective assistance of counsel on the ground that that concept is "legally inapplicable to this civil proceeding, despite the important parental rights involved." The panel went on to note, however, that on the merits, B.R.'s representation was not ineffective.
B.R. filed a petition for certification claiming that she was entitled to and had been denied effective assistance of counsel in the termination proceeding. We granted the petition, 185 N.J. 393 (2005), and accorded amicus curiae status to Legal Services of New Jersey (Legal Services).
Although DYFS argued against B.R.'s entitlement to effective assistance of counsel before the Appellate Division, at this point, all parties agree that a parent who is the subject of a termination action has the right to the effective assistance of counsel. However, they reach that conclusion by different routes. B.R. and Legal Services point to the constitutional underpinnings of the right to counsel itself as the basis for the parallel right to effective assistance of counsel, whereas DYFS argues that we need only recognize the statutory right to counsel, adding that fairness requires that such counsel perform in an effective manner.
The parties also differ in respect of the standard against which effective assistance of counsel should be measured, with DFYS advancing the criminal standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and B.R. advocating for a more flexible approach. Finally, the parties disagree over whether B.R. was adequately represented below.
It is beyond dispute that the termination of parental rights implicates a fundamental liberty interest. Stanley v. Ill., 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972); Watkins v. Nelson, 163 N.J. 235, 245 (2000); cf. Doe v. Poritz, 142 N.J. 1, 120 (1995) (explaining need to determine whether practice "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental"); State v. Parker, 124 N.J. 628, 648 (1991) (same), cert. denied, 503 U.S. 939, 112 S.Ct. 1483, 117 L.Ed. 2d 625 (1992). This Court has emphasized: the inviolability of the family unit, noting that "[t]he rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights of man,' and '[r]ights far more precious than property rights.'" The interests of parents in this relationship have thus been deemed fundamental and are constitutionally protected. [N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986) (quoting Stanley, supra, 405 U.S. at 651, 92 S.Ct. at 1212, 31 L.Ed. 2d at 558))(citations omitted).]
Specifically, "[t]he right of a natural parent to its child must be included with the bundle of rights associated with marriage, establishing a home and rearing children." In re Adoption of Children by N.M., 96 N.J. Super. 415, 424 n.5 (App. Div. 1967).
In Pasqua v. Council, 186 N.J. 127 (2006), we recently recognized that the due process guarantee of Article I, paragraph 1 of the New Jersey Constitution serves as a bulwark against the loss of parental rights without counsel being afforded. Id. at 147 n.5 (citing Crist v. N.J. Div. of Youth & Family Servs., 135 N.J. Super. 573, 575 (App. Div. 1975) (explaining that courts "should assign counsel without cost to indigent parents who are subjected to proceedings which may result in either temporary loss of custody or permanent termination of their parental rights")); see also Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) (requiring counsel where "consequence of magnitude" at issue).
Indeed, the 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.
In furtherance of that notion, the Legislature has enacted N.J.S.A. 30:4C-15.4(a) that provides:
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.
In short, the right to counsel in a termination case has constitutional as well as statutory bases. Either way, the performance of that counsel must be effective. See, e.g., V.F. v. State, 666 P.2d 42, 45 (Alaska 1983) (holding because right to counsel is constitutionally guaranteed in parental termination proceeding, effective assistance of counsel is also constitutionally required); In re Trowbridge, 401 N.W.2d 65, 66 (Mich. Ct. App. 1986) (explaining axiom that constitutional right to counsel includes right to competent counsel); see also In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (finding statutory right to counsel in parental-rights termination cases embodies right to effective counsel); State ex rel. E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (holding statute implicitly guaranteed appointed counsel for parents in termination proceedings be effective).
We turn then to remedy. The ordinary remedy for deficient performance by counsel, a malpractice action for money damages, has no resonance where the termination of parental rights is involved. Indeed, a termination proceeding is unique because personal liberty is at stake; money cannot substitute for the loss and can never make the parent whole. Accordingly, we look across disciplines to the criminal law, where another form of personal liberty is at stake, for a model to assess and remedy an ineffective assistance claim.
DYFS urges that Strickland is the appropriate measure. Strickland, supra, sets forth a two-part test for establishing ineffectiveness of counsel: (1) counsel's performance must be objectively deficient--i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense --i.e., there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 697; accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard in New Jersey).
In Strickland, supra, the United States Supreme Court explained that in addition to being "highly deferential," "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 695. Further, that standard: relies  on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the [Sixth] Amendment envisions. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. [Id. at 688, 104 S.Ct. at 2065, 80 L.Ed. 2d at 693-94.]
B.R. counters that Strickland is inadequate in a termination case because it "does not go far enough to protect the liberty interest of individuals, who . . . stand to forever lose their fundamental right to parent their children." In re A.S., 87 P.3d 408, 413 (Mont. 2004). She instead points to the standard employed by the Oregon Supreme Court in State ex rel. Juvenile Dep't v. Geist, 796 P.2d 1193, 1203 (Or. 1990), which rejects the "more stringent" Strickland standard and looks to determine if the termination proceeding was "fundamentally fair." Both Strickland and Geist look first to the performance of counsel. However, they articulate the prejudice prong slightly differently. Strickland, supra, describes it as requiring a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Under Geist, supra, the attorney's performance must deny the parent a fair trial and be sufficiently poor to place the decision "in to serious question." 796 P.2d at 1204.
We see little practical difference between the standards, see L.W. v. Dep't of Children & Families, 812 So.2d 551, 556 (Fla. Dist. Ct. App. 2002) (explaining "[i]t is not clear to us how these civil standards of ineffective assistance of counsel [employed in Oregon, Washington, and Missouri] differ in practice from the criminal standard announced in Strickland"), overruled on other grounds, S.B. v. Dep't of Children and Families, 812 So. 2d 551 (Fla. 2002). Although Geist may be slightly more flexible than Strickland, the distinction is, to us, inconsequential. Given the parallels between the two standards and the fact that Strickland is clear, familiar to lawyers and judges, and carries with it a developed body of case law, we adopt that as the standard in parental termination cases.
We note that in doing so, we follow the majority of other state courts that have addressed the issue of ineffective assistance of counsel in a termination of parental rights setting. As we do here, nearly all have employed the Strickland standard. See, e.g., Jones v. Ark. Dep't of Human Servs., 205 S.W.3d 778 (Ark. 2005); L.W., supra, 812 So.2d at 556 (citing People in Interest of V.M.R., 768 P.2d 1268, 1270 (Colo. Ct. App. 1989); State v. Anonymous, 425 A.2d 939, 942-43 (Conn. 1979); In the Interest of A.H.P., 500 S.E.2d 418, 421-22 (Ga. Ct. App. 1998); In re R.G., 518 N.E.2d 691, 700-01 (Ill. App. Ct. 1988); In re J.T., 740 N.E.2d 1261, 1265 (Ind. Ct. App. 2000), transfer denied, 753 N.E.2d 13 (Ind. 2001); In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988); In re Rushing, 684 P.2d 445, 449-50 (Kan. Ct. App. 1984); In re Stephen, 514 N.E.2d 1087, 1091 (Mass. 1987); In re Trowbridge, supra, 401 N.W.2d at 66; In re Bishop, 375 S.E.2d 676, 678-79 (N.C. Ct. App. 1989); In re K.L.C. v. Oklahoma, 12 P.3d 478, 480-81 (Okla. Civ. App. 2000); E.H., supra, 880 P.2d at 13; In re M.D., 485 N.W.2d 52, 55 (Wis. 1992)).
The knottiest issue presented is the practical application of a post-trial remedy, given the time constraints that apply in a parental termination case because of a child's need for permanency.
There are two basic paradigms for raising the issue: direct appeal and post-judgment motion in the trial court. The vast majority of states utilize the first route. See, e.g., In re A.L.E., 546 S.E.2d 319, 325 (Ga. Ct. App. 2001) (allowing ineffectiveness claims to be raised on direct appeal but remanding for evidentiary hearing upon determining record inadequate); In re C.N.W., 26 S.W.3d 386, 393 (Mo. Ct. App. 2000) (holding claims must be raised on direct appeal or waived); Geist, supra, 796 P.2d at 1201 (instructing cases to be heard on direct appeal because of need for finality and because protracted litigation is not in interest of child, natural parents, or prospective adopting parents); In re Adoption of T.M.F., 573 A.2d 1035, 1043 (Pa. Ct. Super. 1990) (finding direct appeal appropriate because expeditious); People ex rel. V.A.E.Y.H.D., 605 P.2d 916, 919 (Colo. 1980) (considering claim of ineffective assistance of counsel in parental termination case on direct appeal).*fn2
Underlying the choice of direct appeal as a vehicle for determining an ineffectiveness claim is the notion that, in most cases, it will consume the least amount of time. This is particularly important because of the need to stabilize the circumstances of the child. The longer there is uncertainty about whether a termination order will withstand appeal, the longer the child remains in limbo. The longer the child remains in limbo, the greater the possibility of emotional damage to the child; and the longer the child remains in the foster care system, the greater the financial burden upon the state. Furthermore, the longer the uncertainty about the finality of the termination order, the less likely it is that prospective adopting parents will come forward. From the parents' standpoint, the longer an erroneous termination order remains in effect, the more detrimental it is to them and their relationship with the child. This is because, in all likelihood, once the termination order is entered, the parents are not permitted to have contact with the child and the services that they may have been receiving previously from the state agency will have been terminated.
A direct appeal is likely to be faster than either a post-judgment motion or a habeas proceeding in most cases. The direct appeal has the time limits imposed by the statutes and rules governing appeals, and the majority of states have enacted expedited procedures for appeals of termination orders. [Susan Calkins, Ineffective Assistance of Counsel in Parental-Rights Termination Cases: The Challenge for Appellate Courts, 6 J. App. Prac. & Process 179, 207 (2004); see also Geist, supra, 796 P.2d at 1200-01.]
Although arguments can be made for other modalities, see Calkins, supra, 6 J. App. Prac. & Process at 203-06, the preference for direct appeal is persuasive to us. Accordingly, we direct that claims of ineffective assistance of counsel in termination cases be raised on direct appeal.
As a practical matter, the appeal must be filed by an attorney other than trial counsel. Further, appellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.
In many cases, the issue will be resolvable on the appeal record alone. For example, if the panel accepts as true appellant's representations regarding the lawyer's shortcomings but determines, on the basis of the full record, that the outcome would not have changed, that will be the end of it. However, in some cases, a genuine issue of fact may require resolution. In such instances, the panel should, in advance of rendering a full opinion, remand the case to the trial judge for an accelerated hearing (to be completed in no more than fourteen days) followed promptly by an oral decision on the record. The parties should then be permitted simultaneously to exchange supplemental appellate briefs within seven days. Thereafter, the Appellate Division should render an opinion on all issues, including the effectiveness of counsel, as expeditiously as possible.
We anticipate that, with the benefit of experience, there may be a need for modification of the scheme. In the interim, we are satisfied that approaching the issue of effective assistance of counsel during the direct appeal process (which the Appellate Division has already accelerated in consideration of the time constraints that permanency hearings require) is the most timely and efficient method for resolving that important issue. We refer the matter to the Committee on Family Practice for recommendations on the codification of the scheme we have set forth here.
We turn finally to B.R.'s claim that she was not adequately represented below. We have carefully reviewed this record in light of that contention and conclude that it is legally unavailing. We are satisfied, as was the Appellate Division, that the representation B.R. received, although perhaps not a model, was not ineffective and further that the evidence amply supported the trial judge's conclusions.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE ZAZZALI and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LONG's opinion.
Chief Justice Zazzali PRESIDING